FELIX R. GONZALES, PETITIONER, VS. THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), THE HONORABLE OMBUDSMAN AND ANTONIO B. BALTAZAR, RESPONDENTS.

Through this special civil action for certiorari and
prohibition with preliminary injunction, petitioner seeks the annulment of the
resolution^[1]
of the Sandiganbayan dated March 19, 1990 and
promulgated on April 30, 1990 in Criminal Case No. 13563, entitled “People
vs. Felix R. Gonzales,” denying petitioner’s Motion to Dismiss/Quash the
amended information filed by respondent Ombudsman.

Petitioner Felix R.
Gonzales is the former Director of the Bureau of Fisheries and Aquatic
Resources (BFAR), while private respondent Antonio B. Baltazar
is the former Chief of the Deep Sea Fishing Demonstration Division of the
BFAR.  Criminal Case No. 13563, subject
of this petition, arose from an agreement^[2]
entered into between BFAR, represented by then Director Gonzales, and Roberto
F. Palanca for the use of the “Otoshi-Ami Net,” also known as
“Lambaklad,” for experimental test
fishing.  This net was subsequently
installed by Palanca through the assistance of the
BFAR.

The chronology of the undisputed facts and events that took place in this case follows.

On November 11, 1975,
an affidavit-complaint,^[3]
was filed with the City Fiscal of Manila by Baltazar
against Gonzales for malversation of public funds and
property involving the alleged illegal use of M/V Albacora.  This case was docketed therein as I.S. No.
75-29334.

On December 16, 1976, the said City Fiscal’s
Office issued a resolution finding a prima facie case.  However, Gonzales filed a petition for review
with the Ministry of Justice which issued on December 16, 1976 a resolution^[4]
dismissing the complaint.

Another Complaint Affidavit^[5]
was filed by Baltazar charging Gonzales with illegal
use of the M/V Albacora and loss of the Otoshi-Ami net, with the Tanodbayan
(now Ombudsman) where it was docketed as TBP Case No. 83-01547.  This was the precursor of and later became
Criminal Case No. 13563.  Gonzales filed
his counter-affidavit^[6]
denying the accusations made against him.

On March 16, 1984, Tanodbayan
(Ombudsman) Special Prosecutor Carlos D. Montemayor
issued a resolution^[7]
recommending that the first charge (for illegal use of the M/V Albacora) be dismissed for lack of merit and that a
preliminary investigation be conducted for the second charge (for loss of Lambaklad).  This
resolution was approved by then Tanodbayan Bernardo
P. Fernandez.

Pursuant to the resolution mentioned in the next preceding
paragraph, Special Prosecutor Reynaldo L. Mendoza conducted a preliminary
investigation against Gonzales and some other personnel of the BFAR for the
loss of the Otoshi-Ami net.

On October 8, 1984,
Special Prosecutor Mendoza issued a resolution^[8]
recommending the dismissal of TBP Case No. 83-01547 for insufficiency of
evidence.  This was approved by Tanodbayan Bernardo P. Fernandez.  On October 24, 1984, Baltazar
filed a Motion for Reconsideration^[9]
of said resolution.

On February 28, 1985, Tanodbayan
Special Prosecutor Andres B. Reyes, Jr., acting on said motion for
reconsideration, issued a resolution^[10]
ordering the conduct of a preliminary investigation with respect to the charge
for the illegal use of the government vessel (in effect modifying the March 16, 1984 resolution of the Tanodbayan), and the charge that there was negligence in
failing to recover the fishing net.  This
order was approved by Tanodbayan Raul M. Gonzalez.

Consonant with the above resolution, TBP Case No. 83-01547 was
referred to Special Prosecutor Juan F. Templonuevo
who consolidated it with TBP Cases Nos. 84­-00787 and 84-02338 for violation of
Sections 12 and 3(e), respectively, of Republic Act No. 3019, involving the
same parties.  On January 4, 1988,
Special Prosecutor Templonuevo issued a resolution^[11]
recommending the dismissal of all three cases. 
This was approved by Tanodbayan Special
Prosecutor Raul M. Gonzalez.

On February 8, 1988, Baltazar filed a
Motion for Reconsideration and Manifestation^[12]
regarding the above-stated resolution.

Acting on said motion for reconsideration, on March 20, 1989
Special Investigation Officer Teresita V. Diaz-Baldos, recommended a reversal of the January 4, 1988
resolution and the filing of an information against Gonzales and Palanca for violation of Section 3(e) of Republic Act No.
3019.^[13]
This was approved by Ombudsman Conrado M. Vasquez.

On the basis of the aforesaid resolution, Special Investigation
Officer Diaz-Baldos filed an information^[14]
on May 5, 1989 before the Sandiganbayan charging
Gonzales and Palanca with violation of Section 3(e)
of Republic Act No. 3019 which was docketed as Criminal Case No. 13563.  However, on September 12, 1989, an amended
information^[15]
was filed, excluding Palanca from the charge.

On December 12, 1989, Gonzales filed a Motion to Dismiss/Quash
the information^[16]
before the Sandiganbayan on the ground that there has
been a long delay on the part of the Tanodbayan
(Ombudsman) in the termination of the preliminary investigation of the case and
that there was more than one motion for reconsideration filed by Baltazar in violation of Rule 13(c) of Administrative Order
No. 3 issued by the Tanodbayan on December 1, 1979.

On March 19, 1990 the Sandiganbayan
issued the questioned resolution denying the motion to dismiss/quash.

On May 7, 1990, the Sandiganbayan
issued a resolution^[17]
granting the prosecution’s motion to amend the information and granting the
dismissal of the case against Roberto Palanca.

In his present recourse, petitioner adduces the following grounds
for the issuance of the writs prayed for:

“I

The long delay of the Tanodbayan/Ombuds­man
in the termination of the preliminary investigation violates the constitutional
rights of the accused to due
process and speedy termination of cases that will warrant the dismissal of the
instant case conformably with the doctrine laid down by this Honorable Court in
Tatad vs. Sandiganbayan,
G.R. No. L-72335-39, March 21, 1988, 159 SCRA 70, which the respondent court
fails to consider when it issued the questioned resolution in grave abuse of
its discretion tantamount to lack of jurisdiction which is correctible by the
issuance of the writ herein prayed for;

“II

The recommendation to file the informa­tion now pending before the
Honorable Respondent Court was filed after more than one motion for
reconsideration had been filed by the private complainant in violation of Rule
13(c) of Administrative Order No. 3, promulgated by the Tanodbayan
on December 1, 1979.”^[18]

Petitioner contends that he filed his counter affidavit to the
complaint-affidavit of respondent Baltazar, docketed
as TBP Case No. 83-01547 which is now the subject of Criminal Case No. 13563,
on May 29, 1984.  Therefore, as of that
date, the case had to be considered submitted for resolution.

The question now posed before this Court is whether there had
been a considerable delay in terminating the preliminary investigation of TBP
Case No. 83-01547 which was submitted for resolution as of May 29, 1984, up to
the time when the amended information was admitted by respondent court on May
7, 1990, or a period of more
than six (6) years.  Petitioner invokes the ruling laid down in
the aforecited case of Tatad vs. Sandiganbayan.

The Solicitor General submits that there was no inordinate delay because
from the time that Antonio Baltazar filed his
Complaint Affidavit on June 29, 1983^[19]
up to the filing of the information on April 20, 1989,^[20]
numerous incidents presented themselves for resolution during the preliminary
investigation; that the delay was not caused by inaction on the part of the
investigating officials but, instead, the intervening period was consumed by
the investigations and reinvestigations conducted; and that the preliminary
investigation conducted in the consolidated cases did not become ripe for
resolution until October 27, 1987 when the affidavit of Roberto Palanca was submitted on behalf of Gonzales to the
Investigation and Prosecution Office of the Tanodbayan.

In the Tatad case relied upon by
petitioner Gonzales, we there held that a delay of three (3) years in the termination of the preliminary
investigation by the Tanodbayan constitutes a
violation not only of the constitutional right of the accused under the broad
umbrella of the due process clause but also under the constitutional guarantee
of speedy disposition of cases as embodied in Section 16 of the Bill of Rights
(both under the 1973 and 1987 Constitutions).

In so ruling, we took into consideration the peculiar
circumstances attendant to that particular case, namely, that political
motivations played a vital role in activating and propelling the prosecutorial
process; that there was a blatant departure from established procedures
prescribed by law for preliminary investigation; and that the long delay in
resolving the case under preliminary investigation cannot be justified on the
basis of the facts on record.  It is
apparent, from a perusal of the records, that such considerations do not obtain
in the case at bar, hence, the doctrine enunciated in Tatad
is clearly inapplicable hereto.

While there may seem to
have been a delay in the termination of the preliminary investigation involved
in the case at bar, the same cannot be imputed solely to the prosecution.  In its questioned resolution, the Sandiganbayan recounted the incidents which contributed
largely to the delay and which are attributable to petitioner Gonzales and his
counsel.  Thus:

“a) That after
the consolidation of TBP Case No. 83-01547, where the acts complained of are
(a) using the M/V Albacora for a public use other
than that for which it was intended, thus constituting a violation of Article
220 of the Revised Penal Code and (b) the negligence for respondent’s failure
to recover the Lambaklad from Palanca
after the expiration of the one year term of the Agreement, and ever (sic)
thereafter until its total destruction, thus constituting a violation of R.A.
3019, with two other cases filed by complainant against accused-­movant which were earlier assigned to Special Prosecutor
Juan T. Templonuevo for preliminary investigation,
namely, TBP Case No. 84-02338, where the act complained of is the accused-movant’s entering into an agreement regarding the Lambaklad which is disadvantageous to the government and
over which he had no power to do and TBP Case No. 84-00787, where the act
complained of is accused movant’s allowing Victorio San Antonio to retire in spite of the pendency of the administrative charge against him
instituted by the complainant. Hon. Juan Templonuevo
scheduled these cases for clarificatory examination
on July 10, 1987.

“b) Atty. Doroteo B. Daguna, counsel for
accused-movant Gonzales, in his letter dated July 10,
1987, to Special Investigator Juan T. Templonuevo of
the then Office of the Tanodbayan, urgently moved for
the resetting of the hearing scheduled on that day for clarificatory
examination in connection with TBP Cases Nos. 83-01547, 84-00787 and 84­-02338.  (zerox copy of the
letter is herewith attached as Annex ‘B’ for easy reference)

“c) On account of
this urgent motion, Special Prosecutor Juan T. Templonuevo
issued an order dated July 10, 1987, resetting the clarificatory
examination to August 6 and 7, 1987.  (zerox copy of the
said Order is herewith attached as Annex ‘C’ for ready reference) In addition,
he issued subpoenas to concerned officials of the Bureau of Fisheries and
Aquatic Resources, namely, Mrs. Carmencita Bicol, the then Acting Chief Accountant; Aniana Abella, the Auditor; and
the Chief Personnel Officer.  (a copy of
the subpoena is herewith attached as Annex ‘D’ for ready reference)

“d) On August 6,
1987, Hon. Juan T. Templonuevo issued another
subpoena addressed to and duly received by concerned officials of the BFAR,
namely, Feliza L. Poniante,
Finance; Rebecca Badiola, Personnel; Aniana Abella, Administrative
Div.; Don Mondragon, Finance; and Carmelita, Bicol, Accounting, summoning them to appear at bar at the clarificatory examination session scheduled on August 7,
1987.  (zerox
copy of the subpoena is herewith attached as Annex ‘F’ for ready reference)

“e) On August 7,
1987, Hon. Juan T. Templonuevo issued another
subpoena addressed to accused Felix Gonzales and his counsel, Atty. Daguna, and four officials of the BFAR, namely, Carmelita Bicol, Rebecca Badiola, Aniana Abella and Don Mondragon, all of whom were duly served a copy thereof,
summoning them to appear before him on August 28, 1989.  (zerox copy of the
subpoena is herewith attached as Annex F.
for ready reference)

“f) On September 1,
1987, Hon. Juan T. Templonuevo issued another
subpoena summoning the addressees to appear before him on September 8,
1987.  Served with this subpoena were
Carmelita Bicol, Accountant; Aniana
Badiola, Personnel; and the Auditor, all of the
BFAR.  (zerox
copy of the subpoena is herewith attached as Annex ‘G’ for ready reference) In
connection with this setting, Hon. Templonuevo sent a
telegram to Atty. Doroteo Daguna,
counsel of accused-movant, informing him
thereof.  (zerox
copy of the telegram is herewith attached as Annex ‘H’ for ready reference)

“g) On
September 8, 1987, Hon. Templonuevo reset the hearing
of the cases to September 30, 1987, due notice of which was given to
complainant; respondent, through his counsel; and the concerned officials of
the BFAR as shown by their respective signatures appearing in a subpoena, a
copy of which is herewith attached as Annex ‘I’ for ready reference.

“h) Atty. Doroteo Daguna, in his hand­written
letter dated September 30, 1987, prayed for the resetting of the clarificatory examination scheduled that day on account of
a letter he received from Mr. Roberto Palanca and the
hearing was reset to October 15, 1987, with the conformity of complainant Baltazar and due notice to the concerned officials of the
BFAR (zerox copy of the handwritten letter of Atty. Daguna is herewith attached as Annex ‘J’ and zerox
copy of the letter of Roberto Palanca is herewith
attached as Annex ‘J-1′ for
ready reference).

“i) On October 27, 1987, the affidavit of Roberto F. Palanca dated October 26, 1987, was submitted by respondent
through counsel, to the Investigation and Prosecution Office of the Tanodbayan.  A zerox copy of the said affidavit is herewith attached as
Annex ‘K’ only for the purpose of showing its date of filing as well as its
contents without admitting the truth thereof nor waiving such valid objections
as may be available to the prosecution later on.

“j) And a little
over two months after the submission on October 29, 1987 of the affidavit of
Roberto Palanca, which tended to favor greatly the
exoneration of accused­-movant Gonzales, Hon. Juan Templonuevo on January 4, 1988, submitted his consolidated
Resolution for dismissal to Honorable Raul M. Gonzales who approved it on
January 28, 1988.

“k) Complainant Baltazar filed on February 8, 1988, a Motion for
Reconsidera­tion and Manifestation, attacking the correctness of the
consolidated Resolution dated January 4, 1988 penned by Honorable Juan Templonuevo
and approved by Hon. Raul M. Gonzales. 
This Motion was assigned to Special Investigation Officer Teresita Diaz-Baldos, who, in her
ORDER dated March 20, 1989, recommended the reversal of the aforesaid
consolidated Resolution and the filing of an Information against Director Felix
Gonzales and Roberto Palanca for violation of Sec.
3(e) of RA No. 3019, as amended.  Said
Order having been approved by Hon. Conrado M. Vasquez,
the Ombudsman, on April 4, 1989, was filed with the Sandiganbayan
on May 5, 1989.”^[21]

It must be here emphasized that the right to a speedy disposition
of a case,^[22]like
the right to speedy trial,^[23]
is deemed violated only when then proceeding is attended by vexatious,
capricious, and oppressive delays;^[24]
or when unjustified post­ponements of the trial are asked for and secured, or
when without cause or justifiable motive a long period of time is allowed to elapse without the party having his
case tried.^[25]
Equally applicable is the balancing test used to determine whether a defendant
has been denied his right to a speedy trial, or a speedy disposition of a case
for that matter, in which the conduct of both the prosecution and the defendant
are weighed, and such factors as length of the delay, reason for the delay, the
defendant’s assertion or non-assertion of his right, and prejudice to the
defendant resulting from the delay, are considered.^[26]

In the present case, it will be noted that it was only on August 22, 1988 when the complaint
including Roberto Palanca as an accused, together
with herein petitioner, was filed.  The
original information charging petitioner and Palanca
with a violation of Section 3(e) of Republic Act No. 3019, as amended, was
filed on May 5, 1989.  After the filing
of said information, petitioner filed several motions^[27]
before the Office of the Ombudsman and the Sandiganbayan
seeking reconsideration and re-evaluation of the case and praying for the
suspension of the proceedings in Criminal Case. No. 13563 during the pendency of the resolution of these motions.  Thereafter, the Sandiganbayan
ordered the conduct of a preliminary investigation against Palanca
and, subsequently, the amended information was filed.  It is, therefore, apparent and irremissible that the delay is equally chargeable to
petitioner.  Hence, he cannot now seek
the protection of the law to cover up for his own actuations or benefit from
what he now considers the adverse effects of his own conduct in the case.

Finally, the postulation of petitioner that the information in
the present case was filed only after the filing of a second motion for
reconsideration, supposedly contrary to Rule 13(c) of Administrative Order No.
3 issued by the Tanodbayan on December 1, 1979, is
devoid of merit.  The alleged second
motion for reconsideration referred to by herein petitioner involves the
resolution of dismissal of the three consolidated cases (TBP Case Nos.
83-01547, 84-00787 and 84-02338) issued by Special Prosecutor Templonuevo, the first being the motion to reconsider the
resolution of Special Prosecutor Mendoza ordering the dismissal of TBP Case No.
83-01547.  We hold, however, that while
there were two motions for reconsideration filed, it is erroneous to consider
the later motion as a second motion for reconsideration by reason of the fact
that the two motions for reconsideration were filed against two different
resolutions issued after the conduct of two different preliminary
investigations.

In effect, therefore, the first motion for reconsideration was
filed by virtue of a preliminary investigation conducted by Prosecutor Mendoza
whereas the subsequent motion for reconsideration was filed as a result of the
preliminary investigation conducted by Prosecutor Templonuevo
which is different and distinct from that conducted by Prosecutor Mendoza.  The concept of a second motion for
reconsideration is one which seeks a further reconsideration of an order or
resolution which denied the first motion for reconsideration.  Such is not the case here as above
explained.  Consequently, there was no
violation of the administrative order adverted to by petitioner.

ACCORDINGLY, on the aforestated
premises, the instant petition is DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin,
Sarmiento, Griño-Aquino, Medialdea, and Davide, Jr., JJ., concur.

Gancayco, J., on leave.

^[1]
Penned by Associate Justice Regino Hermosisima, Jr., with Justices Francis E. Garchitorena and Augusto M. Amores, concurring; Annex A, Petition; Rollo,
20.

^[2]
Annex D, Petition; Rollo, 36.

^[3]
Annex F, Petition; Rollo, 44-46.

^[4]
Annex G, id.; ibid., 47-49.

^[5]
Annex H, id.; ibid., 50-51.

^[6]
Annex I, id.; ibid., 52.

^[7]
Annex I-1, id.; ibid., 53-57.

^[8]
Annex J, id.;
ibid., 58-59

^[9]
Annex K, id.; ibid., 60-61.

^[10]
Annex L, id.; ibid., 62-67.

^[11]
Annex N, id.; ibid., 70-76.

^[12]
Annex O, id.; ibid., 77-79.

^[13]
Annex R, id.; ibid., 84-90.

^[14]
Annex S, id.; ibid., 91-92.

^[15]
Annex C, id.; ibid., 33-34.

^[16]
Annex B, id.; ibid., 27-32.

^[17]
Annex RR, id.; ibid., 157.

^[18]
Rollo, 13.

^[19]
Ibid., 182.

^[20]
This is the date of the information which was actually filed in the Sandiganbayan as Criminal Case No. 13563 on May 5, 1980. See Footnote 14.

^[21]
Ibid., 23-25.

^[22]
Sec. 16, Art. III, 1987 Constitution.

^[23]
Sec. 14(2), Art. III, 1987 Constitution.

^[24]
Kalaw vs. Apostol,
et al., 64 Phil. 852 (1937); Que, et al. vs. Cosico, et al., 177 SCRA 410 (1989).

^[25]
Andres, et al. vs. Cacdac, Jr., et al., 113
SCRA 216 (1981).

^[26]
Martin vs. Ver, et al., 123 SCRA 745 (1983).

^[27]
Annexes, T, U, V, Petition; Rollo, 93, 97,
101.