THE PEOPLE of the PHILIPPINES then President Ferdinand Marcos and

Represented by the PANEL OF private respondent to hide their ill-gotten

PROSECUTORS, DEPARTMENT OF wealth. 6 The RTC of Pasig granted the
JUSTICE, petitioner,
motion for consolidation provided there is
vs.
HON. DAVID G. NIFATAN, Presiding no objection from the presiding judge of
Judge, Branch 52, Regional Trial Court Branch 26-Manila.7 Before the Manila
of Manila, and IMELDA R. RTC, the three (3) informations were re-
MARCOS, respondents. raffled and re-assigned instead to Branch
52-Manila presided by public respondent
G.R. No. 107964 Judge Nitafan wherein the three
February 1, 1999 informations (CriminalCases Nos. 90384-
92, 90385-92 and 90386-92) were re-
numbered as Criminal Case Nos. 92-
MARTINEZ, J.:
107942; 92-107943 and 92-107944.
On January 9, 1992, three criminal
Then, without private respondent yet
informations for violation of Section 4 of
taking any action of filing any motion to
Central Bank Circular No. 960, as
quash the informations, respondent judge
amended, 1 in relation to Section 34 of
issued an order dated July 20, 1992
Republic Act No. 2652 were filed against
requiring petitioners to show cause why
private respondent Imelda R. Marcos
criminal case number 92-107942 should
before Branch 158 of the Regional Trial
not be dismissed on the ground that it
Court (RTC) of Pasig (herein Branch 158-
violates private respondent's right
Pasig). Said Informations docketed as
against ex post facto law, 8 In that order,
Criminal Case Nos. 90384-92, 90385-92
respondent judge said that a "check with
and 90386-92 were amended prior to
official publications reveals that CB
arraignment. 3
Circular 960 is dated 21 October 1983 (. .
After arraignment, where private .) and that said regulatory issuance
respondent pleaded not guilty, the People was imperfectly published in the January
thru herein petitioner, Panel of 30, 1984 issue of the Official
Prosecutors from the Department of Gazette." 9 Respondent judge concluded
Justice (DOJ) and the Solicitor General that "since the date of violation alleged in
filed separate motions for consolidation of the information was prior to the date and
the three (3) Informations pending before complete publication of the Circular
Branch 158-Pasig with the 21 other cases charged to have been violated, the
pending before RTC Branch 26-Manila information in this case appears
(herein Branch 26-Manila). 4 The Solicitor peremptorily dismissible, for to apply the
General alleged in its motion that "the Circular to acts performed prior to its date
indictable acts under the three and publication would make it an ex post
informations form part of and is related to facto law, which is a violation of the
the transaction complained" of in criminal Constitution."10
cases 91-101732, 91-101734 and 91-
On the same day, respondent judge
101735 pending before Branch 26-
issued another order requiring the
Manila 5 and that these two groups of
prosecution to show cause why the two
cases (the Pasig and Manila cases) "relate
other criminal informations (92-107943
to a series of transactions" devised by
and 92-107944) should not be dismissed
on the ground that private respondent's The next day, August 7, 1992, respondent
right to double jeopardy was judge issued an 8-page order dismissing
violated. 11 It is respondent judge's criminal case no. 92-107942 on the
posture that based on the Solicitor- ground that the subject CB Circular is
General's allegations in its Motion for an ex post facto law.15 In a separate17-
Consolidation filed on Branch 58-Pasig page order dated August 10, 1992,
that the three cases form part of a series respondent judge also dismissed the two
of transactions which are subject of the remaining criminal cases (92-107943 &
cases pending before Branch 26-Manila, 92-107944) ruling that the prosecution of
all these cases constitute one continuous private respondent was "part of a
crime. Respondent judge further stated sustained political vendetta" by some
that to separately prosecute private people in the government aside from what
respondent for a series of transaction he considered as a violation of private
would endow it with the "functional ability respondent's right against double
of a worm multiplication or amoeba jeopardy. l6 From his disquisition
reproduction". 12 Thus, accused wiould be regarding continuing, continuous and
unduly vexed with multiple jeopardy. In continued offenses and his discussion
the two orders, respondent judge likewise of mala prohibita, respondent judge
said that the dismissal of the three further ratiocinated his dismissal order in
"seemingly unmeritorious" and that the pendency of the other cases
"duplicitous" cases would help unclogged before Branch 26-Manila had placed
his docket in favor of more serious private respondent in double jeopardy
suits. 13 The prosecution complied with because of the three cases before his sala.
the twin show cause orders accompanied
by a motion to inhibit respondent judge. The prosecution filed two separate
motions for reconsideration which
On August 6, 1992, respondent judge respondent judge denied in a single order
issued an order denying the motion for dated September 7, 1992 containing 19
consolidation (embodied in the pages wherein he made a preliminary
prosecution's compliance with the show observation that:
cause orders) of the three informations
with those pending before Branch 26- (T)he very civil manner in which the
Manila on the ground that consolidation of motions were framed, which is consistent
cases under Rule 31 of civil procedure has with the high ideals and standards of
no counterpart in criminal procedure, and pleadings envisioned in the rules, and for
blamed the panel of prosecutors as which the panel should be commended.
"apparently not conversant with the This only shows that the Members of the
procedure in the assignment of cases." As panel had not yielded to the derisive,
additional justification, respondent judge panicky and intimidating reaction
stated that since he is "more studious and manifested by their Department Head
discreet, if not more systematic and when, after learning the promulgation of
methodical," than the prosecution "in the the orders dismissing some of Imelda
handling of cases," it would be unfair to Romualdez-Marcos cases. Secretary Drilon
just pull out the case when he had already went to the media and repeatedly aired
studied it.14 diatribes and even veiled threats against
the trial judges concerned.
By the constitutional mandate that 'A dismissal and subsequently dismissed a
member of the judiciary must be a person criminal information or complaint without
of proven competence, integrity, probity, any motion to that effect being filed by
and independence (Sec 7[3]. Art. VIII, the accused based on the alleged violation
judges are precluded from being dragged of the latter's right against ex post
into running debates with parties-litigants facto law and double jeopardy.
or their counsel and representatives in
media, yet by reason of the same Section 1, Rule 117 of the Rules on
provision judges are mandated to decide Criminal Procedure provides:
cases in accordance with their own
Time to move to quash. — At any
independent appreciation of the facts and
time before entering his plea, the
interpretation of the law. Any judge who
accused may move to quash the complaint
yields to extraneous influences, such as
or information. (emphasis supplied).
denigrating criticisms or threats, and
allows his independence to be undermined It is clear from the above rule that the
thereby, leading to violation of his oath of accused may file a motion to quash an
office, has no right to continue in his office information at an information
any minute longer. time before entering a plea or before
arraignment. Thereafter, no motion to
The published reaction of the Hon.
quash can be entertained by the court
Secretary is to be deplored, but it is hoped
except under the circumstances
that he had merely lapsed into impudence
mentioned in Section 8 of Rule 117 which
instead of having intended to set a pattern
adopts the omnibus motion to rule. In the
of mocking and denigrating the courts. He
case at at bench, private respondent
must have forgotten that as Secretary of
pleaded to the charges without filing any
Justice, his actuations reflect the 'rule of
motion to quash. As such, she is deemed
law' orientation of the administration of
to have waived and abandoned her right
thePresident whom he represents as the
to avail of any legal ground which she
latter's alter ego. 17
may have properly and timely invoke to
(emphasis supplied). challenge the complaint or information
pursuant to Section 8 of Rule 1 17 which
The dispositive portion of the order provides:
denying the motions for reconsideration
provides: Failure to move to quash or to allege any
ground therefor — The failure of the
FOR ALL THE FOREGOING accused to assert any ground of a motion
CONSIDERATIONS, the Court finds no to quash before he pleads to the
valid reason to reconsider the dismissals complaint or informatin, either because
heretofore decreed, and the motions for he did not file a motion to quash or failed
reconsideration are consequently denied to allege the same in his motion, shall be
for manifest lack of merit.18 deemed a waiver of the grounds of a
motion to quash, except, the grounds of
Obviously dissatisfied, petitioners elevated no offense charged, lack of jurisdiction
the case via petition for certiorari, where over the offense charged, extinction of the
the primary issue raised is whether a offense or penalty and jeopardy, as
judge can motu proprio initiate the provided for in paragraphs (a), (b), (f)
and (h) of section 3 of this Rule. That the initial act to quash an information
(emphasis supplied) is lodged with the accused is further
supported by Sections 2, 3 and 8 of Rule
It is also clear from Section 1 that the 117 which states that:
right to file a motion to quash belongs
only to the accused. There is nothing in Sec. 2. The motion to quash shall be in
the rules which authorizes the court or writing signed by the accused or his
judge to motu proprio initiate a motion to counsel. It shall specify distinctly the
quash if no such motion was filed by the factual and legal grounds therefor and the
accused. A motion contemplates an initial Court shall consider no grounds other than
action originating from the accused. It is those stated therein, except lack of
the latter who is in the best position to jurisdiction over the offense charged.
know on what ground/s he will based his
objection to the information. Otherwise, if Sec. 3. Grounds. — The accused may
the judge initiates the motion to quash, move to quash the complaint or
then he is not only pre-judging the case of information on any of the following
the prosecution but also takes side with grounds:
the accused. This would violate the right
a). That the facts charged do not
to a hearing before an independent and
constitute an offense;
impartial tribunal. Such independence and
impartiality cannot be expected from a b). That the court trying the case has no
magistrate, such as herein respondent jurisdiction over the offense charged or
judge, who in his show cause orders, the person of the accused;
orders dismissing the charges and order
denying the motions for reconsideration c). That the officer who filed the
stated and even expounded in a lengthy information had no authority to do so;
disquisition with citation of authorities, the
d). That it does not conform substantially
grounds and justifications to support his
to the prescribed form;
action. Certainly, in compliance with the
orders, the prosecution has no choice but e). That more than one offense is charged
to present arguments contradicting that of except in those cases in which existing
respondent judge. Obviously, however, it laws prescribe a single punishment for
cannot be expected from respondent various offenses;
judge to overturn the reasons he relied
upon in his different orders without f). That the criminal action or liability has
contradicting himself. To allow a judge to been extinguished;
initiate such motion even under the guise
of a show cause order would result in a g). That it contains averments which, if
situation where a magistrate who is true, would constitute a legal excuse or
supposed to be neutral, in effect, acts as justification; and
counsel for the accused and judges as
h). That the accused has been previously
well. A combination of these two
convicted or in jeopardy of being
personalities in one person is violative of
convicted, or acquitted of the offense
due process which is a fundamental right
charged.
not only of the accused but also of the
prosecution.
Sec. 8. The failure of the accused to With these, the rule clearly implies the
assert any ground of a motion to requirement of filing a motion by the
quash before he pleads (Emphasis accused even if the ground asserted is
supplied). premised on lack of jurisdiction over the
offense charged. Besides, lack of
Sec. 2 requires that the motion must be jurisdiction should be evident from the
signed by "accused" or "his counsel"; face of the information or complaint to
Section 3 states that "the accused" may warrant a dismissal thereof. Happily, no
file a motion, and; Section 8 refers to the jurisdictional challenge is involved in this
consequence if "the accused" do not file case.
such motion. Neither the court nor the
judge was mentioned. Section 2 further Assuming arguendo that a judge has the
ordains that the court is proscribed from power to motu proprio dismiss a criminal
considering any ground other than those charge, yet contrary to the findings of
stated in the motion which should be respondent judge, the grounds of ex post
"specify(ied) distinctly" therein. Thus, the facto law and double jeopardy herein
filing of a motion to quash is a right that invoked by him are not applicable.
belong to the accused who may waived it
by inaction and not an authority for the On ex post facto law, suffice it to say that
court to assume. every laws carries with it the presumption
of constitutionality until otherwise
It is therefore clear that the only grounds declared by this court. 19 To rule that the
which the court may consider in resolving CB Circular is an ex post facto law is to
a motion to quash an information or say that it is unconstitutional. However,
complaint are (1) those grounds stated in neither private respondent nor the
the motion and (2) the ground of lack of Solicitor-General challenges it. This Court,
jurisdiction over the offense charged, much more the lower courts, will not pass
whether or not mentioned in the motion. upon the constitutionality of a statute or
Other than that, grounds which have not rule nor declare it void unless directly
been sharply pleaded in the motion cannot assailed in an appropriate action.
be taken cognizance of by the court, even
if at the time of the filing thereof, it may With respect to the ground of double
be properly invoked by the defendant. jeopardy invoked by respondent judge,
Such proscription on considerations of the same is improper and has neither
other grounds than those specially legal nor factual basis in this case. Double
pleaded in the motion to quash is jeopardy connotes the concurrence of
premised on the rationale that the right to three requisites, which are: (a) the first
these defenses are waivable on the part of jeopardy must have attached prior to the
the accused, and that by claiming to wave second, (b) the first jeopardy must have
said right, he is deemed to have desired been validly terminated, and (c) the
these matters to be litigated upon in a second jeopardy must be for the same
full-blown trial. Pursuant to the Rules, the offense as that in the first 20 or the
sole exception is lack of jurisdiction over second offense includes or is necessarily
the offense charged which goes into the included in the offense charged in the first
competence of the court to hear and pass information, or is an attempt to commit
judgment on the cause. the same or is a frustration thereof. 21 In
this case, it is manifestly clear that no first
jeopardy has yet attached nor any such pending in his sala, still the first jeopardy
jeopardy terminated. has not yet attached. Precisely, those
Branch 26-Manila cases are still pending
Sec. 7, Rule 117 provides: and there was as yet no judgment on the
merits at the time respondent judge
When an accused has been convicted or
quashed the three informations in his sala.
acquitted, or the case against him
Private respondent was not convicted,
dismissed or otherwise terminated without
acquitted nor the cases against her in
his express consent by a court of
Branch 26-Manila dismissed or otherwise
competent jurisdiction, upon a valid
terminated which definitely shows the
complaint or information or other formal
absence of the fifth requisite for the first
charge sufficient in form and substance to
jeopardy to attached. Accordingly, it was
sustain a conviction and after the accused
wrong to say that the further prosecution
had pleaded to the charge, the conviction
of private respondent under the three
or acquittal of the accused or the
informations pending Branch 56-Manila
dismissal of the case shall be a bar to
would violate the former's right against
another prosecution for the offense
double jeopardy.
charged, or for any attempt to commit the
same or frustration thereof, or for any WHEREFORE, premises considered, the
offense which necessarily includes or is petition is GRANTED and the two orders
necessarily included in the offense dated Januay 20, 1990, as well as the
charged in the former complaint or orders dated August 7, 1992 August 10,
information. 1992 and September 7, 1992 all issued by
respondent judge are hereby REVERSED
xxx xxx xxx 22
AND SET ASIDE. Let this case be
Under said Section, the first jeopardy REMANDED to the trial court for further
attaches only (1) upon a valid indictment, proceedings.
(2) before a competent court, (3) after
SO ORDERED.
arraignment, (4) when a valid plea has
been entered, and (5) when the defendant
was convicted or acquitted, or the case
was dismissed or otherwise terminated
without the express consent of the
accused.23

Other than the Solicitor-General's

allegation of pending suits in Branch 26-
Manila, respondent judge has no other
basis on whether private respondent. had
already been arraigned, much less entered
a plea in those cases pending before the
said Branch. Even assuming that there
was already arraignment and plea with
respect to those cases in Branch 26-
Manila which respondent judge used as
basis to quash the three informations