Unsubstantial change

Under the SSS law (RA 1611, Section 28 e), the failure or refusal of a compulsorily covered employer to remit compulsory contributions is punishable with imprisonment. Is the length of the period during which the contribution was not remitted material in determining the penalty to be imposed? This is one of the issues raised in this case of Gabby.

Gabby was the president of a bus company, a compulsorily covered employer under RA 1161.Based on the SSS records, a total of P1,652,330.10 had not been remitted by the company as contributions for SSS Medicare and Employee Compensation. So Gabby as president of the company was charged with violation of Section 22 pars.(a) and (d) in relation to Section 28 par.(e) of RA 1161 where the penalty imposed is six(6) years and one (1) day to twelve (12) years.

The information charging Gabby alleged that the company failed, neglected and refused to remit the said contributions "in and about or during the period from January 1991 to May 1993".

After Gabby was arraigned, trial was suspended because he filed a motion to dismiss the case. Four years later when the case was ready for trial again after Gabby’s motion to dismiss was denied with finality, the prosecution filed a "Motion for Leave to Amend the Information" to change the material dates stated therein from January 1991 to May 1992 instead of May 1993 in the original one. Gabby opposed the motion. He contended that the proposed amendment was substantial in nature, and coming as it did only four years after he was arraigned. To allow the same would be a violation of his rights to be informed of the cause and nature of the accusation against him, and would prejudice or negate defenses that were otherwise available to him.

Was Gabby correct?

No.

His original defenses would not be rendered inapplicable by the amendment, nor the prosecution’s theory in any way altered by the same. A comparison of the amended Information (January 1991 to May 1992) and the original one (January 1991 to May 1993) shows that the period stated in the former is even shorter than and is included within the latter. Also the averment "in or about and during the period" gives a sufficient approximation of the date of the commission of the offense. Therefore, the first information had adequately informed Gabby of the period of time when the crime was committed. No surprise, ergo, no violation of rights, could spring from merely replacing the original period, more so with one that is shorter and included within the same.

Moreover the imposable penalty will not increase as a result of the amendment. A reading of Section 28 par.(e) RA 1611, shows that it penalizes, among others, the failure or refusal of a compulsorily covered employer from remitting compulsory contributions to the SSS. Neither time nor duration of the offense charged is a material ingredient of the offense. The penalty imposed is constant at six(6) years and one(1) day to twelve(12) years regardless of the number of infractions. (Gabionza vs. Court of Appeals, G.R. 140311, March 30,2001).

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