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CLIENT OPINION LETTER

ALAPAY and Partners LAW OFFICE

PELAEZ ST., CEBU CITY 6000

236-1396 loc. 158 | www.aaplawoffice.com

February 27, 2018

Via Facsimile and Mail

Councilor Job Hutt

134 Gen. Maxilom Ave.,

Cebu City 6000

Re: Councilor Job Hutt Case (non-filing of SALN)- Possible Dismissal on the
Ground of Speedy Disposition of Cases

Dear Councilor Hutt:

Our office was tasked to act as your counsel in regards with the charges
filed against you in violation of Section 8 in relation to Section 11 of R.A. No.
6713 for your alleged non-filing of Statement of Assets, Liabilities and Net
Worth (SALN). This opinion is based on the facts outlined in the facts section
of this letter and the applicable law as of the date of the letter. This letter solely
for your benefit and limited to the facts discussed below. Please contact me if
any of the facts are misstated or if you have additional information.

FACTS

In 2007, Jobb Hutt was first elected as councilor in Brgy. X. After

serving for three terms, he is now a private citizen. However, there is still a
pending Ombudsman case for him. A concerned citizen filed a complaint
before the Ombudsman in 2010 against the councilor for non-filing of his
SALN in years 2008 and 2009. After conducting the preliminary investigation,
the Ombudsman-Visayas graft prosecutor issued a resolution in 2011 charging
Councilor Job Hutt with violation of Section 8 in relation to Section 11 of RA
6713 for non-filing of his SALN. Councilor Job Hutt filed a motion for
reconsideration to the Ombudsman Visayas resolution. Councilor Job Hutt’s
motion for reconsideration was eventually denied in 2015, after review and
approval by the Ombudsman Central Office.

In January of 2018, Councilor Job engaged in our services and has

already been arraigned at one of the courts here in Cebu City. His case is now t
the stage of presentation of third witness for the prosecution.

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ANSWER

Yes, the motion to quash may prosper. The specific ground for this is
the violation of your right to speedy disposition. Furthermore, the court shall
dismiss this case.

EXPLANATION
As a citizen of the Philippines, you are guaranteed and protected by the
Constitution. In Article III, section 16 of the Constitution, “All persons shall
have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.”
Regarding to your case, after you have filed your motion for
consideration in 2011, and the motion was denied four years later in 2015 is a
ground for an unjust delay in preliminary investigation and can be considered
as a violation of your right to speedy disposition. This is was held in Coscolluela v
Sandiganbayan, in this case, the Supreme Court sustained the motion to quash
filed by the petitioner because preliminary investigation proceedings lasted for
almost 8 years. This took almost five (5) years after the complaint was filed, a
sufficient ground for a violation to your right. This incurred delay by the Office
of the Ombudsman can be considered as oppressive to your part as
strengthened by the Alvizo v Sandiganbayan case, thus it is meritorious for you to
file a petition for mandamus and dismissal of the case. We have both
substantial and procedural due process and various jurisprudence that can
support your claim for the violation of your right to speedy disposition.

Secondly, under Rule 117, section 1 of the Revised Rules of Criminal

Procedure provides that, “At any time before entering his plea, the accused
may move to quash the complaint or information.” Given certain conditions
under section 3, in your case the Office of the Ombudsman has the duty to file
the Information to proper authorities. However, it committed delay on its
preliminary investigation proceedings that caused a violation to your
constitutional right. As a result, the office of the Ombudsman is no longer the
proper authority to file the information at hand. One of the conditions under
section 3 is lack of jurisdiction over the offense. Thus, the motion to quash can
still be filed even after the accused was arraigned.
However, the Office of the Ombudsman may use certain arguments
such as the delay is a result of careful deliberations on the subject matter. The
bureaucratic practice of the status quo can also be a factor of the delay. In
addition, the Ombudsman may use cases in the past of non filing and
omissions of SALN are oftentimes held with a penalty against the petitioner,
OCA v Usman, Concerned Taxpayer v Doblada Jr., Rabe v Flores.
Nonetheless, we think that the violation of your constitutional right to
speedy disposition is a valid ground for motion to quash to prosper and that
the court shall dismiss your case.

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Sincerely,

ATTY. JOHNPOLVEN V. ALAPAY

Attorney-at-Law