G.R. No. 202243, August 07, 2013 - ROMULO L. NERI, Petitioner, v. SANDIGANBAYAN (FIFTH DIVISION) AND PEOPLE OF THE PHILIPPINES, Respondents.
G.R. No. 202243, August 07, 2013
ROMULO L. NERI, Petitioner, v. SANDIGANBAYAN (FIFTH DIVISION) AND PEOPLE OF THE PHILIPPINES, Respondents.
D E C I S I O N
VELASCO JR., J.:
That during the period from September 2006 to April 2007, or thereabout in Metro Manila x x x and within the jurisdiction of this Honorable Court, the above-named accused x x x being the then Director General of the [NEDA], a Cabinet position and as such, is prohibited by Sec. 13 of Article VII of the 1987 Constitution [from being financially interested in any contract with, or in any franchise or special privilege granted by the Government] but in spite of [said provision], petitioner, while acting as such, x x x directly or indirectly have financial or pecuniary interest in the business transaction between the Government of the Republic of the Philippines and the Zhing Xing Telecommunications Equipment, Inc., a Chinese corporation x x x for the implementation of the Philippine x x x (NBN) Project, which requires the review, consideration and approval of the NEDA, x x x by then and there, meeting, having lunch and playing golf with representatives and/or officials of the ZTE and meeting with the COMELEC Chairman Benjamin Abalos and sending his emissary/representative in the person of Engineer Rodolfo Noel Lozada to meet Chairman Abalos and Jose De Venecia III, President/General Manager of Amsterdam Holdings, Inc. (AHI) another proponent to implement the NBN Project and discuss matters with them. (Rollo, pp. 48-50.)In the ensuing trial in the Neri case following the arraignment and pre- trial proceedings, six (6) individuals took the witness stand on separate dates5 to testify for the prosecution. Thereafter, the prosecution twice moved for and secured continuance for the initial stated reason that the prosecution is still verifying the exact address of its next intended witness and then that such witness cannot be located at his given address.6cralaw virtualaw library
WHEREFORE, the prosecution’s Motion to Consolidate is hereby GRANTED. The instant case (SB-10-CRM-0099) is now ordered consolidated with SB-10-CRM-0098, the case with the lower court docket number pending before the Fourth Division of this Court, subject to the conformity of the said Division.10 (Emphasis added.)According to the Fifth Division, citing Domdom v. Sandiganbayan,11 consolidation is proper inasmuch as the subject matter of the charges in both the Abalos and Neri cases revolved around the same ZTE-NBN Project. And following the movant’s line, the anti-graft court stated that consolidation would allow the government to save unnecessary expenses, avoid multiplicity of suits, prevent delay, clear congested dockets, and simplify the work of the trial court without violating the parties’ rights.
[A] x x x in ordering a consolidation of the subject criminal cases when the Revised Rules of Criminal Procedure does not allow a consolidation of criminal cases, only a consolidation of trials or joint trials in appropriate instances. [B] x x x in ordering the consolidation because petitioner will now be tried for a crime not charged in the information in x x x SB-10- CRM-0099 and this is violative of his constitutional right to be informed of the nature and cause of the accusation against him. Worse, conspiracy was not even charged or alleged in that criminal information. [C] x x x in ordering the consolidation for it would surely prejudice the rights of petitioner as an accused in x x x SB-10-CRM-0099 because he does not actually belong to the Abalos Group which had been negotiating with the ZTE Officials about the NBN Project. [D] x x x in ordering the consolidation for it would just delay the trial of the case against the petitioner, as well as that against Abalos, because these cases are already in the advanced stages of the trial. Worse, in the Abalos case, the prosecution has listed 50 witnesses and it has still to present 33 more witnesses while in the case against the petitioner the prosecution (after presenting six witnesses) has no more witnesses to present and is now about to terminate its evidence in chief. Clearly, a consolidation of trial of these two (2) cases would unreasonably and unduly delay the trial of the case against the petitioner in violation of his right to a speedy trial. [E] x x x in not finding that the proposed consolidation was just a ploy by the prosecution to further delay the prosecution of x x x SB-10- CRM-0099 because during the last two (2) hearings it has failed to present any more prosecution witnesses and there appears to be no more willing witnesses to testify against the petitioner. x x x [F] x x x in not finding that it would be incongruous or absurd to allow consolidation because petitioner was the principal witness (as he already finished testifying there) against Abalos in x x x SB-10- CRM-0098.12
WHEREFORE, the foregoing premises considered, the Fourth Division RESPECTFULLY DECLINES to accept SB-10-CRM-0099 (Neri case) for consolidation with SB-10-CRM-00998 (Abalos case) pending before it.The Sandiganbayan Fourth Division wrote to justify, in part, its action:
The Fourth Division already heard accused Neri testify against the accused in the Abalos case, and in the course of the presentation of his testimony (on direct examination, on cross-examination and based on his reply to the questions from the Court), the individual members of the Fourth Division, based on accused Neri’s answers as well as his demeanor on the dock, had already formed their respective individual opinions on the matter of his credibility. Fundamental is the rule x x x that an accused is entitled to nothing less that the cold neutrality of an impartial judge. This Court would not want accused Neri to entertain any doubt in his mind that such formed opinions might impact on the proper disposition of the Neri case where he stands accused himself.14cralaw virtualaw libraryWhile it could very well write finis to this case on the ground of mootness, the actual justiciable controversy requirement for judicial review having ceased to exist with the supervening action of the Fourth Division, the Court has nonetheless opted to address the issue with its constitutional law component tendered in this recourse.
But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.17cralaw virtualaw libraryThe interrelated assignment of errors converged on the propriety, under the premises, of the consolidation of SB-10-CRM-0099 with SB-10- CRM-0098.
To be sure, consolidation, as taken in the above senses, is allowed, as Rule 31 of the Rules of Court is entitled “Consolidation or Severance.” And Sec. 1 of Rule 31 provides:
(1) Where all except one of several actions are stayed until one is tried, in which case the judgment [in one] trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi consolidation) (2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation) (3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)19 (citations and emphasis omitted; italicization in the original.)
Section 1. Consolidation. – When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.The counterpart, but narrowed, rule for criminal cases is found in Sec. 22, Rule 119 of the Rules of Court stating:
Sec. 22. Consolidation of trials of related offenses. - Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court. (Emphasis added.)as complemented by Rule XII, Sec. 2 of the Sandiganbayan Revised Internal Rules which states:
Section 2. Consolidation of Cases. – Cases arising from the same incident or series of incidents, or involving common questions of fact and law, may be consolidated in the Division to which the case bearing the lowest docket number is raffled.Whether as a procedural tool to aid the court in dispatching its official business in criminal or civil cases, the rule allowing consolidation–– in whatsoever sense it is taken, be it as a merger of several causes of actions/cases, in the sense of actual consolidation, or merely joint trial––is designed, among other reasons, to avoid multiplicity of suits, guard against oppression and abuse, attain justice with the least expense and vexation to the litigants.20cralaw virtualaw library
In its reply, the prosecution asserted that the rationale behind consolidation of cases is to promote expeditious and less expensive resolution of a controversy than if they were heard independently and separately. It is claimed that the [OMB] and [DOJ] have already requested the participation in the hearing of these cases of the ZTE executives, which will entail huge expenses if they will be presented separately for each case. x x xNot to be overlooked is the fact that the prosecution anchored its motion for consolidation partly on the aforequoted Sec. 22 of Rule 119 which indubitably speaks of a joint trial.
We agree with the prosecution.21 (Emphasis added.)
where the offenses charged are similar, related, or connected, or are of the same or similar character or class, or involve or arose out of the same or related or connected acts, occurrences, transactions, series of events, or chain of circumstances, or are based on acts or transactions constituting parts of a common scheme or plan, or are of the same pattern and committed in the same manner, or where there is a common element of substantial importance in their commission, or where the same, or much the same, evidence will be competent and admissible or required in their prosecution, and if not joined for trial the repetition or reproduction of substantially the same testimony will be required on each trial.23cralaw virtualaw libraryIn terms of its effects on the prompt disposition of cases, consolidation could cut both ways. It may expedite trial or it could cause delays. Cognizant of this dichotomy, the Court, in Dacanay v. People,24 stated the dictum that “the resulting inconvenience and expense on the part of the government cannot not be given preference over the right to a speedy trial and the protection of a person’s life, liberty or property.” Indeed, the right to a speedy resolution of cases can also be affected by consolidation. As we intoned in People v. Sandiganbayan, a case involving the denial by the anti-graft court of the prosecution’s motion to consolidate a criminal case for indirect bribery with another case for plunder, consolidation should be refused if it will unduly expose a party, private respondent in that instance, to totally unrelated testimonies, delay the resolution of the indirect bribery case, muddle the issues, and expose him to the inconveniences of a lengthy and complicated legal battle in the plunder case. Consolidation, the Court added, has also been rendered inadvisable by supervening events––in particular, if the testimonies sought to be introduced in the joint trial had already been heard in the earlier case.25cralaw virtualaw library
From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit the crime given in the law in some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth.27 (Emphasis supplied.)The overt acts ascribed to the two accused which formed the basis of their indictments under the separate criminal charge sheets can be summarized as follows:cralawlibrary
1. Benjamin AbalosIn People v. Abalos, the following are the listed witnesses,31 to wit:
2. Jose de Venecia Jr.
3. Jose de Venecia III
4. Rodolfo Noel “Jun” Lozada
5. Dante Madriaga
6. Jarius Bondoc
7. Leo San Miguel
8. Sec. Margarito Teves
9. Representative of the Bureau of Immigration and Deportation;chanr0blesvirtualawlibrary
10. Employees of the Wack Wack Golf and Country Club
11. Airline Representatives (2)
12. Raquel Desiderio – DOTC, Asec. Administrative and Legal Affairs
13. Atty. Frederick Fern Belandres, DOTC
14. Atty. Geronimo Quintos
15. Nilo Colinares
16. Elmer Soneja
17. Lorenzo Formoso
18. Records Custodian, DOTC
19. Senate Secretary or any of her duly authorized representative
20. Director General of the Senate Blue Ribbon Committee or any of his duly authorized representative
21. Representative of NEDA;chanr0blesvirtualawlibrary
22. ZTE Officials
23. Ramon Sales
24. Hon. Gloria Macapagal-Arroyo
25. Atty. Jose Miguel Arroyo
1. Atty. Oliver LozanoThe names thus listed in the pre-trial order in the Abalos case do not yet include, as aptly observed by the Fourth Division in its adverted October 19, 2012 Resolution,32 additional names allowed under a subsequent resolution. In all, a total of at least 66 warm bodies were lined up to testify for the prosecution.
2. Mr. Jose De Venecia III
3. Engr. Rodolfo Noel Lozada
4. Engr. Dante Madriaga
5. Secretary Romulo L. Neri
6. Mr. Jarius Bondoc
7. Speaker Jose De Venecia, Jr.
8. Atty. Ernesto B. Francisco
9. Congresswoman Ana Theresa H. Baraquel
10. TESDA Chairman Emmanuel Joel J. Villanueva
11. Mr. Leo San Miguel
12. Secretary Margarito Teves
13. Atty. Raquel T. Desiderio
14. Atty. Frederick Fern M. Belandres
15. Atty. Geronimo V. Quintos
16. Mr. Nilo Colinares
17. Mr. Elmer A. Soneja
18. Asst. Secretary Lorenzo Formoso
19. Atty. Harry L. Roque
20. Vice-President Teofisto T. Guingona, Jr.
21. Dr. Ma. Dominga B. Padilla
22. Fr. Jose P. Dizon
23. Mr. Roel Garcia
24. Mr. Bebu Bulchand
25. Mr. Renato Constantino, Jr.
26. Mr. Ferdinand R. Gaite
27. Mr. Guillermo Cunanan
28. Mr. Amado Gat Inciong
29. Mr. Rafael V. Mariano
30. Ms. Consuelo J. Paz
31. Atty. Roberto Rafael J. Pulido
32. Antonia P. Barrios, Director III, Senate Legislative Records & Archives Services
33. The Personnel Officer, Human Resource Management Office, Commission on Elections (COMELEC)
34. Representative/s from the Wack-Wack Golf and Country Club, Mandaluyong City
35. Representative/s from the Philippine Airlines (PAL)
36. Representative/s from Cathay Pacific Airways
37. Representative/s from the Cebu Pacific Airlines
38. Representative/s from the COMELEC
39. Representative/s from the National Economic & Development Authority (NEDA)
40. Representative/s from the Board of Investments
41. Representative/s from the Department of Trade and Industry (DTI)
42. Representative/s from the Department of Foreign Affairs (DFA)
43. Representative/s from the Bureau of Immigration
44. Representative/s from the National Bureau of Investigation (NBI)
45. Representative/s from the Securities and Exchange Commission (SEC)
46. Representative/s from the National Statistics Office (NSO)
47. Representative/s from the Embassy of the People’s Republic of China to the Philippines
48. Representative/s from the Central Records Division, Office of the Ombudsman
49. Representative/s from the Department of Transportation and Communications (DOTC)
50. Representative/s from the Philippine Senate
1Rollo, pp. 41-43. Approved b) Associate Justices Roland B. Jurado. Alexander G. Gesmundo and Alex L. Quiroz.
2 Id. at 44-47.
3 Stands for Zhing Xing Telecommunications Equipment, Inc.
4 Abalos, Jose Miguel T. Arroyo and Leandro R. Mendoza.
5 The 6th witness, Edzel Regalado, concluded his testimony on June 23, 2011, records, Vol. 2, p. 119.
6 Records, Vol. 2, pp. 135, 140.
7 Id., Vol. 3, pp. 137-145.
8Rollo, p. 56.nadcralawlibrary
9 Id. at 85, Prosecution’s Reply to the Opposition to Motion for Consolidation.redcralaw
10 Id. at 43.
11 G.R. Nos. 182382-83, February 24, 2010, 613 SCRA 528.
12Rollo, pp. 12-13. Original in uppercase.
13 Records, Vol. 3, pp. 182-184. Approved by Associate Justices Gregory S. Ong, Jose R. Hernandez, and Maria Cristina J. Cornejo.
14 Id. at 184.
15Integrated Bar of the Philipopines v. Atienza, G.R. No. 175241, February 24, 2010, 613 SCRA 518, 523.
16David v. Macapagal-Arroyo, G.R. Nos. 171396, etc., May 3, 2006, 489 SCRA 160, 215 (citations omitted); Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577.
17 No. L-71977, February 27, 1987, 148 SCRA 208, 212-213.
18Republic v. Sandiganbayan (Fourth Division), G.R. No. 152375, December 13, 2011, 662 SCRA 152, 190; citing Wright and Miller, Federal Practice and Procedure, Civil 2d Sec. 2381, p. 427.
19 Id. at 191-192.
20Palanca v. Querubin, Nos. L-29510-31, November 29, 1969, 30 SCRA 738, 745.
21Rollo, p. 42.
22 201 Phil. 422, 426 (1982); cited in People v. Sandiganbayan, G.R. No. 149495, August 21, 2003, 409 SCRA 419, 424.
23Caños v. Peralta, id. at 440.
24 G.R. No. 101302, January 25, 1995, 240 SCRA 490, 493.red cralawlibrary
25 Supra note 22, at 425-426.
26Santos v. Committee on Claims Settlement, G.R. No. 158071, April 2, 2009, 583 SCRA 152, 159-160.
27 G.R. No. 179061, July 13, 2009, 592 SCRA 534, 540.
28Rollo, pp. 49, 50.
29 Id. at 53-54.
30 Records, Vol. 3, p. 12.
31Rollo, pp. 125-127.
32 Records, Vol. 3, pp. 182-184.
33 Supra note 22.
34 Supra note 24, at 493-494; see also Mari v. Gonzales, G.R. No. 187728, September 12, 2011, 657 SCRA 414, 423-426.
35Dacanay, id. at 493.
36 Supra note 22, at 425.