To: Councilor Job Hutt
From: Reba Joy B. Killongan
Date: May 15, 2020
Re: The case against you for alleged violation of Section 8 in relation to Section 11 of Republic Act No. 6712 penalizing the act of non-filing of SALN
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Dear Mr. Hutt,
Good day! We hope you have been well. Recently, you informed us that you have a pending case before the Office of the Ombudsman for non-filing of Statement of Assets, Liabilities, and Net worth (SALN). Specifically, you asked for an advice on whether the case against you can be dismissed by filing a “motion to quash.” After careful review of the facts and issues of your case, we believe that the Court will not likely grant the motion to quash because you have already entered your plea during the arraignment at one of the Courts in Cebu City. We will explain this conclusion more comprehensively below. For your guidance, we will first restate the facts as we understand them to confirm their accuracy. Next, we will provide you with an explanation of the law as it applies in your case. Lastly, we will state our conclusion based on the discussion of the how the law applies to your case.
The facts of the case shows that you were first elected as Councilor of Municipality X in 2010. In 2013, a concerned citizen filed a complaint against you before the Office of Ombudsman for your failure to file your Statement of Assets Liabilities and Net worth (SALN) in the years 2011 and 2012. Acting on the complaint, the Office of the Ombudsman-Visayas conducted a preliminary investigation. After three years, the preliminary investigation was terminated when the Ombudsman-Visayas graft prosecutor issued a resolution in 2016. The resolution charged you with violation of Section 8 in relation to Section 11 of RA 6713 for non-filing of SALN. Subsequently, your former counsel, filed a motion for reconsideration on the resolution issued by the Ombudsman-Visayas. In 2018, the Ombudsman Central Office denied your motion for reconsideration. Furthermore, you were already arraigned at one of the courts in Cebu City. At present, your case is now at the stage of presentation of the second witness for the prosecution.
In summary, we will first explain to you the ground will be the basis of our motion to quash, then answer whether such ground is present in your case, and finally examine whether you can still file a motion to quash although you have already been arraigned.
Firstly, a motion to quash is a remedy you can avail of if you want to challenge the complaint or information filed against you. Section 3, Rule 117 of the Rules of Court enumerates the grounds for the quashal of the complaint or information, as follows: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged; © the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the complaint or information does not conform substantially to the prescribed form; (f) more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) the criminal action or liability has been extinguished; (h) the complaint or information contains averments which, if true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.
In your case, none of the grounds enumerated above are present. Nevertheless, the Supreme Court provides that you can still file a motion to quash on the ground of the violation of your right to speedy disposition of cases. Therefore, you can file a motion to quash based on the ground that your constitutional right to speedy disposition of cases has been violated.
Secondly, we will now explain how your constitutional right to speedy disposition of cases has been violated. To simplify the Case Laws, the right to speedy disposition of cases can only be violated if the following factors are present: (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertion or non-assertion of his or her right; and (4) the prejudice to the defendant as a result of the delay. Moreover, the length and reason or the delay must be both unreasonable, vexatious, and oppressive.
A careful analysis of your case led us to conclude that all of the factors presented above are satisfied. First, the Supreme Court ruled that a delay of three years in the preliminary investigation was unreasonable. In your case, the preliminary investigation, which commenced upon the filing of complaint against you in 2013 and terminated upon the passage of a Resolution in 2016, also lasted for three years. Thus, the length of the delay was unjustifiable. Second, the Supreme Court also provided that the reason for the delay was justifiable when the case was complex and the conduct of the parties’ lawyers contributed to the delay. In your case, the case is not complex since the Supreme Court held that a case involving the non-filing of SALN was not complex. Also, the conduct of the lawyers did not contribute to the delay considering that there was no squabble between the lawyers as the lawyers in the instant case never filed a lot of petitions nor set motions to contribute to the delay of the proceedings. Hence, the reason for the delay is unjustifiable. Third, the Supreme Court summarized that an accused who was unaware of the conduct of the preliminary investigation cannot assert the right to speedy disposition of cases and such non-assertion does not result to a waiver of such right. Here, the facts show that you were unaware of the ongoing preliminary investigation since the Office of the Ombudsman did not follow the proper procedure in the conduct of the preliminary investigation. The facts revealed that you were never issued a subpoena which contained a copy of the complaint as well as supporting affidavits and documents. Moreover, you were not even directed to comment nor file a counter-affidavit to present your defense. Since you were unaware of the preliminary investigation, it logically follows that you cannot assert your right to speedy disposition of cases. Lastly, you were prejudiced by the delay in the conduct of the preliminary investigation for it has impaired your defense. Therefore, we conclude that your right to speedy disposition of cases has been violated.
Lastly, we will now resolve whether we can still file a motion to quash even if you had already been arraigned at one of the Courts in Cebu City. The Rules of Court provides that a motion to quash must be filed before the accused entered a plea. The same law states that an accused enters a plea during arraignment. Moreover, the Supreme Court held that an accused who asserts the right to speedy disposition of cases must file the appropriate motion within the “statutory or procedural periods.” From the relevant laws and case laws, a motion to quash on the ground of the right to speedy disposition of cases must be filed before arraignment. In this case, you were already arraigned at one of the courts in Cebu City. Hence, the remedy of filing a motion to quash on the grounds of the speedy disposition of cases will, unfortunately, not prosper.
To summarize, I believe that although a motion to quash on the ground of speedy disposition of cases may be filed, it can no longer prosper since you have already been arraigned at one of the Courts in Cebu City.
We hope this opinion is helpful. Moreover, we would be happy to discuss this matter with you further. If you have any questions or if there are any misstatements of fact in this letter, please do not hesitate to call our office at (032) 2556 183. Above all, it was a pleasure meeting you. Thank you!
Yours Sincerely,
Reba Joy B. Killongan
Associate, AAA Law Office