.

THIRD DIVISION

LUIS RAMON P. LORENZO, G.R. Nos. 242506-10

Petitioner,

- versus -

HON. SANDIGANBAYAN
(SIXTH DIVISION) AND THE
PEOPLE OF THE PHILIPPINES,
Respondents.
x----------------------------x
ARTHUR CUA YAP, G.R. Nos. 242590-94
Petitioner,
Present:

CAGUIOA, Chairperson,
- versus - INTING,
GAERLAN,
DIMAAMPAO, and
SINGH, JJ.
SANDIGANBAYAN (SIXTH
DIVISION) AND THE PEOPLE Promulgated:
OF THE PHILIPPINES,
Respondents. September 14, 2022
. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - f.),,\~'\i<:...~¾t- - - - - - - - - - -x

DECISION

CAGUIOA, J.:

Before the Court are consolidated 1 Petitions2 for Certiorari under Rule
65 of the Rules of Court, assailing the August 9, 2018 and September 25, 2018

1
Rollo (G.R. Nos. 242590-94), p. 301, per Court Resolution dated September 23, 2019.
2
Rollo (G.R. Nos. 242506-10), pp. 3-53 and Rollo (G.R. Nos. 242590-94), pp. 3-53.
Decision 2 G.R. Nos. 242506-10
and 242590-94
Resolutions3 of the Sandiganbayan Sixth Division (Sandiganbayan) in
Criminal Case Nos. SB-18-CRM-0288 to 0292 (subject criminal cases). The
assailed Resolutions denied the Motions to Quash Informations filed by
petitioners Luis Ramon P. Lorenzo (Lorenzo) and Arthur C. Yap (Yap).

The subject criminal cases stemmed from the alleged anomalous

procurement of various quantities of fe11ilizer (granular urea) from the
Philippine Phosphate Fertilizer Corporation (Philphos) for the Luzon regions
in 2003. 4 At the time material to these cases, Lorenzo was the Secretary of the
Department of Agriculture (DA) and Yap was the Administrator of the
National Food Authority (NF A).

The Facts

On April 20, 2018, five Criminal Informations for violation of Section

5
3(e) of Republic Act No. (R.A.) 3019 (the Anti-Graft and Corrupt Practices
Act) were filed against Lorenzo, Yap, and Tomas A. Guibani (Guibani), the
latter being the representative of Philphos. One Information reads in part:

On 04 July 2003, or sometime prior or subsequent thereto, in the

City of Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused LUIS P. LORENZO, JR. and ARTHUR
C. YAP, both public officers with salary grade 30, being then the Secretary
of the Department of Agriculture and Administrator of the National Food
Authority (NF A), respectively, while in the performance of their official
functions and in grave abuse thereof, acting with evident bad faith, manifest
partiality and/or gross inexcusable negligence, conspiring with one another
and with co-accused TOMAS A. GUIBANI, Representative of the
Philippine Phosphate Fertilizer Corporation (Philphos), did then and there,
willfully, unlawfully, and criminally cause undue injury to the govermnent
and/or give unwarranted benefits, advantage and preference to Philphos, by
(a) directing the Regional Bids and Awards Committees (RBACs) of NF A
Regions l to 5 and the National Capital Region (NCR) to conduct
procurement of their fertilizer requirements through the negotiated mode in
violation of the general rule on competitive bidding prescribed under
Section 10 of Republic Act 9184; (b) issuing a guideline that the opening of
the bids for the Luzon-wide procurement of fertilizers shall be
simultaneously done at the NF A Central Office in Manila; and (c) amending
the original guideline allowing only those suppliers with depots within
and/or adjacent to the procuring NFA Region to participate as bidders,
which issuances and directives were issued to ensure the award to Manila-
based Philphos of the Php595,636.37 procurement contract for the supply
of 1,300 bags of fertilizers to NFA-NCR, to the damage and prejudice of
the government.

CONTRARY TO LAW. 6

Rollo (G.R. Nos. 242590-94), pp. 56-83.

4
Rollo (G.R. Nos. 242590-94), p. 6.
Section 3(e) of R.A. 3019: "(e) 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 oflicenses or permits or other concessions."
Rollo (G.R. Nos. 242506-10), p. 166.
Decision 3 G.R. Nos. 242506-10
and 242590-94

The other four Informations were similarly worded except for (a) the
date and place of the commission of the crime, (b) the NF A region involved,
(c) the amount of the contract, and (d) the quantity offertilizers. 7

The factual backdrop of the case is summarized by the Office of the

Ombudsman (Ombudsman) as follows:

The national government, through the Department of Agriculture

(DA) allotted Four Hundred Thirty[-]Two Million Pesos (PhP432M) for the
Ginintuang Masaganang Ani (GMA) Rice Program in 2003.

In a Memorandum dated 30 April 2003, respondent DA

Secretary [Lorenzo] authorized the National Food Authority (NFA) to
enter into contracts for the procurement of fertilizers intended for the
wet season (May to October 2003).

Thus, on May 13, 2003 the DA and the NFA entered into a
Memorandum of Agreement (MOA) to jointly implement the fertilizer
component of the GMA Rice Program for the government.

Two Hundred Million Pesos (PhP200M) was transferred by the DA

to the NFA Central Office, which in turn, released PhPl 51,981,640.00 to
its Regional Field Units (RFUs) all over the country. The NFA Regional
and Provincial Offices in Luzon received a total allocation of
PhP108,885,979, but actual fund releases amounted only to
PhPl0S,608,679.00 xx X.

xxxx

The PhP105,608,679.00 actual disbursement was utilized for the

procurement of fertilizers (PhP74,701,400.00) arid certified seeds
(PhP23,437,139.00) and other administrative expenses (PhP7,470,140.00)
related thereto. 8 (Emphasis supplied)

The regions in the Luzon-wide procurement of fertilizers were as

follows: NFA Region I (!locos Region), NFA Region II (Cagayan Valley),
NF A Region III (Central Luzon), NF A Region IV (CALABARZON and
MIMAROP A), NFA Region V (Bicol Region), and National Capital Region
(NCR). The Ombudsman found several irregularities in the procurement of
fertilizers in the said regions. Mainly, the grounds relied upon by the
Ombudsman were the absence of public bidding and other acts allegedly
showing manifest partiality towards Philphos.

The negotiated mode was adopted in the Luzon-wide procurement of

fertilizers amounting to 1'46,831,638.00, upon the instruction of Yap, as
authorized by Lorenzo. The mode was adopted for the reason given that there
was an emergency brought by the urgency to buy the needed fertilizers in time
for the May to October cropping season. 9

7
Id. at 167.
8
Id. at 106-108.
9
Id. at 133.
Decision 4 G.R. Nos. 242506-10
and 242590-94
To ensure an unimpeded procurement process, Yap also issued general
guidelines via wire instructions to the concerned NF A officials in Regions I
to V and the NCR. Among these were: 1) the opening of bids to be conducted
simultaneously at NF A Central Office; and 2) a directive that suppliers with
depots outside or adjacent to the procuring region may submit their bids or be
invited to participate in the bids_ Jo

The Ombudsman found that the DA-Central, as the primary

implementing office of the 2003 GMA Rice Program, actively intervened in
the procurement process through its regional directors who were given
authority to confirm the initial recommendations of the Regional Bids and
Awards Committee (RBAC) of each procuring NFA Region. The DA also
submitted the list of accredited suppliers that were invited by the RBAC of
each NF A Regional Office. Moreover, the DA issued certifications that
enabled Philphos to participate in all the subject biddings despite it being a
Manila-based business entity. J 1

The Ombudsman Ruling

In a Resolution 12 dated July 25, 2017, the Ombudsman ordered the

filing of separate Informations for five (5) counts of violation of Section 3(e)
ofR.A. 3019 against Lorenzo, Yap, and Guibani. The Ombudsman found that
Lorenzo and Yap, as public officers, and in conspiracy with Guibani,
demonstrated manifest partiality towards Philphos.

The Ombudsman found that Lorenzo intentionally favored Philphos by

sanctioning the conduct of the Luzon-wide procurement without public
bidding and by delegating the procurement task to the NF A. The resort to
negotiated procurement was done even without meeting the criteria set forth
in R.A. 9184 or the Government Procurement Act, allegedly to meet an
emergency. 13

As for Yap, the Ombudsman found that he actively intervened in the

biddings conducted. Specifically, the Ombudsman found that Yap's issuances
enabled Philphos to participate in the procurements conducted for Regions I
to V and the NCR. According to the Ombudsman, the law provides for the
non-discretionary pass/fail criteria on eligibility check of bidders, hence,
Yap's amendments of the criteria or guidelines after the conduct of the June
27, 2003 bidding in order to make Philphos eligible and compliant was highly
irregular and showed his predilection towards Philphos. 14

According to the Ombudsman, Lorenzo and Yap "wielded their power

and influence as DA Secretary and NFA Administrator, respectively, to
control the bidding procedures and the technical requirements/eligibility of

10
Id. at 134.
11 Id.
12
Id. at 102-148.
13
Id. at 135-136.
14 Id. at 136-137.
Decision 5 G.R. Nos. 242506-10
and 242590-94
prospective bidders to tailor-fit the requirements of favored bidder,
15
Philphos," and therefore, probable cause exists to indict them for violation
of Section 3(e) ofR.A. 3019.

The Ombudsman, however, found no showing that the government was

grossly disadvantaged when the fertilizers were purchased from Philphos as
to hold Lorenzo and Yap liable for violation of Section 3(g) of R.A. 3019. 16
Likewise, the Ombudsman dismissed the charge for violation of Section
65(b )( 4) ofR.A. 9184 against Lorenzo, Yap, and their co-respondents. 17

Yap moved for partial reconsideration where he: (i) maintained the
absence of the elements of violation of Section 3(e) ofR.A. 3019, (ii) disputed
the finding of conspiracy, and (iii) claimed that his right to speedy disposition
of cases has been violated. He also attached the Ombudsman's May 6, 2015
Joint Resolution in OMB-C-C-14-0064 titled FIO v. Lore-nzo, et al., which
dismissed a case involving the same set of facts but in the Visayas region. 18

In a Joint Order 19 dated October 23, 2017 and approved on January 15,
2018, the Ombudsman denied the Motion for Partial Reconsideration.

Aggrieved, Lorenzo, Yap, and Guibani filed before the Sandiganbayan

their respective Motions to Quash and/or Dismiss. 20

Yap and Lorenzo both assailed the Informations on the following

grounds: 1) the facts alleged in the Informations do not constitute an offense;
and 2) the inordinate delay in the proceedings had ousted the Ombudsman of
its authority to file the Informations. 21

Among the contentions made by Lorenzo is that the resort to negotiated

procurement was above board. 22 He pointed out that R.A. 9184 became
effective on January 26, 2003 while the questioned procurements occurred
between May to August 2003. However, the Implementing Rules and
Regulations-A (IRR-A) of R.A. 9184, which require public bidding in
government procurement, took effect only on October 8, 2003 and, under
Section 77 thereof, it is specifically stated that where the advertisements or
invitations for bids were issued after the effectivity of R.A. 9184 but before
the effectivity of the IRR-A, then the applicable law at the time of the
questioned procurements would be Executive Order No. (E.O.) 40:

15
Id. at 138.
16
Id. at 142. Section 3(g) ofR.A. 3019 punishes the act of"entering, on behalf of the Government, into
any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby." · _ _
17
Id. at 145. Section 65(b )(4) of R.A. 9184 considers it punishable: "[w ]hen a bidder, by himself or m
connivance with others, employ schemes which tend to restrain the natural rivalry of the parties or
operates to stifle or suppress competition and thus produce a result disadvantageous to the public.
18
Id. at 153.
19
Id. at 149-156.
20
Id. at 165.
21
Id. at 167.
22
Id.atl71.
Decision 6 G.R. Nos. 242506-10
and 242590-94
In cases where the advertisements or invitations for bids were
issued after the effectivity of the Act but before the effectivity of this
IRR-A, procuring entities may continue adopting the procurement
procedures, rules and regulations provided in E.O. 40 and its IRR, P.D.
1594 and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the
case may be. 23 (Emphasis and underscoring supplied)

Lorenzo also brought to fore the previous rulings by the Ombudsman

in similar cases involving the same parties and factual backdrop where the
charges against him and his co-respondents were dismissed. In this regard,
Yap invoked the exception to the general rule that only allegations within the
four comers of an information should be considered in resolving a motion to
quash based on the ground that the facts alleged therein do not constitute an
offense. 24

Lastly, Lorenzo and Yap alleged that there has been an inordinate delay
in the termination of the preliminary investigation against them, which
amounts to a violation of their right to speedy disposition of cases. 25 As
emphasized by Lorenzo, counting from October 2003 when the fact-finding
investigation was officially commenced and up to April 20, 2018 when the
five Informations were filed with the Sandiganbayan, it took more than 14
years for the Ombudsman to build a case against them. 26

The Sandiganbayan Ruling

In a Resolution27 dated August 9, 2018, the Sandiganbayan denied the

motions of Lorenzo, Yap, and Guibani. The Sandiganbayan found that the
material averments in the Informations, assuming them to be true, sufficiently
allege all the elements constitutive of violation of Section 3(e) ofR.A. 3019,
as amended. An Information needs only to state the ultimate facts constituting
the offense, not the finer details of why and how the illegal acts amounted to
undue injury or damage - matters that are appropriate for trial. 28

On Lorenzo's allegation that negotiated procurement was proper, the

Sandiganbayan ruled that even granting arguendo that E.O. 40, and not R.A.
9184 was applicable, resort to methods of procurement other than competitive
bidding remained subject to the following preconditions: 1) when justified by
extraordinary conditions; 2) prior approval of the head of the agency; and 3)
resort thereto was made in the interest of economy and efficiency. The
Sandiganbayan agreed with the prosecution that "whether Lorenzo was
justified from deviating from the general requirement of competitive bidding
is evidentiary in nature and is a matter of defense that may be passed upon
after a full-blown trial on the merits." 29

23
Id.atl71.
24
Id. at 172.
25
ld.atl73.
26
Id. at 75.
27 Id. at I 65-179; penned by Associate Justice Kevin Narce B. Vivero and concurred in by Associate
Justices Sarah Jane T. Fernandez and Maryann E. Corpus-Mafialac.
28
Id. at 170.
29
ld.atl71.
Decision 7 G.R. Nos. 242506-10
and 242590-94

The Sandiganbayan also ruled that Lorenzo and Yap cannot rely on past
resolutions of the Ombudsman to justify the quashal of the instant
Informations since the facts in those cases are not on all fours with the present
case. The Sandiganbayan also ruled that evidence aliunde cannot be used to
quash the information and likewise, matters of defense cannot be considered
in a motion to quash. 30

The Sandiganbayan also rejected their claim of violation of the right to

speedy disposition of cases. The Sandiganbayan reckoned the commencement
of the prosecutorial process as of the year 2013, when the Complaint was filed
by the Field Investigation Office (FIO) of the Ombudsman against petitioners.
While the Sandiganbayan recognized that there was a delay of more than three
years to finish the preliminary investigation, it found that such delay alone
should not be a cause for an unfettered abdication of its duty to try cases and
to finally make a determination of the controversy after the presentation of
evidence. According to the Sandiganbayan, the delay adverted to in these
cases does not measure up to the unreasonableness of the delay of disposition
as laid out in jurisprudence. 31 In any case, the Sandiganbayan ruled that
Lorenzo and Yap waived their right to speedy disposition of cases for their
failure to seasonably invoke the same. 32

Lorenzo and Yap moved for reconsideration, which was denied by the
Sandiganbayan in a Resolution33 dated September 25, 2018. Thus, Lorenzo
and Yap filed before the Court their respective petitions for certiorari with
application for issuance of a temporary restraining order (TRO).

Proceedings before the Court

In his Rule 65 Petition,34 Lorenzo argues that the Sandiganbayan

committed grave abuse of discretion amounting to lack or excess of
jurisdiction: 1) when it did not apply the exception to the hypothetical
admission rule that evidence aliunde may be allowed or considered in
resolving a motion to quash to serve the ends of justice; 2) in not quashing the
subject Informations when Lorenzo was being charged for violating IRR-A of
R.A. 9184 which took effect only on October 8, 2003 for a transaction
undertaken during the period of May to August 2003; and 3) when it did not
apply the prevailing and applicable jurisprudence on the matter of inordinate
delay at the time his omnibus motion was filed with the court. 35

Yap's Petition36 is based on similar grounds. He claims that the

Sandiganbayan committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it denied his motion to quash informations on the

30 Id. at 172.
31 Id.at175-176.
32
Id. at 176-177.
33
Id. at206-2!8.
34 Id. at 3-53.
35 Id. at 24-25.
36 Rollo (G.R. Nos. 242590-94), pp. 3-53.
Decision 8 G.R. Nos. 242506-10
and 242590-94

ground that the facts charged therein do not constitute an offense. Yap
maintains that in resolving his motion to quash, the Sandiganbayan should
have considered evidence aliunde which are admitted or not denied by the
prosecution, emphasizing that the prosecution's mere objection to a motion to
quash information does not foreclose the application of the exception to the
general rule. Moreover, Yap argues that the inordinate delay in the termination
of the preliminary investigation ousted the Ombudsman of its authority to file
the Informations. 37

On June 10, 2019, the Court issued a TRO enjoining the Sandiganbayan
from proceeding with the arraignment and trial of Criminal Case Nos. SB- l 8-
CRM-0288 to 0292, pending final adjudication of the instant case. 38
Respondent People of the Philippines (respondent People) was also ordered
to comment on the petitions. 39

Respondent People, represented by the Ombudsman, through the Office

of the Special Prosecutor, filed its Comment and Opposition40 on the petitions
of Lorenzo and Yap and their prayers for issuance of TRO. On both
Comments, respondent People counters that the Sandiganbayan correctly
ruled that: 1) the inquiry into the facts outside the Informations is not
pennitted where the prosecution objects to the presentation thereof; 2) the
Informations clearly and categorically alleged that petitioners failed to
observe the general rule on competitive public bidding as prescribed under
Section 10 ofR.A. 9184, which took effect on January 26, 2003, and that the
Informations sufficiently stated all the elements of violation of Section 3(e) of
R.A. 3019; and 3) there was no inordinate delay. 41

Lorenzo and Yap filed their respective Replies 42 maintaining their

arguments in their petitions.

On September 23, 2019, the pet1t10ns of Lorenzo and Yap were

consolidated considering that they involve the same parties and raise the same
issues. 43

Issue

The issue for the Court's resolution is whether the Sandiganbayan

committed grave abuse of discretion in denying the Motions to Quash the
Informations filed by Lorenzo and Yap.

The Court's Ruling

The Petitions are granted.

37
Id. at 21-22.
33
Rollo (G.R. Nos. 242506-10), p. 309.
39 Id.
40 Rollo (G.R. Nos. 242506-10), pp. 438-461; and Rollo (G.R. Nos. 242590-94), pp. 457-476.
41 Rollo (G.R. Nos. 242506-1 OJ, pp. 443-444; and Rollo (G.R. Nos. 242590-94), p. 462.
42
Rollo (G.R. Nos. 242506-10), pp. 1072-1104; and Rollo (G.R. Nos. 242590-94), pp. 487-502.
43
Rollo (G.R. Nos. 242590-94), p. 301.
Decision 9 G.R. Nos. 242506-10
and 242590-94

At the very outset, the Court finds meritorious the argument that
petitioners' right to speedy disposition of cases has been violated. On this
ground alone, the cases against them are already dismissible.

Moreover, the Court likewise finds meritorious petitioners' stand on the

other substantive issue regarding the admission of evidence aliunde in
resolving a motion to quash.

I.

In resolving questions involving the right to speedy disposition of

cases, the Court is guided by its ruling in Cagang v. Sandiganbayan 44
(Cagang) wherein the following guidelines were laid down:

First, the right to speedy disposition of cases is different from the

right to speedy trial. While the rationale for both rights is the same, the right
to speedy trial may only be invoked in criminal prosecutions against courts
of law. The right to speedy disposition of cases, however, may be invoked
before any tribunal, whether judicial or quasi-judicial. What is important is
that the accused may already be prejudiced by the proceeding for the right
to speedy disposition of cases to be invoked.

Second, a case is deemed initiated upon the filing of a formal

complaint prior to a conduct of a preliminary investigation. This Court
acknowledges, however, that the Ombudsman should set reasonable periods
for preliminary investigation, with due regard to the complexities and
nuances of each case. Delays beyond this period will be taken against the
prosecution. The period taken for fact-finding investigations prior to the
filing of the formal complaint shall not be included in the determination of
whether there has been inordinate delay.

Third, courts must first determine which party carries the burden of
proof. If the right is invoked within the given time periods contained in
current Supreme Court resolutions and circulars, and the time periods that
will be promulgated by the Office of the Ombudsman, the defense has the
burden of proving that the right was justifiably invoked. If the delay occurs
beyond the given time period and the right is invoked, the prosecution has
the burden of justifying the delay.

If the defense has the burden of proof, it must prove first, whether
the case is motivated by malice or clearly only politically motivated and is
attended by utter lack of evidence, and second, that the defense did not
contribute to the delay.

Once the burden of proof shifts to the prosecution, the prosecution

must prove first, that it followed the prescribed procedure in the conduct of
preliminary investigation and in the prosecution of the case; second, that the
complexity of the issues and the volume of evidence made the delay
inevitable; and third, that no prejudice was suffered by the accused as a
result of the delay.

44
837Phil. 815(2018).
Decision 10 G.R. Nos. 242506-10
and 242590-94
Fourth, determination of the length of delay is never mechanical.
Courts must consider the entire context of the case, from the amount of
evidence to be weighed to the simplicity or complexity of the issues raised.

An exception to this rule is if there is an allegation that the

prosecution of the case was solely motivated by malice, such as when the
case is politically motivated or when there is continued prosecution despite
utter lack of evidence. Malicious intent may be gauged from the behavior
of the prosecution throughout the proceedings. If malicious prosecution is
properly alleged and substantially proven, the case would automatically be
dismissed without need of further analysis of the delay.

Another exception would be the waiver of the accused to the right

to speedy disposition of cases or the right to speedy trial. If it can be proven
that the accused acquiesced to the delay, the constitutional right can no
longer be invoked.

In all cases of dismissals due to inordinate delay, the causes of the

delays must be properly laid out and discussed by the relevant court.

Fifth, the right to speedy disposition of cases or the right to speedy

trial must be timely raised. The respondent or the accused must file the
appropriate motion upon the lapse of the statutory or procedural periods.
Otherwise, they are deemed to have waived their right to speedy disposition
of cases. 45

From the foregoing guidelines, the Court finds that Lorenzo and Yap's
right to speedy disposition of cases was violated by the Ombudsman's
inordinate delay in concluding the preliminary investigation.

Lorenzo argues that the delay in this case spanned more than 14 years,
counted from October 30, 2003, when the fact-finding investigation began, up
to April 20, 2018, when the Informations against them were filed with the
Sandiganbayan. 46 For reference, below is the Ombudsman's response to
Lorenzo's query on when the case was officially docketed for fact-finding
investigation:

DATE ACTION TAKEN

Action Slip of former PAMO
Assistant Ombudsman x x x
October 30, 2003 requesting the assignment of a
CPL reference number
CRD Form 1, CPL-C-03-2519
November 3, 2003 was assigned to the records, for
its return to P AMO
1st Indorsement returning the
November 13, 2003 records of CPL-C-03-2519 to
PAMO
Case Referral Slip assigning
CPL-C-03-2519 to an
May 18, 2009
Investigator-On-Case for fact-
finding investigation

45
Id. at 880-882.
46
Rollo (G.R. Nos. 242506-10), p. 37.
Decision 11 G.R. Nos. 242506-10
and 242590-94
Case Referral Slip re-assigning
November 8, 2011 CPL-C-03-2519 to an
Investigator-On-Case for fact-
finding investigation

The records of the case failed to indicate the action taken

between the period of November, 2003 to May 18, 2009. 47 (Emphasis
supplied)

For its part, respondent People counters that in determining whether

there was inordinate delay, the period of the fact-finding investigation should
be excluded. 48 Hence, the period should be counted from November 11, 2013
when the Complaint was filed by the FIO before the Ombudsman. 49

Notwithstanding the ponente's reservations as regards the conclusion

reached in Cagang "that for purpose of determining whether inordinate delay
exists, a case is deemed to have commenced from the filing of the formal
complaint and the subsequent conduct of the preliminary investigation,"50 the
ponente respects that Cagang is the standing doctrine. Thus, for purposes of
computing the length of delay in the instant case, the guidelines in Cagang
will be followed and the case against Lorenzo and Yap will be deemed
initiated only upon the filing of the complaint, or on November 11, 2013.

For reference, below is the timeline of the significant incidents of the

case upon the filing of the complaint on November 11, 2013: 51

November 11, 2013 Complaint filed by the FIO before the

Ombudsman
November 28, 2013 The Ombudsman issued the Order to file
Counter-Affidavit.
June 23, 2014 Supplemental Complaint-Affidavit filed by the
FIO
July 14, 2014 The Ombudsman issued the Order to file
Counter-Affidavit on the Supplemental
Complaint-Affidavit.
November 10, 2014 Yap filed his Counter-Affidavit. 52
July 31, 201 7 The Ombudsman approved the Joint Resolution
dated July 25, 2017 finding probable cause
against petitioners for violation of Section 3(e)
ofR.A. 3019.
September 11, 2017 Motion for Partial Reconsideration filed by Yap

47
Id. at 306.
48
Id. at 452.
49
Id. at 455.
50
Supra note 43, at 868.
51
Rollo (G.R. Nos. 242506-10), p. 455
52 Id. at ]20. NB. Lorenzo failed to file his counter-affidavit. See id. at 132. Also, there is no complete
record of when all the respondents filed their Counter-Affidavits in the case before the Ombudsma .
Thus, the Court focuses on the date when Yap filed his counter-affidavit.
Decision 12 G.R. Nos. 242506-10
and 242590-94

January 15, 2018 The Ombudsman approved the October 23,

2017 Joint Order denying Yap's Motion for
Partial Reconsideration. 53
April 20, 2018 The Ombudsman filed the five Informations
against Lorenzo and Yap before the
Sandiganbayan.

As seen from the foregoing, it took almost four years from the filing of
the Complaint until the approval of the Joint Resolution finding probable
cause against petitioners, and another year to resolve the Motion for Partial
Reconsideration filed by Yap.

To determine whether the delay is inordinate, Cagang instructs the

Court to examine whether the Ombudsman followed the specified time
periods for the conduct of the preliminary investigation. To further
supplement the parameters in Cagang, the subsequent rulings of Javier v.
Sandiganbayan 54 (Javier), and Catamco v. Sandiganbayan 55 (Catamco)
pointed out that the rules of the Ombudsman did not provide for specific time
periods to conclude preliminary investigations. Thus, the Court deemed the
time periods provided in the Rules of Court as applicable, considering that
these find suppletory application to proceedings before the Ombudsman.

In the absence of specific time periods in the Rules of the Ombudsman,

Javier and Catamco thus applied Section 3, Rule 112 of the Revised Rules of
Criminal Procedure, which provides that the investigating prosecutor has 10
days after the investigation to determine whether there is sufficient ground to
hold the respondent for trial. This 10-day period may appear short or
unreasonable from an administrative standpoint. However, as held in Alarilla
v. Sandiganbayan 56 (Alarilla), given the Court's duty to balance the right of
the State to prosecute violations of its law vis-a-vis the rights of citizens to
speedy disposition of cases, the citizens ought not to be prejudiced by the
Ombudsman's failure to provide for particular time periods in its own Rules
of Procedure.

Soon after the promulgation of Javier and Catamco, the Ombudsman

issued Administrative Order No. (A.O.) 1 series of2020 57 which specified the
time periods in conducting its investigations.

For fact-finding Investigations, A.O. 1 provides that "[u]nless

otherwise provided for in a separate issuance, such as an Office Order creating
a special panel of investigators and prescribing therein the period for the

53
Id. at 155-156.
54
G.R. 237997, June 10, 2020), accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1
/66260>.
55
G.R. 243560-62, July 28, 2020, accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/
66306>.
56
G.R. Nos. 236177-210, February 3, 2021, accessed at <https://elibrary.judiciary.gov.ph/thebookshelf/
showdocs/1/67118>.
57
Administrative Order No. 1, Series of 2020, "Prescribing the Periods in the Conduct of Investigations
by the Office of the Ombudsman" (August 15, 2020).
Decision 13 G.R. Nos. 242506-10
and 242590-94
completion of an investigation, the period for completion of the investigation
shall not exceed six (6) months for simple cases and twelve (12) months for
complex cases," 58 subject to considerations on the complexity of the case and
the possibility of requesting for extension on justifiable reasons, which shall
not exceed one year. 59 Notably, the fact-finding investigation in this case
arguably spanned 10 years, or from October 2003 until November 2013 when
the Complaint was filed before the Ombudsman, which is clearly beyond the
period provided in A.O. 1. Nevertheless, the Court is constrained to disregard
this apparent delay following the prevailing doctrine in Cagang that the period
taken for fact-finding investigations prior to the filing of the formal complaint
shall not be included in the determination of whether there has been inordinate
delay.

As regards the period for the conduct of preliminary investigation, the

relevant portions of A.O. 1 are reproduced below:

Section 7. Commencement of Preliminary Investigation. -

Without prejudice to the Procedure in Criminal Cases prescribed under Rule
II of Administrative Order No. 07, as amended, a preliminary
investigation is deemed to commence whenever a verified complaint,
grievance or request for assistance is assigned a case docket number
under any of the following instances:

(a) Upon referral by an Ombudsman case evaluator to the

preliminary investigation units/offices of the Office of
the Ombudsman, after determining that the verified
complaint, grievance or request for assistance is
sufficient in fonn and substance and establishes the
existence of a primafacie case against the respondent/s;
or

(b) At any time before the lapse of the period for the conduct
of a fact-finding investigation whenever the results
thereof support a finding of prima facie case.

In all instances, the complaint, grievance or request for assistance

with an assigned case docket number shall be considered as pending for
purposes of issuing an Ombudsman clearance.

Section 8. Period for the conduct of Preliminary Investigation. -

Unless otherwise provided for in a separate issuance, such as an Office
Order creating a special panel of investigators/prosecutors and prescribing
the period for completion of the preliminary investigation, the proceedings
therein shall not exceed twelve (12) months for simple cases or twenty-
four months (24) months for complex cases, subject to the following
considerations:

(a) The complexity of the case shall be determined on the

basis of factors such as, but not limited to, the number of
respondents, the number of offenses charged, the volume
of documents, the geographical coverage, and the
amount of public funds involved.

58 A.O. I, s. 2020, Section 3.

s9 Id.
Decision 14 G.R. Nos. 242506-10
and 242590-94

(b) Any delay incurred in the proceedings, whenever

attributable to the respondent, shall suspend the running
of the period for purposes of completing the preliminary
investigation.

(c) The period herein prescribed may be extended by written

authority of the Ombudsman, or the Overall Deputy
Ombudsman/Special Prosecutor/Deputy Ombudsman
concerned for justifiable reasons, which extension shall
not exceed one(!) year.

Section 9. Termination of Preliminary Investigation. - A

preliminary investigation shall be deemed terminated when the resolution
of the complaint, including anv motion for reconsideration filed in
relation to the result thereof, as recommended by the Ombudsman
investigator/prosecutor and their immediate supervisors, is approved by
the Ombudsman or the Overall Deputy Ombudsman/Special
Prosecutor/Deputy Ombudsman concerned. (Emphasis and underscoring
supplied)

In the instant case, the entire preliminary investigation spanned more

than four years, counted from the filing of the Complaint on November 11,
2013 until January 15, 2018, when the Ombudsman approved the October 23,
2017 Joint Order denying Yap's Motion for Partial Reconsideration of the
Joint Resolution finding probable cause for violation of Section 3(e) ofR.A.
3019. Whether the Court applies the 10-day period provided in Javier and
Catamco, or the more generous periods of 12 to 24 months under A.O. 1, the
conclusion is the same - that the Ombudsman exceeded the specified period
provided for preliminary investigations. Consequently, in light of the
guidelines in Cagang, the burden of proof to show that petitioners' right to
speedy disposition of cases was not violated shifts to the prosecution, which
must establish that the delay was reasonable and justified by proving the
following: 1) that it followed the prescribed procedure in the conduct of
preliminary investigation and in the prosecution of the case; 2) that the
complexity of the issues and the volume of evidence made the delay
inevitable; and 3) that no prejudice was suffered by the accused as a result of
the delay. 60

In justifying the delay, respondent People cites the ruling in Dansal v.

Fernandez, Sr. 61 which took judicial notice of the steady stream of cases
reaching the Ombudsman. Accordingly, respondent People argues that:

x x x [t]he case against petitioner, which was part of the so-called

"Fertilizer Scam," was not the only case being investigated by the 0MB, as
numerous complaints against alleged erring government officials and
employees are continuously being filed with and investigated by the 0MB.
Hence, any perceived delay attendant to the resolution of the case against
petitioner was reasonable and normal in the ordinary processes of justice.62

60
Alarilla v. Sandiganbayan, supra note 56.
61
383 Phil. 897 (2000).
62
Rollo (G.R, Nos. 242506-10), p. 453.
Decision 15 G.R. Nos. 242506-10
and 242590-94
The Court recognizes that there are constraints in the Ombudsman's
resources, thereby impeding its capacity to timely carry out its mandate amidst
the increasing caseload, which Cagang refers to as institutional delay.
Nevertheless, this in itself does not justify the belated resolution of the
preliminary investigation against an accused. As when parties request for
additional time to comply with the court's directive, or for the admission of a
belatedly filed pleading, the Court does not accept the solitary explanation of
heavy workload on the part of the party's counsel. 63

Apart from the heavy caseload of the Ombudsman, the prosecution

must also establish that the issues are so complex and the evidence so
voluminous as to render the delay inevitable. In this case, the prosecution
neither alleged nor proved any of these circumstances. The oft-recognized
principle ofinstitutional delay is not a blanket authority for the Ombudsman's
non-observance of the periods fixed for preliminary investigation. 64 Further,
the mere fact that the case is part of the so-called "Fertilizer Fund Scam" is
not proof in itself of the complexity of the case as to automatically justify
delay. As held in People v. Sandiganbayan: 65

The Court understands that the instant case is part of the so

called "Fertilizer Fund Scam" cases. However, this does not mean that
the case is highly complex that requires a serious amount of time.
Records show that the instant case involves only one transaction: the
procurement of fertilizer that was paid in two tranches. There is also no
allegation that respondents here conspired with other government officials
involved in the other Fertilizer Fund Scam cases elsewhere in the country.
Further, there are only seven respondents. To add, the 0MB was in effect
assisted by the COA in the latter's issuance of the NOD. In fact, it was the
primary basis of the Task Force's filing of the complaint. Likewise, there
was no showing that the records of this case were voluminous that would
necessitate a nwnber of years for the conduct of review.

In the cases of Javier v. Sandiganbayan and Catamco v.

Sandiganbayan (Catamco), which also involve the "Fertilizer Fund
Scam," the 0MB also posited the same arguments of complexity and
voluminous records. The Court, in ruling that there was inordinate
delay, disregarded the OMB's arguments absent proof as regards the
assertions. Similarly in the instant case, the 0MB did not show proof
of complexity and volume that would make the delay inevitable and
justified.66 (Emphasis supplied)

In this case, in studying the propriety of petitioners' resort to negotiated

procurement, the prosecution had to scrutinize only one issuance, i.e., the
April 30, 2003 Memorandum Order issued by Lorenzo. Furthermore, the
questioned issuances by Yap in implementing said Memorandum were not
numerous enough as to be regarded as voluminous. Evidently, apart from bare

63 Perez v. Sandiganbayan, G.R. No. 245862, November 3 2020, accessed at <https://elibrary.judiciary.

0

gov.ph/thebooksheWshowdocs/1/67037>.
64
Id.
65 G.R. No. 239878, February 28, 2022, accessed at <https://sc.judiciary.gov.ph/26692/>.
66 Id.
Decision 16 G.R. Nos. 242506-10
and 242590-94

assertions, there is a dearth of evidence from the prosecution to show clear

proof of the peculiar circumstances of this case as to justify the delay.

Additionally, the prosecution failed to show that petitioners did not

suffer any prejudice as a result of the delay. In defining prejudice to the
accused, Cagang cites the following pronouncements in Corpuz v.
Sandiganbayan: 67

x x x Prejudice should be assessed in the light of the interest of

the defendant that the speedy trial was designed to protect, namely: to
prevent oppressive pre-trial incarceration; to minimize anxiety and
concerns of the accused to trial; and to limit the possibility that his
defense will be impaired. Of these, the most serious is the last, because
the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. There is also prejudice if the defense
witnesses are unable to recall accurately the events of the distant past. Even
if the accused is not imprisoned prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety, suspicion
and often, hostility. His financial resources may be drained, his association
is curtailed, and he is subjected to public obloquy. 68 (Emphasis supplied)

Cagang further cites the following pronouncements in Coscolluela v.

Sandiganbayan 69 (Coscolluela) in explaining prejudice to the accused:

Lest it be misunderstood, the right to speedy disposition of cases is

not merely hinged towards the objective of spurring dispatch in the
administration of justice but also to prevent the oppression of the citizen by
holding a criminal prosecution suspended over him for an indefinite time.
Akin to the right to speedy trial, its "salutary objective" is to assure that an
innocent person may be free from the anxiety and expense oflitigation or,
if otherwise, of having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose. This looming unrest as well as the
tactical disadvantages carried by the passage of time should be weighed
against the State and in favor of the individual. 70 (Emphasis supplied)

Indeed, the Court has recognized that "inordinate delay places the
accused in a protracted period of uncertainty which may cause anxiety,
suspicion, or even hostility. " 71 Yap himself states in his Petition that while he
is not imprisoned, his right to travel is impaired, and he experiences anxiety
"especially since he is being brought to trial for acts that actually benefitted
the government." 72 He also underscores that he is incurring legal fees to
defend himself. 73

Moreover, the Court has also recognized that "the lengthy delay would
resultto the accused's inability to adequately prepare for the case which would

67
484 Phil. 899 (2004).
68
ld.at918.
69
714 Phil. 55 (2013).
70
Id. at 65.
71
People v. Sandiganbayan, supra note 65.
72
Rollo (G.R. Nos. 242590-94), p. 46.
73 Id.
Decision 17 G.R. Nos. 242506-10
and 242590-94
result to the deterioration or loss of evidence, leading to impairment of the
accused's defense." 74 Yap likewise points this out, stating that the march of
time itself impairs his defenses, especially since the long passage of time will
affect the memories of possible witnesses and the integrity of the records
pertaining to this case. 75 Lorenzo echoes the same sentiment. 76

The Court gives credence to petitioners' claims. Surely, petitioners are

placed "at a tactical disadvantage in going against the well-oiled machinery
of the government and its infinite resources," 77 especially considering that the
questioned transactions in this case dates to 2003 and the case build-up has
likewise begun in the same year. As a result of the delay, the impairment of
their defense is apparent and the prejudice against them is clear.

The Sandiganbayan, however, ruled that even assuming there was delay
in the termination of the preliminary investigation, petitioners are deemed to
have slept on their right and failed to seasonably invoke their right to speedy
disposition of cases. 78 According to the Sandiganbayan, they failed to take any
step whatsoever to accelerate the disposition of the matter, as for instance, the
filing of a motion for early resolution. As a result of their failure to timely
object, the Sandiganbayan ruled that petitioners impliedly acquiesced to the
supervening delay. 79

In ruling that petitioners should have moved for the early resolution of
the case, the Sandiganbayan effectively - and erroneously - shifted the
burden back to the accused despite the manifest delay on the part of the
prosecution to terminate the preliminary investigation. This is egregious error.
It should be emphasized that the filing of a motion for early resolution is not
a mandatory pleading during a preliminary investigation. With or without the
prodding of the accused, there are determined periods for the termination of
the preliminary investigation. 80 The following pronouncements in
Coscolluela, which were not abandoned by Cagang, are enlightening:

Being the respondents in the preliminary investigation proceedings,

it was not the petitioners' duty to follow up on the prosecution of their case.
Conversely, it was the Office of the Ombudsman's responsibility to
expedite the same within the bounds ofreasonable timeliness in view of its
mandate to promptly act on all complaints lodged before it. As pronounced
in the case of Barker v. Wingo:

A defendant has no duty to bring himself to trial; the

State has that duty as well as the duty of insuring that the
trial is consistent with due process. 81

74
People v. Sandiganbayan, supra note 65.
75 Rollo (G.R. Nos. 242590-94), p. 45.
76
Rollo (G.R. Nos. 242506-10), pp. 42-43.
77
Magante v. Sandiganbayan (Third Division), 836 Phil. 1 ]09, l ]39 (20)8).
78
Rollo (G.R. Nos. 242590-94), pp. 67-68.
79
Id. at 68.
80
Perez v. Sandiganbayan, supra note 65.
,1 Id.
Decision 18 G.R. Nos. 242506-10
and 242590-94

Accordingly, petitioners' failure to prod the Ombudsman to perform its

positive duty and mandate should not, as it simply cannot, be deemed as
acquiescence to an unjustified delay. It is the Ombudsman which is mandated
by no less than the Constitution,82 as enforced by The Ombudsman Act of
1989, 83 to act promptly on complaints filed before it against public officials
and government employees. Verily, mere inaction on the part of the accused,
without more, does not qualify as an intelligent waiver of their constitutionally
guaranteed right to the speedy disposition of cases.

Notably, cases applying Cagang have considered the filing of a motion

for reconsideration of the Ombudsman Resolution finding probable cause as
a timely invocation of the right to speedy disposition of cases. 84 Here, the
Court considers the Motion for Partial Reconsideration filed by Yap before
the Ombudsman as sufficient for purposes of determining whether petitioners'
right to speedy disposition of cases had been violated. Following the ruling in
People v. Sandiganbayan, Yap's invocation of the right in his Motion for
Partial Reconsideration is deemed to cover Lorenzo because they are co-
respondent~ in the same case, and it assails a single resolution that applies to
both of them. Above all, petitioners moved for the quasbal of the Informations
against them at the earliest opportunity, which is after the filing of the
Informations and prior to arraignment. The timely filing of their motions to
quash - where they invoked their right to speedy disposition of cases -
undoubtedly contradicts any implied intention on the part of Lorenzo and Yap
as to the waiver of their constitutional right to the speedy disposi1ion of cases.

Considering that the prosecution failed to provide sufficient

justification for the delay in th.e termination of the preliminary investigation,
the Sandiganbayan. gravely abused its discretion in denying petitioners'
motions to quash ..

II.

As earlier mentioned, while the cases herein may already be dismissed

on the ground ,.fviolation of petitioners' right to spee,dy disposition of cases,
the Court nonc;the!ess reviewed the records of the cases and finds it important
to rule on the other substantive· issue raised regarding the admission of
evidence aliundE in resolving a motion to qua,:h,

No less than the Bill of Rights of the Constitution provides that an

accused has the right to be informed of the nature and cause of the accusation
against him. 85 In this regard, the main purpose of an Information is for the
accused to be formally informed of the facts and foe acts constituting the
offense chm-ged. If an Information is insufficient, the accused can file a motion
to have the same quashed a.rid/or di3missed before he- or she enters a plea. In

82 CONST!TUTfON, Art. X[, Sec. 12.

83 R.A. 6770, "A,i Act· I'ro·iiding for the· Functional and Structural Organization of the Office of the
Ombuds.rnan, and for Other Purposes," Sec. 13.
34
People v. Sa.'1.diganhayan, supra note 65.
85
Cm;STITUTION, Art: lll, Sec. i4(2).
Decision 19 G.R. Nos. 242506-10
and 242590-94
a motion to quash, the accused challenges the efficacy of an Information and
compels the court to determine whether the Information suffices to require the
accused to endure the rigors of a trial. If the Information is found to be
insufficient, the same cannot be the basis of a valid conviction· hence the
court must promptly dismiss the case and save the accused from ' the anxiety
'
of undergoing a useless trial. 86

Section 6, Rule 110 of the Rules of Court provides that the acts or
omissions complained of as constituting the offense must be alleged in the
Information. Likewise, every element which constitutes the offense must be
duly alleged in the Information since the facts and circumstances necessary to
be alleged therein are determined by reference to the definition and essential
elements of the specific crime involved. 87 Hence, in the present case, the
Informations must allege the following essential elements of the crime of
violation of Section 3(e) ofR.A. 3019: (1) the accused must be a public officer
discharging administrative, judicial, or official functions; (2) he/she must have
acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and (3) that his/her action caused any undue injury to any party,
including the govermnent, or gave any private party unwarranted benefits,
advantage or preference in the discharge of his/her functions. 88

For reference, one of the subject Informations in this case is herein

quoted anew:

On 04 July 2003, or sometime prior or subsequent thereto, in the

City of Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused LUIS P. LORENZO, JR. and ARTHUR
C. YAP, both public officers with salary grade 30, being then the Secretary
of the Department of Agriculture and Administrator of the National Food
Authority (NF A), respectively, while in the performance of their official
functions and in grave abuse thereof, acting with evident bad faith, manifest
partiality and/ or gross inexcusable negligence, conspiring with one another
and with co-accused TOMAS A. GUIBANI, Representative of the
Philippine Phosphate Fertilizer Corporation (Philphos), did then and there,
willfully, unlawfully, and criminally cause undue iajury to the government
and/or give unwarranted benefits, advantage and preference to Philphos, by
(a) directing the Regional Bids and Awards Committees (RBACs) of NFA
Regions 1 to 5 and the National Capital Region (NCR) to conduct
procurement of their fertilizer requirements through the negotiated mode in
violation of the general rule on competitive bidding prescribed under
Section 10 of Republic Act 9184; (b) issuing a guideline that the opening of
the bids for the Luzon-wide procurement of fertilizers shall be
simultaneously done at the NF A Central Office in Manila; and (c) amending
the original guideline allowing only those suppliers with depots within
and/or adjacent to the procuring NFA Region to participate as bidders,
which issuances and directives were issued to ensure the award to Manila-
based Philphos of the Php595,636.37 procurement contract for the supply
of 1,300 bags of fertilizers to NFA-NCR, to the damage and prejudice of
the gov.lrnment.

86
People v. Sandiganbayan (Fourth Division), 769 Phil. 378,387 (2015).
87
Spouses Tayamen v. People. G.R. No. 246986, April 28, 2021, accessed at <https://elibrary.judiciary.gov
.ph/thebookshblflshowdocs/1/674 71 >.
88 Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).
Decision 20 G.R. Nos. 242506-10
and 242590-94

CONTRARYTOLAW. 89

As earlier mentioned, the other four Informations were similarly

worded except for (a) the date and place of the commission of the crime, (b)
the NF A region involved, ( c) the amount of the contract, and (d) the quantity
of fertilizers. 90

One of the grounds relied upon by petitioners in their motions to quash

is that the facts in the Informations do not constitute an offense. Specifically,
Lorenzo and Yap argue that the second and third elements of the crime of
violation of Section 3(e) of R.A. 3019 are absent. In support thereof,
petitioners invoke the issuances of the Ombudsman in OMB-C-C-14-0064
(the Visayas case) and OMB-C-C-15-0029 (the Mindanao case) which
involve the same procurement matter as in the present case, where the
Ombudsman dismissed the complaints for violation of Section 3(e) of R.A.
3019 against them due to lack of probable cause. Petitioners emphasize that
for both the Visayas and Mindanao cases, the Ombudsman found that the
second element of manifest partiality, evident bad faith or inexcusable
negligence was lacking. 91 Likewise, petitioners also invoke the Resolution of
the Ombudsman in the instant case to raise the absence of the third element,
i.e., causing any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference. They
note that in dismissing the complaint for violation of Section 3(g) of R.A.
3019 against them, the Ombudsman ruled that there is no adequate showing
that the government was grossly disadvantaged when the fertilizers were
purchased from Philphos. 92

A motion to quash is a hypothetical admission of the facts alleged in

the Information; hence, the general rule is that the court will not consider
allegations contrary to those appearing on the face of the Information. 93
Moreover, the fundamental test in considering a motion to quash on the
ground that the facts in the Information do not constitute an offense is whether
the facts alleged, if hypothetically admitted, will establish the essential
elements of the offense as defined in the law. 94 Thus, as a general rule, facts
outside the Information itself will not be considered.

That said, case law also recognizes exceptions to the aforementioned

general rule - one of which being a situation where there are additional facts
not alleged in the Information but are admitted or not denied by the
prosecution. Inquiry into such facts may be allowed where the ground invoked
is that the allegations in the Information do not constitute an offense. 95

89
Rollo (G.R. Nos. 242506-10), p. 166.
90 Id. at 167.
91 Rollo (G.R. Nos. 242506-10), pp. 94 and 161.
92 Id. at 142.
93 Antone v. Beronilla, 652 Phil. 151, 165 (2010).
94 Id.
95 Garcia v. Court ofAppeals, 334 Phil. 621, 634 (1997).
Decision 21 G.R. Nos. 242506-10
and 242590-94
Petitioners invoke this exception. In support thereof, both petitioners
cite People v. Navarro and Atienza96 (Navarro). Therein, the accused
Provincial Governor and Warden were charged with arbitrary detention for
allegedly imprisoning private complainants without legal grounds. During the
pre-trial, the Fiscal conceded that the offended parties were detained by order
of the Commanding General, Western Visayan Task Force, United States
Army. Thus, the accused filed a Motion to Quash on the ground that the facts
charged in the Information did not constitute an offense. The trial court
granted the motion, from which the Solicitor General appealed, alleging that
"if the informations must be quashed on the ground 'that the facts charged do
not constitute an offense[,]' elementary logic dictates that the facts charged
'in the informations' must be the one examined and analyzed to determine the
sufficiency of the allegations." 97 In denying the appeal, the Court, in Navarro,
ruled as follows:

The [Olffice of the Solicitor General does not deny that the
Beloncios had been committed to jail by order of competent authorities of
the American forces of liberation. The record fails to show any motion for
reconsideration by the provincial fiscal disputing the admissions attributed
to him in the court's decision. HenceLl we are justified, in assuming, that
such representations had been made. Consequently[,] when the defense
urged that the facts charged did not constitute an offense, invoking not only
the allegations of the information but also the admissions made by the fiscal,
the trial judge rightly sustained the motion. Because the Beloncios had been
placed by competent authority of the United States military forces in the
official custody of defendants, who were public officials entrusted with the
detention of prisoners, they could not very well be turned loose without a
countermand. The fiscal should have mentioned other subsequent
circumstances, if any, establishing defendants' duty (which they failed to
fulfill) to release the Beloncios.

It must be noted that the section of the rule (sec. 2[a], Rule 113)
permitting a motion to quash on the ground that "the facts charged do not
constitute an offense" omits reference to the facts detailed "in the
information." Other sections of the same rule would imply that the issue is
restricted to those alleged in the information (see secs. 9 and I 0, Rule 113).
Prima facie, the "facts charged" are those described in the complaint,
but they may be amplified or qualified by others appearing to be
additional circumstances, upon admissions made by the people's
representative, which admissions could anyway be submitted by him as
amendments to the same information. It would seem to be pure
technicality to hold that in the consideration of the motion the parties
and the judge were precluded from considering facts which the fiscal
admitted to be true, simply because they were not described in the
complaint. Of course, it may be added that upon similar motions the court
and the fiscal are not required to go beyond the averments of the
information, nor is the latter to be inveigled into a premature and risky
revelation of his evidence. But we see no reason to prohibit the fiscal
from making, in all candor, admissions of undeniable facts, because the
principle can never be sufficiently reiterated that such official's role is
to see that justice is done: not that all accused are convicted, but that
the guilty are justly punished. Less reason can there be to prohibit the

96 75 Phil. 516 (1945).

97
Id.at517.
Decision 22 G.R. Nos. 242506-10
and 242590-94
court from considering those admissions, and deciding accordingly, in
the interest of a speedy administration of justice.98 (Emphasis and
underscoring supplied)

Here, petitioners argue that the exception to the general rule applies
because the evidence aliunde sought to be considered in their motions to quash
were admitted by the prosecution. Lorenzo submits:

x x x that on the basis of the very comment/opposition of the

prosecution, contrary to the ruling of the court [a quo], the evidence
[aliunde] introduced by the petitioner was not really objected to by the
prosecution but was actually admitted as a common allegation in the
three (3) complaints filed by the Office of the Ombudsman relative to the
questioned procurement of fertilizers in the areas of Luzon, Visayas, and
Mindanao. The prosecution[,] by admitting and/or not denying the three
(3) resolutions of the Office of the Ombudsman even clarified and tried
to harmonize the three (3) resolutions by arguing that the Office of the
Ombudsman did not really [revoke, repeal, abrogate, and then reinstate] its
own rulings and the perceived flip-flopping rulings were merely brought
about by the fact that since the allegations and pieces of evidence in the
three complaints differ from one another, necessarily, the factual and legal
findings in the three Resolutions would also vary. However, the
prosecution did not deny the fact that while indeed allegations and
pieces of evidence may vary in the three complaints covering the
procurement of fertilizers in the Luzon, Visayas and Mindanao areas,
there is only one April 30, 2003 Memorandum Order issued by the
petitioner. Consequently, such fact was deemed admitted and
uncontroverted especially so that the prosecution even categorically
admitted the same as a common allegation. Thus, whether it will be the
Luzon, Visayas or Mindanao procurement that will be questioned, it will
always refer to the same April 30, 2003 Memorandum Order of the
petitioner the propriety of the issuance thereof was already found and
declared by the same Ombudsman as valid and legal in its July 24, 2015
Resolution xx x and May 2, 2018 Resolution xx x. 99 (Emphasis supplied)

Similarly, Yap argues that the evidence sought to be considered in his

motion to quash, while not alleged in the Information, were admitted or not
denied by the prosecution. 100 According to him, undeniable facts appearing on
the records of the case and not susceptible of contradiction should have been
considered by the Sandiganbayan in resolving his motion to quash. 101

For its part, respondent People counters that while matters aliunde or
extraneous facts not appearing on the face of the Informations may be
admitted as an exception to the general rule, the same is only applicable when
the prosecution fails to object at the time the evidence was presented. 102 In
support thereof, respondent People cites People v. Valencia 103 (Valencia),
where the Court ruled as follows:

'' Id.
99
Rollo (G.R. Nos. 242506-10), p. 27.
10° Rollo (G.R. Nos. 242590-94), p. 23.
101
Id. at 25.
'°2 Rollo (G.R. Nos. 242506-10), p. 445.
103
477 Phil. 103 (2004).
Decision 23 G.R. Nos. 242506-10
and 242590-94
As a general proposition, a motion to quash on the ground that the
allegations of the information do not constitute the offense charged, or any
offense for that matter, should be resolved on the basis alone of said
allegations whose truth and veracity are hypothetically admitted. The
informations need only state the ultimate facts; the reasons therefor could
be proved during the trial.

The fundamental test in reflecting on the viability of a motion to

quash under this particular ground is whether or not the facts asseverated, if
hypothetically admitted, would establish the essential elements of the crime
defined in the law. In this examination, matters aliunde are not considered.
However, inquiry into facts outside the information may be allowed
where the prosecution does not object to the presentation thereof. In the
early case of People v. Navarro, we held:

xxxx

It should be stressed, however, that for a case to fall under the

exception, it is essential that there be no objection from the prosecution.
Thus, the above rule does not apply where the prosecution objected to
the presentation of extraneous facts and even opposed the motion to
quash. 104 (Emphasis supplied)

Here, respondent People maintains that the exception to the

hypothetical admission rule cannot be applied because the prosecution
opposed the extraneous facts introduced during the motion to quash stage.
According to respondent People, petitioners' proposition "is belied by the
Comment/Opposition to the Motion to Quash filed by the prosecution thereto,
its vehement objections[,] and controverting facts which were raised to oppose
the presentation of extrinsic evidence by the petitioner." 105 The
Sandiganbayan sided with respondent People when it ruled that:

Irrefragably, the Prosecution is up in arms against the presentation

of evidence aliunde and the precipitate dismissal of this case. Conformably
with the Supreme Court's ruling in Valencia, this Court finds the accused's
position to be untenable, to begin with, and conforms to the Prosecution's
Opposition. 106

As will be shown below, a careful review of the parties' submissions as

well as the relevant jurisprudence leads to the conclusion that favors
petitioners' position - that is, what is applicable here is the exception to the
general rule against admission of evidence aliunde in a motion to quash on
the ground that the allegations in the Information do not constitute an offense.

The Court notes that Valencia, which respondent People cites, is not on
all fours with the instant case. In Valencia, the evidence aliunde sought by the
accused to be considered in their motion to quash was the Resolution of the
Ombudsman which dismissed the administrative case against them involving
the same subject matter as the criminal case in question. However, as pointed
out by the Court in Valencia, said Resolution was not even offered and

104
ld.atll2-ll3.
105 Rollo (G.R. Nos. 242506-10), p. 446.
106
Id. at 21 I.
Decision 24 G.R. Nos. 242506-10
and 242590-94

admitted as evidence by the Sandiganbayan as it was merely attached to the

accused's Supplemental Pleading in support of their motion to quash. More
importantly, the Resolution therein did not even bear the approval of the
Ombudsman. 107

In any case, Valencia does cite Navarro, which is the leading case on
this matter. In his Concurring Opinion in Navarro, Associate Justice Gregorio
Perfecto elucidated on the spirit which animates the ruling of the Court:

We concur. To attain the substantial ends of justice, procedural

technicalities must be dispensed with, and the court rules must be
interpreted so as to give them the resiliency demanded by the
circumstances of the case. Court rules must give way to judicial
liberalism and legal progress. The law embodied in them must grow
and develop. Even the calcareous shells of the large phylum of mollusks,
notwithstanding their rocky hardness and apparent fixity, grow in answer to
the evolutionary requirements of biological laws.

Prosecution's statements belong to a class of evidence of the

highest order in behalf of the accused. It is based on the same principle
upon which estoppel is established, and from which the ad hominem
argument in logic derives its force. 108 (Emphasis supplied)

It is under this prism that the Court analyzes the relevant jurisprudence
applying the doctrine in Navarro.

A few years after the promulgation of Navarro, the Court decided

People v. Lancanan 109 (Lancanan) which dealt with an appeal from an order
of the Court of First Instance granting a motion to quash on the alleged failure
of the Information to allege facts sufficient to constitute an action. To support
the motion to quash, the accused therein alleged facts that were clearly not
alleged in the Information, which led to the fiscal opposing said motion. In
upholding the order granting the motion to quash, the Court ruled as follows:

The first error imputed to the trial court is its consideration of facts
not alleged in the information. The facts, however, are apparent from the
record and these facts are not denied by the provincial fiscal. Though
they may not constitute admissions on the part of the fiscal, they
certainly fall within the spirit and principle contained in
People vs. Navarro, 75 Phil., 516. We find no difference between facts
merely admitted and undeniable facts appearing on the record of a
case. If one is allowed, there is no reason for denying admission of the other.
As the facts are clear and not susceptible of contradiction, it would be
idle ceremony to return the case to the trial court for trial at which the
same facts of record will have to be introduced. It seems more in accord
with expediency for us to overlook the technical irregularity that the trial
court is claimed to have committed, which irregularity we do not here admit
to exist because it was sanctioned by us in the case of Navarro, supra, and
proceed to determine the validity of the order of the court on the basis of
the facts found in the record, rather than remand the case to the trial court.

107 Valencia v. Sandiganbayan, supra note 103, at 115.

108 People v. Navarro, supra note 96, at 519-520.
1°' 95 Phil. 375 (1954).
Decision 25 G.R. Nos. 242506-10
and 242590-94
The claim that the court acted improperly in the consideration of the motion
to quash must be dismissed. 110 (Emphasis supplied)

In People v. Rodriguez111 (Rodriguez), the Court also allowed the

quashal of the Information on the basis of evidence aliunde in support of the
accused's claim of double jeopardy. The fiscal therein filed an opposition to
the motion to quash, arguing that the question raised is a matter of defense
which the accused may present during the trial on the merits. In upholding the
order to quash the Information, the Court ruled that:

The claim of the prosecution that the trial court erred in not holding
that the ground on which the motion to quash is based is a matter of defense
which the appellee should establish at the trial of the case on the merits is
also of no avail, it appearing that the fact concerning the inclusion of the
same firearm in the crime of rebellion as well as its presentation as
evidence therein has been brought out by the defense in his petition to
quash and that fact was not disputed by the prosecution. 112 (Emphasis
supplied)

Similarly, in People v. De la Rosa 113 (De la Rosa), the Court upheld the
quashing of the Information on the basis of evidence aliunde despite the
opposition of the prosecution. Therein, the prosecutor admitted certain facts
and participated in the hearings where both parties presented documentary and
testimonial evidence. Thereafter, the court a quo found that, in light of the
admitted facts as they emerged after the hearing, the allegation in the amended
Information did not constitute an offense. In affirming the order of the court
a quo, the Court ruled as follows:

It is true that on the basis of the allegations of the amended

information, standing alone, an offense is charged. But from admissions
made by the prosecution, and the evidence presented, as even the
prosecution asked the court to be permitted to present such evidence in its
Motion to Reopen Consideration of the Motion to Quash of March 21, 1969,
the respondent court found justification in quashing the information,
as he issued the order complained of on June l 4, 1971.

The question to be resolved is whether the respondent court

committed a reversible error in issuing the afore-mentioned order.

As a general proposition, a motion to quash on the ground that the

allegations of the information do not constitute the offense charged, or any
offense for that matter, should be resolved on the basis alone of said
allegations whose truth and veracity are hypothetically admitted. However,
as held in the case of People vs. Navarro, 75 Phil. 516, additional facts
not alleged in the information, but admitted or not denied by the
prosecution may be invoked in support of the motion to quash. Former
Chief Justice Moran supports this theory.

xxxx

110 Id. at 377.

111 I 07 Phil. 659 (I 960).
112
Id.at663.
113 187 Phil. 118 (1980).
Decision 26 G.R. Nos. 242506-10
and 242590-94
Indeed, where in the hearing on a motion to quash predicated on
the ground that the allegations of the information do not charge an
offense, facts have been brought out by evidence presented by both
parties which destroy the prima facie truth accorded to the allegations
of the information on the hypothetical admission thereof, as is implicit
in the nature of the ground of the motion to quash, it would be pure
technicality for the court to close its eyes to said facts and still give due
course to the prosecution of the case already shown to be weak even to
support possible conviction, and hold the accused to what would clearly
appear to be a merely vexatious and expensive trial, on her part, and a
wasteful expense of precious time on the part of the court, as well as of
the prosecution. 114 (Emphasis and underscoring supplied)

In Lopez v. Sandiganbayanl1 5 (Lopez), the Court had another occasion

to rule that the facts admitted by the prosecution are an exception to the rule
that evidence aliunde may not be considered in a motion to quash. The Court
ruled as such even if the prosecution opposed to the same:

We uphold the submission that the factual defenses of petitioner are

matters within the concept of mandatory judicial notice. While it is true
that, as pontificated by the Court a quo, factual defenses on the part of
the accused ar,e evidentiary matters which may be presented only
during trial on the merits, the facts alleged by the accused are facts
admitted, whether directly or impliedly, in pleadings of the prosecution
and in the reports of the Provincial Prosecutor of Davao Oriental and Graft
Investigator Gay Maggie Balajadia. Consequently, the disposition of the
matter in the questioned Resolution which states that "The nature, scope
and legal consequences of the inculpatory allegations in the Amended
Information, with respect to accused-movant, remains (sic) to be
ascertained during the trial," is not at all correct.

Judicial notice may be taken of petitioner's oath taking before tbe

Regional Trial Court Judge of Mati, Davao Oriental, the Hon. Roque A.
Agton, as evidenced by a certification from tbe Records Officer of the office
of the Provincial Governor. The oath taking partakes of an official act, while
the certification is an official act of an official of the Executive Department
of the government.

We had the occasion to make rulings on a similar issue. In People

vs. Navarro & Atienza, 75 Phil. 516, for example, xx x.

Reiterating Navarro, this Court ruled in People vs. De la Rosa, 98

SCRA 191, that:

xxxx

And in Milo vs. Salanga, 152 SCRA 113, We likewise ruled that:

This is because a motion to quash is a hypothetical

admission of the facts alleged in the information. Matters of
defense cannot be proved during the hearing of such a
motion, except where the Rules expressly permit, such as
extinction of criminal liability, prescription and former

n 4 Id. at 122-126.
115
319 Phil. 387 (1995).
Decision 27 G.R. Nos. 242506-10
and 242590-94
jeopardy. In the case of U.S. v. Perez, this Court held that a
motion to quash on the ground that the facts charged do
not constitute an offense cannot allege new facts not only
different but diametrically opposed to those alleged in
the complaint. This rule admits of only one exception and
that is when the facts are admitted by the prosecution.
(Milo v. Salanga, supra, at 121).

Since the prosecution has admitted the fact that petitioner was not
yet the Municipal Mayor on or about December 10, 1987 and that Petitioner
Mayor Lopez became the Municipal Mayor only after the date of the
commission of the offense charged, such an admission constitutes as a
judicial admission which is binding upon the prosecution. 116 (Emphasis
and underscoring supplied)

As can be gleaned from the cases applying Navarro, the mere objection
of the prosecution from the introduction of evidence aliunde in a motion to
quash does not operate to ipso facto prevent the court from applying the
exception to the general rule. Verily, in Lancanan, Rodriguez, De la Rosa,
and Lopez, the court still granted the motion to quash after considering
extraneous facts presented by the accused - notwithstanding the opposition
from the prosecution.

From the aforementioned jurisprudential guidelines, it becomes clear

that in the application of the exception to the general rule on non-admission
of evidence aliunde in a motion to quash on the ground that the allegations of
the Information do not charge an offense, what is controlling is the presence
of facts that are apparent from the records and are admitted, directly or
impliedly, or not denied by the prosecution, which destroy the prima facie
truth accorded to the allegations of the Information on the hypothetical
admission thereof.

Applying the foregoing, the Court finds that the exception applies in
the instant case. As readily evident, the previous issuances of the Ombudsman
in the Visayas and Mindanao cases, as well as the findings of the Ombudsman
in the Complaint herein, which are not denied by the prosecution, put in
serious doubt the prima facie truth accorded to the allegations in the
Informations, as the findings therein negate the presence of the second and
third elements of the crime of violation of Section 3(e) ofR.A. 3019.

To recall, the specific acts in the Informations that are attributed to

petitioners are as follows: a) directing the RBACs of the NFA Regions I to V
and the NCR to conduct procurement of fertilizer requirements through the
negotiated mode in violation of the general rule on competitive bidding
prescribed under Section 10 of R.A. 9184; b) issuing a guideline that the
opening of bids for the Luzon-wide procurement of fertilizers shall be
simultaneously done at the NF A Central Office in Manila; and c) amending
the original guideline allowing only those suppliers with depots within and/or
adjacent to the procuring NFA Region to participate as bidders. 117 According
116
Id. at 386-398.
117
Rollo (G.R. Nos. 242506-10), p. I 0.
Decision 28 G.R. Nos. 242506-10
and 242590-94

to respondent People, these acts of petitioners were done with evident bad
faith, manifest partiality and/or gross inexcusable negligence, thereby causing
undue injury to the government and/or giving unwarranted benefits,
advantage, and preference to Philphos. 118

At the center of the allegations against petitioners is the failure to resort

to public bidding in the procurement of the subject fertilizers, which
purportedly showed manifest partiality towards Philphos. However, as
consistently pointed out by petitioners, these matters have already been
addressed by the issuances of the Ombudsman in the Visayas and Mindanao
cases. To repeat, these two cases involved substantially the same factual
backdrop as this case, revolving on the procurement of fertilizer under the
same April 30, 2003 Memorandum issued by Lorenzo. In those cases,
Lorenzo, Yap, and their co-accused were similarly charged with violation of
Section 3(e) ofR.A. 3019 but the complaints against them were dismissed by
the Ombudsman for lack of probable cause. In particular, the Ombudsman
found that the resort to negotiated procurement, instead of public bidding, was
proper under E.O. 40, in relation to Section 77 IRR-A ofR.A. 9184, and that
not all elements of violation of Section 3(e) ofR.A. 3019 were present. These
issuances are discussed in detail below.

In the May 6, 2015 Resolution 119 in the Visayas case, the Ombudsman
dismissed the complaint for lack of probable cause. In particular, the second
element for violation of Section 3(e) (that he or she must have acted with
manifest partiality, evident bad faith or gross inexcusable negligence) was
found by the Ombudsman to be wanting. The pertinent parts of the Resolution
are reproduced below:

This Office finds no probable cause for violation of Section 3(e)

ofR.A. 3019.

xxxx

The second element is wanting.

xxxx

There is nothing in the 30 April 2003 Memorandum that shows

that it was issued bv respondent Lorenzo, then DA Secretary, for the
purpose of giving favor to Philphos. Said Memorandum merely states
the reason for the alternative method, i.e., to ensure the timely
distribution of fertilizers to the farmer-beneficiaries for the wet season
(May to October 2003) under the GMA Rice Program.

It bears stressing that the assailed procurement in this case

transpired before the 08 October 2003 effectivity of the [IRR-A] of the
Government Procurement Act. NF A Region VII RBAC sent out the
Invitations to Bid on 06 June 2003 aod on 20 June 2003 while NF A Region
VIII RBAC sent out the Invitations to Bid on 04 June 2003. Further, the
Region VII contract was awarded on 27 June 2003 while the Region VII

11s Id.
119 Id.at84-101.
Decision 29 G.R. Nos. 242506-10
and 242590-94
Contract was awarded on 14 July 2003. Thusly, this Office finds the
applicability of EO 40 pursuant to Section 77 of the IRR-A of the
Government Procurement Act which provides that "[I]n cases where the
advertisements or invitations for bids were issued after the effectivity ofthe
Act but before the effectivity of this IRR-A, procuring entities may continue
adopting the procurement procedures, rules and regulations provided in
E. 0. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7166 and its IRR, or other
applicable laws, as the case may be. "

Section 2 of EO 40 still requires, as a general rule, the conduct of

public bidding in all government procurement. However, the first paragraph
of Section 35 thereof provides:

Alternative Methods. When justified by

extraordinary conditions as provided in this Executive Order
and its IRR, and subject to the prior approval of the head of
the agency in the interest of economy and efficiency, the
agency head, upon the recommendation of the BAC, may
adopt alternative methods of procurement.

While Section 35. l of its IRR states:

In the interest of economy and efficiency, the agency

concerned may adopt the following alternative methods of
procurement after the Head of Agency concerned or his duly
authorized representative has approved the use of the same,
upon recommendation of the BAC, as indicated in the
bidding documents.

From said provisions, while public bidding is the standard, resort

to alternative methods of procurement is not entirely prohibited.
Extraordinary conditions, as well as efficient and economic grounds, may
warrant an adoption of an alternative method of procurement.

The alternative mode of negotiated procurement was directed

by respondent Lorenzo in order to coincide with the planting period,
taking into consideration the wet season from May to October 2003.
The assessment of respondent Lorenzo that there was urgency for the
procurement of the fertilizers is well within his ambit of authority and
discretion. It also appears to be in consonance with paragraph (c) of
Section 35.1.5 of IRR of EO 40, which provides:

Negotiated Procurement for Goods may be

employed by agencies only in the following cases:

xxxx

c) Whenever the goods are to be used in

connection with a project or activity
which cannot be delayed without causing
detriment to public service; and

xxxx

Respondent Yap, as then NFA Administrator, was prompted by

the 30 April 2003 Memorandum to issue directives relative to the
procurement. In turn, the other respondents acted pursuant to said authority
Decision 30 G.R. Nos. 242506-10
and 242590-94
and directives. Mere compliance by respondents Yap xx x with the 30
April 2003 Memorandum does not establish manifest partiality. evident
bad faith and inexcusable negligence on their part. With the directive
of the DA Secretary in conducting the alternative method of negotiated
procurement, which is presumed to be valid at the time of its issuance,
the other respondents were left with no other option but to follow the
same. They cannot thus be said to have deliberately intended to award
the contracts to Philphos.

Furthermore, the records show that Philphos was not the only
distributor invited to submit price quotations. x x x

The sending out of invitations to other suppliers and

distributors negates any showing of partiality.I2° (Emphasis and
underscoring supplied)

Two years later, the Ombudsman issued its July 25, 2017 Resolution in
the instant case involving the Luzon regions, which found probable cause
against petitioners for violation of Section 3(e) ofR.A. 3019.

Not long after, the Ombudsman ruled on the Mindanao case. In its July
17, 2017 Resolution, the Ombudsman initially found probable cause against
Lorenzo, Yap, and others for violation of Section 3(e) ofR.A. 3019 as regards
the procurement of fertilizers in the Mindanao Area. However, on motion for
reconsideration by Yap, the Ombudsman reversed its findings and dismissed
the case against Yap in an Order 121 dated April 26, 2018. The Resolution made
similar pronouncements with that of the Visayas case and even referenced the
same in dismissing the complaint. While the Order was issued in relation to
Yap as the movant, the pronouncements therein are also applicable to
Lorenzo, to wit:

A second look at the case records shows that there was no "no
performance bond policy." The guidelines dated 23 June 2003 xx x issued
by Yap still required a performance bond. It merely dispensed with the bid
bond for all bidders. Clearly, said issuance cannot be considered as
showing manifest partiality in favor of Philp hos.

Second, the procurement subject of the present case transpired

before the 8 October 2003 effectivity of the [IRR-A] of the Government
Procurement Act (R.A. No. 9184). Pertinently, Section 77 of IRR-A
provides that "in cases where the advertisements or invitations for bids were
issued after the effectivity of the Act but before the effectivity of this IRR-
A, procuring entities may continue adopting the procurement procedures,
rules and regulations provided in E. 0. 40 and its IRR x x x or other
applicable laws, as the case may be."

Paragraph (c) of Section 35.l.5 of the IRR of E.O. 40, the rule
applicable during the subject procurement, allows negotiated procurement
of goods "whenever the goods are to be used in connection with a project
or activity which cannot be delayed without causing detriment to public
service." Relevantly, the 30 April 2003 Memorandum of the Secretary
of the Department of Agriculture [Lorenzo] authorized Yap to enter

120
Id. at 94-98.
121 Id. at 157-163.
Decision 31 G.R. Nos. 242506-10
and 242590-94
into a negotiated procurement of the fertilizers for its timely
distribution to the farmers in time for the wet season of May to October
2003. Yap followed and implemented the aforementioned directive of
the DA Secretary. There is nothing manifestly wrong or damaging in
following the said directive that was aimed at a timelv distribution of
the fertilizers to the farmers. Neither does obedience to it constitute bad
judgment or conscious indifference to consequences insofar as other
persons may be affected. Consequently, Yap mav not be said to have
acted with manifest partialitv, evident bad faith. or inexcusable
negligence. Absent one element of the crime of violation of Section 3 (e),
probable cause to indict Yap therefor does not lie.

At all events, in OMB-C-C-14-0064 [regarding the Visayas case]

- a kindred fertilizer procurement case involving the same
guidelines/issuances by Yap a similar finding of absence of the
element of manifest partiality. evident bad faith or inexcusable
negligence against Yap was made. 122 (Emphasis and underscoring
supplied)

In refusing to recognize the issuances by the Ombudsman in the

Visayas and Mindanao cases, the Sandiganbayan ruled that the reliance on
matters aliunde is misplaced because the "factual milieu, including the
adminicle of evidence, in said cases is not on all fours with the present
case." 123 Following the ruling in Valencia, the Sandiganbayan also harped on
the opposition by the prosecution to justify its refusal to consider the evidence
aliunde. Further, the Sandiganbayan ruled that the "disposition in one case
does not inevitably and necessarily govern the resolution of the other, albeit
related, cases." 124 According to the Sandiganbayan, "the evidentiary value, if
any, of past resolutions of the Office of Ombudsman vis a vis this case may
be threshed out during the adjudication on the merits." 125

The Court disagrees and finds the foregoing reasomng of the

Sandiganbayan egregiously wrong.

In light of the jurisprudential guidelines in the line of cases following

Navarro, there is rock solid justification for resort to evidence aliunde in this
case. As discussed earlier, the mere opposition by the prosecution does not
foreclose the application of the exception to the general rule on non-admission
of evidence aliunde in a motion to quash on the ground that the allegations of
the Information do not charge an offense. To reiterate, what is controlling is
the presence of facts that are apparent from the records and are admitted,
directly or impliedly, or not denied by the prosecution, which destroy the
prima facie truth accorded to the allegations of the Information on the
hypothetical admission thereof.

In the present case, while the prosecution opposed the admission of the
issuances of the Ombudsman in the Visayas and Mindanao cases, it
nevertheless did not deny the same but merely sought to differentiate them

122 Id. at 160-162.

123 Id. at 172.
124
Id. at 211.
125 Id. at 213.
Decision 32 G.R. Nos. 242506-10
and 242590-94
from the instant case. In its Comment/Opposition to the Motion to Quash, the
prosecution stated that:

x x x Lorenzo's reliance on the findings in the Visayas and

Mindanao cases is erroneous. At the outset, it must be highlighted that the
present cases, the Visayas and the Mindanao cases were not based on one
and the same complaint. The basis for the present cases is the Complaint
dated July 23, 2013 of x x x the Office of the Ombudsman. As the
allegations and pieces of evidence obtaining in the Complaint for the
present cases differ from those in the Visayas and the Mindanao cases,
necessarily the factual and legal findings in the three Resolntions vary
even if they may have common allegations, i.e., the April 30, 2003
Memorandum. Therefore, it is incorrect for Lorenzo to conclude that the
Office of the Ombudsman has revoked, repealed, abrogated and then
reinstated its own ruling in the present cases and in the Visayas and
Mindanao cases. 126 (Emphasis and underscoring supplied)

Evidently, the prosecution did not deny the findings of the Ombudsman
in the Visayas and Mindanao cases and even admitted that they have common
allegations with the instant case, i.e., the April 30, 2003 Memorandum issued
by Lorenzo. Following Lancanan, the facts are apparent from the record and
are not denied by the prosecution; though they may not constitute admissions
on the part of the prosecution, they still fall within the spirit and principle of
the ruling in Navarro, as there should be no difference between facts merely
admitted and undeniable facts appearing on the record of the case. 127

Verily, the Sandiganbayan should not have turned a blind eye to the
previous issuances of the Ombudsman in the Visayas and Mindanao cases by
the simple expedient of the prosecution's opposition, especially when the
primafacie truth accorded to the allegations in the Informations have already
been put into serious doubt. Had the Sandiganbayan considered the previous
Resolution and Order of the Ombudsman in the Visayas and Mindanao cases,
it would have already arrived at the same conclusion that the elements of the
crime charged are wanting.

For instance, the Sandiganbayan sided with the prosecution and ruled
that "[w]hether Lorenzo was justified from deviating from the general
requirement of competitive bidding is evidentiary in nature and is a matter of
defense that may be passed upon after a full-blown trial on the merits." 128
However, this is belied by the Ombudsman herself where she already made a
categorical finding in the Visayas case that Lorenzo was justified in issuing
the April 30, 2003 Memorandum Order directing the conduct of negotiated
procurement of the fertilizers in order to coincide with the planting period,
taking into consideration the wet season from May to October 2003 .129 The
Ombudsman found therein that Lorenzo's assessment of the urgency for the
procurement of the fertilizers was well within his ambit of authority and
discretion, and was in consonance with paragraph (c) of Section 3 5 .1.5 of the

126
Id. at 26.
127
People v. Lancanan, supra note 109, at 377.
128
Rollo (G.R. Nos. 242506-10), p. 171.
129 Id. at 96.
Decision 33 G.R. Nos. 242506-10
and 242590-94
IRR of E.O. 40, which was the applicable rule instead of R.A. 9184. 130 The
same finding was echoed in the Order of the Ombudsman in the Mindanao
case. 131

At this juncture, the Court notes that even without resorting to the
Ombudsman's ruling in the Visayas and Mindanao cases, the Sandiganbayan
should already have given credence to Lorenzo's position that the applicable
law in this case is E.O. 40, not R.A. 9184, as stated in the Informations. The
questioned procurements in this case transpired between May to August
2003. While R.A. 9184 became effective on January 26, 2003, its IRR took
effect only on October 8, 2003 and under Section 77 thereof, it is clear that
"where the advertisements or invitations for bids were issued after the
effectivity of the Act but before the effectivity of the IRR-A, procuring entities
may continue adopting the procurement procedures, rules and regulations
provided in E.O. 40." The relevant dates of the questioned procurements, as
well as the citation of R.A. 9184, are well within the four corners of the
Informations and the Sandiganbayan need not resort to evidence aliunde to
find merit in Lorenzo's contention.

Indeed, while there may be variations in the allegations for the Luzon,
Visayas, and Mindanao cases, it is undeniable that there is still only one and
the same April 30, 2003 Memorandum Order issued by Lorenzo directing the
conduct of negotiated procurement which was already twice found by the
Ombudsman to be valid and justified in accordance with E.O. 40.

Further, the Sandiganbayan also refused to consider Yap's allegations,

stating that these are matters of defense that are better threshed out in a full-
blown trial. 132 However, Yap's liability has already been addressed by the
Ombudsman in the Visayas and Mindanao cases. A closer look at the
questioned directives made by Yap would show that while these may vary
from the issuances he made in the Visayas and Mindanao regions, it is
uncontroverted that, similar to the issuances in the latter regions, his directives
in the instant case were made pursuant to the April 30, 2003 Memorandum.
In this regard, the Ombudsman already made a categorical finding in the
Visayas case that Yap, as then NFA Administrator, was merely prompted by
the April 30, 2003 Memorandum to issue directives relative to the
procurement and his mere compliance with Lorenzo's Memorandum does not
establish manifest partiality, evident bad faith and inexcusable negligence on
his part. 133 As held by the Ombudsman therein, the April 30, 2003
Memorandum is presumed valid at the time of its issuance and Yap was left
with no other option but to follow the same; hence, he cannot be said to have
deliberately intended to award the contracts to Philphos. 134 The Ombudsman
in the Mindanao case also had similar findings, ruling that "[t]here is nothing
manifestly wrong or damaging in following the said directive that was aimed

]30
Id. at 96-97.
131
See id. at 161.
132
Id. at 172-173.
133
Id. at 97.
134
Id.
Decision 34 G.R. Nos. 242506-10
and 242590-94
at a timely distribution of the fertilizers to the farmers. Neither does obedience
to it constitute bad judgment or conscious indifference to consequences
insofar as other persons may be affected." 135

Thus, the Sandiganbayan should have considered the Ombudsman's

previous pronouncement that "the 30 April 2003 Memorandum of the DA
Secretary (Lorenzo) and the directives issued by the NFA Administrator
(Yap) x x x are deemed to have been issued within their respective authority
and discretion," 136 and its finding that "the claim that the alternative method
of negotiated procurement of fertilizers was resorted to in order to ensure the
timely distribution of fertilizers to the farmer-beneficiaries for the wet season
(May to October 2003) under the GMA Rice Program is xx x plausible." 137

In addition to the categorical findings of the Ombudsman in the Visayas

and Mindanao cases that the second element of violation of Section 3(e) of
R.A. 3019 is absent, there are also pronouncements in the Resolution in the
Visayas case which belie the damage and prejudice caused to the government,
as alleged in the Informations, which likewise put into doubt the presence of
the third element of the crime, i.e., causing undue injury to any party,
including the government, or giving any private party unwarranted benefits,
advantage or preference in the discharge of his or her functions. In particular,
the pertinent portion of the Ombudsman Resolution in the Visayas case is
reproduced below:

Mere surmises and unsupported conclusions do not establish that

the contracts were unfavorable to the government. On the other hand, at
the time of the perfection of the assailed contracts in 2003, it appears that
the amount of PhP480.00 per bag for the required fertilizers for Region VII
and PhP485.00 per bag for Region VIII offered by Philphos were much
lower than the prevailing average prices of PhP542.00 per bag for Region
VII and PhP 550.88 for Region VIII during said year. 138

These findings by the Ombudsman in the Visayas case are similar to

the findings of the Ombudsman in the instant case in its discussion on the
absence of probable cause for violation of Section 3(g) ofR.A. 3019, to wit:

There is no adequate showing that the government was grossly

disadvantaged when the fertilizers were purchased from Philphos. For
one,. there is no evidence, much less any allegation, that the fertilizers
were overpriced. Based on the data of the Bureau of Agricultural Statistics
and the DA Field Operators Office, the average price of fertilizers in 2003
was pegged at PhP537.90/bag which is even higher than the prices offered
by Philphos which ranged from PhP469 to PhP480.00.

Second, the warehouse stock receipts prove that the amount of

fertilizers contracted and paid for were delivered to the concerned NFA
regions. There is also no allegation that any portion of said goods was
defective or substandard.

135
Id. at 161.
136
Id. at 100.
137 Id.
138
Id. at 99.
Decision 35 G.R. Nos. 242506-10
and 242590-94

With regard to the COA findings that some of the fertilizers were
also given to non-masterlisted farmer-beneficiaries, more so to deceased
farmers, non-farmers and/or those already living abroad, the same cannot
conclusively establish that the government was grossly or manifestly
disadvantaged. In fact, the COA simply reminded the DA to update its
master list of farmer-beneficiaries. 139 (Emphasis supplied)

Clearly, the aforementioned findings of the Ombudsman had already

cast serious doubt as to the presence of the elements of the crime in this case,
which should have prompted the Sandiganbayan to consider the same.
Echoing De la Rosa:

x x x where in the hearing on a motion to quash predicated on the

ground that the allegations of the information do not charge an offense, facts
have been brought out by evidence presented by both parties which destroy
the prima facie truth accorded to the allegations of the information on the
hypothetical admission thereof, as is implicit in the nature of the ground of
the motion to quash, it would be pure technicality for the court to close its
eyes to said facts and still give due course to the prosecution of the case
already shown to be weak even to support possible conviction, and hold the
accused to what would clearly appear to be a merely vexatious and
expensive trial, on her part, and a wasteful expense of precious time on the
part of the court, as well as of the prosecution. 140

In sum, the Court finds that the Sandiganbayan committed grievous

error in refusing to consider the evidence aliunde presented by petitioners in
their motions to quash on the ground that the facts charged do not constitute
an offense. Moreover, the Sandiganbayan gravely abused its discretion in
denying petitioners' motions to quash despite the prosecutions' failure to
provide sufficient justification for the delay in the termination of the
preliminary investigation. Consequently, the cases against petitioners before
the Sandiganbayan should be dismissed for violation of petitioners' right to
speedy disposition of cases.

WHEREFORE, premises considered, the Petitions are GRANTED.

The assailed Resolutions dated August 9, 2018 and September 25, 2018 of the
Sandiganbayan Sixth Division in Criminal Case Nos. SB-18-CRM-0288 to
0292 are ANNULLED and SET ASIDE. The Temporary Restraining Order
issued by the Court on June 10, 2019 in these cases before the Sandiganbayan
is hereby made PERMANENT. The Sandiganbayan is hereby ordered to
DISMISS Criminal Case Nos. SB-18-CRM-0288 to 0292 for violation of the
constitutional right to speedy disposition of cases of petitioners Luis Ramon
P. Lorenzo and Arthur C. Yap.

139
Id. at 142-143.
140
People v. Dela Rosa, supra note I 13 at 126.
Decision 36 G.R. Nos. 242506-10
and 242590-94
SO ORDERED.

WE CONCUR:

HEN

-~
SAMuEf 4'.GAiiiu:AN
Associate Justice

'
FIU)MENA D. SINGH
ssociate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
Decision 37 G.R. Nos. 242506-10
and 242590-94

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ALJ /4:Yaa~~
/ ,~A,?!t\ustice