Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion;^[1] (b) Motion for Reconsideration;^[2] (c) Supplement to Motion for Reconsideration;^[3] (d) Motion To Set for Oral Arguments.^[4]

The Omnibus Motion

The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which granted the petitioners' motion for reconsideration. The respondent thereafter prays to allow Associate Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C. Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner, participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for Reconsideration. The respondent points out that the aforenamed members of the Court were appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09-SC^[5] specifically provides that it applies only to the divisions of the Court, it should likewise apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for reconsideration and its supplement. As such, according to the respondent, the instant case should be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court.

The Court resolves to deny the respondent's motion for lack of merit.

The records show that as early as May 24, 2002, the respondent filed an urgent motion for the recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit themselves and decided to participate in the deliberation on the petition.^[6] On March 18, 2003, the respondent filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on account of his voluntary inhibition when the case was pending before the Court of Appeals.

On March 25, 2003, this Court issued a resolution denying the respondent's Motion dated March 18, 2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution of the Court in which he prayed, inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of the Court who had actually participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the reason that they were appointed to the Court after the oral arguments on February 19, 2002 and after the case had already been submitted for decision.

On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the respondent.^[7] The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned to the divisions of the Court:

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

The Court also ruled that there was no need for its newest members to inhibit themselves from participating in the deliberation of the respondent's Motion for Reconsideration:

Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not yet members of the Court during the February 18, 2002^[9] oral arguments before the Court, nonetheless they were not disqualified to participate in the deliberations on the petitioner's motion for reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for reconsideration of the respondent. When the Court deliberated on petitioners' motion for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court.

It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing and oral arguments of the parties are parts of the records of this case. Said transcripts are available to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the said transcripts and the records of this case they are informed of what transpired during the hearing and oral arguments of the parties.^[10]

It is thus clear that the grounds cited by the respondent in his omnibus motion had already been passed upon and resolved by this Court. The respondent did not make any new substantial arguments in his motion to warrant a reconsideration of the aforesaid resolutions.

Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna only after they had already concurred in the Court's Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be denied when filed after a member of the Court has already given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to speculate upon the action of the Court, only to raise an objection of this sort after a decision has been rendered.^[11]

The Motion to Set the Case for
Oral Arguments

The Court denies the motion of the respondent. The parties have already extensively discussed the issues involved in the case. The respondent's motion for reconsideration consists of no less than a hundred pages, excluding the supplement to his motion for reconsideration and his reply to the petitioners' comment on his motion. There is no longer a need to set the instant case for oral arguments.

The Issue as to the Application of
the Time-bar under Section 8,
Rule 117 of the Revised Rules of
Criminal Procedure - Whether
Prospective or Retroactive

The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter reinstate its Resolution of May 28, 2002.

He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied prospectively and retroactively without reservations, only and solely on the basis of its being favorable to the accused. He asserts that case law on the retroactive application of penal laws should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional right of the accused to a speedy disposition of his case. It is primarily a check on the State to prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no other conclusion: the rule should have retroactive application, absent any provision therein that it should be applied prospectively. Accordingly, prospective application thereof would in effect give the petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus violating the respondent's right to due process and equal protection of the law.

The respondent asserts that Section 8 was meant to reach back in time to provide relief to the accused. In this case, the State had been given more than sufficient opportunity to prosecute the respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir, Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed to derail his bid for the Senate.

In their comment on the respondent's motions, the petitioners assert that the prospective application of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in part that the rules of procedure which the Court may promulgate shall not diminish, increase or modify substantial rights. While Section 8 secures the rights of the accused, it does not and should not preclude the equally important right of the State to public justice. If such right to public justice is taken away, then Section 8 can no longer be said to be a procedural rule. According to the petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not be given a retroactive application. They contend that the right of the accused to a speedy trial or disposition of the criminal cases applies only to outstanding and pending cases and not to cases already dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of conducting a preliminary investigation, and not the actual filing of the criminal complaint or information in court for trial. Furthermore, according to the petitioners, the offended parties must be given notices of the motion for provisional dismissal of the cases under Section 8 since the provision so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into consideration, the two-year period had not yet even commenced to run.

In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is proscribed from refiling a criminal case if it can be shown that the delay resulted in a violation of the right of the accused to due process. In this case, there was an inordinate delay in the revival of the cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the petitioners' contention, the respondent posits that the revival of the cases contemplated in Section 8 refers to the filing of the Informations or complaints in court for trial. The operational act then is the refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the two-year bar.

The Court finds the respondent's contentions to be without merit.

First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution which reads:

(5)

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. It must be noted that the new rule was approved by the Court not only to reinforce the constitutional right of the accused to a speedy disposition of the case. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. The Court emphasized in its assailed resolution that:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.^[12]

In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background or precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.^[13]

Matters of procedure are not necessarily retrospective in operation as a statute.^[14] To paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of adherence may make a choice for itself between the principle of forward operation and that of relating forward.^[15]

The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144 of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion their application would not be feasible or would work injustice, in which event, the former procedure shall apply.^[16]

The absence of a provision in Section 8 giving it prospective application only does not proscribe the prospective application thereof; nor does it imply that the Court intended the new rule to be given retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should be construed as is conducive to fairness and justice, and in harmony with the general spirit and policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose.^[17] A statute derives its vitality from the purpose for which it is approved. To construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law.^[18] In Cometa v. Court of Appeals,^[19] this Court ruled that "the spirit rather than the letter of the statute determines its construction; hence, a statute must be read according to its spirit or intent."^[20] While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth, to give effect to the lawmaker's will."^[21]

In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the State's right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as the respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs.

Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express consent of the accused in 1997. The prosecution had the right to revive the case within the prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1, 2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal case before then.

If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State would be barred from reviving the case for failure to comply with the said time-bar, which was yet to be approved by the Court three years after the provisional dismissal of the criminal case. In contrast, if the same case was dismissed provisionally in December 2000, the State had the right to revive the same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and anticipate that three years after 1997, the Court would approve and amend the RRCP. The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must be stressed that the institution and prosecution of criminal cases are governed by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by a capricious retroactive application of the new rule.

In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus:

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice.

The period from April 1, 1999 to November 30, 1999^[22] should be excluded in the computation of the two-year period because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it was negligent for not reviving them within the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v. People, 351 US 12 (1956):

We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights ...

The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship" to the State and adversely affect the administration of justice in general and of criminal laws in particular.^[23]

Further quoting Justice Felix Frankfurter's opinion in Griffin v. People,^[24] he said, "it is much more conducive to law's self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law has been luminously expounded by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court."

Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir, Jr. could not have been expected to comply with the notice requirement under the new rule when it yet had to exist:

99. Respondent submits that the records are still in the same state of inadequacy and incompletion. This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999, when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it yet had to exist?^[25]
    

Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent, procedural laws are retroactive.^[26] Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos. Q-99-81679 and Q-99-81689 had long since been terminated. The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court applied Section 8 of Rule 110^[27] of the RRCP retroactively, it did so only to cases still pending with this Court and not to cases already terminated with finality.

The records show that after the requisite preliminary investigation conducted by the petitioners in accordance with existing rules, eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in the Constitution had been violated.^[28]

The respondent's plaint that he was being singled out by the prospective application of the new rule simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for the presidency of the Republic for the 2004 elections has no factual basis whatsoever.^[29] The bare and irrefutable fact is that it was in this case where the issue of the retroactive/prospective application of the new rule was first raised before the Court. The ruling of the Court in its April 1, 2003 Resolution and its ruling today would be the same, regardless of who the party or parties involved are, whether a senator of the Republic or an ordinary citizen.

The respondent's contention that the prospective application of the new rule would deny him due process and would violate the equal protection of laws is barren of merit. It proceeds from an erroneous assumption that the new rule was approved by the Court solely for his benefit, in derogation of the right of the State to due process. The new rule was approved by the Court to enhance the right of due process of both the State and the accused. The State is entitled to due process in criminal cases as much as the accused.

Due process has never been and perhaps can never be precisely defined. It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty.^[30] In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed. In this case, in holding that the new rule has prospective and not retroactive application, the Court took into consideration not only the interests of the respondent but all other accused, whatever their station in life may be. The interest of the State in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered.

The Respondent Failed to Comply
with the Essential Prerequisites of
Section 8, Rule 117 of the Revised
Rules of Criminal Procedure

The respondent argues that the issue involved in the Court of Appeals is entirely different from the issue involved in the present recourse; hence, any admissions he made in the court below are not judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was barred by Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the appellate court are different from those in this Court.

The respondent posits that this Court erred in giving considerable weight to the admissions he made in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only be used against a party if such admissions are (a) made in the course of the proceedings in the same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause, Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers that his motion included the general prayer "for such other reliefs as may be equitable in the premises." The respondent also points out that the public prosecutor agreed to the averments in his motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.'s order dismissing the cases.

The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice requirements of Section 8. Echoing the May 28, 2002 ruling of this Court, the respondent contends that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir, Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of probable cause.

The respondent avers that the requirement for notices to the offended parties under Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the State and the role of the private complainant is limited to the determination of the civil liability of the accused. According to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the offense is under the control and direction of the public prosecutor.

The contentions of the respondent have no merit.

First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil Case No. 01-100933,^[31] the respondent^[32] sought injunctive relief from the RTC of Manila on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP.^[33] When the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA, again invoking his right against double jeopardy, praying that:

13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the reasons mentioned, there currently exists no complaint upon which a valid investigation can be had in light of the clear provisions of Rule 110 which requires the existence of a "sworn written statement charging a person with an offense" as basis for the commencement of a preliminary investigation under Rule 112.

For petitioner, the investigation covers exactly the same offenses over which he had been duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in jeopardy of being twice punished therefor (Article III, §21, Constitution).^[34]

The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer be charged and prosecuted anew for the same offense without violating his right against double jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP:

(e) the new criminal cases for Murder filed by respondents against petitioner and the other accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years after such dismissal in accordance with the clear provisions of Section 8, Rule 117.^[35]

Indeed, the CA granted the respondent's petition based on Section 8, Rule 117 of the RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy:

JUSTICE PANGANIBAN:
	You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the killing of the 11 in 1995?
ATTY. FORTUN:
	That is my submission, Your Honor.
JUSTICE PANGANIBAN:
	Let us see your reason for it?
ATTY. FORTUN:[36]
	First, are you saying that double jeopardy applies or not?
JUSTICE PANGANIBAN:[37]
	Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my submission.
ATTY. FORTUN:[38]
	No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the doctrine of double jeopardy?
ATTY. FORTUN:
	Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted)
JUSTICE PANGANIBAN:
	That is right.
ATTY. FORTUN:
	They are two different claims.
JUSTICE PANGANIBAN:
	That is what I am trying to rule out so that we do not have to discuss it.
ATTY. FORTUN:
	Very well, Your Honor.
JUSTICE PANGANIBAN:
	You are not invoking double jeopardy?
ATTY. FORTUN:
	As I mentioned we are saying that the effects of a permanent dismissal vest the effects (interrupted)
JUSTICE PANGANIBAN:
	No, I am not talking of the effects, I am asking about the application, you are not asking the Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson?
ATTY. FORTUN:
	Because the element of double jeopardy cannot apply 8, 117.
JUSTICE PANGANIBAN:
	So, the answer is yes?
ATTY. FORTUN:
	No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of double jeopardy upon the accused who invokes it.
JUSTICE PANGANIBAN:
	What you are saying is the effects, I am not asking about the effects, I will ask that later.
ATTY. FORTUN:
	They are two different (interrupted)
JUSTICE PANGANIBAN:
	Later, I am asking about doctrines. Since you are not invoking the doctrine of double jeopardy you are resting your case win or lose, sink or sail on the application of 8,117?
ATTY. FORTUN:
	On the constitutional right of the accused under Section 16 of Article 3 which is speedy disposition of cases which implemented 8,817, that is our arguments in this bar.
JUSTICE PANGANIBAN:
	Are you not resting on 8,117?
ATTY. FORTUN:
	That and the constitutional provision, Your Honor.
JUSTICE PANGANIBAN:
	So, you are resting on 8,117?
ATTY. FORTUN:
	Not exclusive, Your Honor.
JUSTICE PANGANIBAN:
	And the Constitution?
ATTY. FORTUN:
	The Constitution which gave life to 8,117.
JUSTICE PANGANIBAN:
	To speedy disposition?
ATTY. FORTUN:
	Yes, Your Honor.
JUSTICE PANGANIBAN:
	Can a Court, let us see your theory then - your theory rest on two provisions: first, the Rules of Court 8,117 and Second, the Constitution on speedy disposition?
ATTY. FORTUN:
	Yes, Your Honor.[39]

Second. The respondent's answers to the questions of Madame Justice Josefina Salonga during the hearing in the CA where he admitted, through counsel, that he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus:

JUSTICE SALONGA:
	Do we get it from you that it is your stand that this is applicable to the case at bar?
ATTY. FORTUN:
	It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr. Lacson is covered by the rule on double jeopardy as well, because he had already been arraigned before the Sandiganbayan prior to the case being remanded to the RTC.
JUSTICE SALONGA:
	You are referring to those cases which were dismissed by the RTC of Quezon City.
ATTY. FORTUN:
	Yes, Your Honor.
JUSTICE SALONGA:
	And it is your stand that the dismissal made by the Court was provisional in nature?
ATTY. FORTUN:
	It was in that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial.
JUSTICE SALONGA:
	And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except [if] it is with the express conformity of the accused.
ATTY. FORTUN:
	That is correct, Your Honor.
JUSTICE SALONGA:
	And with notice to the offended party.
ATTY. FORTUN:
	That is correct, Your Honor.
JUSTICE SALONGA:
	Was there an express conformity on the part of the accused?
ATTY. FORTUN:
	There was none, Your Honor. We were not asked to sign any order, or any statement which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal.[40]

The respondent, through counsel, even admitted that despite his plea for equitable relief in his motion for a judicial determination of probable cause in the RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of probable cause. He asserted that the judge did not even require him to agree to a provisional dismissal of the cases:

JUSTICE ROSARIO:
	You were present during the proceedings?
ATTY. FORTUN:
	Yes, Your Honor.
JUSTICE ROSARIO:
	You represented the petitioner in this case?
ATTY. FORTUN:
	That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case.
JUSTICE GUERRERO:
	Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause?
ATTY. FORTUN:
	Yes, Your Honor.
JUSTICE GUERRERO:
	Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do?
ATTY. FORTUN:
	That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: "Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident."
JUSTICE GUERRERO:
	There is no general prayer for any further relief?
ATTY. FORTUN:
	There is but it simply says other equitable reliefs are prayed for.
JUSTICE GUERRERO:
	Don't you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case?
ATTY. FORTUN:
	Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal.
JUSTICE GUERRERO:
	If you did not agree to the provisional dismissal, did you not file any motion for reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed?
ATTY. FORTUN:
	I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client.
JUSTICE GUERRERO:
	Continue.[41]

In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSG's claim.^[42]

Section 4, Rule 129 of the Revised Rules of Court reads:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a party's attorney during such judicial proceedings, including admissions in pleadings made by a party.^[43] It may occur at any point during the litigation process. An admission in open court is a judicial admission.^[44] A judicial admission binds the client even if made by his counsel.^[45] As declared by this Court:

... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of dispensing with proof of some fact, ... they bind the client, whether made during, or even after the trial."^[46]

When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent.

The respondent's contention that his admissions made in his pleadings and during the hearing in the CA cannot be used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so hold him in the proceedings before this Court. As categorically stated in Habecker v. Clark Equipment Company:^[47]

... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client during a trial, are binding "for the purpose of the case ... including appeals."

While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even a cursory reading of the respondent's motion for a judicial determination of probable cause will show that it contained no allegation that there was no probable cause for the issuance of a warrant for the respondent's arrest as a prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the court to grant such relief.^[48] A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and void.^[49]

Third. There is no need for the Court to remand the instant case to the trial court to enable the respondent to adduce post facto evidence that the requisite notices under Section 8 had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from the Sandiganbayan and the RTC^[50] and found no proof that the requisite notices were even served on all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28, 2002 Resolution, "Judge Agnir, Jr. could not have complied with the mandate under Section 8 because said rule had yet to exist."^[51]

One final matter. The records show that Criminal Cases Nos. 01-101102 to 01-101112 were assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same branch which dismissed Criminal Cases Nos. 99-81679 to 99-81689.^[52] In the April 1, 2003 Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed to try and decide Criminal Cases Nos. 01-101102 to 01-101112 with reasonable dispatch. The Court notes, however, that in Administrative Order No. 104-96, it designated six branches of the RTC of Quezon City^[53] as special courts, exclusively to try and decide heinous crimes under Rep. Act No. 7659. Since the accused in the said cases are charged with murder, which under Rep. Act No. 7659, is classified as a heinous crime, the above cases should be consolidated and re-raffled by the Executive Judge of the RTC of Quezon City to a branch thereof designated as a special court, exclusively to try and decide heinous crimes.

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

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez, Carpio-Morales, and Azcuna, JJ., concur.
Puno, J., maintains his dissent.
Vitug, J., maintains his dissent and reiterate his opinion on the Court's resolution of 28 May 2002.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.
Carpio, and Tinga, JJ., no part.
Corona, J., on leave.

---

^[1] Rollo, Vol. III, pp. 1563-1570.

^[2] Id. at 1391-1491.

^[3] Id. at 1513-1529.

^[4] Id. at 1493.

^[5] Rules on Who Shall Resolve Motions for Reconsideration in Cases Assigned to the Divisions of the Court, effective April 1, 2000.

^[6] Rollo, Vol. II, p. 1179.

^[7] Rollo, Vol. III, p. 1496.

^[8] Id. at 1501.

^[9] February 18, 2002 should read February 19, 2002.

^[10] Id. at 1500-1501.

^[11] Limpin, Jr. v. Intermediate Appellate Court, 161 SCRA 83 (1988).

^[12] Rollo, Vol. II, p. 1342.

^[13] Stovall v. Denno, 18 L.Ed.2d. 1199 (1967).

^[14] United States Fidelity & Guarantee Company v. United States, 52 L.Ed. 804 (1908).

^[15] Great Northern Railway Company v. Sunburst Oil & Refining Company, 77 L.Ed. 360 (1932).

^[16] Rule 144, Rules of Court, as amended:

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply.

^[17] Age-Herald Publishing Co. v. Huddleston, 92 So. 193 (1921).

^[18] Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001).

^[19] 351 SCRA 294 (2001).

^[20] Id. at 304.

^[21] Id.

^[22] November 30, 1999 should read November 30, 2000.

^[23] Resolution dated April 1, 2003, pp. 25-26; Rollo, Vol. II, pp. 1343-1344.

^[24] Supra.

^[25] Rollo, Vol. III, p. 1448.

^[26] Tan v. Court of Appeals, G.R. No. 136368, January 16, 2002.

^[27] SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

^[28] U.S. v. Panczko, 367 F. 2d. 737 (1966).

^[29] In its April 29, 2003 Resolution, the respondent's allusion of loud whispers caused by a suspicion that this Court or any member of this Court had been manipulated by politics in this government was rejected by the Court, thus:

"The respondent's allusion of loud whispers caused by a suspicion that this Court or any member of the Court had been manipulated by politics in this government when it resolved to set aside its 28 May 2002 Resolution is downright irresponsible. Not too long ago, a distinguished member of the Court said:

Those who wear the black robes are enrolled in a noble mission; become different persons; forfeit their past activities, friends and even relatives; and devote full time, attention and effort to the rather reclusive and exclusive world of decision-making....

Quoting Rufus Choate, in part, a judge or justice in administering justice "shall know nothing about the parties, everything about the case. He shall do everything for justice; nothing for himself; nothing for his friend; nothing for his patron; nothing for his sovereign." All members of the Court acted on and resolved petitioners' motion for reconsideration as well as respondent's motion to recuse Justice Callejo, Sr. in light of their respective study of the records and the relevant laws and rules after due deliberation.... (Rollo, Vol. III, p. 1499).

^[30] Lassite v. Department of Social Services, 68 L.Ed.2d. 640 (1981).

^[31] Entitled and docketed as Lacson v. Department of Justice, Civil Case No. 01-100933 for prohibition with a prayer for a temporary restraining order. (CA Rollo, p. 29).

^[32] There were 27 accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. Except for Inspector Manuel Alvarez, the said accused were also charged in Criminal Cases Nos. 01-101102 to 01-101112. Only the respondent filed his petition in said case.

^[33] SEC. 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:

(a) the greater offense developed due to supervening facts arising from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in Section 1(f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

^[34] CA Rollo, pp. 8-9. (Underscoring supplied).

^[35] Id. at 110.

^[36] This should read "Justice Panganiban."

^[37] This should read "Atty. Fortun."

^[38] This should read "Justice Panganiban."

^[39] TSN, 19 February 2002, pp. 220-225. (Underscoring supplied).

^[40] TSN (CA Rollo), 31 July 2001, pp. 12-14. (Underscoring supplied).

^[41] Ibid., pp. 15-18. (Emphasis ours).

^[42] Memorandum of Petitioner; CA Rollo, p. 378.

^[43] Am Jur, Evidence, §770.

^[44] Ibid. §771.

^[45] Glick v. White Motor Company, 458 F.2d. 1287 (1972).

^[46] People v. Hernandez, 260 SCRA 25 (1996), citing 31 C.J.S. 537.

^[47] 797 F.Supp. 381 (1992), citing Glick v. White Motor Co., supra.

^[48] Branz v. Hylton, 265 N.W. 16 (1936).

^[49] 15 Ruling Case Law, 854 and 328.

^[50] The records from the Sandiganbayan and the RTC which were elevated to this Court consisted of 11 volumes plus 11 additional folders per Letter dated April 26, 2002.

^[51] Motion for Reconsideration, p. 33; Rollo, Vol. III, p. 1423; Consolidated Reply, p. 28.

^[52] Rollo, Vol. I, p. 465.

^[53] Branches 76, 86, 95, 102, 103 and 219.

---

DISSENTING OPINION

This is to reiterate my dissent to the unbelievable about-face by the Court in the April 1, 2003 Resolution confirmed and renewed in its latest Resolution.

The reasons for this continuing dissent are basically similar to those expressed in three Dissenting Opinions to the April 1, 2003 Resolution.^[1] Nothing has changed in the history of the charges against Senator Panfilo M. Lacson except the disturbing and unusual ruling of this Court now.

If the charges against Senator Lacson are to be relentlessly pursued, the pursuit must be done in a constitutional and fair manner. It is the use of legal short-cuts, pained reasoning and the hasty procedure after several years of inaction which constrain this dissent. If Senator Lacson is to be found guilty of participation in multiple murder, it should be only after due process is followed.

The new majority Resolution is a volte-face, a complete turn-around from the previously unanimous judgment dated May 28, 2002.

The 2002 Resolution of the Court remanded the Government's petition to the Regional Trial Court of Quezon City to ascertain important factual issues. The Resolution was concluded beyond doubt or ambiguity without any dissenting vote.

The issues sought to be revived were all resolved two years ago. What the Court unanimously retired should be allowed to rest. Instead, the Court now wants to allow the use of the strong arm of the law to oppressively prosecute and persecute.

If the petitioners can show strong compelling reasons, newly discovered, or some deeply held convictions based on a genuine sense of justice or irresistible considerations of equity, I could concur to ignore established procedure.

Unfortunately, all I can discern here is allowing the use of the strong arm of the law to oppressively prosecute a public officer whom the powers-that-be detest and whom they seek to render completely ineffective.^[2]

In the April 1, 2003 Resolution, I concurred with Mme. Justice Angelina Sandoval-Gutierrez who, like me, started her long judicial career as a municipal trial judge and, later, judge of a regional trial court. I agreed with the conclusion that the petitioner's right to speedy trial and speedy disposition of cases were violated and the filing of new informations constitute persecution. I concurred that in the prosecution of an accused he must not be perceived as an intractable enemy, and that the over-eagerness to prosecute respondent is a clear example of persecution.

There is nothing in the pleadings after our dissent to the April 1, 2003 Resolution or in the discussions of the respondent's motion for reconsideration that shows our May 28, 2002 Resolution was wrong or that the Court was correcting an injustice when it suddenly reversed itself.

Respondent stresses the need for compliance with the rule of law, the primacy of the Constitution over acts of State, and the independence of the judiciary. When respondent urges the Court to remember that it is not a trier of facts, he raises a fundamental threshold question. It involves the application of what has been described as an immutable principle of justice,^[3] the essence of ordered liberty,^[4] so rooted in the traditions and conscience of our people as to be ranked as fundamental,^[5] a canon of civilized decency,^[6] a guarantee against the oppressions and usurpations of royal prerogatives,^[7] and a responsiveness to the supremacy of reason and obedience to the dictates of justice.^[8] He is asking for due process.

Under the Constitution, this Court resolves "cases in which only an error or question of law is involved."^[9] It is therefore not a trier of facts.

The Court itself in the April 1, 2003 Resolution summarized the facts to be resolved:

1. Whether the provisional dismissal of the cases had the express consent of the accused;
   
   
2. Whether it was ordered by the court after notice to the offended party;
   
   
3. Whether the two-year period to revive it has already lapsed;
   
   
4. Whether there is any justification for the filing of the cases beyond the two year period;
   
   
5. Whether notices to the offended parties were given before the cases were dismissed by then Judge Agnir;
   
   
6. Whether there were affidavits of desistance executed by the relatives of the three other victims; and
   
   
7. Whether the multiple murder cases against respondent are being revived within or beyond the two-year bar.^[10]
   

The facts to be resolved requires submission of evidence. They are material facts because proof of their actuality is needed to enable the Court to render judgment on the basic issues raised. Evidence to prove the facts in issue have to be introduced in accordance with the principles of substantive law and the rules of pleading, practice and procedure. The facts are in dispute because one party alleges their existence while the other denies them, both with some show of reason.^[11] If the unanimous judgment in 2002 is to be reversed by a new majority, a remand to ascertain these facts outlined is imperative.

Facts have to be established by evidence, not by inferences, not by suppositions, and certainly not by the augury of divination. Yet, the majority precisely proceeded to do it that way.

If the facts material to the Court's judgment were found by the new majority from the records, how could the unanimous Court have missed so many of these significant facts in 2002?

If doubts are to be resolved and suppositions and fallacies avoided, every method of getting the truth through adversarial proceedings before a trial court must be explored. Let the Regional Trial Court which is a trier of facts do the job.

If, for instance, the Court suddenly discovers that there has been no trial, not even a pre-trial in the almost two decades a case has been pending; if the questions raised are complicated, complex and tricky; if there is no evidence in the records, no transcripts of stenographic notes and no exhibits; the Court would have to refer the factual issues to a trial court. It should not arrive at a summary judgment based on the pleadings before it. This is what the new majority has done.

A key factual issue is the applicability to the cases against respondent of the rule on provisional dismissal found in the Revised Rules of Criminal Procedure. Section 8 of Rule 117 thereof provides:

Provisional Dismissal - A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after the issuance of the order without the case having been reviewed. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revised.

The determination of whether or not the above rule applies in this case entails factual issues. Has the two-year period expired? Was the dismissal of the cases with the express consent of the accused? Was there notice to the offended party? By their very nature, these questions justify a remand to the trial court.

The new majority first tackles the application of the two-year time bar in Rule 117 to this case. The criminal cases were dismissed by then Judge Wenceslao Agnir, Jr. on March 29, 1999. The Revised Rules of Criminal Procedure took effect the following year on December 1, 2000. If the new rule is not applied retroactively, would the old rule, where there was no time bar, apply?

The new majority rules that the time bar should apply only prospectively. I find this decision disturbing if it is indicative of a novel approach to individual liberties. The Bill of Rights is a statement of the liberties of individuals protected against exertions of government power. The ponencia seeks to protect the "rights" of the State against its citizens and invokes the Bill of Rights in the process.

The Bill of Rights refers to fundamental individual rights and the guaranteed protection is against Government or any of its officials. It cannot be invoked against actions of private parties unless private action is backed by government power.

Government exercises powers not rights. When the Constitution provides that "no person shall be deprived of life, liberty, or property without due process of law,"^[12] the "person" referred to is not the State. When we mention in our decisions that the State also deserves due process, it is merely a quaint way of saying that the law and the rules should be followed if intended to protect State interests. But never should the rights of a citizen be weighed against the non-existent rights of the State which should be recognized and denominated as the powers of the State.

There is sometimes a balancing of individual rights against State power where public interest is involved. The individual is always at a terrific disadvantage when a basic right is weighed against the awesome powers of a State. There is no need for balancing in this case.

If the issue involved is protection of a citizen against overzealous criminal prosecutions, the reason for ruling against him should never be due process rights of the State. The Dissenting Opinion of Mr. Justice Reynato S. Puno in the April 1, 2003, with which I also concurred, discusses the origin of the amended rule, its nuances and reasons for being, and the inflexibility of the permanent time bar once the two-year period is reached. The Rule is intended to protect the rights of the accused, not to make it easier for the Government to prosecute him. Here, the Court wants us to allow the use of a protection for the citizen against that citizen. Its enactment becomes counter-productive. The extensive and learned discussion of the Honorable Chairman of the Committee on the Revision of the Rules of Court is glossed over. It should be re-read.

The amended rule is intended to prod the Government into a more faithful and accountable performance of duty, to avoid the tyrannical Damocles' sword hanging indefinitely over a person whom the Government wants to coerce into indeterminate submission, and to stop the malaise of public officers who are shiftless and lethargic and who are prodded into action only after the passage of interminable time or when revenge or a desire to vex and oppress suddenly surfaces.

If the rule is a just rule, if its objectives are salutary and if its enforcement will mean an enlargement of individual rights, why should a recent accused enjoy it to the exclusion of those with pending cases when it was enacted? Justice should be for everyone especially those accused where prosecution and trial have dragged for years and years. A rule should not protect the incompetence or lethargy of Government prosecutors.

I submit that the new rule should be made retroactive. This interpretation is in line with simple justice. The statement of the majority that the due process protections of the State and those of the individual should be equal is dangerous for a Supreme Court to utter.

With all due respect, the justifications in the ponencia display an insensitivity to individual liberties. The spirited defense of the powers of the State in the context of individual freedoms is bewildering to say the least. It is hoped that such a cavalier approach to the Bill of Rights is a passing aberration and that the Court will again stand firmly as the constitutional bulwark against State power and oppression. The Court should not remain silent and, more important, should take a firm stand when a citizen is harassed and persecuted by the formidable powers of Government.

The statement that the ruling of the Court in 2003 and any ruling today would be the same, regardless of who the parties involved are, whether a Senator, presidentiable, or an ordinary citizen is, in the light of our judgment in this case, is not believable.

The bedrock issue underlying all aspects of the about-face decision sought to be reconsidered involves the correct approach to the Bill of Rights. If the interpretation of the amended rule shows a back-sliding of the Court's traditional approach to individual liberty, that interpretation must be avoided. The history of the due process clause goes back to the beginning of the era of enlightenment. It traces the step-by-step wresting of rights from absolution and monarchy. There is no monarchy today but claims of authority against liberty are vested in State power. The ponencia unwittingly dilutes a guarantee of liberty against a misinterpretation of State power.

In the resolution of whether the rule should be applied retroactively, we must divorce the issue from the various personalities involved, and focus simply on the principles of interpretation that have governed this Court since its inception.

The ponencia declares that there is no express requirement for the revised rule to be given retroactive application. It states that under Rule 144 of the Rules of Court, the Rules shall not be applied "to actions pending before it if in its opinion their application would not be feasible or would work injustice, in which event, the former procedure shall apply."^[13] Rule 144, for ready reference, provides:

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure would apply. (underscoring supplied.)

In the same breath, the ponencia expresses that "[s]tatutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent, procedural laws are retroactive."^[14] Criminal Cases Nos. Q-99-81679 to Q-99-81689 are then characterized as having been long dismissed before the new rule took effect on December 1, 2000. The ponencia goes on to state that:

[w]hen the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long since been terminated. The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court applied Section 8 of Rule 110 of the RRCP retroactively, it did so only to cases still pending with this Court and not to cases already terminated with finality. (Citations omitted, underscoring supplied.)^[15]

There is a fundamental inconsistency in the foregoing statements. If one were to apply Rule 144, as the ponencia has done, this would mean characterizing Criminal Cases Nos. Q-99-81679 to Q-99-81689 as being pending proceedings as of the effective date of the Revised Rules of Criminal Procedure, since this is what a plain reading of Rule 144 would require. This would go completely against the statement of the same ponencia that characterizes Criminal Cases Nos. Q-99-81679 to Q-99-81689 as having long since been terminated when the petitioner filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112. Were the proceedings pending as of the effective date of the Revised Rules, or had they already been terminated? It is not pure legal quibbling to demand a consistent characterization of Criminal Cases Nos. Q-99-81679 to Q-99-81689. One cannot characterize these cases as pending, invoke their pendency as basis for the non-retroactive application of Rule 117, Section 8, and then characterize them as having been terminated in order to similarly deny the retroactive application of the new procedural rules. The ponencia's bases for the non-retroactive application of the revised rule are completely impossible to reconcile.

Regardless of the characterization of Criminal Cases Nos. Q-99-81679 to Q-99-81689, I submit that Rule 117, Section 8 should be given retroactive application, consistent with the principles of statutory construction of procedural rules.

Procedural laws, by definition, prescribe rules and forms of procedure of enforcing rights or obtaining redress. They include rules of pleadings, practice and evidence. As applied to criminal law, procedural law - as distinguished from substantive law - is that which provides or regulates the steps by which one who commits a crime is to be punished.^[16]

In interpreting procedural rules, this Court, in the 1927 case of Hosana v. Diomano and Diomano,^[17] laid down the rule that procedural rules will be construed as applicable to causes of action accrued, and actions pending and undetermined, at the time of their passage, unless: (1) such actions are expressly excepted; or (2) vested rights would be disturbed by giving them a retroactive application.^[18]

The causes of action in Criminal Cases Nos. 01-101102 to 01-101112 - in which the Informations allege essentially the same operative facts as those alleged in Criminal Cases Nos. Q-99-81679 to Q-99-81689, with the primary difference that respondent is charged as a principal and no longer as an accessory - had undoubtedly already accrued as of December 1, 2000, the effective date of the Revised Rules of Criminal Procedure. Thus, whether the criminal actions in question were "pending", or the causes of action had merely "accrued", the retroactive application of the RRCP is called for.

Undoubtedly, there is no express exception to the retroactive application of Rule 117, Section 8. Thus, unless vested rights are disturbed, its retroactive application is clearly mandated.

On this point, it has been held that the retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected.^[19] This is because of the fundamental principle that, as a general rule, no vested right may attach to nor arise from procedural laws. This is a principle that we have enunciated in a long line of cases.^[20] A person has no vested right in any rule of law which entitles him to insist that it shall remain unchanged for his benefit.^[21]

The ponencia seems to hold that vested rights would indeed be disturbed if Rule 117, Section 8 were given retroactive application. Specifically, this argument focuses on the State's right to due process, which purportedly would be violated by the retroactive application of the questioned procedural rule. Thus, the ponencia asserts that:

when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the State's right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 19, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs.

x x x x x x x x x

The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must be stressed that the institution and prosecution of criminal cases are governed by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by a capricious retroactive application of the new rule.^[22]

In making these assertions, the ponencia has undoubtedly placed a premium on the State's right to procedural due process.

The State's right to due process must be viewed from proper perspectives. It cannot be said that such right would be violated by a retroactive application of Rule 117, Section 8. It appears clear that the invocation of due process is an attempt to cloak a flawed argument using a Constitutional precept. As earlier intimated, the ponencia is unable to pinpoint with specificity exactly how the "due process right" of the State had already vested as of the passage of the Revised Rules, and how this "vested right" could be violated by the retroactive application of Rule 117, Section 8.

Stripped to its basics, procedural due process is a matter of nothing more or less than procedural fairness. There would be nothing procedurally unfair about giving a retroactive application to Rule 117, Section 8. Precisely, this Court is specifically empowered by the Constitution to promulgate such rules of procedure, and, in the past, we have had no qualms about applying such rules of procedure retroactively, ruling firmly that no vested rights are impaired even if the effect of the retroactive application of such rules would be to divest a court or tribunal of its jurisdiction. In such instances, we have advised the party-litigants that their rights have not been impaired.^[23]

There is no cogent reason to depart from this principle even if, in this case, the People is one of the party-litigants. Departing from the fundamental principle in this case seems to be an instance of selective statutory construction to achieve the desire to attain a particular result.

If anything, the fact that the People is one of the party-litigants should call for a more vigilant application of the Rules strictly against the People or the State and liberally in favor of the private individuals who might be benefited by the retroactive application of the procedural rule.

Although it is true that the prosecutors would have no inkling, as of the provisional dismissal of the case on March 29, 1999, that the Revised Rules of Criminal Procedure would contain Rule 117, Section 8, they undoubtedly had notice as of the effective date thereof on December 1, 2000. From that date, they had almost four months in which to revive Criminal Cases Nos. Q-99-81679 to Q-99-81689, had there been a need to do so. In cases involving purely private litigants, we have not hesitated in dismissing cases when a party or parties have not been vigilant in protecting their rights.^[24] At the risk of being repetitive, there is no reason to depart from this principle simply because the State is a litigant.

Moreover, it is an established principle of statutory construction that penal laws are strictly construed against the State and liberally in favor of the accused.^[25] Any reasonable doubt must be resolved in favor of the accused.^[26]

By way of example, we have not hesitated in the retroactive application of such laws as Republic Act No. 7659, which lowered the penalties for certain crimes, insofar as the lower penalty was favorable to the accused. In the cases of People v. Simon,^[27] People v. Manalo,^[28]Danao v. Court of Appeals,^[29] and People v. Piasidad,^[30] judgment had already been rendered by the respective trial courts against the respective accused individuals in question. Pending appeal of the cases, the legislature passed R.A. 7659, effective December 31, 1993. In addition to re-imposing the death penalty, R.A. 7659 lowered the penalty imposable on individuals who had violated the Dangerous Drugs Act. This Court invariably applied the lower penalty retroactively, even if the crimes had been consummated, prosecution had been initiated, and a decision had in fact already been rendered by the trial courts while the higher penalties were still imposable.

As a more extreme example, in the 1996 case of Cruz v. Correctional Institution for Women in Mandaluyong,^[31] the accused therein was already serving a final and executory penalty of reclusion perpetua. During her service of this sentence, R.A. 7659 was passed, lowering the penalty imposable for the crime for which she was convicted. Even if her sentence was already being served, this Court retroactively applied R.A. 7659 and ordered her immediate release since she had already served the maximum of her sentence.

From a particular perspective, granting the retroactive application of penal laws would likewise impair the "vested" rights of the State in seeing to it that criminals are given just retribution. In such instances, though, we have not hesitated in putting a primacy on the rights of the private individuals. The retroactive application of Rule 117, Section 8 is thus called for.

We move on to another factual issue to illustrate that, if we have to change our minds - and I repeat that our Resolution dated May 28, 2002 correctly resolved the issue - the Court should get the factual answers through a remand.

Did the accused give express consent to the provisional dismissal of his case?

The Court in its first Resolution stated that "(i)t was respondent Lacson himself who moved to dismiss the subject cases for lack of probable cause before then, Judge Agnir, hence, it is beyond argument that their dismissal bears his express consent."

Now, the majority finds the motion to dismiss as an inadequate mode of expressing consent. Obviously, the Court wants a formal manifestation filed in court where an accused has to declare, "I hereby consent to the provisional dismissal of my case."

The majority is asking too much. The amended Rule does not provide for a rigidly precise wording of consent. There are no required magic words whose non-utterance would be fatal. There are no fixed and supererogatory incantations, no pigeon-holes of ritual where set formalities must be fitted. When an accused moves that his case be dismissed, that is a stronger mode of consent than merely saying, "I hereby consent." When the respondent's counsel answered "none" to the question, "was there an express conformity?", he was referring to a formal manifestation of "yes, your Honor, the accused consents." There was no such pleading or manifestation. However, the lawyer's so-called "admission," taken out of context, cannot overrule the indubitable fact that the accused moved for a dismissal of his case. An implied admission of counsel cannot be given greater weight than a consent given through a formal motion to dismiss.

As Mr. Justice Cardozo said long ago: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today."^[32]

The majority is abetting harassment and oppression when it rules that a motion to dismiss is not a consent to dismissal. I have to dissent on this issue.

Was there notice to the offended party?

This is another factual issue that is best determined at the trial level. It calls for evidence. The ponencia again relies on an ambiguous admission of counsel in the course of tricky cross-examination that there was no formal notice.

It is probable that there was no formal notice in the form of a letter with a registry return card accomplished by the recipient. The purpose of notice under the Rule is to let the offended party know and to avoid complicity to prejudice the offended party. If the offended party was informed and had knowledge of the forthcoming provisional dismissal, there was notice to him.

The matter of notice should be elicited from the offended party during trial. If the ponencia refuses to treat a notice to the lawyer as a notice to his client, it should, at least, ask the client himself to affirm or deny that he was informed about the provisional dismissal. The remand is called for in this regard. If a lawyer is given notice on a material issue, he is assumed to have passed on the notice to his client. The rule that notice to a lawyer is notice to the client should apply when the basic protection of the accused is involved and the protection is part of the package of rights of an accused. There may be instances in civil law or mercantile law where a formal notice, duly acknowledged by the addressee, is required. In criminal law, any statute or rule intended to protect the rights of an accused should be interpreted in his favor.

There is no question that the amended rule on provisional dismissal of criminal cases is intended to protect the rights of an accused. The majority overlooks the fact that if the rule was supposed to help or favor the State, there would have been no reason to introduce the amendment. The rule should have been left the way it was. The rule was intended to curb inaction and abuses by government prosecutors.

In deciding cases of constitutional significance, the Court should be more concerned with substance rather than form^[33] or some other consideration, with general principles than technical points, to support judgments.

In one eloquent dissent of Mr. Justice Hugo Black of the United States Supreme Court, he stated that not the least of the virtues of a provision of the Bill of Rights is the protection given to each member of the smallest and most unorthodox minority.^[34] Respondent in the present case may not belong to the smallest minority but he is clearly unorthodox and a member of the minority political party. We must avoid not only any political color in our work but also the appearance of political color.

Appearances are unfortunately important in our functions and somehow, the public image of the Court will suffer because of the way the Court has decided the motion for reconsideration of the respondent who has become the target of powerful personalities in the political arena. Equating the awesome powers of the State with individual freedoms and formally extending the protections of the Bill of Rights to the State is not a healthy development. The Court should not give the impression that Bill of Rights protections such as due process should equally extend to and protect the State in the same way that they protect individual persons. Again, this is not only error; it is also not healthy for the development of the law of the Constitution.

At any rate it is well to listen to Mr. Justice Black when he says that laws aimed at one political group and I may add, at one political personage, however rational these laws may be in their beginning, generate hatred and prejudices which rapidly spread beyond control. Too often it is fear which inspires such functions and nothing is more reckless or contagious.

In the present case, the concern involves not a law enacted by Congress but a judgment rendered by the Supreme Court. The importance of these kinds of decisions on national institutions and the development of law cannot be ignored or denied.

WHEREFORE, I dissent from the majority resolution. I vote to grant the respondent's Motion for Reconsideration and to reinstate the Court's Resolution dated May 28, 2002.

---

^[1] Separate Dissenting Opinions of Justices Reynato S. Puno and Angelina Sandoval-Gutierrez, with which I concurred, and of Justice Jose C. Vitug.

^[2] See Salonga v. Hon. Paño, et al., G.R. No. 59524, 18 February 1985, 134 SCRA 438.

^[3] Twining v. New Jersey, 211 U.S. 78 (1908).

^[4] Palko v. Connecticut, 302 U.S. 319 (1937).

^[5] Snyder v. Massachusetts, 219 U.S. 97 (1934).

^[6] Adamson v. California, 332 U.S. 46 (1947).

^[7] Hurtado v. California, 110 U.S. 516 (1884).

^[8] Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 127 Phil. 306 (1967).

^[9] Constitution, Art. VIII, Sec. 5 (2) (e).

^[10] Resolution, April 1, 2003, p. 3.

^[11] Ponce v. Sagario, 85 Phil. 84 (1949).

^[12] Constitution, Art. III, Section 1.

^[13] Resolution, p. 10.

^[14] Id., p. 14, citing Tan v. Court of Appeals, G.R. No. 136368, 16 January 2002, 373 SCRA 524.

^[15] Id., pp. 14-15.

^[16] Bustos v. Lucero, 81 Phil. 640, 650 (1948); Aquino v. Military Commission No. 2, G.R. No. 37364, 9 May 1975, 63 SCRA 546; Subido, Jr. v. Sandiganbayan, 334 Phil. 346, 355-56 (1997); Tan v. Court of Appeals, supra.

^[17] 56 Phil. 741 (1927).

^[18] Hosana v. Diomano and Diomano, supra, citing Black on Interpretation of Laws, p. 265. See also Oñas v. Sandiganbayan, G.R. No. 85999, 2 October 1989, 170 SCRA 261.

^[19] Gregorio v. Court of Appeals, 135 Phil. 224 (1968); Tinio v. Mina, 135 Phil. 504 (1968).

^[20] Billiones v. CIR, 122 Phil. 25 (1965); Systems Factors Corporation, et al. v. Court of Appeals, G.R. No. 143789, 27 November 2000, 346 SCRA 149; Unity Fishing Corporation, et al. v. Court of Appeals, G.R. No. 145415, 2 February 2001, 351 SCRA 140; Serrano v. Court of Appeals, G.R. No. 139420, 15 August 2001, 363 SCRA 223.

^[21] Benguet Consolidated Mining Co. v. Pineda, 98 Phil 711 (1956); Laurel v. Misa, 76 Phil 372 (1946).

^[22] Resolution, pp. 11-12.

^[23] Hosana v. Diomano and Diomano, supra; Oñas v. Sandiganbayan, supra.

^[24] Hodges v. Yulo, 81 Phil. 622 (1954).

^[25] People v. Estapia, 37 Phil. 17 (1917); People v. Jackson, 54 Phil. 176 (1929); People v. Yu Jai, 99 Phil. 725 (1956); People v. Terrado, 211 Phil. 1 (1983); People v. Deleverio, 352 Phil. 382 (1998).

^[26] United States v. Abad Santos, 36 Phil. 243 (1917); United States v. Madrigal, 27 Phil. 347 (1914); People v. Atop, 349 Phil. 825 (1998).

^[27] G.R. No. 93028, 29 July 1994, 234 SCRA 555.

^[28] 315 Phil. 547 (1995).

^[29] 313 Phil. 354 (1995).

^[30] 331 Phil. 274 (1996).

^[31] 331 Phil. 40 (1996).

^[32] Quoted in the Dissenting Opinion of Justice Gregorio Perfecto in Contreras and Gingco v. Felix and China Banking Corp., 78 Phil. 570, 583 (1947).

^[33] Fidelity Bank v. Swope, 274 U.S. 123.

^[34] American Communications Association (CIO) v. Douds, 339 U.S. 382.

---

DISSENTING OPINION

On April 1, 2003, I stood apart from the rest of my brethren in granting petitioners' Motion for Reconsideration of this Court's Resolution dated May 28, 2002.^[2] So engrossed was the Court then in determining the applicability of Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure to respondent's case that it seems to overlook the more fundamental concept of speedy trial and speedy disposition of cases - the very foundation of respondent's right to be permanently discharged of the criminal cases filed against him.

My first dissent rests mainly on the premise that the circumstances surrounding respondent's case, i.e. the dismissal of Criminal Cases No. Q-99-81679 to 89 and their refiling two years after, effectively elicit a speedy trial analysis or inquiry.^[3] The time interval between the dismissal of the initial charges and the subsequent refiling thereof had crossed the threshold dividing ordinary from "presumptively prejudicial" delay, thus, before anything else, respondent's predicament should be weighed on the basis of the Constitutional provisions on speedy trial and speedy disposition of cases. Section 8, Rule 117 must come second only.

At this juncture, it bears reiterating that statutes (and with more reason, rules) cannot be effective to place any limitation on the constitutional right,^[4] and therefore they should not be regarded as "definitions" of the constitutional provision, but merely as implementing statutes passed pursuant to it.^[5] It is thus conceivable that the constitutional provision may be violated although an implementing statute is not.^[6] With this Court's fixation on Section 8, Rule 117, it in effect missed the bigger picture. Respondent's repeated invocation of his constitutional right to speedy trial and speedy disposition of cases was drowned by arguments on the applicability of the rule only implementing such right. Contrary to the express provision of Section 10, Rule 119 of the same Rules that "no provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 14 (2), Article III of the 1987 Constitution," Section 8, Rule 117 effectively operates as a bar to respondent's bid for a speedy trial analysis or inquiry. This is very unfortunate.

Having fully articulated in my first dissent the primordial reason why I cannot join the majority, I am taking this second occasion to expound on the nagging issue of whether Section 8, Rule 117 applies to respondent's case.

In denying respondent's present Motion for Reconsideration, the majority ruled that: (a) Section 8, Rule 117 cannot be applied retroactively to respondent's case for to do so would result in "absurd, unjust and oppressive consequences to the State and the victims of crimes and their heirs;" and (b) respondent failed to comply with the essential pre-requisites of Section 8, Rule 117 particularly that of accused's "express consent" to the provisional dismissal.

I dissent.

I - Section 8, Rule 117 should
be applied retroactively

Settled in our jurisprudence is the principle that when a new law will be advantageous to the accused, the same shall be given retroactive effect.^[7] Favorabiliab sunt amplianda, adiosa restrigenda. (Penal laws that are favorable to the accused are given retroactive effect).^[8] For a long period, this has been the settled doctrine in countries whose criminal laws are based on the Latin system. Article 22 of our Revised Penal Code reads:

"Art. 22. Retroactive effect of penal laws. - Penal laws shall have retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same."

This article is of Spanish origin and is based on Latin principles, thus, in the interpretation thereof, this Court must have recourse to Spanish or Latin jurisprudence.^[9] That the term "penal laws" or "leyes penales" as employed in Article 22, relates not only to laws prescribing penalties but also to limitations upon the bringing of penal actions, was pronounced in the early case of People vs. Parel.^[10] Thus, to justify the retroactive application of Section 8, Rule 117 on the basis of Article 22 is in order. Considering its genesis and its underlying principles, there is no doubt that whenever a new statute dealing with crimes establishes conditions more lenient or favorable to the accused, the statute becomes retroactive and the accused must receive the benefits of the new condition. As long as this provision so remains in force, it is of general application to all penal statutes, past, present, future and furnishes the rule for determining to what extent they are retroactive or merely prospective. And unless a penal or criminal statute, expressly or by necessary implication, provides that it shall not be regarded as retroactive, it becomes subject to the rule laid down by that article.^[11] Evidently, by ruling against the retroactive application of Section 8, Rule 117, the majority casts aside one of most basic principles in our legal system.

Now, in an attempt to justify its position, the majority resorted to the alleged statutory purpose of Section 8, Rule 117. It argues that "when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused." I believe the purpose cited is inaccurate. Section 8, Rule 117 was introduced owing to the many instances where police agencies have refused to issue clearances, for purposes of employment or travel abroad, to persons having pending cases, on the ground that the dismissal of such cases by the court was merely provisional, notwithstanding the fact that such provisional dismissal, more often than not, had been done five or ten years ago.^[12] Obviously, Section 8, Rule 117 was introduced not so much for the interest of the State but precisely for the protection of the accused against protracted prosecution. This Court's Committee on Revision of the Rules of Court clearly saw the prejudice to the rights of the accused caused by a suspended provisional dismissal of his case. Hence, if we are to follow the majority's line of reasoning that Section 8, Rule 117 "must be read according to its spirit or intent," then the logical conclusion is the retroactive application of the rule. Certainly, it is the construction that will advance the object and secure the benefits intended.

The Court, in setting a limit to the State's right to re-prosecute, has recognized the injustice and the evil accompanying suspended provisional dismissals. It has impliedly acknowledged that the situation sought to be remedied is unjust and undesirable. Now, is it not inconsistent for this Court to suspend the application of the new rule to respondent's case just because the rule was passed after the provisional dismissal of his cases? Note that the situation sought to be remedied is present in respondent's case. To my mind, if this Court will refuse to extend the benefit of the new rule to respondent, it will be guilty of an inconsistency in view of its implied admission that the situation sought to be remedied has caused injustice to respondent.

In several cases, we applied the provisions of the 2000 Rules of Criminal Procedure retroactively.^[13] The same should be done with Section 8, Rule 117 considering that it is merely a reinforcement of the constitutional right to speedy trial and speedy disposition of cases. With or without it, petitioners are duty bound under the Constitution to proceed with speed in prosecuting respondent's cases. Consequently, all the time prior to the promulgation of Section 8, Rule 117, petitioners were not precluded from re-filing the cases against respondent. It may be recalled that Criminal Cases Nos. Q-99-81679 to 89 were dismissed on March 29, 1999.^[14] The Department of Justice (DOJ) re-investigated the cases only upon its receipt on March 29, 2001 of General Leandro Mendoza's letter indorsing the affidavits of P/S Ins. Abelardo Ramos and P/ Ins. Ysmael Yu. On June 6, 2001, new Informations were filed against respondent. Clearly, from March 29, 1999 to March 29, 2001, petitioners had the opportunity to refile the new Informations against respondent. That they failed to do so, even after acquiring knowledge of the rule on December 1, 2000 and onwards, only speaks of official negligence and lethargy. It cannot therefore be argued that the State's right to prosecute within the two-year period has been reduced and would cause injustice to it and the offended parties. If at all, what was reduced was the State's lackadaisical attitude borne by this nation's years of tolerance and indifference.

Surely, I cannot countenance "official indolence" by holding that if only the State had known it would lose its right to prosecute after the lapse of the two-year period, it would have immediately refiled the new Informations against respondent. To hold so is to advance the view that the State's duty to prosecute promptly depends on the threat of a punitive rule and not on the mandate of the Constitution.

Corollarily, while there is truth to the statement that in determining the retroactivity of legislation, elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. However, legislations readjusting rights and burdens cannot be adjudged unlawful simply because it upsets settled expectations, even if it imposes a new duty or liability based on past acts.^[15] That the State settled expectation, i.e. its entitlement to the two-year period, was to be disrupted by a retroactive application of Section 8, Rule 117 does not necessarily result to injustice. Section 8, Rule 117, by limiting the state's right to re-prosecute, partakes of the nature of a statute of limitations which is really "an act of grace or amnesty " that must be liberally applied in favor of the accused. Wharton, in his work on Criminal Pleading and Practice, 9^th ed., says in section 316:

"We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other, there is therefore no grantor against whom the ordinary presumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily or grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence, statutes of limitations are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of these views, it must be remembered that delay in instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that can be obtained."

The necessity, therefore, of applying the favorable new rule to respondent rests upon the principle that the sovereign power cannot exercise its right to punish except only within those limits of justice which that sovereign power has established as being just and equitable at the time of exercising that right. Significantly, it has been held that the constitutional provision barring the passage of retroactive laws protects only the rights of citizens; hence, a state may constitutionally pass a retroactive law that impairs its own rights.^[16] Only private, and not public, rights may become vested in a constitutional sense.^[17] Otherwise stated, there is a distinction between the effect to be given a retroactive statute when it relates to private rights, and when it relates to public rights, public rights may always be modified or annulled by subsequent legislation without contravening the Due Process Clause.^[18]

II - The statement of
respondent's counsel during the
proceedings in the Court of
Appeals that the dismissal of
respondent's case was without
his express consent cannot be
taken as a judicial admission.

The statement of respondent's counsel during the proceedings in the Court of Appeals that the dismissal of respondent's case was without his express consent cannot be taken as a judicial admission. For one, the statement was uttered merely to support a legal argument. One thing clear from the pleadings of the contending parties is their vacillation on whether or not respondent gave his express consent to the dismissal. When respondent's counsel was invoking double jeopardy, he submitted that respondent did not give his express consent to the dismissal. It was the Solicitor General who was arguing otherwise. Clearly, respondent's counsel made the statement as a legal strategy to justify the application of double jeopardy. That this was his intention is evident from his oral argument in the Court of Appeals. Surely, this Court is duty-bound to determine the truth. The inconstancy in the positions taken by both the prosecution and the defense only renders imperative a more probing inquiry on the matter of express consent.

For another, the statement was not made for the purpose of avoiding the necessity of proof. It has been held that an admission of fact by counsel for accused, to be admissible, must be voluntarily and purposely made to avoid necessity of proof,^[19] or it must be distinct and formal made for the express purpose of dispensing with proof of a fact on the trial.^[20] An admission made by counsel in argument does not take the place of testimony,^[21] and is not sufficient to justify the trial court in assuming that accused admitted such matter. Otherwise stated, only those admissions made by the attorney during the trial of the case, which are solemnly and formally made for the purpose of eliminating the proof of the fact admitted, that will bind the client. This is without question the just and proper rule to be followed, for human life and liberty are too important to depend on the slip of an attorney's tongue during the pressure and rapidity of the trial. Thus, the accused is not bound by the admissions made by his attorney in the course of his argument.^[22] His rights cannot be prejudiced by any statement made by his counsel or any admission he may attempt to make^[23] and that an attorney cannot admit away the life or liberty of accused in the face of a plea of not guilty.^[24]

Corollarily, the majority's view that "a cursory reading of the respondent's motion for judicial determination of probable cause (filed with the trial court) will show x x x that respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of said warrant" and not to dismiss the case is hardly convincing. It appears from the Resolution^[25] dated March 29, 1999 of the trial court that respondent's prayer was for that court to "(1) make a judicial determination of the existence of probable cause for the issuance of warrants of arrest; (2) hold in abeyance the issuance of warrants in the meantime; and (3) dismiss the cases should the court find no probable cause." Clearly, this third plea is a manifestation that the dismissal of the cases was with respondent's consent. While it is true that what he filed was a mere motion for the judicial determination of probable cause and for examination of prosecution witnesses, the same was anchored on the case of Allado vs. Diokno.^[26] There, we ruled that "[I]f upon the filing of the information in court, the trial judge, after reviewing the information and the document attached thereto, finds that no probable cause exists, he must either call for the complainant and the witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial and further expose him to an open and public accusation of the crime when no probable cause exists." With this as respondent's premise, I believe it is safe to conclude that the dismissal was with his express consent. He would not have anchored his case in Allado vs. Diokno if he did not desire its legal consequences.

Finally, I find the re-raffling of respondent's cases to a special heinous court unnecessary. Supreme Court Circular No. 7-74^[27] expressly provides that "when a case is dismissed for any cause or reason whatsoever and the same is re-filed, it shall not be included in the raffle anymore but shall be assigned to the branch to which the original case pertained. If, by mistake or otherwise, such case is raffled and assigned to another branch, the latter must transfer the case to the branch to which it originally belonged, in which event another case shall be assigned by raffle as replacement." Considering that a provisional dismissal of a criminal case does not terminate it,^[28] it is more consistent with the majority's theory that Criminal Cases Nos. Q-99-81679 to 89 be simply referred back to the branch to which they originally belonged.

WHEREFORE, I vote to GRANT respondent's motion for reconsideration.

---

^[1] F. C. von Savigny, Private International Law and the Retrospective Operation of Statutes, p. 344.

^[2] This Resolution remanded the present case to the Regional Trial Court, Branch 81, Quezon City for a determination of several issues relative to the application of Section 8, Rule 117 of the Revised Rules of Criminal Procedure on the dismissal of respondent's Criminal Cases Nos. Q-99-81679 to 89.

^[3] While there are jurisprudence to the effect that once the charges are dismissed, the speedy trial guarantee is no longer applicable, (State vs. Marion, 404 U.S. 307; Dillingham vs. United States, 423 U.S. 64; Barker vs. Wingo, 407 U.S. 514), however, I am convinced that the peculiar facts of the present case render said jurisprudence inappropriate. On its face, the Constitutional provision seems to apply to one who has been publicly accused, has obtained dismissal of those charges, and has then been charged once again with the same crime by the same sovereign. Nothing therein suggests that an accused must be continuously charged in order to obtain the benefits of the speedy trial right. A natural reading of the language is that the Speedy Trial Clause continues to protect one who has been accused of a crime until the government has completed its attempts to try him for that crime. In Klopfer vs. North Carolina, 386 U.S. 213, the prosecutor entered a "nolle prosequi with leave" after the first trial ended in a mistrial. Under that procedure, the defendant was discharged from custody and subjected to no obligation to report to the court. It was held that the indefinite postponement of the prosecution, over defendant's objection, "clearly" denied the defendant the right to a speedy trial. The Court reasoned that the defendant may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar. During that period, there is no means by which he can obtain a dismissal or have the case restored to the calendar trial. The prosecutor was required to take affirmative steps to reinstate the prosecution; no charges were "actively" pending against Klopfer, nevertheless, the court held that the speedy trial right applied.

^[4] 21 Am Jur 2d § 1031, citing Ex parte State ex rel. Atty. Gen., 255 Ala. 443, 52 So. 2d 158 (1951); Hicks vs. People, 148 Colo. 26, 364 P. 2d 877 (1961); State vs. Strong, 8 Kan. App. 2d 589, 663 P. 2d 668 (1983); State vs. Stimson, 41 Was. App. 385, 704 P. 2d 1220 (Div. 3 1985).

^[5] State vs. Kuhnhausen, 201 Or. 478, 272 P. 2d 225 (1954).

^[6] Barela vs. People, 826 P. 2d 1249 (Colo.1992) State vs. Russel, 108 Idaho 58, 696 P. 2d 909 (1985); State vs. Strong, supra.

^[7] Article 22, Revised Penal Code.

^[8] Both consistency and sound legal principles demand that we seek our precedents in Latin rather than in American jurisprudence. In United States vs. Cuna (12 Phil. 241 [1908]), it was held that "neither English nor American common law is in force in these islands, nor are the doctrines derived therefrom binding upon our courts, save only insofar as they are founded on sound principles applicable to local conditions, and are not in conflict with existing law."

^[9] People vs. Parel, 44 Phil. 437, 441 (1923).

^[10] Id.

^[11] Id.

^[12] Herrera, Remedial Law, Vol. IV, 2001 Ed. at 660.

^[13] People vs. Arrojado, G.R. No. 130492, January 21, 2001, 350 SCRA 679.

^[14] Rollo at 93-102.

^[15] 16B Am Jur 2d §690, citing In re Lancy, 208 B. 481, 30 Bankr. Ct. dec. (CRR) 1018 (Bankr. D. Ariz, 1997); DIRECTV, Inc. vs. F.C.C., 110 F. 3d 816 (d.c. Cir. 1997); State vs. L.V.I. Group, 1997 ME 25, 690 A. 2d 960 (Me.1997).

^[16] 16B Am Jur 2d § 697, citing Rousselle vs. Plaquemines Parish School Bd., 633 So. 2d 1235, 90 Ed. Law Rep. 519 (La. 1994) reh'g denied (Apr. 21, 1994); Town of Nottingham vs. Harvey, 120 N.H. 889, 424 A 2d 1125 (1980).

^[17] Bradford vs. Suffolk Country, 257 A.D. 777 15 N.Y.S. 2d 353 (2d Dep't 1939), judgment affirmed as modified, 283 N.Y. 503, 28 N.E 2d 932 (1940).

^[18] Holen vs. Minneapolis-St. Apul Metropolitan Airports Commission, 250 Minn.

^[19] State vs. Thomas, 15 P. 2d 723, 726, 136 Kan. 400.

^[20] State vs. Redman, 8 S.E. 2d 623, 217 N.C. 483.

^[21] State vs. Marx, 60 A. 690, 78 Conn. 18.

^[22] Wharton's Criminal Evidence, 2, 12^th Edition, § 415.

^[23] 22A C.J. S. §739, citing State vs. ShuffI, 72 P. 664, 9 Idaho 115.

^[24] Id., citing Pruitt vs. State, 294 P 629, 37 Ariz. 400.

^[25] Rollo at 93-103.

^[26] G.R. No. 113630, May 5, 1994, 232 SCRA 192.

^[27] September 23, 1974.

^[28] Jaca vs. Blanco, 86 Phil. 452 (1950).