The OSG alleged that UCPB?s investment in UNICOM was manifestly and grossly disadvantageous to the government since UNICOM had a capitalization of only P5 million and it had no track record of operation. In the process of conversion to voting common shares, the government?s P495 million investment was reduced by P95 million which was credited to UNICOM?s incorporators.Respondents amended UNICOM?s capitalization third time on September 18, 1979, giving the incorporators unwarranted benefits by increasing their 1 million shares to 100 million shares without cost to them. But,

About nine years later or on March 15, 1999 the Office of the Special Prosecutor (OSP) issued a Memorandum,stating that although it found sufficient basis to indict respondents for violation of Section 3(e) of R.A. 3019, the action has already prescribed given that period of prescription began to run when UNICOM filed its Certificate of Filing of Amended Articles of Incorporation with the SEC on February 8, 1980, making public respondents? acts as board of directors, therefore ended on February 8, 1990.

As to the main issue, petitioner maintains that, although the charge against respondents was for violation of the Anti-Graft and Corrupt Practices Act, its prosecution relates to its efforts to recover the ill-gotten wealth of former President Ferdinand Marcos and of his family and cronies. Section 15, Article XI of the 1987 Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees is not barred by prescription, laches, or estoppel.

But the Court has already settled in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto14 that Section 15, Article XI of the 1987 Constitution applies only to civil actions for recovery of ill-gotten wealth, not to criminal cases such as the complaint against respondents in OMB-0-90-2810. Thus, the prosecution of offenses arising from, relating or incident to, or involving ill-gotten wealth contemplated in Section 15, Article XI of the 1987 Constitution may be barred by prescription.

Notably, Section 11 of R.A. 3019 now provides that the offenses committed under that law prescribes in 15 years. Prior to its amendment by Batas Pambansa (B.P.) Blg. 195 on March 16, 1982, however, the prescriptive period for offenses punishable under R.A. 3019 was only 10 years.Since the acts complained of were committed before the enactment of B.P. 195, the prescriptive period for such acts is 10 years as provided in Section 11 of R.A. 3019, as originally enacted.

Now R.A. 3019 being a special law, the 10-year prescriptive period should be computed in accordance with Section 2 of Act 3326,18 which provides:

Section 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

Petitioner points prescription began to run only from the date it was discovered, namely, after the 1986 EDSA Revolution. Thus, the charge could be filed as late as 1996

Respondents claim that, in any event, the complaint against them failed to show probable cause. They point out that, prior to the third amendment of UNICOM?s capitalization, the stated value of the one million shares without par value, which belonged to its incorporators, was P5 million. When these shares were converted to 5 million shares with par value, the total par value of such shares remained at P5 million.

But, the action having prescribed, there is no point in discussing the existence of probable cause against the respondents for violation of Section 3(e) of R.A. 3019.

CONCURRING AND DISSENTING OPINION

BRION, J.:

I concur with the majority except on the question of prescription with respect to respondent Eduardo M. Conjuangco, Jr.

The primary issue in this case with respect to respondent Eduardo M. Cojuangco is on the question of whether the right of the State to prosecute the respondents for violation of Section 3(e) of Republic Act No. (RA) 30191 or the Anti-Graft and Corrupt Practices Act has prescribed.


Corollary to this issue are the questions -

a. when the prescriptive period provided by law should begin to run; and

b. whether the prescriptive period should be tolled or interrupted when the offender is outside the country?s jurisdiction.

The case of Domingo v. Sandiganbayan2 instructs us that, in resolving the issue of prescription of the offense charged, the following should be considered:

1. the period of prescription for the offense charged;

2. the time the period of prescription starts to run; and

3. the time the prescriptive period was interrupted.

The period of prescription for the offense charged

Prior to its amendment by Batas Pambansa Bilang 195 in 1982 and insofar as it applies to the facts of this case, Section 11 of RA 3019 provided for a 10-year prescriptive period for all offenses punishable under it.3 Any criminal proceeding for violation of RA 3019, initiated after the 10-year period, is barred and the State forfeits its power to prosecute and penalize the offender.

The time the period of prescription starts to run

Since RA 3019 is a special penal law, the applicable law for the computation of the prescriptive period is Section 2, Act No. 3326:4

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceeding for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. [emphasis supplied].

I disagree.

Although by nature, a difference exists between the grant of behest loans and UCPB?s investments in Unicom?s shares of stock, both transactions nonetheless involve public funds (i.e., coconut levy funds) and are evidenced by public instruments and records. Indeed, even if these transactions are of public record (hence, presumably of public knowledge), the Court declared that the principle in Domingo should still apply: the running of the prescriptive period should be computed from the presumed discovery (i.e., after the February 1986 Revolution) of the crime and not from the day of such commission.9

The lack of allegation that the members of the board of directors of UCPB connived with Unicom to suppress public knowledge of the investment is rendered unnecessary by the fact that majority of the board of directors of UCPB also served as board of directors of Unicom during the relevant period:The surrounding circumstances and the interlocking members of the board of directors of the two corporations provide reasonable ground to presume the existence of connivance. These factors make it likely that the questioned transaction was indeed "withheld from the curious or from those who were minded to know."




The time the prescriptive period was interrupted

A matter of significant consideration in the resolution of this case but has been glaringly omitted from the discussion of the facts is the publicly-known fact10 that from 1986 to 1991, respondent Eduardo Cojuangco, Jr. was "absent from Philippine Archipelago."11

Notably, the second paragraph of Section 2, Act No. 3326 is silent on the effect of the offender?s absence from the country on the running of the prescriptive period. The law simply states that ?

Sec. 2. x x x

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

The silence of the law, however, does not preclude the suppletory application of Article 91 of the Revised Penal Code (RPC). Article 91 of the RPC provides that "[t]he term of prescription shall not run when the offender is absent from the Philippine Archipelago." The suppletory application of Article 91 of the RPC is authorized and even mandated under Article 10 of the same Code, which states:

Art. 10. Offenses not subject to the provisions of this Code. ? Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specifically provide the contrary. [Emphasis ours.]

The only instance when the application of the RPC to special penal laws (like RA 3019) is barred is when the special penal law itself should specifically provide the contrary. The silence of Act No. 3326 and RA 3019, however, cannot be construed as specifically providing terms contrary to Article 91 of the RPC

The combined application of these provisions, therefore, dictates that the 10-year period to file charges for violation of RA 3019 should not run when the offender was absent from the Philippines. Otherwise stated, the offender?s absence from the country?s jurisdiction interrupts the running of the prescriptive period, and shall begin to run again only upon his return.

Does the application of Article 91 of the RPC to violation of special penal laws violate the rule that penal laws should be construed strictly against the state and liberally in favor of the accused? I do not believe so.

As already mentioned, the suppletory application of Article 91 of the RPC is mandated by the law itself. Indeed, the law?s express command precludes the application of statutory rules of construction, which are used only when the law is ambiguous.12 Assuming there was an ambiguity, the liberal construction of penal laws in favor of the accused is not the only factor in the interpretation of criminal laws:

A [liberal construction] should not be permitted to defeat the intent, policy, and purpose of the statute. The court should consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law, for [liberal construction] of a criminal statute does not mean such construction as to deprive it of the meaning intended.13

More importantly, to literally construe Act No. 3326?s silence on the effect of the accused?s absence from our jurisdiction as not interrupting the running of the prescriptive period is discriminatory and goes against public interest. I agree with Justice Antonio T. Carpio?s explanation in his dissent in Romualdez v. Hon. Marcelo:14

The accused should not have the sole discretion of preventing his own prosecution by the simple expedient of escaping from the State's jurisdiction. x x x. An accused cannot acquire legal immunity by being a fugitive from the State's jurisdiction.

To allow an accused to prevent his prosecution by simply leaving this jurisdiction unjustifiably tilts the balance of criminal justice in favor of the accused to the detriment of the State's ability to investigate and prosecute crimes. In this age of cheap and accessible global travel, this Court should not encourage individuals facing investigation or prosecution for violation of special laws to leave Philippine jurisdiction to sit-out abroad the prescriptive period.15 [Emphases ours.]

Accordingly, the charge ? insofar as it involves respondent Eduardo M. Cojuangco, Jr. ? was filed within the prescriptive period. He was absent from the country from 1986 to 1991. Hence, the filing of the charge on March 1, 1990 was well within the 10-year prescriptive period, even assuming it began to run on February 8, 1980.

ARTURO D. BRION
Associate Justice.