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[ G.R. No. 137547. March 22, 1999]

ELIPE vs. HON. SANDIGANBAYAN

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated MAR 22, 1999.

G.R. No. 137547 (Victor L. Elipe vs. Hon. Sandiganbayan.)

Before us is a petition for certiorari under Rule 65 with a prayer for the issuance of a writ of preliminary injunction against the Sandiganbayan to enjoin said court from implementing its assailed resolution dated January 28, 1999 as well as its order dated February 22, 1999 denying petitioner's motion for reconsideration.

Petitioner Victor Elipe, the incumbent mayor of the Municipality of Taganaan, Province of Surigao del Norte, was charged with the crime of Grave Threats under Par. (1) of Article 282 of the Revised Penal Code, as well as for violation of Section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

The only issue presented before us is whether or not respondent court committed grave abuse of discretion amounting to lack of jurisdiction when it rendered the two assailed resolutions which granted and upheld the prosecution's Motion to Suspend Accused Pendente Lite. The suspension meted on the petitioner is for a period of ninety (90) days.

A motion for reconsideration having been filed and denied, petitioner filed the petition before us.

Petitioner posits the view that the Sandiganbayan committed grave abuse of discretion when it ordered his preventive suspension on the sole ground that when the suspension order was issued, the prosecution has already terminated presentation of its evidence. In other words, it is petitioner's contention that the mandatory suspension pendente lite of an accused charged with violation of Section 3, Republic Act No. 3019 should be rendered before the trial of the case starts. He argues that after the prosecution submits its evidence, the threat that the accused, might "use his position or the powers and prerogatives of his office to influence potential witnesses or tamper with the records" would not exist anymore, and that there would be no need for preventive suspension.

Upon the other hand, the Sandiganbayan in its resolution held that for an accused to be suspended pendente lite, two requisites must concur, to wit: a) that there is a valid information, and b) that the criminal prosecution must be for violation of Republic Act 3019, or under Title 7, Book II of the Revised Penal Code, or for any offense involving fraud upon the government or public funds or property, whether as a simple or as complex offense and in whatever stage of execution and mode of participation. It found out that all these requisites concur as far as Criminal Case No. 24345 is concerned. Furthermore, respondent court stated that the suspension under Republic Act No. 3019 is mandatory and that there are no ifs and buts for as long as the abovementioned requisites are present. It went further by stressing that "the court trying a case has neither discretion or duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution. The presumption is that unless the accused is suspended, he may frustrate his prosecution.

The petition is devoid of merit.

After due consideration, we perceive no grave abuse of discretion or even reversible error on the part of the respondent Sandiganbayan. It is a basic legal truism that certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Lalican vs. Vergara, 276 SCRA 518 [1997]).

The decision of respondent court appears to be in accord with the facts and applicable law and jurisprudence.

WHEREFORE, petition is hereby DISMISSED.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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