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^{CONCURRING AND DISSENTING OPINION}

PUNO, J.:

I concur with the majority opinion that section 15 of Article XI of the Constitution applies only to civil actions for recovery of ill-gotten wealth and not to criminal cases. I also agree that the case at bar should be remanded to the public respondent for reception of evidence on the issue of prescription. I respectfully submit that the public respondent committed grave abuse of discretion in prematurely dismissing motu proprio the sworn complaint filed by petitioner PCGG.

The law on prescription of special crimes like violation of R.A. No. 3019 (Anti-Graft Law) is provided for in Section 2 of Act No. 3326, viz:

"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 . . . "

The application of this provision is not simple and each case must be decided according to its facts. It involves a careful study and analysis of contentious facts: (a) when the commission of the violation of the law happened; (b) whether or not the violation was known at the time of its commission, and (c) if not known then, the time of its discovery. In addition, there is the equally difficult problem of choice of legal and equitable doctrines to apply to the above elusive facts. For the general rule is that the mere fact that a person entitled to an action has no knowledge of his right to sue or of the facts out of which his right arises, does not prevent the running of the statute.¹ This stringent rule, however, admits of an exception. Under the "blameless ignorance" doctrine, the statute of limitations runs only upon discovery of the fact of the invasion of a right which will support a cause of action. In other words, courts decline to apply the statute of limitations where the plaintiff neither knew nor had reasonable means of knowing the existence of a cause of action.² Given all these factual and legal difficulties, the public respondent should have ordered private respondents to answer the sworn complaint, required a reply from the petitioners and conducted such hearings as may be necessary so he could have all the vital facts at his front and, upon their basis, resolve whether the offense charged has already prescribed.

In failing to follow this procedure, I respectfully submit that the facts before the public respondent were too little and too lean to enable him to render a just judgment. The public respondent's ruling that the offense charged against private respondents has already prescribed is principally predicated on the finding that the loans in question were evidenced by public documents, like duly registered mortgaged contracts, which were easily discoverable. The ruling is at best arguable considering that the "behest" nature of the loans could not be reasonably known by a mere eye examination of the mortgage contracts. The "behest" nature of the loans appeared to petitioners with certainty only upon their discovery, among others, of the marginal notes made by former President Marcos to facilitate the grant of the loans to private respondents. These marginal notes, addressed to then DBP Chairman Leonides Virata, were contained in two (2) letters³ of private respondent PSI to then President Marcos requesting assistance for the restructuring of the loans. Beyond doubt, these marginal notes are not for public consumption and are not readily discoverable. I therefore submit that it would have been more prudent for the public respondent if he inquired more exhaustively on the confidential character of these marginal notes, i.e., whether they were concealed by private respondents and whether due diligence was exercised by petitioners to discover them.

With due respect, however, I do not agree with the majority that prescription should start to run from the discovery of the crime at bar. He opines that the crime at bar was discovered "x x x only after the Committee, pursuant to its authority under the 8 October 1992 Administrative Order No. 13 of President Ramos, conducted an investigation into the loans or guarantees granted or extended to the Philippine Seeds, Inc., using inter alia, the criteria prescribed in the 9 November 1992 Memorandum Order No. 61 of President Ramos." To start with, it is not fair to use as an assumption the allegation that "the public officials concerned connived or conspired with beneficiaries of the loans" to justify the conclusion that "it was well nigh impossible for the state x x x to have known the violations of R.A. 3019." There is absolutely no factual basis for this conclusion inasmuch as the accused public officials were never given an opportunity to answer the charge of the PCGG. It is thus premature for the court to rule that the commission of the crime at bar was not known to the State. In addition, the suggested date of discovery --- i.e., after the creation of the Presidential Ad Hoc Fact Finding Committee --- is too arbitrary a date. It 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. The cases filed with the Ombudsman and the Sandiganbayan are unmistakable evidence of these discovered crimes.

There is another reason why I do not agree with the suggested date. The suggested date may work to the advantage of some of the contracting parties to the behest loans which have already been discovered before the creation of the said committee. In such cases, the prescriptive period of their crime will still not run since the proffered thesis suggests that the period will start to be counted only after the creation of the said committee.

Be that as it may, I agree with the majority that in dismissing the case at bar, the public respondent erroneously applied the decisions in the two cases of Dinsay and Sandiganbayan. The public respondent leaned heavily on the ruling of the Court of Appeals in the 1940 case of Dinsay⁴ that the prescriptive period for the crime charged therein began from the time the offense was committed as the transactions were evidenced by public instruments and notarization of these documents constituted constructive notice to the whole world. He also relied on People vs. Sandiganbayan⁵ and held that when the "behest" loans were applied for, the loan documents passed through several departments and the accompanying mortgage contracts were duly registered. He then concluded that as no concealment was committed by the parties in the grant of the "behest" loans, there is no "discovery of crime" to speak of and the prescriptive period for the filing of the cases against them should be reckoned from the time of the commission of the offense. It is, however, respectfully submitted that the cases of Dinsay and People vs. Sandiganbayan are inapplicable to the case at bar whose factual milieu is entirely different. Dinsay involves falsification of a document, a crime penalized under the Revised Penal Code, while the Sandiganbayan case involves false application for title to a reserved land. In both cases, the fraudulent acts of defendants therein could not have been unknown to complainants. In Dinsay, the fraud committed clearly appeared on the very face of the public instrument covering the transaction. In the Sandiganbayan case, the nondisposable character of the subject lot could not have escaped the attention of several public officials who inspected the location of the lot and processed the false application. In Dinsay, defendant blatantly exercised acts of ownership over the disputed property from the very first time he came into possession. Hence, in the words of the Court, "there was nothing that was concealed or needed to be discovered" by the plaintiff therein. He knew from the start that defendant committed estafa but chose to sleep on his rights. Thus, Dinsay and Sandiganbayan bear a significant dissimilarity to the case at bar where petitioner PCGG contends that the offense committed by private respondents was not immediately known to it.

With due respect too, I do not agree with my esteemed colleague, Mr. Justice Melo, who ventures the view that the prescriptive period of the crime at bar should start to be counted from February 1986 or after the authoritarian government was toppled down. He cites both the Freedom and the 1987 Constitutions, as well as various proclamations, executive orders and issuances, to support his thesis that the government was aware of these "behest" loans thru agencies like the PCGG that were created to recover these illegal loans and prosecute the guilty parties. All these, however, are generalizations which cannot concretely settle the specific issues in the case at bar - - - i.e., (a) whether the offense in the instant case is not known at the time of its commission, and (b) whether or not PCGG exercised due diligence to discover the offense and (c) the date of discovery of the offense. These "behest" cases are many and each has its own topography of facts different from the others. They cannot be resolved on the basis of generalities that are indifferent to the distinct slopes of each case.

In conclusion, I wish to stress that the offenses ascribed to private respondents are not the ordinary variety. They involve "behest" loans which bled white the economy of the country, one of the excesses of the authoritarian regime that led to the EDSA revolution, a serious evil that the 1987 Constitution aimed to extirpate. It is more in accord with the spirit of the Constitution for the public respondent to accord the petitioners a fair chance to prove that the offenses of private respondents were not readily knowable and that they exercised reasonable diligence in discovering them. The records show that on August 15, 1996, petitioner Orlando Salvador wrote a letter⁶ to public respondent. He informed public respondent that on May 29, 1996, he requested for an update on the status of the "behest" loan cases he filed with said office "in order that (he may) be able to submit other documents needed x x x to facilitate the filing of appropriate criminal actions x x x." Said May 29, 1996 letter was not acted upon by public respondent for a few days before, or on May 14, 1996, the sworn complaint against the private respondents has already been dismissed on the ground of prescription.

It is not too late for public respondent to give the petitioners a fair chance to prove that prescription has not barred the filing of charges against private respondents. The case at bar is yet at the preliminary investigation stage where strict rules of procedure need not be applied at the expense of justice. As repeatedly stressed, the case at bar involves nothing less than the interest of the people and under the Constitution, public respondent is the protector of the people. As protector of the people, the public respondent possesses a vast arsenal of powers to prosecute wrongful acts or omissions of public officials and employees. The power to prosecute includes the power to investigate and gather evidence motu proprio. Public respondent's role should be pro-active when it comes to fulfilling his role of protecting the people's interest.

IN VIEW WHEREOF, I respectfully submit that the facts of the case at bar are incomplete and I vote that it be remanded to the public respondent for further reception of evidence. On the basis of the parties' evidence, the respondent Ombudsman should determine the date of the commission of the crime and if the same be not known at the time, he should determine the date of its discovery and from the totality of the facts rule on whether the crime at bar has prescribed.

Endnotes:

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¹ 21 AM JUR 2d, 715-716.

² Ibid., 716.

³ Rollo, pp. 107-108 and pp. 109-110.

In one of the letters, former President Marcos made the following notations for DBP Chairman Virata: "This is the kind of project we need. Suspend foreclosure and study restructuring and refinancing."

⁴ 40 O.G. Suppl. 50.

⁵ 211 SCRA 241 (1992).

⁶ Rollo, at p. 27.