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^{SEPARATE (CONCURRING) OPINION}

VITUG, J.:

In the instant petition, differing views have been expressed, given the circumstances involved in the case, on whether the prescriptive period applicable to the contemplated criminal action should be reckoned from the time the acts believed to constitute an offense are done or from the time the proper authorities are able to actually ascertain that the offense has been committed. The ruling of the public respondent that the offense charged against private respondents has already prescribed is predicated on the finding that the questioned behest loans are contained in public documents, some being duly recorded, that render them easily discernable or discoverable. Petitioner contends otherwise.

Article XI, Section 15, of the Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees as transferees, shall not be barred by prescription, laches, or estoppel. This provision does seem to indicate that what is imprescriptible is the corresponding civil action to recover ill-gotten wealth but not the criminal action that may relate thereto. The criminal action, i.e., violation of Section 3 (c) and (g), Republic Act (R.A.) No. 3019, can prescribe conformably with the pertinent statute applicable which, in this instance, is Batas Pambansa Blg. 195, effective as of 16 March 1982, providing for a fifteen-year prescriptive period and thereby modifying to the above extent the ten-year period prescribed under R.A. No. 3019. In computing the prescriptive period, Act No. 3326, as amended, states:

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 ismissed for reasons not constituting double jeopardy.

In People vs. Sandiganbayan,¹ on the basis of its factual settings, the Court concluded that the date of the violation of the law becomes the operative date of the commencement of the period of prescription which, in that case, was the date of the filing of the application. There, the charge was for the violation of Republic Act No. 3019 allegedly committed through misrepresentation in an application for land patent (by wrongly stating that the land applied for was disposable in character). The Court said:

The theory of the prosecution that the prescriptive period should not commence upon the filing of Paredes application because no one could have known about it except Paredes and Lands Inspector Luison, is not correct for, as the Sandiganbayan pointedly observed: it is not only the Lands Inspector who passes upon the disposability of public land x x x other public officials pass upon the application for a free patent including the location of the land and, therefore, the disposable character thereof (p. 30, Rollo). 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 accupancy; (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.²

In People vs Duque,³ upon the other hand, the Court held that the applicable prescriptive period "began to run from the time the recruitment activities of appellant Duque (charged with illegal recruitment) were ascertained by the complainants and by the POEA to have been carried out without any license or authority from the government."⁴ The Court ruled that the crime for which he was convicted had not prescribed because recruitment -

"x x x for overseas employment is not in itself necessarily immoral or unlawful. It is the lack of necessary license or permit that renders such recruitment activities unlawful and criminal. Such lack of necessary permit or authority, while certainly known to appellant Duque back in January 1986, was not known to private complainants at that time. Indeed, private complainants discovered that appellant did not possess such authority or permit only when they went to the offices of the POEA for the purpose of filing a claim for return of the money they had delivered to appellant Duque. Since good faith is always presumed, the complainants were entitled to assume that appellant Duque was acting in good faith when he presented himself as a recruiter for overseas placement. Even if it be assumed arguendo that ordinary prudence required that a person seeking overseas employment ought to check the authority or status of persons pretending to be authorized or to speak for a recruitment or placement agency, the offended parties' failure to do so did not start the running of the prescriptive period. In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, then prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts."⁵

Similar to Duque was the case of People vs. Monteiro,⁶ where the Court said that the period of prescription for the offense (failure to register with the SSS) should be deemed to have commenced from the day of the discovery of the violation if this was not evident at the time of its commission, and that a contrary view would be dangerous as the successful concealment of an offense during the period fixed for its prescription would be the very means by which the offender (might) escape punishment.⁷

It seems quite obvious to me that the case at bar is more akin to Duque and Monteiro than it is to the situation in People vs. Sandiganbayan. The supposed behest loans where involved, contracted in 1969, 1975 and 1978, could not be deemed illegal per se nor evident to be as such. Verily, in this instance, certain criteria or frame of reference had yet to be formulated and adopted, indeed by no less than a COMMITTEE created and constituted for the purpose, before the nature and character of the loans as being unlawful, if at all, could be clearly drawn. I am, therefore, inclined to agree with petitioner that the start of the prescriptive period is the day of actual discovery of the commission of the crime.

Endnotes:

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¹ 211 SCRA 241.

² At p. 247.

³ 212 SCRA 607.

⁴ At p. 615.

⁵⁵ At p. 613.

⁶ 192 SCRA 548.

⁷ At p. 551.