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REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

PEOPLE OF THEPHILIPPINES,

Criminal Case No. SB-16-CRM-0323-0324For: Violations of Section 3 (e) of

Republic Act No. 3019

MAGDALENA KINTAPANLUPOYON et al.,

CABOTAJE-TANG, P.J.,Chairperson,FERNANDEZ, J. andTRESPESES,l J.

For resolution are the following:

1. Accused Magdalena K. Lupoyon's "Motion to Dismiss"dated November 10,2016;2

2. Accused Danilo Rabina Lucas' ((Motion to Quashand/or Motion to Dismiss" dated November 11,2016; 3 and;/7

1Sitting as a special member per Administrative Order No. 227-2016 dated July 26,2016 /

" ' pp, 66-79, Vol. II, Rew,d . ~ i.

ResolutionCriminal Cases No. SB-16-CRM-0323-0324People vs. Lupoyon, et al.

3. Accused Albert Tenglab Marafo's ((Motion to Dismiss"dated November 14,2016.4

In her motion, accused-movant Lupoyon invokes herconstitutional right to a speedy disposition of cases andargues that the length of time of almost six (6) years in theresolution of the preliminary investigation before the Office ofthe Ombudsman is seriously inordinate, unreasonable andoppressive thus warranting the dismissal of the criminal casesfiled against her. 5

Accused-movant Lupoyon points out that on November10, 2010, a complaint for violation of Republic Act (R.A)No.3019 was filed against her before Prosecutor Gloria C. Agunos,resident Ombudsman of Baguio City. However, the Office ofthe Ombudsman only approved the filing of the Information onMay 19, 2016. Allegedly, this delay of almost six (6) years isutterly beyond the regular ninety day period prescribed by theRules of Court and established case laws; and, that this delayis without a doubt inordinate, unreasonable and oppressive.6

The same accused-movant invokes the case of People v.Sandiganbayan7 wherein the Supreme Court cited the caseof Tatad v. Sandiganbayan and ruled that a delay of almostthree (3) years in the conduct of the preliminary investigationconstituted a violation of the constitutional rights of theaccused to due process and to speedy disposition of cases. Sheargues that if a delay of almost three (3)years was held to bein violation of the accused's constitutional rights, then there isa greater reason for the Sandiganbayan to hold that a delay ofalmost six (6) years is inordinate, unreasonable andoppressive.8

To further support her argument, accused-movantLupoyon invokes the cases Angchangco, Jr. v.

-3 P-P-.8-0--9-9,-V-O'-.I-I, -Re-co-r-d-------------------/-/)

4 pp. 105-116, Vol. II, Record

5 p. 67, Vol .11, Record ¢ "6 p. 69, Vol. II, Record7712 SeRA 359 (2013) V8 p. 70, Vol. II, Record / ••

ResolutionCriminal Cases No. SB-16-CRM-0323-0324People vs. Lupoyon, et ai.

Ombudsman, 9 Roque v. Ombudsman,10 Cervantes v.Sandiganbayan,l1 Tatad v. Sandiganbayan,12 Coscolluelav. Sandiganbayan13 and People v. Anonas.14

Lastly, accused Lupoyon asserts that all the elements15necessary to establish that there is violation of her right tospeedy disposition of cases are present in these cases. Sheexplains that the Rules of Court prescribe that the entirepreliminary investigation process should, at most, take onlyfifty (50) days;16 that the Officeof the Ombudsman presentedno justifiable reason to cause the inordinate delay of almostsix (6) years to resolve the complaint since all the pertinentrecords were forwarded to their office and made available fortheir examination and scrutiny.

Invoking Coscolluela v. Sandiganbayan,17 she assertsthat it is not her duty to follow-up on the prosecution of hercase. Rather, it is the Office of the Ombudsman's duty toexpedite the same within the bounds of reasonable timelinessin view of the mandate to promptly act on all complaintslodged before it.18According to the accused-movant, she couldnot have raised the issue of speedy disposition of her casesince she was unaware of the on-going investigation and thatshe was only informed upon receipt of the' Ombudsman'sresolution after five (5) years from the time the complaint wasfiled against her .19

Given such lapse of time, she asserts that she had everyright to assume that the proceedings against her had ende~

9268 SCRA301 (1997) / '

10307 SCRA106 (1999) 4'

11307 SCRA149 (1999) I' .12 159 SCRA70 (1988)13701 SCRA188 (2013)14513 SCRA552 (2007)15 (1) the length of delay;

(2) the reasons for such delay;(3) t.he assertion or failure to assert such right by the accused; and,(4) the prejudice caused by the delay. (Garcia v. Executive Secretary, 677 SCRA750 (2012)]

16 p. 73, Vol. II, Record17701 SCRA188 (2013)18 p. 75/ Vol. 11/ Record191d


Finally, the same accused-movant alleges that she wasprejudiced by the delay. Accused Lupoyon narrates that due tothe unnecessary delay in the resolution of her case, shesuffered anXiety and emotional stress while waiting for itsresolution and that the thought of her being held for triallingered on her mind for six (6)years.20

In his ((Motion to Quash and/or Motion to Dismiss, "21

accused-movant Lucas also argues that his right to speedydisposition of cases was violated when it took the Officeof theOmbudsman almost six (6) years in the termination ofpreliminary investigation.22 In addition thereto, the sameaccused-movant submits the followingarguments:

B.THE RESOLUTION OF THE OFFICE OF THEOMBUDSMAN FINDING PROBABLE CAUSE TO CHARGETHE ACCUSED IN COURT CONTAINS PALPABLE ANDSERIOUS ERRORS IN THE FINDINGS OF FACTS WHICHARE UNSUPPORTED BY CONCRETE EVIDENCE; AND

C.THERE IS CLEARLY NO VIOLATION OF SECTION 3(E) OFRA 3019 OR THE ANTI-GRAFT AND CORRUPTPRACTICES ACT, AS AMENDED WHEN ACCUSED SIGNEDTHE PROGRAMS OF WORK FOR THE CONTRUCTION OFTHE "OPEN GYM."23

Accused-movant Lucas contends that the charge againsthim is erroneous since his signature appearing on thequestioned Program of Work was prepared even prior to thebidding and implementation of the "Open Gym" project.24 Hereasons that it was the requirement of the ABS-CBNbeforethey could make a donation. He adds that the Program of

/720 p. 76, Vol. II, Record21 pp. 80-99, Vol. II, Record22 p. 82, Vol. II, Record23 Id

24 p. 87, Vol. II, Record


Work was prepared by Engineer Rogelio Abalos, thenConstruction and Maintenance Foreman of the Municipalityof Barlig, and he was merely asked to verify or check suchprogram.25

Finally, accused-movant Lucas disputes the allegationthat he is guilty of violating Section 3 (e)of R.A.No. 3019. Healleges that the only act he committed regarding thequestioned transaction was to verify and / or check theProgram of Work prepared by the Construction andMaintenance Foreman. According to him, this was an actdone in the regular course of his duty as the municipalengineer. He avers that he did not act with manifest partiality,evident bad faith or gross inexcusable negligence nor did hisactions cause any undue injury to any party, induding thegovernment or give any private party unwarranted benefits,advantage or preference.26

In his "Motion to Dismiss" dated November 14, 2016,accused-movant Marafo also contends that due to the span ofalmost six (6) years in the resolution of their case before theOffice of the Ombudsman, his constitutional right to dueprocess and speedy disposition of cases were violated. Heinvokes the same cases previously cited by his co-accused-movants to s'upport this contention.27

Additionally, the said accused-movant asserts that thereis no reason to indict him for violation of Section 3 (e) of R.A.No. 3019. Allegedly, his participation in the questionedtransaction in the payment of wages of the personnel whoactually worked on the projects complained of as well as theother acts of his alleged participation was done in the regularcourse of his duties as the former treasurer of theMunicipality of Barlig, Mountain Province. Furthermore, heasserts that the Notice of Suspension No. 2011-001-101 (09)

/lj ~.25 •p. 86, Vol. II, Record

26 p. 87, Vol. II, Record27 pp. 107-111, Vol. II, Record


issued by the COAdid not mention his name as one of thepersons responsible for the questioned transaction.28

The prosecution filed a "ConsolidatedComment/ Opposition to the Motion to Dismiss dated 10November 2016 of accused Magdalena Lupoyon, Motion toQuash and/ or Motion to Dismiss dated 11 November 2016 ofaccused Danilo Rabina Lucas & Motion to Dismiss dated 14November 2016 of accused Albert Tenglab MarafoJJ onNovember 29,2016.29

In its comment/opposition, the prosecution contends thatunder Section 1, Rule 16 of the Rules of Court., the filing of amotion to dismiss must be done before the filing of an answer.Also, it cites Section 3, Rule 117 of the same rules wherein itis provided that the filing of the motion to quash should bemade before the accused enters his plea. Thus, according tothe prosecution, accused-movant Lucas' assertion that thefinding of probable cause against him by the Office of theOmbudsman is attended with palpable errors cannot prospersince he is deemed to have admitted the validity of theInformation with his arraignment. 30

Too, the prosecution narrates the followingcircumstances surrounding the proceedings before the Officeof the Ombudsman, viz:

8. Case records show that the complaint was filedon Nov. 11, 2010 before the Office of the DeputyOmbudsman for Luzon (OMBLuzon). An order for theaccused-movants Lupoyon and Lucas (who were amongthe respondents) to submit Counter-Affidavit datedFebruary 18, 2011 was issued by the said Office. In aletter dated April 6, 2011 (Annex "A"),Police InspectorRamon Saingan Garcia of Barlig Municipal PoliceStation informed OMB-Luzon of the service of the/7

28 p. 112, Vol. II, Record29 pp. 117-137, Vol. II, Record

, 30 p. 118, Vol. II, Record


Order with attached enclosure (Annex "A-I") showingreceipt by accused movants, as follows:

Magdalena LupoyonDanilo Lucas

April 6, 2011April 6, 2011

9. Accused-movants Lupoyon and Lucas filed aseparate Motion to extend time to submit counteraffidavits respectively31 received by OMB-Luzon on May2, 2011. Accused-movant Lucas filed his counter-affidavit received by OMB-Luzon on May 5, 2011.32 Asfor accused movant Lupoyon, she filed her counter-affidavit executed on March 10, 2013 in theadministrative case only, received by OMB-Luzon onMarch 20, 2013 (Annex "B"). This pleading was treatedby OMB-Luzon as her counter-affidavit also in thecriminal case. On July 14, 2011, accused-movantsLucas and Lupoyon among others filed a Motion toAdmit Newly Discovered Documentary Evidence.33 OnDecember 21, 2011, complainants Nauglan andConstancio filed a Rejoinder. In an Order dated 17 July2013, OMB-Luzon directed Albert Marafo (Marafo), whowas not included as respondents in the complaint to filehis Counter-Affidavit. On August 13, 2013, Marafo filedhis counter-affidavit. On September 2, 2013,complainants filed a Reply with Urgent Prayer for theIssuance of a Preventive Suspension Order. OnDecember 11, 2013 OMB-Luzon received Commentsand Opposition Re: Complainant's Reply dated 27August 2013 filed by accused-movants, Dawin, Lupoyonand Buduhan. In a Resolution dated 10 August 2015approved on September 15, 2015 the Office of theOmbudsman found probable cause to indict accused-movants (among the respondents in the complaint) forviolation of Section 3 (e) 3019. Accused-m,ovants ann

31 Footnote omitted i I .32 Footnote omitted ,

" Footnote om;tted t'


the rest of the respondents found to stand trial movedfor rec~nsideration of the said Resolution received bythe Office of the Ombudsman on December 8, 2015. Inan Order dated January 29, 2016, the Office of theOmbudsman denied the Motion for Reconsideration. OnJune 1, 2016, the Informations were filed before theSandigan bayan. 34

The prosecution contends that as shown by theabovementioned chronological events, it is clear that theOfficeof the Ombudsman did not commit inordinate delay inthe conduct of the preliminary investigation of these cases. Itadds that there were eleven (11)respondents in the complaintwho were fully afforded their right to explain their sidethrough their counter-affidavits and as part of due process.The complainants were also given the opportunity to answerthe respondents' assertions.35 Moreover, the prosecutionsubmits that an intervening event occurred in 2013 with theinclusion of accused Marafo as a respondent in these cases.As a result thereof, Marafo was also given the time to file hiscounter-affidavit. The prosecution also notes that all of theaccused-movants had filed motions for reconsideration whichwere resolved by the Officeof the Ombudsman.36

After an assiduous assessment of the arguments raised bythe parties, the Court finds the subject motions unmeritorious.

Jurisprudence teaches that courts must carefully weighthe circumstances attending each case and must not hastilydismiss criminal cases based on the right of the accused /134 pp. 119-120, Vol. II, Record . (, '

3~ p. 120, Vol. II, Record ~ ,361d

~ . \, ~.


speedy disposition of cases. Undeniably, no less than theConstitution'- guarantees the right of a person to a speedydisposition of a case against him. However,there must also be abalance between the right of the accused and the right of theState to punish people who violate its penal laws.37 Both theState and the accused are entitled to due process.38

In Ombudsman v. Jurado,39 the Supreme Court clarifiedthat although the Constitution guarantees the right to thespeedy disposition of cases, such speedy disposition is aflexible concept. To properly define that concept, the facts andcircumstances surrounding each case must be evaluated andtaken into account. There occurs a violation of the right to aspeedy disposition of a case only when the proceedings areattended by vexatious, capricious, and oppressive delays, orwhen unjustified postponements of the trial are sought andsecured, or when without cause or justifiable motive, a longperiod of time is allowed to elapse without the party having hiscase tried.40

Also, it is cogent to mention that the Supreme Court ruledin the case of Dacudao v. GonzaZes41 that a meremathematical reckoning of the time involvedis not determinantofthe concept.

The Court finds that the rulings in the cases cited byaccused-movants in their motions are inapplicable to the casesat bar because of the material differences in their factualmilieu. To. stress, it is jurisprudentially settled that in theapplication of the constitutional guarantee of the right to aspeedy disposition of cases, particular regard must also betaken of the facts and circumstances peculiar to each c~

J( ;.37 People v. Tampal, 204 SCRA202 (1995)381d39561 SCRA135 (2008)40 Dacudao v. Gonzales, 688 SCRA109 (2013)41688 SCRA109 (2013)42 Tello vs. People, 588 SCRA519 (2009) See also Ombudsman v. Jurado 561 SCRA135 (2008), Ty-Dazev. Sandiganbayan 334 SCRA200 (2002), Binay v. Sandiganbayan 316 SCRA65 (1999)


In the cases of Tatad and Roque, the Supreme Courtapplied the ((radical relief' of dismissing theInformation/ complaint on the ground of ((inordinate delay interminating the preliminary investigation and filing theinformation" which was tantamount to a violation of theaccused's rights to due process and to a speedy disposition ofhis cases.

It must be emphasized, however, that in Tatad, therewere peculiar circumstances attendant to the three-year delayin terminating the preliminary investigation against him.According to the Supreme Court, (political motivations played avital role in activating and propelling the prosecutorialprocess;"43 and, there was a departure from the establishedprocedure in conducting the preliminary investigation and thatthe issues involvedwere simple.

Unlike in Tatad, the present cases involve no imputationof any political motivation in the filing of the presentInformations against the accused-movants.

Likewise, in Roque, the High Tribunal declared asviolative of therein petitioner's right to due process and speedydisposition of cases the delay of almost six (6)years on the partof the Ombudsman in resolving the complaints against thepetitioner. The Supreme Court so ruled because ((noexplanation was given why it took almost six years for the[Ombudsman) to resolve the complaints. "44 Similarly, in Peoplev. Sandiganbayan,45 the Supreme Court held that there wasinordinate delay on the part of the Office of the Ombudsmanwhen it resolved a complaint-affidavit only on April 15, 2008,notwithstanding the fact that it was filed on December 23,2002.

In contrast to the abovementioned cases, the attendantcircumstances in these cases do not demonstrate a deliberateattempt on the part of the Ombudsman to delay the

/I~y'.

43 p. 81, Tatad v. Sandiganbayan, 159 SCRA 70 (1988)44 p. 111, Roque v. Office of the Ombudsman, 307 SCRA 106 (1999)45712 SCRA 359 (2013)


proceedings.' Here, the prosecution explained thecircumstances surrounding the drafting of the Informationsagainst the eleven (11) respondents, all of whom were fullyaccorded their constitutional right to be heard. In additionthereto, accused-movant Marafo was included as arespondent in these cases only in 2013 and was similarlyaccorded his right to be heard. Based thereon, this Court doesnot find that the proceeqings before the Office of theOmbudsman were attended by any vexatious, capricious andoppressive delays.

In Angchangco, Jr., the Supreme Court also dismissedthe Information and held that the delay of more than six (6)years in resolving the complaints against therein petitioneramounted to a violation of the accused's constitutional rightto due process and speedy disposition of cases for two (2)reasons, namely: [1] the administrative aspect of the case hadalready been dismissed; and [2] petitioner's several motionsfor early resolution and motion to dismiss remained unactedeven at the time of filing of the petition for mandamus beforethe Supreme Court.

The factual circumstances of the afore-mentioned casediffer substantially from the cases at bar. In these cases, therecord is. bereft of any motion or letter from the accused-movants seeking the early resolution of the cases againstthem and signifying that they were not waiving their right toits speedy disposition.

Thus, the accused-movants cannot now invoke their rightto speedy disposition of cases regarding the proceedingsbefore the Office of the Ombudsman since they must bedeemed to have waived said right for their failure to assert itwith reasonable promptitude. The Supreme Court held in thecase of Philippine Coconut Producers, Inc. v. Republic46

that the right to speedy disposition of cases is lost unlessseasonably invoked, thus: /7

/V\/ j"~ 663 seRA 51412012) ~ ~r


The more recent case of Tello v. People laid stress tothe restrictive dimension to the right to speedydisposition of cases, i.e., it is lost unless seasonablyinvoked:

In Bernat. ., the Court deniedpetitioner's claim of denial of his right to a speedydisposition of cases considering that [he] . . .chose to remain silent for eight years ,beforecomplaining of the delay in the disposition of hiscase. The Court ruled that petitioner failed toseasonably assert his right and he merely sat andwaited from the time his case was submitted forresblution. In this case, petitioner similarly failedto assert his right to a speedy disposition of hiscase ... He only invoked his right to a speedydisposition of cases after [his conviction] ....Petitioner's silence may be considered as a waiverof his right.47

In CoscolZuela, the Supreme Court ruled in favor of thedismissal of the Information since the circumstances of thecase showed that the petitioners therein were unaware thatpreliminary investigations against them were on-going; hence,the Court ruled that they could not be faulted for their allegedfailure to assert their right to speedy disposition of cases.

Here, the accused-movants were completely aware thatthere was a pending preliminary investigation against them.As pointed out by the prosecution, accused-movant Lupoyonreceived a copy of the Order of the OMB-Luzon requiring herto submit her counter-affidavit on April 6, 2011. However, shefiled the said counter-affidavit only in 2013, or almost two (2)years from receipt of the said order.48 Thus, accused-movantLupoyon was not only aware of the pending case against her;she also contributedto the delay;hence, she should no/?

47 pp. 588-589, Philippine Coconut Producers Federation, Inc. v. Republic, 663 SeRA 514 (201~) "48

p. 121, Vol. II, Record 7_


allowed to complain concerning a circumstance to which shehad a contributory part. Also, accused-movants Lucas andMarafo cannot feign innocence as to the pendency of apreliminary investigation against them. A review of the recordof these cases will show that accused Marafo filed hiscounter-affidavit on August 13, 201349 and accused-movantLucas also filed his counter-affidavit dated April 26,2011.50

Although the Constitution guarantees the right to speedydisposition of cases, it is a flexible concept. Due regard mustbe given to the facts and circumstances surrounding eachcase.51 The right to a speedy disposition of a case, like theright to speedy trial, is deemed violated only when theproceedings are attended by vexatious, capricious, andoppressive delays, or when unjustified postponements of thetrial are asked for and secured, or when without cause orjustifiable motive, a long period of time is allowed to elapsewithout the party having his case tried. Just like theconstitutional guarantee of "speedy trial," ('speedy dispositionof cases" is a flexible concept.52 It is consistent with delaysand depends upon the circumstances. What the Constitutionprohibits are unreasonable, arbitrary and oppressive delayswhich renders rights nugatory.53 The Court does not findthese circumstances present in these cases.

Regarding accused-movant Lupoyon's argument thatSection 3, Rule 112 of the Rules of Court provide that theentire preliminary investigation process should, at most, takeonly fifty (50) days,54 the Supreme Court has consistentlyruled that said period of time is merely directory. In Raro v.Sandiganbayan,55 the Supreme Courtru/l

-49 pp. 296-310, Vol. I, Record50 pp. 105-110, Vol. I, Record51 Corpuz v. Sandiganbayan, 442 SCRA294 (2004)52 Ombudsman v. Jurado, 561 SCRA135 (2008)53 Lumanog et al. v. People, 630 SCRA42 (2010)54 p. 73, Vol. II, Record55335 SCRA581 (2000)


The length of time it took before the conclusion ofthe preliminary investigation may only be attributed tothe adherence of the Ombudsman and the NBI to therules of procedure and the rudiments of fair play. Theallegations of Abaiio's complaint had to be verified; theOmbudsman did not believe the same hook, line andsinker. Recently, the Court held that while the Rulesof Court provides a ten-day period from submissionof the case within which an investigating officermust come out with a resolution, that period of timeis merely directory. 56 Thus:

"The Court is not unmindful of the duty ofthe Ombudsman under the Constitution andRepublic Act No. 6770 to act promptly onComplaints brought before him. But such dutyshould not be mistaken with a hasty resolutionof cases at the expense of thoroughness andcorrectness. Judicial notice should be taken ofthe fact that the nature of the Office of the.Ombudsman encourages individuals who clamorfor efficient government service to freely lodgetheir Complaints against wrongdoings ofgovernment personnel, thus resulting in asteady stream of cases reaching the Officeof theOmbudsman."

Also, accused-movant Marafo's reliance on the absence ofhis name in the Notice of Suspension dated January 9, 2011issued by t~e Commission on Audit as a ground to quash theInformation against him is erroneous. The High Tribunal ruledin the case of Cabrera v. Ombudsman57 that the interest ofthe COAis solely administrative, and its investigation does notforeclose the Ombudsman's authority to investigate anddetermine whether there is a crime to be prosecuted for whicha public~,fficialis answera/7

' rd/,56 Emphasis supplied --y;' /57446 SeRA 207 (2004)


Furthermore, it is doctrinally settled that the exonerationof public officials in an audit investigation does not mean theautomatic dismissal of the complaint against them. After all,the preliminary investigation is independent from theinvestigation conducted by the COA. Their purposes aredistinct from each other. The first involves the determinationof the fact of the commission of the crime; the second relatesto the administrative aspect of the expenditure of publicfunds.58

Anent accused Lucas' and Marafo's contention that thereis no basis to charge them with violation of Section 3 (e) of R.A.No. 3019, suffice it to say that this is a matter of defense andis evidentiary in nature. It is best left for the Court to resolveafter a full-blown trial on the merits. Thus, in Singian, Jr. v.Sandiganbayan59 the Supreme Court ruled:

The presence or absence of the elements of thecrime "is evidentiary in nature and is a matter ofdefense that may be passed upon after a full-blown"trial on the merits," and the validity and merits of aparty's defense or accusation, as well as admissibilityof testimonies and evidence, are better ventilatedduring trial proper.

La~tly, a review of the record of these cases shows thatthe aCC'used-movants had already been arraigned onSeptember 15, 2016.60 Thus, the present motion to quash ofaccused-movant Lucas was filed out of time pursuant toSection 1, Rule 117 of the Rules of Court which provides:

SECTION 1. Time to move to quash.- At any time beforeentering his plea, the accused may move to quash thecomplaint or information~ .

58 Rodrigo v. Sandiganbayan, et 01., 303 SCRA309 (1999));f ; •.•.•59706 SCRA451 (2013)~ ~pp. 17-22, Vol. II, Record


WHEREFORE, accused Magdalena Kintapan Lupoyon's"Motion to Dismiss" dated November 10,2016, accused DaniloRabina Lucas' "Motion to Quash and/or Dismiss" datedNovember 11, 2016 and accused Albert Tenglab Marafo's"Motion to Dismiss" dated November 14, 2016 are DENIED forutter lack of merit.

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