PEOPLE VS NITAFAN

G.R. Nos. 107964-66, February 01, 1999

FACTS:
Several informations for violation of Central Bank (CB) Circular No. 960 were filed against
private respondent in different courts. The Solicitor General filed separate motions for
consolidation of the informations, which were granted. Before the Manila RTC, the informations
were reassigned to Branch 52 presided by public respondent Judge Nitafan.
The respondent judge issued an order dismissing the case no 92-107942 on the ground
that the subject CB circular is an ex post facto law. In a separate order, he also dismissed the
two remaining criminal cases ruling that it violated the private respondents right against double
jeopardy.

ISSUE:
Can a judge motu proprio initiate the dismissal and subsequently dismiss a criminal
information or complaint without any motion to that effect being filed by the accused based on
the alleged violation of the latter's right against ex post facto law and double jeopardy?

RULING:
On ex post facto law, suffice it to say that every law carries with it the presumption of
constitutionality until otherwise declared by this court. To rule that the CB Circular is an ex post
facto law is to say that it is unconstitutional. However, neither private respondent nor the
Solicitor-General challenges it. This Court, much more the lower courts, will not pass upon the
constitutionality of a statute or rule nor declare it void unless directly assailed in an appropriate
action.

With respect to the ground of double jeopardy invoked by respondent judge, the same is
improper and has neither legal nor factual basis in this case. Double jeopardy connotes the
concurrence of three requisites, which are: (a) the first jeopardy must have attached prior to the
second, (b) the first jeopardy must have been validly terminated, and (c) the second jeopardy
must be for the same offense as that in the first or the second offense includes or is necessarily
included in the offense charged in the first information, or is an attempt to commit the same or is
a frustration thereof.
In this case, it is manifestly clear that no first jeopardy has yet attached nor any such
jeopardy terminated. The first jeopardy attaches only (1) upon a valid indictment, (2) before a
competent court, (3) after 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. Private respondent was not convicted or acquitted
nor did the cases against her dismissed or otherwise terminated, which definitely shows the
absence of the fifth requisite for the first jeopardy to attached.
The petition is GRANTED