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^{CONCURRING AND DISSENTING OPINION}

MELO, J.:

I join in the initial premise of the ponencia of Mr. Chief Justice Hilario G. Davide, Jr. for whom I only have the highest respect for his scholarly and in-depth resolution of the issues at hand, particularly its commanding interpretation of Section 15, Article XI of the 1987 Constitution which declares that the imprescriptibility of "[t]he right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees " only refers to the civil action that may be brought against the erring parties, and not to the criminal action. However, I beg to disagree with the conclusion that the case must be remanded to the Ombudsman to reopen the proceedings. My humble position on the matter is that the offense or offenses herein involved have already prescribed.

The ponencia adverts to the view that the period of prescription for the offenses should be reckoned from the discovery of the offense by the State and not from the time the questioned transactions were made. It notes that, as alleged, the public officials concerned connived or conspired with the "beneficiaries of the loans" (p. 16) and concludes that the Ombudsman clearly acted with grave abuse of discretion in dismissing Case No. OMB-0-96-0968 outrightly since he should have first received the evidence from complainant and respondents to resolve the case on its merits and on the issue of the date of discovery of the offense.

The material facts are succinctly presented in the ponencia, which I now further capsulize. On October 8, 1992, President Fidel V. Ramos issued Administrative Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, which was directed, inter alia, to inventory all behest loans, and identify the lenders and borrowers, including the principal officers and stockholders of the borrowing firms, as well as the persons responsible for granting the loans or who influenced the grant thereof. On November 9, 1992, he issued Memorandum Order No. 61 directing the Committee to "include in its investigation, inventory, and study all non-performing loans which shall embrace both behest and non-behest loans." Specific criteria which may be utilized as a frame of reference in determining a behest loan were likewise included in the directive. The investigation resulted in the finding that twenty-one (21) corporations, including the Philippine Seeds, Inc. (PSI), obtained behest loans. Subsequently, the Committee filed with the Ombudsman a sworn complaint against PSI's Directors, as well as the Directors of the DBP who approved the loans for violation of Paragraphs (e) and (g), Section 3 of Republic Act No. 3019, as amended. The questioned transactions took place in 1969, 1975, and 1978; the criminal complaint was filed on March 2, 1996. In dismissing the same, the Ombudsman ratiocinated that the offenses charged against respondents had already prescribed considering the 10-year prescriptive period provided by Section 11 of Republic Act No. 3019.

There is no question that the applicable law is Section 2 of Act No. 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances to Provide When Prescription Shall Begin to Run) which reads:

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

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

By the text of the aforestated provision, the general rule is that prescription shall begin to run "from the day of the commission of the violation of the law ..." If the performance of an act constitutes the violation of the law, then prescription starts from the performance of that act; if the violation of the law consists of an omission to perform an act, then prescription is counted from the date the omitted act ought to have been done.

Upon the other hand, if the commission of the violation of the law "be not known at the time [of the commission]," then prescription shall begin to run "from the discovery thereof," that is, the discovery of the commission or non-performance of the act which constitutes the violation of the law.

Based on the above premises, the following conclusions are respectfully submitted:

I

Prescription begins to run from the day of the "commission of the violation of the law," or the performance of the act which constitutes the violation of the law, and not from "discovery" of the illegal character of the act committed, for verily, the illegality of an act is not "discovered"; only the commission of an act can be "discovered".

The rulings laid down in the cases of Zaldivia vs. Reyes, Jr. (211 SCRA 277 [1992]) and Llenes vs. Dicdican (260 SCRA 207 [1996]) pertinently enunciate the principle that prescription begins from the discovery of the act, whether the act charged be a violation of a special law or the Revised Penal Code.

A strict construction of Section 2 of Act No. 3326, as amended, compels the application of the rule that [p]rescription shall begin to run from the day of the commission of the violation and not from the discovery thereof which comes into play only when the commission of the violation of the law be not known at the time of its commission.

I agree with the Ombudsman's argument that the transactions were "never conducted clandestinely ... [but] carried out in the open, leaving a trail of public instruments/documents accessible and susceptible to evaluation." There were corresponding mortgages which were executed and registered (and obviously notarized and hence deemed public instruments). These documents even became part of the coverage of the citizenry's right to information (Section 7, Article III, 1987 Constitution; Section 6, Article IV, 1973 Constitution) since these are deemed official records, documents, and papers pertaining to official acts, transactions, or decisions. Notably, the loan documents had been open to public scrutiny for essentially three presidential regimes.

In point is the ruling in People vs. Sandiganbayan (211 SCRA 241 [1992]) where the accused Paredes was charged with violation of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act, for allegedly filing a false application for a land patent. In said case, we held that the prescriptive period started to run from the date of the filing of the application. We disagreed with the theory that the prescriptive period should not commence upon the filing of Paredes' application because no one could have known about it except Paredes and the Lands Inspector, for the following reasons:

. . . Indeed, practically all the department personnel, who had a hand in processing and approving the application, namely: (1) the lands inspector who inspected the land to ascertain its location and occupancy; (2) the surveyor who prepared its technical description; (3) the regional director who assessed the application and determined the land classification; (4) the Director of Lands who prepared the free patent; and (5) the Department Secretary who signed it, could not have helped "discovering" that the subject of the application was nondisposable public agricultural land.

The foregoing ratio decidendi is applicable to the cases involving behest loans. In applying for any type of loan with the Government, the necessary bureaucratic procedures must be followed and thus a loan would have to be assessed and approved by the loan agency and later subject to some form of internal or external audit. Therefore, as in the aforecited case, a number of public officials were aware of the loans from the time of their approval.

Additionally, the above-cited case articulates the rationale of the doctrine of prescription in criminal cases:

The reason for the extinction of the State's right to prosecute for a crime after the lapse of the statutory limitation period for the filing of the criminal action, is that:

"Statutes of Limitation are construed as being acts of grace, and as a surrendering by the sovereign of its right to prosecute or of its right to prosecute at its discretion, and they are considered as equivalent to acts of amnesty. Such statutes are founded on the liberal theory that prosecutions should not be allowed to ferment endlessly in the files of the government to explode only after witnesses and proofs necessary to the protection of accused have by sheer lapse of time passed beyond availability. They serve, not only to bar prosecutions on aged and untrustworthy evidence, but also to cut off prosecution for crimes a reasonable time after completion, when no further danger to society is contemplated from the criminal activity." (22 CJS 573-574.)

"In the absence of a special provision otherwise, the statute of limitations begins to run on the commission of an offense and not from the time when the offense is discovered or when the offender becomes known, or it normally begins to run when the crime is complete." (22 CJS 585; Italics ours.)

As a corollary principle, whenever the State or the agency of Government charged with the duty to prosecute offenses takes the position that the commission of an act was "not known at the time" and that, therefore, prescription shall commence to run only "from the discovery thereof" (that is, the discovery of the commission of the act), it assumes the burden of showing that the commission of the violation of the law was "not known at the time." It is respectfully submitted that the State has failed to exhibit in this task. There was not the least effort on its part to show that the offenses were not discoverable at the time of commission.

In this regard, I find it inaccurate to say that the obtaining a behest loan constitutes a continuing offense. This view subscribes to the postulate that the reckoning date for prescription is not fixed at the date of approval of the loans considering that other elements of the act occurred at later dates. Similar to a transitory offense, in a continuing offense, some acts material and essential to a continuing crime occur in one province and some in another (Parulan vs. Director of Prisons, 22 SCRA 638 [1968]). This concept is based on the theory that there is a continuance or repetition of the offense wherever the defendant may be found. However, it must be emphasized that a continuing crime is only deemed a single crime, consisting of a series of acts but all arising from one criminal resolution (Reyes, The Revised Penal Code, Vol. I, 1993 ed., p. 680). It is an unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy (Ibid., p. 681, citing 22 C.J.S. 52). For purposes of venue in criminal procedure, a continuing crime is one which is consummated in one place, yet by reason of the nature of the offense, the violation of the law is deemed continuing. Examples are evasion of service of sentence, where the prisoner moves from one place to another; kidnapping and illegal detention, where the deprivation of liberty is persistent and continuing from one place to another; and libel, where the libelous matter is published or circulated from one province to another (Parulan vs. Director of Prisons, supra). Violation of B.P. Blg. 22 also falls under this definition when the dishonored check was issued in one place but delivered in another (People, et al. vs. Grospe, et al., 157 SCRA 154 [1988]).

On the contrary, the procurement of a behest loan is consummated at the time the transaction was entered into, or more specifically, at the time the parties to the loan transaction came into agreement as to the terms thereof. Hence, the violation of the law cannot be considered as continuing, in contrast to the examples mentioned above. Its time and place of consummation are fixed and definite.

II

Granting arguendo that the State had no knowledge of the violation of Republic Act No. 3019 in the exact years of approval of the loans, that is, in 1969, 1975, and 1978, discovery of the violation should be counted, at the very latest, from February 28, 1986, where by virtue of Executive Order No. 1, the Aquino Administration disclosed its knowledge of the "vast resources of the government ... amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad." Definitely not as late as 1992 when the Committee was convened, but as early as February, 1986, the date of the fall of the Marcos regime.

In the case at bar, it is indubitable that the moment the loans were approved during the presidency of President Marcos, such approval, which was done by the DBP, amounted to official governmental action, which, under Section 3, paragraph (m) of Rule 131 of the Rules of Court, bears the presumption of regularity. The subsequent change in the administration definitely did not make such acts unofficial or clandestine.

The following queries now present themselves: In the first place, what brought about the issuance of Administrative Order No. 13 which created the Committee that reported the alleged behest loans obtained by the PSI? What prompted President Ramos to convene such kind of fact-finding committee? The Committee itself admits that behest loans are part of the alleged ill-gotten wealth which former President Ferdinand Marcos and his cronies accumulated and which the Government, through the Presidential Commission on Good Government (PCGG), seeks to recover under Section 15, Article XI of the 1987 Constitution. Hence, the answers are to be found in the Constitution itself and in the circumstances surrounding the framing thereof, particularly the aforestated provision on the right of the State to recover behest loans as ill-gotten wealth. Such provision was included in our Constitution because as early as the 1986 EDSA Revolution, and even antedating such historical event, there was already knowledge of the accumulation of ill-gotten wealth, including the grant of behest loans. Viewed by the Marcos Administration, such loans were not behest. However, in the eyes of the framers of the 1987 Constitution, as well as the Aquino and the Ramos administrations, the former even pre-dating the drafting of the Constitution, such loans bore the apparent stamp of illegality, and hence must be investigated. Ergo, the creation of the Committee which, in the course of its investigation, "discovered" the behest loans subject of the instant case.

It is quite illogical to state that prescription of the criminal action against private respondents commenced to run only from the time the Committee was organized by former President Fidel V. Ramos. It is true that in cases of fraud or concealment of an offense, the statute of limitations begins to run only when the culpable act is actually discovered unless in the exercise of reasonable diligence it might have been sooner discovered. However, I cannot accept the view that although the defrauded party (in this case, the Philippine government) had the opportunity or the power to investigate and discover the fraud, it is not sufficient to charge the same with such notice or knowledge since it only had a suspicion of fraud which is not sufficient to constitute a discovery that will set the State in motion.

The premise on which Executive Order No. 1 is based was not mere suspicion of fraud. Could mere suspicion be enough basis for the significant empowerment of the PCGG to conduct investigation and require submission of evidence in order to ascertain the facts germane to its objective? The PCGG was categorically vested with the power to sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto . . . (Underscoring supllied) Why not start then with its own backyard, by investigating all financial institutions in government? Instead, it ran after private property of cronies, leaving out said lending institutions that may have favored said cronies due to the latters relationship or close affiliation with former President Marcos.

Saliently, there exists not only a suspicion or a badge of fraud, but also a historical antecedent of fraud which even became the basis of a law. Yet the government institution which was charged with the duty of uncovering all ill-gotten wealth failed to act comprehensively.

III

With the highest respect, I must express my disagreement with the statement in the ponencia that it was "well-nigh impossible for the State, the aggrieved party, to have known the violations of Republic Act No. 3019 at the time the questioned transactions were made ..." Precisely because the approval of the loans were deemed official governmental action, there was no concealment. But, as discussed above, granting that no one at that time could question the transactions because no one dared to assail the authority of then President Marcos who may have facilitated the approval of the loans, still, upon the overthrow of the Marcos regime in February, 1986, the State had all the opportunities to question the subject transactions. During that time, the State already had information that Marcos and his cronies acquired ill-gotten wealth, which clearly includes loans approved during the Marcos regime. Such undeniable knowledge is manifested as follows:

(1) Executive Order No. 1 issued on February 28, 1986. -- The very first executive order issued by then President Corazon C. Aquino after her assumption to office and the ouster of President Marcos on February 25, 1986 emphasized the "urgent need to recover all ill-gotten wealth" which was premised on her administration's assertion that "vast resources of the government have been amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and abroad." Upon such premises, the Presidential Commission on Good Government (PCGG) was created and was charged with the task of assisting the President in regard to the "recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship."

Manifestly, as early as February 28, 1986, the PCGG already had the power and authority to "sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task;" "[t]o provisionally take over in the public interest or to prevent the disposal or dissipation, business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos, until the transactions leading to such acquisition by the latter can be disposed of by the appropriate authorities"; and "[t]o enjoin or restrain any actual or threatened commission of acts by any person or entity that may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to carry out its tasks under this order." The PCGG was likewise granted the power, inter alia, to conduct investigation and require submission of evidence in order to ascertain the facts germane to its objective.

Thereafter, the PCGG could have easily dragooned governmental financial institutions and investigated the same to recover ill-gotten wealth. It could have with the least effort handily placed the DBP under investigation. But inexplainably, it failed to do so at that time.

(2) Executive Order No. 2 issued on March 12, 1986. -- This executive order gives additional and more specific data and directions on the recovery of ill-gotten properties amassed by the leaders and supporters of the previous regime. It provided that "... the Government of the Philippines is in possession of evidence showing that there are assets and properties purportedly pertaining to former President Ferdinand E. Marcos, and/or his wife Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents or nominees which had been or were acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the Government of the Philippines or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines; ..." (Italics supplied)

(3) Proclamation No. 3 issued on March 25, 1986 creating the Freedom Constitution. -- Article II of the Provisional Constitution, otherwise known as the Freedom Constitution, mandates that "[t]he President shall give priority to measures to achieve the mandate of the people to: ... (d) recover ill-gotten properties amassed by the leaders and supporters of the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or accounts..."

(4) Executive Order No. 14 issued on May 7, 1986. -- This executive order empowered the PCGG, "with the assistance of the Office of the Solicitor General and other government agencies, ... to file and prosecute all cases investigated by it ... as may be warranted by its findings."

(5) Aside from Section 15, Article XI of the 1987 Constitution (which was ratified by the people in the February 2, 1987 plebiscite), the framers thereof included Section 26, Article XVIII regarding the recovery of the funds and properties plundered during the Marcos regime, as follows:

Sec. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3, dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

Sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

The foregoing historical antecedents were surveyed in Presidential Commission on Good Government v. Pea (159 SCRA 556 [1988]) where this Court charged the PCGG "with the herculean task of bailing the country out of the financial bankruptcy and morass of the previous regime and returning to the people what is rightfully theirs"; and in Bataan Shipyard & Engineering Co., Inc. v. PCGG (150 SCRA 181 [1987]) confirming the Aquino Administration's knowledge of the ill-gotten properties amassed by the leaders and supporters of the previous regime and the urgent need to recover the same.

Going back to the case at bar, it is clear that Administrative Order No. 13, as supplemented by Memorandum Order No. 61, was the first formal act of the Government that dealt exclusively with the inventory of all behest loans for the primary purpose of determining the courses of action that the Government should take to recover those loans. But patently, this act should have been done during the Aquino Administration. Unfortunately, no one in government thought of such act until 1992.

The ponencia, citing People v. Duque (212 SCRA 607 [1992]), further suggests that prescription for offenses penalized under special laws begins to run only from the discovery of the unlawful nature of the acts constituting the offense, seemingly suggesting that discovery of the unlawful nature of "behest loans" came about only when the Committee investigated the transactions using the criteria prescribed in the November 9, 1992 Memorandum Order No. 61 of President Ramos. With the highest respect, this intimation, in my opinion, leads to incongruity and peculiar circumstances.

It is my position that when Section 2 of Act No. 3326 speaks of the "commission of the violation of the law" not being known at the time of its commission, it does not refer to "the commission of the violation of the law" not being known by any specific agency or instrumentality of government. It could not have conceivably intended, with respect to loans granted by government financial institutions, that the knowledge be that of the Committee created in 1992. The Committee could not have known of them when they were granted and committed in 1969, 1975, and 1978 since the Committee did not exist yet at the time.

Inversely, if no committee had been created, does it follow that the violation of the law would not have been known and that prescription would not even start to run? And what if the committee was to be created only after the turn of the century? Does it likewise follow that the prosecution of the offenses would not prescribe until after we are into the next millenium?

Moreover, the Committee did not "discover" the granting of the loans. This was never concealed. The approval of the loans has always been known. What the Committee found, or concluded, was that the loans were "behest loans", or allegedly in violation of the law, and only on the basis of criteria prescribed in the November 9, 1992 Memorandum Order No. 61 of President Ramos.

As explained hereinabove, the illegality of an act is not "discovered"; whether an act is legal or illegal is a matter of opinion and an opinion is not "discovered". In the instant case, that opinion could not have been made earlier than 1992 since it was only in that year when the criteria for "behest loans" were prescribed by executive pronouncement (not by law). Had the Committee not been created, and the criteria prescribed, would it mean that prescription would never have commenced to run?

In this light, precisely to avoid such dissonance created by the circumstances discussed above, People vs. Duque (supra) itself dictates that "[a] statute on prescription of crimes is an act of liberality on the part of the State in favor of the offender. The applicable well-known principles of statutory interpretation are that statutes must be construed in such a way as to give effect to the intention of the legislative authority, and so as to give a sensible meaning to the language of the statute and thus avoid nonsensical or absurd results, departing to the extent unavoidable from the literal language of the statute." (Italics supplied)

With due respect, I disagree with my distinguished colleague, Mr. Justice Puno, who opines that the facts before the public respondent were too little and too lean to enable him to render a just judgment, therefore necessitating a remand of the case to public respondent for further investigation, thus sharing the view of the ponencia that the Ombudsman must proceed with the preliminary investigation to receive evidence on the issue of the date of discovery of the offense. My distinguished colleague points out specific issues that must be settled in the case at bar, to wit: (a) whether the offense in the instant case was not known at the time of its commission; (b) whether or not the PCGG exercised due diligence to discover the offense; and (c) the date of the discovery of the offense. While I agree with the observation that each behest loans case has its own topography of facts, I believe that the issues mentioned above can satisfactorily be resolved by the data that we have on hand.

At the outset, it must be settled that the term ill-gotten wealth as used in the early issuances of former President Corazon C. Aquino, necessarily includes proceeds from behest loans (as admitted by the Committee), particularly benefiting borrowers who were granted such loans because of no other reason except their close association with former President Marcos. However, it must be noted that the such loans had not yet been named as behest, although the concept of such undercollateralized loans already existed.

Section 1, paragraph (a) of the Rules and Regulations issued by then Minister of the PCGG Jovito R. Salonga provides:

SECTION 1. Definition. (A) Ill-gotten wealth is hereby defined as any asset, property, business enterprise or material possession of persons within the purview of Executive Order Nos. 1 and 2, acquired by them directly, or indirectly thru dummies, nominees, agents, subordinates and/or business associates by any of the following means or similar schemes:

(1) Through misappropriation, conversion, or misuse or malversation of public funds or raids on the public treasury;

(2) Through the receipt, directly or indirectly, of any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by the reason of the office or position of the official concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation in any business enterprise or undertaking;

(5) Through the establishment of agricultural, industrial or commercial monopolies or other combination and/or by the issuance, promulgation and/or implementation of decrees and orders intended to benefit particular persons or special interests; and

(6) By taking undue advantage of official position, authority, relationship or influence for personal gain or benefit.

(Underscoring supplied)

Proceeds from behest loans undoubtedly fall under the third paragraph of the enumeration. In terms of manner of procurement, the sixth paragraph applies since the borrower may have taken advantage of relationship with former President Marcos or any of his immediate family members.

Obviously, the PCGG had all the means and the power to run after the proceeds of behest loans by virtue of Executive Order No. 1. It had the power to recover all ill-gotten wealth accumulated by former President Marcos, his immediate family, relatives, subordinates, and close associates, whether located in the Philippines or abroad, including the takeover or sequestration of all business enterprises and entities owned or controlled by them, during his administration, directly or through nominees, by taking undue advantage of their public office and/or using their powers, authority, influence, connections or relationship. And pursuant thereto, the PCGG had the power and authority to conduct investigations as may be necessary in order to accomplish and carry out the purposes of said executive order. It even had the power to sequester or place or cause to be placed under its control or possession any building or office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order to prevent their destruction, concealment or disappearance which would frustrate or hamper the investigation or otherwise prevent the Commission from accomplishing its task.

Pragmatically speaking, the PCGG had a list of all the known and conspicuous cronies of the former President Marcos. Sequestration proceedings were initiated left and right against them. In fact, some of the accounts frozen by the PCGG may have consisted of proceeds from behest loans. Ultimately the problem, however, boils down to the failure of the PCGG to institutionalize and categorize such loans. The PCGG definitely knew about them but had failed to act on them. The mentality of the government on the technical nature of these loans was yet to evolve.

It was only in 1992 when the government realized the void. Thus, the creation of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the Chairman of the PCGG as Chairman, on October 8, 1992, and the conceptualization and categorization of a behest loan by virtue of Memorandum Order No. 61 issued on November 9, 1992. Notably, the following criteria were set as a frame of reference in determining said kind of loan:

a. It is undercollateralized;

b. The borrower corporation is undercapitalized;

c. Direct or indirect endorsement by high government officials like presence of marginal notes;

d. Stockholders, officers or agents of the borrower corporation are identified as cronies;

e. Deviation of use of loan proceeds from the purpose intended;

f. Use of corporate layering;

g. Non-feasibility of the project for which financing is being sought;

h. Extraordinary speed in which the loan release was made.

Emphasis is placed on the fourth characteristic of a behest loan. Clearly, cronies had been the object of pursuit of the PCGG since the issuance of Executive Order No. 1. A crony would definitely refer to a close associate of former President Marcos, if not a family member or a subordinate. Whether it be 1986 or 1992, the meaning of the term has not changed. Why then did the PCGG not run after these borrowers earlier? As earlier stated, the PCGG could have easily placed the DBP under investigation, the same being a government financial institution, just like the Land Bank of the Philippines or the PNB.

Going now to the details of the case at bar, who were the Directors of the PSI involved herein? We are referring to names such as, but not limited to, Pacifico E. Marcos, brother of former President Marcos, and Eduardo V. Romualdez, related to the former First Lady; names that manifestly fall under the term crony.

In fine, let me reiterate my position that the PCGG failed to exercise due diligence in discovering the behest loan subject of this case. It could have done so with its huge powers. With the issuance of Executive Order No. 2 on March 12, 1986 based on the premise that the government was already in possession of evidence showing that there are assets and property purportedly pertaining to former President Marcos, and/or his wife, their close relatives, subordinates, business associates, dummies, agents or nominees, which had been acquired by them directly or indirectly, through or as a result of the improper or illegal use of funds or properties owned by the government or any of its branches, instrumentalities, enterprises, banks or financial institutions, or by taking undue advantage of their office, authority, influence, connections or relationship, resulting in their unjust enrichment and causing grave damage and prejudice to the people and the Republic, and giving the PCGG power to freeze all assets and property in the Philippines in which former President Marcos and/or his wife, their close relatives, subordinates, business associates, dummies, agents, or nominees had any interest and participation, the PCGG could have exhausted all possibilities of acquiring said assets and thus run after the financial institutions that may have made the acquisition possible.

No investigation on the loans was made when it was within its power to do so during the Aquino Administration. If the Ad Hoc Committee could do it in 1992, why could not the PCGG have done it in 1986? My distinguished colleague, Mr. Justice Puno, himself posits that [i]t is easily demonstrable that even before the creation of said committee, the State thru the PCGG, the DOJ, the OSG, and the Ombudsman, has already discovered similar offenses. (Underscoring supplied)

To recapitulate, it must be remembered that during the Marcos regime, the assailed loans bore the stamp of legality since it was the former President himself who facilitated the grant thereof. It was the following regime which contemplated illegality in their nature. Unfortunately, in 1986 and in the years thereafter, no criteria were set for the behest nature of loans. It took the State two regimes (and essentially six years) to finally get down the drawing board and to set concrete criteria to determine a loan as behest, as contained in President Ramos' Memorandum Order No. 61 which was issued on November 9, 1992, and to inventory the loans characterized as such. In fact, if we choose to be more analytical about it, the fact that said Memorandum Order provides that non-payment of a behest loan may entail not only civil but criminal liability inescapably characterizes the Memorandum Order as an ex post facto law which is proscribed by our Constitution (Section 22, Article III, 1987 Constitution). Significantly, the application of the criteria prescribed under Memorandum Order No. 61 (November 9, 1992) to transactions entered into prior to said order violates this constitutional proscription since said Memorandum Order provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent (People v. Sandiganbayan, supra, at p. 249, citing Black's Law Dictionary, 5th edition).

There is thus no need to direct the Ombudsman to reopen the matter for the purpose of receiving evidence on when the government discovered the offense. The facts are unequivocal. The government knew about behest loans as evidenced by law, particularly the first executive orders of the Aquino Administration.

To be sure, we are all in unity as to the nobility of the task of the Committee, and as to the national importance and significance thereof. But all criminal prosecutions are governed by the Statute of Limitations, whereby, for reasons of grace and liberality, at one point, the State sets down and sheathes the sword of Damocles, which would otherwise eternally and endlessly hang over the heads of the citizenry. The instant case is one perfect example where, by clear provision of law, this mystic blade necessarily must cease to dangle. Dura lex sed lex.

I, therefore, vote to dismiss the instant petition.