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DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

A new law is always enacted in the persuasion that it is better than the former one. Its efficacy, therefore, must be extended as far as possible, in order to communicate the expected improvement in the widest sphere.[1]

On April 1, 2003, I stood apart from the rest of my brethren in granting petitioners Motion for Reconsideration of this Courts 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 respondents case that it seems to overlook the more fundamental concept of speedy trial and speedy disposition of cases the very foundation of respondents right to be permanently discharged of the criminal cases filed against him.

My first dissent rests mainly on the premise that the circumstances surrounding respondents 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, respondents 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 Courts fixation on Section 8, Rule 117, it in effect missed the bigger picture. Respondents 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 respondents 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 respondents case.

In denying respondents present Motion for Reconsideration, the majority ruled that: (a) Section 8, Rule 117 cannot be applied retroactively to respondents 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 accuseds 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 Courts 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 majoritys 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 States 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 respondents 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 respondents 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 respondents 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 Mendozas 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 States 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 States lackadaisical attitude borne by this nations 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 States 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 states 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

respondents counsel during the

proceedings in the Court of

Appeals that the dismissal of

respondents case was without

his express consent cannot be

taken as a judicial admission.

The statement of respondents counsel during the proceedings in the Court of Appeals that the dismissal of respondents 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 respondents 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, respondents 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 attorneys 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.²⁴cräläwvirtualibräry

Corollarily, the majoritys view that a cursory reading of the respondents 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 Resolution²⁵ dated March 29, 1999 of the trial court that respondents 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 respondents 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 respondents 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 respondents cases to a special heinous court unnecessary. Supreme Court Circular No. 7-74²⁷ 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 majoritys 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 respondents motion for reconsideration.

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Endnotes:

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 respondents 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 defendants 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) rehg 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 Dept 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 Whartons 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).