BIENVENIDO TAN, JR., PETITIONER, VS. THE HONORABLE SANDIGANBAYAN (THIRD DIVISION), RESPONDENT.

Tan versus Sandiganbayan

The Case

This is a petition for certiorari filed by Bienvenido Tan, Junior, the former Commissioner of the Bureau of Internal Revenue, against the Sandiganbayan, Third Division. Tan was charged, together with several other public officers and two officers of San Miguel Corporation, with violations of the Anti-Graft and Corrupt Practices Act arising from an alleged tax compromise that was grossly disadvantageous to the Government. The case matters because it gathers in one decision the settled rules on the proper remedy against an order denying a motion to quash, the sufficiency of an information that alleges conspiracy, the discretion of the prosecuting officer in determining whom to charge, and the requisites of double jeopardy. It is a staple in remedial law and criminal procedure examinations.

Procedural History

Tan and his co-accused were charged before the Sandiganbayan. After arraignment, all of them filed a motion for reinvestigation, which the Sandiganbayan granted. On reinvestigation, the Special Prosecutor found no sufficient probable cause against Tan's co-accused and moved to drop the charges against them, except Tan. The Sandiganbayan granted that motion in a resolution dated November 27, 1995.

Almost a year later, Tan filed a motion to dismiss, which the Court treated as a motion to quash the information, arguing that with no conspiracy found by the Special Prosecutor, the charge of conspiring and confederating with others had no more basis. The Sandiganbayan denied the motion. Without filing a motion for reconsideration, Tan elevated the case to the Supreme Court by certiorari under Rule 65, with a prayer for a preliminary injunction or a temporary restraining order.

Facts

The information alleged that on or about December 22, 1988, Tan, as Commissioner of the Bureau of Internal Revenue, together with other Bureau officials and two officers of San Miguel Corporation, conspiring and confederating, through evident bad faith and manifest partiality, caused undue injury to the Government by effecting a compromise of the tax liabilities of San Miguel Corporation in the total amount of 302,951,048 pesos and 93 centavos for only 10,000,000 pesos, a compromise grossly disadvantageous to the Government and giving unwarranted benefits to the corporation in the amount of 292,951,048 pesos and 93 centavos.

After arraignment, all the accused asked for reinvestigation, and the Sandiganbayan granted it. The Special Prosecutor then found no sufficient probable cause against Tan's co-accused and moved to drop the charges against them, leaving Tan as the sole accused. The Sandiganbayan granted the motion.

Almost a year later, Tan moved to dismiss or quash the information on the theory that there can be no conspiracy if only one person remains charged under the same information. The Sandiganbayan denied the motion, and Tan went directly to the Supreme Court on certiorari without first asking for reconsideration.

Issues

• Whether or not certiorari will lie against the Sandiganbayan's denial of the motion to quash, considering that Tan did not file a motion for reconsideration.
• Whether or not an order denying a motion to quash may be the subject of a petition for certiorari.
• Whether or not the information against Tan remained valid after the charge against his co-accused was dropped on the ground that there was no conspiracy.
• Whether or not the Sandiganbayan committed grave abuse of discretion in granting the prayer for reinvestigation even after arraignment.
• Whether or not the refusal to amend the information by deleting the allegation of conspiracy placed Tan in double jeopardy.
• Whether or not the prosecution may be compelled to charge Tan's co-accused.
• Whether or not Tan may escape liability on the ground that he merely relied on the recommendation of his subordinates.

Applicable Provisions

Section 3, paragraphs (e) and (g) of the Anti-Graft and Corrupt Practices Act, as quoted in the decision, provide:

Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

Entering on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profits or will profit thereby.

These are the crimes charged, and the Court examined whether the information alleged all their essential elements.

Section 14, paragraph 2 of Article III of the 1987 Constitution provides in part:

In all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of the accusation against him.

This is the right Tan claimed was violated when the information still alleged conspiracy after his co-accused were dropped.

Section 2 of Rule 110 of the Rules on Criminal Procedure provides:

The complaint or information shall be in writing in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved.

This is the rule Tan invoked to argue that his co-accused should also be charged.

Section 8 of Rule 117 provides:

The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided in paragraphs (a), (b), (f) and (h) of Section 3 of this rule.

This governs whether Tan's late motion to quash was deemed waived.

Ruling

On the first issue, the Court held that certiorari will not lie unless the aggrieved party has no other plain, speedy and adequate remedy in the ordinary course of law. Tan did not avail of a motion for reconsideration, which would have given the lower court a chance to correct the alleged error, and none of the recognized exceptions applied.

On the second issue, the Court held that certiorari is not the remedy where a motion to quash an information is denied. The Court restated the procedure:

An order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial.

Certiorari is available only if the denial constitutes grave abuse of discretion, and the Court found none.

On the third issue, the Court held that the information was valid. All the material facts and essential elements of the crimes were alleged: that Tan, as a public officer and Commissioner of the Bureau of Internal Revenue, entered into a tax compromise grossly disadvantageous to the Government. Conspiracy is not an element of those crimes and need not even be alleged; its allegation merely showed how criminal liability was incurred. The dropping of the charge against the co-accused did not render the information defective as to Tan, who remains charged and may be tried and even convicted. The allegation of conspiracy, if at all, merely became a surplusage, and an information alleging conspiracy can stand even if only one person is charged, except that the court cannot pass verdict on co-conspirators not charged.

On the fourth issue, the Court found it ridiculous for Tan to pray for reinvestigation and then cry grave abuse of discretion when his very prayer was granted, especially since he knew his arraignment was already finished when he asked for it.

On the fifth issue, the Court called the double jeopardy argument preposterous. The imputation was premature because there was no amendment. Assuming there was one, the original information is deemed superseded by the amended information, and the proceedings under either constitute one continuous trial involving only one offense. The requisite that the first jeopardy must have attached prior to the second was absent, since Tan was neither convicted, acquitted, nor was the case against him dismissed or otherwise terminated without his express consent. The dismissal as to his co-accused is not equivalent to, nor does it operate as, his acquittal.

On the sixth issue, the Court held that the discretion on whom to prosecute depends on the prosecution's sound assessment of whether the evidence justifies a reasonable belief that a person has committed an offense. The rule that all criminal actions are commenced against all persons who appear to be responsible does not strip the prosecuting officer of discretion. The Court cannot compel the prosecution whom to charge, consistent with its refusal to interfere with the Ombudsman's constitutionally mandated investigatory and prosecutory powers. In any case, the non-inclusion of other persons is not a ground for a motion to quash, and the motion was filed too late, after arraignment, so the ground was deemed waived.

On the seventh issue, the Court held that Tan's claim that he merely relied on the recommendation of his subordinates is a matter of defense that cannot be proved in a motion to dismiss.

Doctrine

An order denying a motion to quash is interlocutory; it is not appealable and cannot be the subject of certiorari, but may be reviewed only by appeal from the final judgment after trial, unless the denial amounts to grave abuse of discretion. Certiorari also requires that no plain, speedy and adequate remedy exists, so a motion for reconsideration must first be filed absent an exception.

Conspiracy is not an element of the crimes defined in Section 3, paragraphs (e) and (g) of the Anti-Graft and Corrupt Practices Act, so an information charging those crimes need not allege it. An information alleging conspiracy can stand even if only one person is charged, and the allegation becomes a mere surplusage when the co-accused are dropped. The accused's right under Section 14, paragraph 2 of Article III of the Constitution to be informed of the nature and cause of the accusation is not violated.

The requisites of double jeopardy must all concur: a valid arraignment, a competent court, a valid plea, a valid termination of the first jeopardy, and the second jeopardy for the same offense. The dismissal of the charge against co-accused is not the acquittal of the remaining accused.

The prosecuting officer retains discretion in determining whom to charge under Section 2 of Rule 110; the rule does not require the inclusion of persons against whom no sufficient evidence exists, and the courts will not interfere with the Ombudsman's prosecutory powers.

Under Section 8 of Rule 117, failure to assert a ground for a motion to quash before pleading is a waiver, except for the grounds of no offense charged, lack of jurisdiction, extinction of the offense or penalty, and jeopardy.

Disposition

The Supreme Court dismissed the petition, finding no grave abuse of discretion on the part of the Sandiganbayan.

Remember This

Memorize the line that an order denying a motion to quash is interlocutory, not appealable, and not the proper subject of certiorari, but is reviewed only by appeal from the judgment after trial. Examiners use this case for the remedy against a denied motion to quash, for the rule that conspiracy need not be alleged in an information under the Anti-Graft law, and for the requisites of double jeopardy.