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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 59 -
SUSPENDING PROVINCIAL PROSECUTOR PEDRO M. VICTORIANO, JR. OF ROMBLON
FOR A PERIOD OF SIX (6) MONTHS WITHOUT PAY
This is an administrative complaint filed
by Mayor Manuel Arboleda of Looc, Mayor Ulysses Cawaling of San Jose
and Mayor Leo Machon of Santa Fe, all of Romblon, against respondent,
Romblon Provincial Prosecutor Pedro M. Victoriano, Jr., for neglect of
duty and harassment of public officials.
The case was initially heard by Acting Regional State Prosecutor Leon
M. de Villa (Region IV) of the Department of Justice (DOJ) who
dismissed the complaint on the grounds of failure to prosecute and lack
of merit. Complainants filed a motion for reconsideration which,
however, was overtaken by Department of Justice Order No. 254 (1989)
designating State Prosecutor Bernelito R. Fernandez to conduct the
formal investigation of the case. After the formal investigation, then
DOJ Acting Sec. Eduardo G. Montenegro recommended to the Office of the
President the suspension of respondent for a period of six (6) months
without pay. Sec. Montenegro exonerated respondent from the charge of
harassment of public officials but found him guilty of the charge of
neglect of duty.
The charge against respondent of neglect of duty is grounded on the
following sets of circumstances: (1) the dismissal of three (3)
criminal cases pending before the RTC of Odiongan, Romblon due to the
failure of the Office of Romblon Provincial Prosecutor to prosecute the
cases, and (2) the delay in the resolution of the cases concerning the
M/B Jem II sea disaster.
It appears, from the records, that the following cases were dismissed
by the Regional Trial court (RTC) of Odiongan, Romblon for the
prosecutor's failure to prosecute the same: (1) People v. Noe Domingo
(Crim. Case No. OD-237) for homicide; (2) People v. Dominador Montoya
(Crim. Case No. OD-328) for homicide; and (3) People c. Romeo Torres,
et al. (Crim. Case No. OD-180) for frustrated homicide.
People v. Domingo was scheduled for hearing on August 1, 1989 but
respondent failed to attend notwithstanding the fact that the notice of
hearing was received by the Office of the Provincial Prosecutor on July
17, 1989. The circumstances of the dismissal of this case was explained
in the following August 1, 1989 Order of the trial court:
"When this case was called for hearing, the attention of this court was
called by the interpreter as to the {radio} message made Prosecutor
Pedro M. Victoriano, Jr. requesting for the postponement of this case.
The defense counsel insisted for the trial of this case, claiming that
the above-entitled case had been pending for two (2) years and that the
accused is a detention prisoner. Going over the records, as well as the
grounds manifested by the defense counsel, this Court is of the
impression that there is no reason for the government or its
representative to be absent in this court since there are four (4)
prosecutors for the Province of Romblon. It is very unusual to find
that not one of the four Prosecutors is in the courtroom,
notwithstanding that the notice of hearing of this case has been sent
to the Office of the Prosecutor on July 17, 1989 or a period of two
weeks. This period could have afforded the Office of the Prosecutor
enough time to adjust their calendar so as to assign one prosecutor for
this court in order to prosecute the above-entitled case; knowing that
the accused is a detention prisoner and that he is, pursuant to Art. 3
of 1987 Constitution, entitled to speedy and impartial trial;
xxx
WHEREFORE, in the interest of justice and considering that the accused
is entitled to speedy trial, this court acting upon the oral
manifestation made by counsel for the defense for the dismissal of this
case, is constrained to have the above-entitled case dismissed. . . ."
(Emphasis supplied)
The second case, People v. Montoya, was scheduled for hearing August 1,
1989, was dismissed based on the same circumstances as People v.
Domingo.
The third case, People v. Torres, was scheduled for hearing on August
2, 1989 and respondent was notified on July 24, 1989 of said hearing
but failed to attend. The trial court dismissed the case with the
following explanation in its Order dated August 2, 1989:
Considering the manifestation made by counsel for the accused for the
dismissal of the above-entitled case claiming that this case has been
pending since February 1986, and considering, after verifying from the
records, that the notice of hearing was received by the office of the
Provincial Prosecutor on July 24, 1989, thereby giving the latter ample
time within which to adjust their calendar so as to avoid conflict of
schedule of court trials because there are four of them in the province
of Romblon who could easily handle cases assigned to each of them if
properly scheduled, the reason manifested by [radio] message by the
Provincial Prosecutor, for conflict of schedule, is not and could not
be considered meritorious or justifiable to frustrate the right of the
accused to speedy trial as provided for under Article 3 of the 1987
Constitution.
xxx
WHEREFORE, in the interest of justice, the above-entitled case is
hereby DISMISSED. (Emphasis supplied)
Respondent, in his Memorandum filed with the DOJ, explained his failure
to attend to the hearings by stating that : (1) the notices of hearings
were initially served on the Office of the Provincial Prosecutor of
Romblon at the Odiongan office while respondent normally held office in
Romblon, Romblon; (2) by the time the notices of hearings were
transmitted to the Romblon office, respondent had left for Manila and
didn't return until July 29, 1989, a Saturday; (3) respondent also had
hearings elsewhere on August 1 and 2, 1989 and he couldn't send the
only available prosecutor for hearings for the three cases in Odiongan,
Prosecutor Rocero, due to the latter's physical disability and lack of
familiarity with the cases; and (4) respondent sent a radio message to
the trial court concerned requesting for postponements of hearings and
assumed that the motions would be granted considering that at that
stage, the prosecution had already rested in all the cases involved.
Respondent's explanation cannot excuse him from responsibility for the
dismissal of the three (3) criminal cases. The notices of hearings were
received by respondent's office at Odiongan on July 17 and 24, 1989
while by respondent's own account, he did not leave for Manila until
the afternoon of July 24, 1989. His failure to become aware of these
notices cannot be validly attributed to the fact that he normally held
office in Romblon, Romblon instead of at the Odiongan office. This
failure was due to the fact that respondent did not institute a
mechanism which would have enabled him to immediately take cognizance
of the papers sent at the Odiongan office. In short, there was an
administrative failure which prevented him from performing his duties
properly.
In any case, respondent did become aware of the notices of hearing on
July 31, 1989. Although he could not have attended the hearings in
Odiongan on August 1 and 2, 1989 because of a conflict of schedules,
respondent could have sent Prosecutor Rocero, who by his own admission,
was available for the hearings of the three (3) cases in Odiongan.
Instead, respondent chose to remedy the situation by a postponement of
the hearings and assuming that the motions for postponement would be
granted since the prosecution had already rested in the three (3) cases.
The rule, however, is well-settled that lawyers should not presume that
courts would grant their motions for extension or postponement and act
on the presumption that said motions were granted (Roxas v. Court of
Appeals, G.R. No. 76549, December 10, 1987, 156 SCRA 252). Respondent,
therefore, by deciding not to attend the hearings on the presumption
that his motions for postponement were granted, clearly neglected his
duty to the State to prosecute individuals with the commission of
crimes.
That the prosecutor has already rested its case at the time respondent
failed to attend the hearings is of no moment for as the DOJ noted,
"[a]t every stage of the proceeding, the presence of the
respondent-prosecutor is required and indispensable. Considering that
the accused in the cases were detention prisoners and that these cases
had already been pending for one year, further delay of the proceedings
could no longer be tolerated or countenanced" (DOJ Report and
Recommendations, p. 8).
The charge against respondent of neglect of duty is bolstered by the
delay in the resolution of the two cases handled by respondent. After
the sinking of a watercraft called M/B JEM II, which resulted in the
drowning of about twenty-three (23) people, two criminal complaints
were filed with the Romblon Provincial Prosecutor's office against the
people responsible for the sinking of the boat.
The first complaint, for multiple homicide thru reckless imprudence,
was filed with the Provincial Prosecutor on January 15, 1989 but it was
not until May 8, 1989 that a resolution was issued recommending the
filing of the information. The information was filed in court only on
June 20, 1989 or more than six (6) months after the filing of the
complaint.
The second complaint, for violation of the Public Service Law, was
filed with respondent on February 24, 1989. Respondent issued the
resolution recommending the filing of the information on May 23, 1989
and the information was filed only on June 20, 1989.
Respondent contends that both cases were resolved within the one
hundred twenty (120) day period within which prosecutors were, in 1989,
required by the Department of Justice to finish a preliminary
investigation. Respondent argues that the delay occurred in the filing
of the information. According to him, "when there was delay in the
filing of the two information of Violation of the Public Service Law
and for Multiple Homicide thru reckless imprudence before Branch 82 of
the RTC of Odiongan, Romblon, the members of the support staff should
assume responsibility. This should be for the physical act of filing
informations in Court is already left with them" (Respondent's
Memorandum, p. 27).
The responsibility for the delay in the filing of the informations
cannot be passed on by respondent to his subordinates. His
responsibility over cases pending with him does not end with the
issuance of a resolution recommending the filing of an information. In
cases where there is a finding of probable cause sufficient to cause
the filing of an information against the accused, the prosecutor's
responsibility over the case extends not only during the preliminary
investigation but also during trial of the case in court. Necessarily,
the expeditious filing of the information after the resolution of the
preliminary investigation as the initiation of the court proceedings of
the case is within the realm of the prosecutor's responsibility over
the case (See University of the Philippines v. City Fiscal of Quezon
City, G.R. No. L-18567, July 31, 1962, 2 SCRA 980).
The delay in the filing of the information in the two cases involving
the M/B JEM II sinking, which is attributable to respondent, coupled by
the dismissal of three (3) cases, discussed above, on the ground of
failure to prosecute by respondent, constitutes neglect of duty.
Complainants also charged respondent with harassment, claiming that the
latter committed acts of malicious prosecution against one of the
Mayors in Romblon. From the records, it appears that respondent
conducted a preliminary investigation against one of the complainants,
Mayor Ulysses Cawaling of San Jose, Romblon, for estafa thru
falsification of public document. In addition, respondent was the trial
prosecutor in the murder case against Mayor Cawaling.
To constitute malicious prosecution, there must be proof that the
prosecution was prompted by a sinister design to vex and humiliate a
person and it was initiated deliberately with the knowledge that the
charge were false and groundless (Manila Gas Corp. v. CA, G.R. No.
L-44190, October 10, 1980, 100 SCRA 602). In short, malice must be
proved (Rehabilitation Finance Corp. v. Koh, G.R. No. L-15512, February
28, 1962, 4 SCRA 535). No such evidence was presented to prove the
charge of harassment through malicious prosecution.
WHEREFORE, in view of the foregoing and in accordance with the
recommendation of the Department of Justice, Provincial Prosecutor
Pedro M. Victoriano, Jr. is found guilty of neglect of duty and is
suspended from office for a period of six (6) months without pay,
effective upon receipt of a copy of this Administrative Order.
DONE in the City of Manila,
this 17th day of June, in the year of Our Lord, Nineteen Hundred and
Ninety-three.
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