SUPREME COURT DECISIONS

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DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

I find petitioners motion for reconsideration of our Resolution dated May 28, 2002 bereft of merit. The cases filed against respondent Senator Panfilo M. Lacson should be DISMISSED on the grounds that his constitutional right to speedy trial and speedy disposition of cases has been violated and that the filing of new Informations against him constitutes persecution.

Also, I maintain that Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure, an implementing Rule of the right to speedy trial and speedy disposition of cases, applies to respondents cases upon a showing before the trial court that its requirements have been complied with.

I. Respondents constitutional

right to speedy trial and

speedy disposition of his cases

has been violated.

Statutes cannot be effective to place any limitation on a persons constitutional right,¹ and therefore they should not be regarded as a definition of the constitutional provision.² It is thus conceivable that the constitutional provision is violated although its implementing statute is not.³ This is because constitutions are not adopted to control the rights and procedures of the moment but to establish broad principles of justice and fair play for all time.⁴

The present controversy brings into focus the novel provision, Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure, which reads:

Sec. 8. Provisional Dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two years after issuance of the order without the case having been revived.(Emphasis supplied)

In our Resolution now being challenged by petitioners in their Motion for Reconsideration, we held that the above Rule is inapplicable to the cases of respondent because the records fail to show that its requirements have been complied with. These requirements as applied to his cases are: the provisional dismissal by the Regional Trial Court, Branch 81, Quezon City of Criminal Cases Nos. Q-99-81679 to 89 against respondent must have been with his express consent and with notice to the offended parties; and the reckoning date of the two-year period within which to revive the cases should have been properly determined. Consequently, in the same Resolution, we remanded the case at bar to the trial court to enable the parties to adduce evidence on whether the said requirements have been complied with on the basis of which the trial court should rule on whether the newly filed Criminal Cases Nos. 01-101102 to 01-101112 against respondent should be dismissed or not.

In petitioners Motion for Reconsideration, they contend that the retroactive application of Section 8, Rule 117 violates the peoples right to due process; and that for lack of express consent of respondent and prior notice to the offended parties, the Rule does not apply to his cases.

The novelty of Section 8, Rule 117 somehow shades the more important issue of whether respondents constitutional right to speedy trial and disposition of cases has been violated.

Section 8 of Rule 117 was promulgated pursuant to the constitutional guarantee of speedy trial and speedy disposition of cases. Clearly, there can be no automatic inference that because Section 8 was found to be inapplicable, as claimed by petitioners, respondents right to speedy trial and speedy disposition of his cases was not violated. Lest we miss the forest for the trees, extreme caution should be exercised so that the general terms of the constitutional guarantee would not be lost in the specific and detailed provisions of the rules promulgated for its enforcement.

Speedy trial is said to constitute not a privilege,[5 but a right, one that is recognized as fundamental. It is one of the most basic and inviolable rights.⁶ Thus, enshrined in our Constitution is the mandate that in all criminal prosecution, the accused shall enjoy the right to a speedy trial.⁷ To expedite not only the trial stage but also the disposition of the case itself, the framers of our Constitution saw the need to further provide that all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies.⁸cräläwvirtualibräry

The crusade towards a speedy justice did not stop in the Constitution. To supplement it and to render its guarantee more effective, Congress enacted Republic Act No. 8493 (Speedy Trial Act of 1998) which aims to ensure a speedy trial of all criminal cases before the Sandiganbayan, Regional Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts. For its part, this Court promulgated Circular No. 39-98 for the purpose of implementing the provisions of RA 8493. And when the 2000 Revised Rules of Criminal Procedure was drafted, substantial portions of RA 8493 and Circular No. 39-98 were included therein, thus:

Section 1 (g) of Rule 116 Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency or a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

Section 1 of Rule 119 After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order.

Section 2 of Rule 119 -- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause.

The Court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court.

And still, to achieve speedy trial and speedy disposition of cases, this Court promulgated Section 8, Rule 117.

The foregoing laws and rules are merely tools to enforce the constitutional guarantee. They do not constitute its definition. It bears reiterating that just because Section 8, Rule 117 is found to be inapplicable does not ipso facto indicate that there is no violation of the right to speedy trial and speedy disposition of cases. The laws and rules, which are just legislative construction or application of the pervasive constitutional guarantee must be construed fairly in view of the right they seek to enforce. They cannot be considered to have a limiting effect on the constitutional guarantee. Significantly, the 2000 Revised Rules of Criminal Procedure is not silent on the matter. Section 10, Rule 119 specifically states:

SEC. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. 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.

Ultimately, whether the constitutional guarantee of speedy trial has been complied with is still a judicial question to be answered in the light of the circumstances of each particular case and guided by the principle that the proceedings were free from vexatious, capricious and oppressive delays.⁹ Our case law is rich with doctrines setting the parameters of the right to speedy trial and the right to speedy disposition of cases. In the recent case of People vs. Leviste,¹⁰ we reiterated our ruling that the right to speedy trial is violated only where there is an unreasonable, vexatious and oppressive delay without the participation or fault of the accused, or when unjustified postponements are sought which prolong the trial for unreasonable length of time.

On the other hand, in Caballero vs. Alfonso, Jr.¹¹ we laid down the guidelines in determining the applicability of the speedy disposition formula. There, we held that speedy disposition of cases is a relative term. Just like the constitutional guarantee of speedy trial, speedy disposition of cases is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory.

Years of serious deliberation yield certain factors to be considered in the determination of whether or not the right to a speedy trial and speedy disposition of cases has been violated. These are: 1) length of delay; 2) reason for the delay; 3) assertion of the right or failure to assert it; and 4) prejudice caused by the delay.¹² These factors are effective in balancing the interest of the State and the accused.

Records show that the period between the dismissal of Criminal Cases Nos. Q-99-81679 to 89 and the refiling of the new Informations docketed as Criminal Cases Nos. 01-101102 to 01-101112, is two (2) years and two (2) months. It may be recalled that Criminal Cases Nos. Q-99-81679 to 89 were dismissed on March 29, 1999.¹³ 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. Petitioners justify the belated re-investigation on the ground that prior to the appearance of Ramos and Yu, the government had no evidence to sustain the refiling of the cases.¹⁴ They also claim that due to respondents close association with Former President Joseph Estrada and his position then as PNP Chief, the witnesses were deterred from coming out with the truth.¹⁵cräläwvirtualibräry

The justifications raised by petitioners are contrary to the records. As early as July 1999, Yu executed an affidavit attesting to the very same facts contained in his March 24, 2001 affidavit.¹⁶ Another witness, Mario Enad, also executed his affidavit as early as August 8, 1995.¹⁷ Petitioners have never claimed that these two were unwilling to testify on earlier dates. Also, nowhere in their affidavits is a statement that they were afraid of testifying against respondent because he is a friend of the Former President or was a PNP Chief. The two even mentioned the names of other witnesses whom petitioners could have utilized in an earlier re-investigation. Clearly, what glares from the records is that from the time of the dismissal of Criminal Cases Nos. Q-99-81679 to 89, there was an unjustified interval of inactivity of more than two (2) years on the part of the prosecution.

Petitioners cannot argue that respondent failed to assert his right to speedy trial and speedy disposition of cases. While we have ruled that if an accused wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case,¹⁸ however, the same cannot be expected of respondent. It would be ludicrous for him to ask for the trial of his cases when the same had already been dismissed. During the interval, there were no incidents that would prompt him to invoke the right. Indeed, the delay could only be attributed to the inaction on the part of the investigating officials.¹⁹cräläwvirtualibräry

Neither can petitioners argue that the right to speedy trial is inapplicable since the charges have been dismissed. As explained by Justice Marshall, the anxiety brought by public prosecution does not disappear simply because the initial charges are temporarily dismissed. After all, the government has revealed the seriousness of its threat of prosecution by initially bringing charges.²⁰ Consequently, when the government has already investigated and charged an accused, it is in a much better position and properly shoulders a greater responsibility to reinvestigate and re-prosecute him with reasonable promptness. Sadly, this was not done in this case. In Cervantes vs. Sandiganbayan,²¹ we upheld the accuseds right to speedy disposition of his case notwithstanding his alleged failure to take any step to assert his right, thus:

We cannot accept the Special Prosecutors ratiocination. It is the duty of the prosecutor to speedily resolve the complaint, as mandated by the Constitution, regardless of whether the petitioner did not object to the delay or that the delay was with his acquiescence provided that it was not due to causes directly attributable to him.

Generally, the question of how much lapse of time is consistent with the constitutional guarantee of speedy trial and speedy disposition of cases varies with the particular circumstances. There is no constitutional basis for holding that the right to a speedy trial can be quantified into a specified number of days and months.²² The mere passage of time is not sufficient to establish a denial of a right to a speedy trial, but a lengthy delay, which is presumptively prejudicial, triggers the examination of other factors to determine whether rights have been violated.²³ In a case, it has been held that a delay of more than one (1) year is presumptively prejudicial and shifts the burden to the government to justify the delay.²⁴ Certainly, the two-year delay here is prejudicial to respondent and it should be taken against petitioners, they having failed to show any good cause or reason for such delay.

Another factor to be considered in determining whether respondents right to a speedy trial and disposition of cases has been violated is the prejudice to him. In his comment, he states:

x x x (i) he had every reason to believe that the sword of Damocles which had hang atop his head by virtue of the filing of the original charges in 1995 had been obliterated by their dismissal in 1999 as he has the right to Due Process and to be rid of the paranoia of being harassed for charges by the Republic and to indict him for heinous offenses and subject him to a non-bailable action disenfranchises eight (8) Million or so voters who had put him in office as their representative, (ii) it smacks of oppression as petitioner DOJ Secretary had filed or instigated new cases against him for an undisclosed political agenda, (iii) his detractors, including petitioner DOJ Secretary, have the capacity to influence the litigation including the investigation and prosecution thereof, (iv) it is plainly a vindictive action perpetrated by a PNP Senior Superintendent whom petitioner had accused of kidnapping for which he was punished and sent to the National Penitentiary until he was recently released and re-assumed a post as Intelligence Chief under the current administration, and (v) respondent is now the subject of persecution and not prosecution.²⁵cräläwvirtualibräry

There is no denying that the filing of new Informations against respondent had caused him undue prejudice. Almost eight (8) years have elapsed since November 21, 1995,²⁶ the date the original Informations were filed, and more than three (3) years have passed since Criminal Cases Nos. Q-99-81679 to 89 were dismissed on March 29, 1999. It is therefore reasonable for respondent to expect that by this time, petitioners would finally give him peace of mind. In Licaros vs. Sandiganbayan,²⁷ we ruled that the delay in the disposition of the case had caused much prejudice, distress and anxiety to petitioner whose career as bank executive and businessman has suffered the stigma of being shackled to an unresolved criminal prosecution, virtually hanging like a Damocles sword over his head for more than a decade. There, we stressed the consequences and problems inherent in protracted litigation which include, among others, the stagnant professional growth, hampered travel opportunities and a besmirched reputation. It cannot be said that respondent does not suffer the same consequences now.

Prejudice does not only consist of impairment of the accuseds ability to defend himself, it may also include other sufferings, such as anxiety and stigma.²⁸ Respondent is not an ordinary citizen. He is a Senator who has a reputation to protect. The publicity caused by the refiling of new Informations undoubtedly tainted his name. Moreover, he has to defend himself constantly from the nagging accusations that interfere in the performance of his duties as a Senator.

I believe that the prosecution now of respondent is tantamount to persecution.

While it is the policy of this Court not to interfere in the exercise of the prosecutors discretion, however, it cannot tolerate a refiling of new Informations, as in this case, at the impulse of the officials in command. The prosecution of an accused must not be made to depend on who is perceived as an enemy by those who sit in power but on the sacrosanct duty of prosecutors to bring to justice those believed to be offenders of the law while ensuring that their rights under the Constitution remain inviolable.

The sudden over-eagerness of petitioners to prosecute respondent, to my mind, is not really an indicum of competence, it is a clear example of persecution. This was not overlooked by the Court of Appeals which held:

x x x Apparently, hints of persecution are manifest in the case of petitioner. For one, though earlier accused as an accessory in the original multiple murder cases, petitioner is now charged as a principal in the recent revival of the criminal cases obviously to preclude any opportunity on his part to evade incarceration by seeking bail. Persecution is likewise apparent in the hurried pace at which the preliminary investigation of the subject criminal cases was completed by respondent prosecutors and in the immediate and abrupt filing of the Informations against petitioners in only a matter of days after the original petition had been filed in this Court.²⁹cräläwvirtualibräry

Petitioners ought to be reminded of the caveat in Tatad vs. Sandiganbayan³⁰ that prosecutors should not allow and should avoid giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Their undue haste in conducting the preliminary investigation of the 26 accused and their inordinate interest to re-file the cases hurriedly raise a quizzical eyebrow.

Not to be glossed over is the fact that the preliminary investigation which resulted in the filing of new Informations was initiated only by the letter dated March 27, 2001 of PNP Chief General Mendoza to then DOJ Secretary Hernando B. Perez. I do not think that the said letter could qualify as a complaint under Section 3, Rule 112 of the 2000 Revised Rules of Criminal Procedure,³¹ the basis for a preliminary investigation. The procedure adopted is a departure from the usual mode. Again, in Tatad vs. Sandiganbayan,³² we held:

A painstaking review of the facts cannot but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for fact-finding investigation and report.

Indeed, the circumstances surrounding the filing of the new Informations against respondent are indicative of persecution and not prosecution.

One thing for which this Court must guard itself against is to be used as an instrument of political manipulation. As the last bulwark of the defenseless and the accused, our duty is to uphold the law and no other. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former.³³

II. Section 8, Rule 117 applies

to respondents cases upon

compliance with its

requirements.

Going back to Section 8, Rule 117, the remand of this case to the trial court for the determination of whether or not the requirements of this provision have been complied with is imperative.

I am not convinced that the dismissal of Criminal Cases Nos. Q-99-81679 to 89 was without the consent of respondent and that the offended parties were not notified. It appears from the Resolution³⁴ 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 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 is 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.³⁵ 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.

At any rate, considering the view that there is doubt on whether respondent gave his express consent to the dismissal of the cases, as expressed in our challenged Resolution, this incident should be determined by the trial court. With respect to the requirement of notice to the offended parties, again the same should be addressed to the trial court which can hear the parties thereon. We must maintain a hands-off stance on these matters for a different approach might lead us astray into the field of factual conflict where our legal pronouncements would not rest on solid grounds. Time and again we have ruled that this Court is not a trier of facts.³⁶cräläwvirtualibräry

The petitioners maintain that Section 8, Rule 117 cannot be applied retroactively for to do so would work injustice to the People. Settled in our jurisprudence is the principle that when a new law will be advantageous to the accused, the same may be given retroactive effect.³⁷ This is more particularly so when the law is merely procedural. In several cases, we applied the provisions of the 2000 Rules of Criminal Procedure retroactively.³⁸ We should take the same action on Section 8, Rule 117 considering that it is a reinforcement of a persons constitutional right to speedy trial and speedy disposition of cases.

Moreover, 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.³⁹ Only private, and not public, rights may become vested in a constitutional sense.⁴⁰ 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.⁴¹cräläwvirtualibräry

While I concurred in our challenged Resolution that this case should be remanded to the trial court to enable it to determine whether the requirements of Section 8, Rule 117 have been complied with, however, I still believe that we should settle now once and for all the most crucial issue, i.e., whether or not the provisional dismissal contemplated in the Rule shall become permanent two years after the issuance of the order and thus constitutes a bar to a subsequent prosecution for the same offense. To evade it now is to delay the day of reckoning and to put the legal community in a quandary.

The principle adhered to by petitioners is that the rule prohibits only a revival of a criminal case after the lapse of the periods prescribed therein and does not impinge on the right of the State to prosecute an offender for the same offense under a new Information.⁴² Thus, there arises the distinction between revival and filing of a new Information.

Section 8 of Rule 117 is a new provision. To reiterate, it draws its life from the constitutional guarantees of speedy trial⁴³ and speedy disposition of cases. Its mandate is explicit, i.e., a provisional dismissal of an offense becomes permanent if not revive within the prescribed periods (or two years in respondents cases). To say that this permanent dismissal prohibits only the revival of the case but not the filing of new Information, is to render the provision ineffectual, providing only lip service to the accuseds constitutional right it seeks to enforce. Indeed, what difference will the provision make if after the lapse of two years, the State can still prosecute the accused for the same offense by merely filing a new Information? With the interpretation given, the dismissal cannot really be considered permanent. After two years, all the prosecution has to do is to file a new Information. Thus, whether by revival or by filing a new Information, the effect is the same, i.e., the prosecution of the accused for the same offense continues. What is overlooked is that, in the interim, he continues to suffer all the prejudices that come with the failure of the prosecution to put a real end to his case. We might as well take heed of the warning against allowing doctrinaire concepts to submerge the practical demands of the constitutional right to a speedy trial.⁴⁴cräläwvirtualibräry

What price does the State have to pay for its lethargy or negligence to prosecute? If I am to follow petitioners position, then I can say that the only sanction for the violation of the periods prescribed in Section 8 is that the State should conduct the corresponding new preliminary investigation before it can file a new information. It seems to me that the new preliminary investigation is the only difference between filing a new information and revival. To my mind, conducting a preliminary investigation is hardly a sanction for the prosecutions negligence. While a new preliminary investigation causes intense inconvenience to the prosecution, the accused suffers as well. Indeed, considering the additional delay the prosecution incurs in bringing the case to a conclusion as a result of the filing of a new information and the anxiety on the part of the accused by a threat of a new prosecution, the interpretation accorded to Section 8, Rule 117 has not advanced its real purpose.

Let it be stressed that Section 8 was introduced not so much for the interest of the State but precisely for the protection of the accused against protracted prosecution. The measure of protection consistent with its language is the treatment of the permanent dismissal as a bar to another prosecution for the same offense.

The discharge of an accused for failure of the prosecution to bring him to trial within the prescribed period is not an entirely new concept. Even prior to the introduction of Section 8, there were already provisions of similar import in other jurisdictions. Under certain statutes implementing the constitutional right of an accused to speedy trial, a discharge granted pursuant to the statute is held to be a bar to subsequent prosecution, whether under the same or new indictment. This view has been defended on the ground that any other construction would open the way for complete evasion of the statute and that the constitutional provision can only be given its legitimate effect by holding that a person once discharged is entitled to immunity from further prosecution for the same offense.⁴⁵cräläwvirtualibräry

In State vs. Crawford,⁴⁶ the Supreme Court of Appeals of West Virginia entered a judgment forever discharging the accused from prosecution for the offense on the basis of a rule requiring that every person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the indictment is found against him without a trial. The discharge was decreed notwithstanding the fact that it was within the third term that the State entered a nolle prosequi and at the same time reindict for the same offense. The court ratiocinated:

When a prisoner has stood ready for trial through two full terms and substantially through the third one, and, no doubt, until the jury has been discharged and the opportunity for trial at that term annihilated, he has substantially performed all the statutory conditions required to his right of discharge. Although such a discharge is not the moral equivalent of an acquittal, and he may be guilty, his constitutional right to have his guilt or innocence determined by a trial within a reasonable time cannot be frittered away upon purely technical and unsubstantial ground. Nor is the legislative act designed to enforce such right to be interpreted otherwise than in accordance with the recognized rules of construction. To permit the state to enter a nolle prosequi within the third term and reindict for the same offense, and thus deprive the prisoner of the terms fully elapsed as well as the term about to end, would make it possible to keep the prisoner in custody or under recognizance for an indefinite period of time, on charges of a single offense, unless perhaps, he could enforce a trial by the writ of mandamus. Such a construction as substantially tends to the defeat or undue limitation of the purpose of a statute is not permissible in any jurisdiction.

[4] That statutes shall be so construed as to effectuate the legislative purpose, not defeat it, is fundamental and all-pervasive in statutory construction. The remedy given by law for failure to accord a prompt trial to one charged with felony is right to be discharged, not mandamus to obtain such trial. x x x.

In People vs. Allen,⁴⁷ the Supreme Court of Illinois held that a discharge of the accused for failure of the prosecution to try him within four months after written demand, renders him immune from trial for the same offense whether under the same or a new indictment. In Newlin vs. People,⁴⁸ the same court ruled that where a defendant, indicted and committed for crime, is entitled, under the statute, to a discharge for delay in not bringing him to trial while being held under the indictment, the fact that a second indictment is found for the same offense and a nolle prosequi entered as to the first indictment, does not defeat his right to be discharged. Again, in People vs. Heider⁴⁹ the same court held that an accused who has obtained his discharge owing to the failure of the People to bring his case to trial within the time prescribed by the statute enacted to carry into effect the constitutional guaranty of the right to a speedy trial, cannot be committed or held for the same offense under a new indictment.

Clearly, there is a catena of jurisprudence supporting the principle that the first discharge of the accused under a statute implementing the constitutional right to speedy trial constitutes a bar to a subsequent prosecution for the same offense. I see no reason why we cannot adopt the same principle.

To reiterate, Section 8, Rule 117 seeks to implement the constitutional guarantees that a) in all criminal prosecution, the accused shall enjoy the right to have a speedy trial,⁵⁰ and b) that all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.⁵¹ The importance of these rights cannot be overemphasized. They are necessary and vital because a person should not have to face continued anxiety under a prolonged threat of criminal prosecution. Postponement of trial for a long time will ordinarily handicap an accused through the disappearance of necessary witnesses and loss of documentary evidence. Furthermore, after many months or years, the memory of those witnesses who are available will likely be impaired by the passage of time. These rights are protections too against the harassment of being subjected to accusation, with its harmful effect on the accuseds reputation and business affairs.⁵² As aptly observed in a case, unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including oppressive pre-trial incarceration, anxiety and concern of the accused, and the possibility that the accuseds defense will be impaired by dimming memories and loss of exculpatory evidence. Of these forms of prejudice, the most serious is the last because the inability of the accused to prepare his case skews the fairness of the system.⁵³cräläwvirtualibräry

The high regard attributed by this Court to the accuseds right to a speedy trial and to a speedy disposition of his case is evident from the tradition established by our case law that the dismissal of a criminal case based on the denial of the accuseds right to speedy trial amounts to an acquittal and constitutes a bar to another prosecution for the same offense. ⁵⁴ It is on the same light that we should view Section 8.

A rule with the force of law should be construed in the light of the object to be achieved and the evil or mischief to be suppressed.⁵⁵ It should be given such a construction as will advance the object and secure the benefits intended.⁵⁶ This Courts Committee on Revision of the Rules of Court surely saw the prejudice to the rights of the accused caused by a suspended provisional dismissal of his case. Apparently, Section 8 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.⁵⁷cräläwvirtualibräry

In addition to the prejudice on the part of the accused, perceived by the Committee, we cannot disregard the anxiety that he suffers because of a public accusation.

Petitioners attempt to create a conflict between the law on prescription of crimes and the rule on provisional dismissal. They argue that substantive law should override or prevail over procedural law. The conflict is non-existent. The law on prescription of crimes refers to the period during which criminal charges must be filed.⁵⁸ Section 8 of Rule 117 refers to the period when a provisional dismissal ceases to be temporary and becomes permanent, thus, no longer subject to be set aside by the revival of criminal charges. This rule comes into play only after the State has commenced the prosecution.

The twenty-year prescriptive period for a case punishable by death under Section 90 of the Revised Penal Code is intended to give law enforcers ample time to apprehend criminals who go into hiding. It also enables prosecutors to better prepare their cases, look for witnesses, and insure that correct procedure has been followed. On the other hand, the two-year period under Section 8, Rule 117 is intended to warn the State that once it filed a case, it must have the readiness and tenacity to bring it to a conclusion. The purpose of the period is to encourage promptness in prosecuting cases.

Prejudice to the rights of the accused intensifies over time. While it is true that a mere mathematical reckoning of the time involved is insufficient to determine a violation of an accuseds right to speedy trial, we cannot disregard the reality that after the lapse of a certain period, the reliability of a trial is compromised in ways that neither party can prove or, for that matter, identify. It bears stressing that the mere passage of time impairs memories, causes evidence to be lost, deprives the accused of witnesses, and interferes with his ability to defend himself. Now, these nuisances may be avoided if we are to give full effect to Section 8 and consider the permanent dismissal contemplated therein as a bar to a subsequent prosecution of the accused for the same offense. Not only will it be in consonant with the cardinal principle of justice and fairness, it will also provide force to the rule.

Let it be stated anew that this Court cannot and will not allow itself to be made an instrument of politics nor be privy to any attempt at the perpetration of injustice.⁵⁹cräläwvirtualibräry

In resum, I reiterate that petitioners undue delay in conducting a new preliminary investigation and refiling of new Informations against respondent violated his constitutional right to a speedy trial and speedy disposition of his cases. Respondent correctly invoked the implementing Rule, Section 8, Rule 117. But as we held in our questioned Resolution, it must first be shown before the trial court that its requirements have been complied with. And I venture to add that should the trial court find that these requirements have been complied with, then the provisional dismissal of Criminal Cases Nos. Q-99-81679 to 89 becomes permanent and thus constitutes a bar to a subsequent prosecution of respondent for the same crimes.

As a final word, punishment should be imposed on the accused only if he violated the law. However, his constitutional privileges and immunities must be protected against the States arbitrary assertions of power. Obviously, its filing of new Informations against respondent for the same crimes after the lapse of two years contravenes no less than the universal principle of justice and fairness, the bedrock of every Constitution, law and rule.

WHEREFORE, I vote to DENY petitioners motion for reconsideration.

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Endnotes:

¹ 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).

² State vs. Kuhnhausen, 201 Or. 478, 272 P. 2d 225 (1954).

³ Barela vs. People, 826 P. 2d 1249 (Colo.1992) State vs. Russel, 108 Idaho 58, 696 P. 2d 909 (1985); State vs. Strong, supra.

⁴ State vs. Kuhnhausen, supra.

⁵ State vs. Brockelman, 173 Kan. 469, 249 P. 2d 692 (1952).

⁶ State vs. Strong, supra.

⁷ Section 14 (2), Article III.

⁸ Section 16, Article III.

⁹ State vs. Kuhnhausen 272 P. 2d 225 (1954).

¹⁰ G.R. No. 104386, March 28, 1996, 255 SCRA 238 (1996), citing People vs. Tampal, 314 Phil. 35 (1995).

¹¹ G.R. No. L-45647, August 21, 1987, 153 SCRA 153 (1987).

¹² Guerrero vs. Court of Appeals, G.R. No. 107211, June 28, 1996, 257 SCRA 703; Cojuangco, Jr., vs. Sandiganbayan, G.R. No. 134307, December 21, 1998, 300 SCRA 367.

¹³ Rollo at 93-102.

¹⁴ Id. at 62.

¹⁵ Id. at 1082.

¹⁶ Id. at 626.

¹⁷ Id. at 389.

¹⁸ Esmena vs. Pogoy, G.R. No. 54110, February 20, 1981, 102 SCRA 861; People vs. Diaz, 94 Phil. 714 (1954).

¹⁹ See Lopez vs. Office of the Ombudsman, G.R. No. 140529, September 6, 2001.

²⁰ United States vs. Macdonald, 456 U.S. 1 (1982), see Dissenting Opinion.

²¹ G.R. No. 108595, May 18, 1999, 307 SCRA 149.

²² 21A Am Jur 2d 1036.

²³ U.S. vs. Villete, 688 F. Supp. 777 (D. Mer 1988); Hutchison vs. Marshall, 573 f. Supp. 496, 9 Media l. Rep. BNA) 2443 (S.D. Ohio 1983), judgment affd, 744 F. 2d 44 (6^th Cir. 1984); Dykes vs. State, 452 So. 2d 1377 (Ala. Crim. App. 1984); State vs. Johnson, 190 Conn. 541, 461 A. 2d 981 (1983) (16-month delay triggers judicial scrutiny); State vs. Johnson, 564 A. 2d 364 (Del. Super.Ct. 1989); State vs. Russel, supra (23-month delay triggers judicial scrutiny); State vs. Strong, supra; Skaggs vs. State, 676 So. 2d 897 (Miss. 1996) (delay of eight months or more is presumptively prejudicial); State vs. Powers, 612 S.W. 2d 8 (Mo. Ct. App. S.D. 1980); State vs. Sanderson, 214 Mont. 437, 692 P. 2d 479 (1985) (390 day delay triggers speedy trial inquiry).

²⁴ Graves vs. U.S., 490 A 2d 1086 (D.C. 1984).

²⁵ Rollo at 504.

²⁶ Id. at 96.

²⁷ G.R. No. 145851, November 22, 2001.

²⁸ In U.S. vs. Dreyer, it was held that the factor of prejudice is not limited impairment of defense, it includes mental suffering.

²⁹ Rollo at 159.

³⁰ Supra.

³¹ (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two copies for the official file. The Affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public; each of whom must certify that he is personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

³² Supra.

³³ Allado vs. Diokno, G.R. No.113630, May 5, 1994, 232 SCRA 192.

³⁴ Rollo at 93-103.

³⁵ Supra.

³⁶ La Suerte Cigar and Cigarette Factory vs. Director of the Bureau of Labor Relations, 208 Phil. 597 (1983); National Food Authority vs. Court of Appeals, G.R. No. 96453, August 4, 1999, 311 SCRA 700.

³⁷ Article 22, Revised Penal Code.

³⁸ People vs. Arrojado, G.R. No. 130492, January 31, 2001, 350 SCRA 679.

³⁹ 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).

⁴⁰ 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).

⁴¹ Holen vs. Minneapolis-St. Apul Metropolitan Airports Commission, 250 Minn.

⁴² Decision at 33.

⁴³ While there are jurisprudence to the effect that once 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.

⁴⁴ Smith vs. Hooey, 393 U.S. 374 (1969).

⁴⁵ 21 A Am Jur 2d 1053.

⁴⁶ 98 S.E. 615.

⁴⁷ 14 N.E. 2d 397.

⁴⁸ 221 Ill. 166, 77 N.E. 529.

⁴⁹ 225 Ill. 347, 80 N.E. 291.

⁵⁰ Section 14 (2), Article III, 1987 Constitution.

⁵¹ Section 16, Article III, 1987 Constitution.

⁵² Antieau, Modern Constitutional Law, Vol. 1, 1969 at 336.

⁵³ Doggett vs. United States, 505 U.S. 647 (1992).

⁵⁴ People vs. Abano, 97 Phil. 28 (1955); People vs. Tacneng, 105 Phil. 1298 (1959); People vs. Robles, 105 Phil. 1016 (1959); Salcedo vs. Mendoza, G.R. No. L-49375, February 28, 1979, 88 SCRA 811.

⁵⁵ Agpalo, Statutory Construction at 100 to 101, citing LVN Pictures vs. Philippine Mucisians Guild, 110 Phil. 225 (1961); People vs. Purisima, G.R. No. L-42050, November 20, 1978, 86 SCRA 542; Commissioner of Internal Revenue vs. Filipinas Compania de Seguros, 107 Phil. 1055 (1960).

⁵⁶ Rivera vs. Campbell, 34 Phil. 348 (1916).

⁵⁷ Herrera, Remedial Law, Vol. IV, 2001 Ed. at 660.

⁵⁸ Under Article 90, the Revised Penal Code, crimes punishable by death, reclusion perpetua, or reclusion temporal shall prescribe in twenty (20) years.

⁵⁹ Constantino vs. Desierto, G.R. No. 127457, April 13, 1998, 288 SCRA 654.