Art. 210 – Direct Bribery
00); and, to
(1) G.R. No. L-56013 October 3, 1987
LIWANAG AGUIRRE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE
HONORABLE SANDIGANBAYAN (FIRST
DIVISION), respondents.
CORTES, J:
Petitioner Liwanag Aguirre seeks a review of a
Sandiganbayan decision finding him guilty of the crime
of direct bribery which is punishable under Article 210
of the Revised Penal Code. The Information filed
against him reads:
THAT on or about November 24, 1978,
in the City of Davao, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused,
being then an Acting Deputy Sheriff of
the National Labor Relations
Commission (NLRC), did then and
there wilfully, unlawfully and feloniously
demand and obtain from one
Hermogenes Hanginon, an employee
of the business firm Guardsman
Security Agency, the sum of FIFTY
(P50.00) PESOS, Philippine Currency,
as a consideration for the said accused
refraining, as he did refrain, from
immediately implementing a Writ of
Execution of a final judgment of the
National Labor Relations Commission
(NLRC) Regional Branch XI against
said security agency in NLRC Case No.
905-MC-XI-78 that the accused, in the
performance of his office as such
Deputy Sheriff, should have
immediately implemented the said writ
of execution by then and there
immediately seizing personal property
of the judgment-debtor Guardsman
Security Agency, to satisfy the
judgment. (Rollo, pp. 33-34)
After petitioner had pleaded not guilty to the charge, the
case proceeded to trial. Thereafter, on the basis of the
aforequoted Information and the evidence adduced
during the trial the Sandiganbayan convicted the
petitioner as principal of the crime charged. The lower
court appreciated the presence of the mitigating
circumstance of voluntary surrender, without any
aggravating circumstance, in favor of the petitioner and
sentenced him to:
. . .Two (2) Months and One (1) Day
of Arresto mayor; with the accessories
provided by law: to suffer special
temporary disqualification for Six (6)
Years and One (1) Day; to pay a fine of
Fifty Pesos (P50.00), with subsidiary
imprisonment in case of insolvency in
accordance with Article 39 of the
Revised Penal Code, as amended by
Republic Act No. 5465; to indemnify
Hermogenes Hanginon in the same
amount of Fifty Pesos (P50.
pay the costs. (Rollo, p. 50)
Petitioner in this case assails the judgment of
conviction upon the ground that the evidence
presented failed to prove his guilt of the crime charged
beyond reasonable doubt. The main thrust of the
Petition is that the Sandiganbayan erred in giving
weight to the uncorroborated testimony of the lone
prosecution witness.
In certiorari proceedings under Rule 45, the findings of
fact of the lower court as well as its conclusions on
credibility of witnesses are generally not disturbed, the
question before the Court being limited to questions of
law (Rule 45, Sec. 2). Specifically, the conclusions of
the trial court on the credibility of witnesses are given
considerable weight, since said court is in the best
position to observe the demeanor, conduct and attitude
of the witnesses at the trial [People v. Refuerzo, 82
Phil. 576 (1949); People v. Gumahin 128 Phil. 728
(1967), 21 SCRA 729; People v. Mercado, L-39511,
April 28, 1980, 97 SCRA 2321]. However, this court
may choose to pass upon the credibility of a witness if
it appears from the decision under review that the trial
court has plainly overlooked certain facts of substance
and value that, if considered, might affect the result of
the case [People v. Alban, L-15203, March 29, 1961, 1
SCRA 931; People v. Espejo, L-27708, December 19,
1970, 36 SCRA 400, People v. Garcia, L-44364, April
27, 1979; People vs. Mercado, supra People v.
Dagangon, G.R. No. 62654-58, November
13,1986,145 SCRA 464].
In the instant case, the conviction is anchored upon the
uncorroborated testimony of a single prosecution
witness. The Sandiganbayan justifies its reliance upon
said testimony, thus:
. . . (E)ven as witness Hanginon's
version stands sans corroboration, the
same is sufficiently impeccable and
carries the ring of truth. He could not
have been mistaken as to the time and
circumstances of the visit of the
accused to the office of the Agency and
nothing in his demeanor and reactions
during his sojourn on the witness stand
tends to suggest that the story he
threshed exit in open Court was a
fabrication . . . The forthright and
spontaneous manner with which the
version of the prosecution witness, as
advanced by Hanginon, was diclosed
and recorded speaks well of the
veracity thereof. More importantly, no
sufficient and compelling motive had
been pointed to which could have
impelled witness Hanginon to
deliberately perjure himself and
consciously impute the commission of
a nefarious offense to an innocent man
and thus railroad him to a stretch in jail
. . . (Rollo, pp. 40-41).
The constitutional presumption of innocence imposes
upon this Court the duty to ascertain in every case that
no person is made to answer for a crime without proof
of his guilt beyond reasonable doubt [Constitution,
Article III, Sec. 14 (2)]. To overcome this constitutional
presumption and to justify a criminal conviction, there
must exist in the record, "that degree of proof which
produces conviction in an unprejudiced mind" [Rule
133, Sec. 2; Rule 131, Sec. 2].
That the prosecution evidence consists of the
testimony of a single witness does not necessarily
indicate insufficiency of evidence to convict. It is settled
that the testimony of only one witness may be sufficient
to support a conviction if it convinces the court beyond
reasonable doubt that the accused committed the
crime charged [U.S. v. Dacotan 1 Phil. 669 (1903); U.S.
v. Olais, 36 Phil. 828 (1917); People v. Argana 119
Phil. 573 (1964), 10 SCRA 311; People v. Salazar,
G.R. No. L-32858, Aug. 19, 1974, 58 SCRA 467;
People v. Tan, Jr., G.R. No. 53834, November 24,
1986, 145 SCRA 614].
However, there are aspects of the testimony of the sole
witness in this case that do not inspire belief. It appears
unnatural for the petitioner to have demanded a bribe
from him, a mere employee of the security agency,
without authority to accept any writ or legal paper and
without money. It is also doubtful if said employee
could have voluntarily parted with his personal funds
without any expectation of refund. Furthermore, no
entrapment was employed in this situation where it
could have been quite easy to catch the petitioner red-
handed with the bribe money. As testified to by
Hanginon, petitioner allegedly told him that the balance
of the P200 Pesos bribe money was to be delivered at
the Davao Famous Restaurant upon the arrival of the
owner of the agency (Rollo, pp. 206-207). If, according
to this witness the owner had decided to press charges
and had gone to his legal counsel the day after his (the
owner's) arrival (Rollo, p. 207), why was the police not
called in to entrap the petitioner at the place indicated
by him? That would have been a more logical and
usual procedure in preparing for the prosecution of a
bribery case which almost always suffers from a dearth
of witnesses.
The petitioner, in his defense, asserts that there is
serious dispute as to the fact of the commission of the
offense; that the uncorroborated testimony of
Hermogenes Hanginon fails to prove its commission
and the petitioner's guilt beyond reasonable doubt; and
that notice of garnishment had been served upon the
bank for satisfaction of the NLRC's judgment against
the Guardsman Security Agency before the alleged
bribery took place
After careful examination of the decision under review,
the pleadings filed and the evidence relied on, the
nagging doubt remains as to whether the testimony of
Hanginon, the sole witness for the prosecution, proves
the petitioner's guilt. As aptly observed in People v.
Opida, "The scales of justice must hang equal and, in
fact should be tipped in favor of the accused because
of the constitutional presumption of innocence." [G. R.
No. L-46272, June 13, 1986, 142 SCRA 295, 303].
This Court finds that in the absence of evidence
establishing the guilt of the petitioner beyond
reasonable doubt, the judgment of conviction under
review must yield to the constitutional presumption of
innocence.
WHEREFORE, the judgment of conviction of the
respondent Sandiganbayan (First Division) is
REVERSED. Liwanag Aguirre is ACQUITTED of the
crime charged.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-
Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.
(2) G.R. No. 156685 July 27, 2004
NAZARIO N. MARIFOSQUE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari under Rule 45
of the 1997 Rules of Civil Procedure which assails the
decision dated September 23, 2002 and the Resolution
dated January 3, 2003 of the Sandiganbayan in
Criminal Case No. 17030 finding petitioner Nazario
Marifosque guilty beyond reasonable doubt of the
crime of direct bribery, defined and penalized under the
second paragraph of Article 210 of the Revised Penal
Code, as amended.
Petitioner was charged with direct bribery in an
Information which reads:
That on or about October 13, 1990 in Legazpi
City, Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused a public officer being a qualified
member of the Police Force of Legazpi City,
now under the Philippine National Police,
taking advantage of his official/public position
and committing the crime herein charged in
relation to his office, did then and there willfully,
unlawfully, and feloniously demand, obtain
and/or receive directly from Yu Su Pong 1 and
Hian Hian Sy2 the total amount of FIVE
THOUSAND EIGHT HUNDRED PESOS
(P5,800.00) Philippine Currency in
consideration for his recovery from alleged
robbers, eighteen Shellane gas filled cylinder/s
tanks, to the damage and prejudice of the
aforementioned victims in the aforesaid
amount.
CONTRARY TO LAW.3
The antecedent facts as culled from the records are as
follows:
On October 13, 1990 at around 5:00 in the afternoon,
Hian Hian Yu Sy and her husband, Arsenio Sy, went to
the office of Captain Alberto Salvo, Chief of the
Intelligence and Operating Division stationed at the
Criminal Investigation Service (CIS) in Region 5, to
report the robbery of Shellane tanks at the gasoline
station of her father, Yu So Pong, and the alleged
extortion attempt by petitioner, Police Sergeant
Narciso Marifosque, in exchange for the recovery of the
lost items. Captain Salvo and his men set up a plan to
entrap the petitioner. Hian Hian Yu Sy prepared the
pay-off money in the amount of P4,800.00 and listed
down the serial numbers of the bills. The pay-off was
scheduled at 7:00 in the evening of that day in Golden
Grace Department Store which was owned by Yu So
Pong. At around 6:15 p.m., Captain Calvo and his men
arrived at the target area and strategically positioned
themselves outside the Golden Grace Department
Store to await the arrival of the suspect. Shortly
thereafter, petitioner Marifosque arrived on board a
tricycle. He went inside the store and demanded the
money from Hian Hian Yu Sy and Yu So Pong. The
latter handed to him the marked money, which was
wrapped in a newspaper. When petitioner stepped out
of the store, Arsenio Sy gave the pre-arranged signal,
whereupon the arresting operatives swooped down
upon the suspect and arrested him.
Hian Hian Yu Sy testified that petitioner demanded the
amount of P7,200.00 but she bargained for P4,800.00
only because that was all she had at the time. She
proposed that petitioner return the following morning to
pick up the balance.
By way of defense, petitioner Marifosque testified that
in the morning of October 13, 1990, a police asset
came to his house and reported that he witnessed a
robbery at the gasoline station of Yu So Pong.
Petitioner went to the gasoline station of Yu So Pong
and relayed to him the information. Thereafter,
petitioner and Yu So Pong proceeded to the police
station to report the robbery to the desk officer, PFC
Jesus Fernandez, who then dispatched petitioner and
a certain Pat. Garcia to conduct an investigation. As
they were leaving the police station, the asset
approached petitioner asking if he could get P350.00
per cylinder tank as his reward. Petitioner relayed the
message to Yu So Pong, who said he was amenable
"if that [was] the only way to recover the cylinders and
to apprehend the robbers."4 Based on information
furnished by the asset, the police investigators
proceeded to the house of Edgardo Arnaldo in San
Roque Legazpi City, where they found the stolen gas
tanks. The group loaded the gas tanks into the vehicle.
Meanwhile, Arnaldo arrived. Petitioner did not arrest
him at that time because he promised to lead them to
the other stolen cylinder tanks.5 The group returned to
the police station where petitioner made a written
report of the recovery of the gas tanks.
Elmer Arnaldo testified that he worked as an asset of
the Legazpi City police force and occasionally received
rewards from the police for any information of the
criminal activities. On October 13, 1990 at around 4:00
in the morning, he went out to buy bread and saw three
individuals stealing gas cylinder tanks in the nearby
gasoline station. He later visited petitioner and reported
to him the robbery. He went back to his house to feed
the chickens. Sometime thereafter, he dropped by the
police station to discuss with petitioner the reward of
P350.00 per cylinder tank recovered. Petitioner gave
him 1,000.00 and told him to return at 6:00 p.m. for the
remainder. At 7:00 p.m., he and petitioner went to the
store of Yu So Pong to collect the balance of the reward
money. Petitioner went inside the store and Arnaldo,
who was left outside, saw a woman giving him a folded
newspaper. Suddenly, armed men apprehended the
petitioner, so he ran away.
On September 23, 2002, the Sandiganbayan rendered
a decision convicting petitioner of direct bribery, the
dispositive portion of which reads:6
WHEREFORE, in view of the foregoing and
considering that the agreed act, which did not
constitute a crime, was executed, judgment is
hereby rendered finding the accused
NAZARIO MARIFOSQUE Y NUÑEZ GUILTY
beyond reasonable doubt of the crime of Direct
Bribery, defined and penalized under the
second paragraph of Art. 210 of the Revised
Penal Code as amended. The accused is
sentenced to an indeterminate penalty of
imprisonment of 3 years 6 months and 5 days
of Prision Correccional medium and maximum
periods as the Minimum and 7 years, 8 months
and 9 days of Prision Mayor minimum and
medium periods as the Maximum considering
that there is no mitigating nor aggravating
circumstance and a fine in the amount of
THREE THOUSAND PESOS (P3,000.00). The
accused shall also suffer the penalty of special
temporary disqualification.
SO ORDERED.7
His motion for reconsideration having been denied,
petitioner interposes the present appeal raising the
following issues:
I
THE ACT OF PETITIONER – RECEIPT OF
THE SUMS OF MONEY FOR DELIVERY TO
HIS ASSET – DOES NOT CONSITUTE AN
OFFENSE DEFINED AND PENALIZED
UNDER SECOND PARAGRAPH OF ARTICLE
210 OF THE REVISED PENAL CODE, AS
AMENDED.
II
THE HONORABLE SANDIGANBAYAN
COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN FINDING THE
PETITIONER GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF
DIRECT BRIBERY. 8
In the first assigned error, petitioner contends that the
testimonies of the prosecution witnesses do not
demonstrate with certainty that the receipt of the
alleged "bribe money" constitutes the act punishable by
the offense as defined by the Revised Penal Code. He
draws attention to the following findings of fact by the
appellate court, namely: (1) that he was not the one
who asked for reward from private complainant Yu So
Pong but the asset; and (2) that Hian Hian Yu Sy had
no direct knowledge of the alleged transaction, i.e., the
demand for money in consideration of the
return/recovery of twenty-one Shellane gas tanks,
between private complainant Yu So Pong and the
accused.
In the second assigned error, petitioner argues that the
prosecution failed to establish his guilt beyond
reasonable doubt because there was no competent
evidence to prove that the amount was really intended
for him and not for his asset. He anchors his defense
on the fact that: (1) he merely relayed to Yu So Pong
the asset’s request for a reward money; and (2) Yu So
Pong was agreeable to the request. He further
contends that the act of receiving money for the asset
is not one of those punishable under the law as direct
bribery.
Petitioner cannot feign innocence and profess good
faith since all the indicia point to his guilt and malicious
intent.
First, petitioner did not introduce his asset or mention
his name to Yu So Pong or his daughter at the time of
the illegal transaction. His claim that he previously gave
P1,000.00 to his asset, which purportedly represented
a partial payment of the reward money, was not
corroborated by his asset. When he was arrested and
interrogated at Camp Ibalon, he made no attempt to
present his asset to explain and justify his receipt of the
reward money. Instead, he accepted his arrest and
investigation with an air of resignation, which is
characteristic of a culprit who is caught red-handed.
Captain Calvo, one of the arresting CIS officers,
testified that petitioner attempted to give back the
money to Yu So Pong when they were about to arrest
him.9 This was a clear showing that he was well aware
of the illegality of his transaction. Had he been engaged
in a legitimate deal, he would have faced courageously
the arresting officers and indignantly protested the
violation of his person, which is the normal reaction of
an innocent man. Instead, he meekly submitted to the
indignity of arrest and went along the eventual
investigation with the docility of a man at a loss for a
satisfactory explanation.
Second, petitioner’s solicitous and overly eager
conduct in pursuing the robbery incident betrays an
intention not altogether altruistic. On the contrary, it
denotes a corrupt desire on his part to obtain pecuniary
benefits from an illegal transaction. At the time
petitioner was notified by his asset of the robbery
incident, he was no longer on duty, having been
assigned to the night shift the day before. He was too
overzealous to meet with Yu So Pong although the
case was already assigned to another police
investigator. His justification that he wanted to
encourage the victim to pursue the case against the
robbers rings hollow and untrue. It is clearly an
afterthought. As shown in the testimony of prosecution
witness Hian Hian Yu Sy, petitioner met with Yu So
Pong for no apparent reason than to demand money.
There was no mention of any attempt by him to
investigate, much less encourage the victims to file
charges against the malefactors. More telling is
petitioner’s persistence in obtaining the monetary
reward for the asset although the latter was no longer
complaining about the P1,000.00 he supposedly
received earlier, thus:
Pros. Agcaoili:
Since the asset was not complaining at
the time, you should not have gone
back anymore to Yu So Pong?
Accused Marifosque:
Why would I not go back? My purpose
was to encourage him to pursue the
matter. If he would not pursue this
matter, then we would be the laughing
stock of the thieves we arrested and
then we cannot charge them.
Q. So Mr. Witness, you went to Yu So Pong
after you received the P1,000.00 without any
intention to receive additional amount for the
asset, am I right?
A: No, ma’am. That was not the purpose. In
fact, Yu So Pong had told me earlier to see him
again in order to prepare for the cash and to
see if an additional amount would be needed
for my asset.10
While petitioner supposedly supports the "reward
system," yet he denied that he previously gave
incentives to the assets for the recovery of stolen items,
to wit:
PJ:
Sometimes you would ask for reward
for your assets?
A: I myself voluntarily give them a reward.
Q: That is not the question. The question is, in
the past when you would recover stolen
articles, would you ask the owner of the articles
to give some incentive or tip to your assets?
A: That has not happened, your Honor.
PJ:
Next question.
Pros. Agcaoili:
And, in fact, Mr. Witness, you did not
give any incentive to your asset on that
incident that happened in the house of
Yu So Pong which is the subject matter
of this case?
A. For that particular case alone, Mr. Yu so
Pong gave me something and I gave it to my
asset.
xxx xxx xxx
Pros. Agcaoili
In fact, Mr. Witness, you said that these
tips were just given as an incentive?
A I would be the one to give the incentives to
my asset. But in that particular instance, the
P1,000.00 which Mr. Yu So Pong gave me, I
turned it over to my own asset.
Q To your own assessment, Mr. Witness, is
P1,000.00 not enough to serve as an incentive
to your asset?
 A I do not know whether P1,000.00 is enough
or not. The fact, is, that was the amount I got
from Yu So Pong which I gave to my asset.
PJ:
Was the asset complaining that was
not enough?
A. No, Your Honor.11
Third, the conduct of the petitioner during the recovery
of the stolen articles leaves much to be desired. He did
not apprehend Edgardo Arnaldo or invite him for
investigation although the cylinder tanks were found in
his possession. His flimsy excuse that the latter
promised to deliver additional cylinder tanks is
unworthy of credence considering that, as a police
officer with years of experience, he should have known
that the proper action, under the circumstances, was to
at least invite him to the police precinct for
investigation. Curiously, the prime suspect Edgardo
Arnaldo turned out to be the brother of petitioner’s
police asset who, we recall, directed the police officers
to the location of the stashed articles. This strange
coincidence may well indicate a conspiracy between
the petitioner and the thieves to steal from the victim
and later cash in on the recovery of the lost items.
In the final analysis, this case boils down to an issue of
credibility. In this regard, the prosecution witnesses
gave clear and straightforward testimonies. The
Sandiganbayan did not err in giving full weight and
credence to their version of the events. Petitioner’s
conviction must be affirmed.
The crime of direct bribery as defined in Article 210 of
the Revised Penal Code consists of the following
elements: (1) that the accused is a public officer; (2)
that he received directly or through another some gift
or present, offer or promise; (3) that such gift, present
or promise has been given in consideration of his
commission of some crime, or any act not constituting
a crime, or to refrain from doing something which it is
his official duty to do; and (4) that the crime or act
relates to the exercise of his functions as a public
officer.
There is no question that petitioner was a public officer
within the contemplation of Article 203 of the Revised
Penal Code, which includes all persons "who, by direct
provision of law, popular election or appointment by
competent authority, shall take part in the performance
of public functions in the Philippine Government, or
shall perform in said government or any of its branches,
public duties as an employee, agent or subordinate
official or any rank or class." At the time of the incident,
petitioner was a police sergeant assigned to the
Legazpi City Police Station. He directly received the
bribe money from Yu So Pong and his daughter Hian
Hian Yu Sy in exchange for the recovery of the stolen
cylinder tanks, which was an act not constituting a
crime within the meaning of Article 210 of the Revised
Penal Code. The act of receiving money was
connected with his duty as a police officer.
The instant case falls within the second paragraph of
Article 210 of the Revised Penal Code, which is quoted
hereunder:
Art. 210. Direct Bribery. — Any public officer
who shall agree to perform an act constituting
a crime, in connection with the performance of
his official duties, in consideration of any offer,
promise, gift or present received by such
officer, personally or through the mediation of
another, shall suffer the penalty of prision
mayor in its minimum and medium periods and
a fine of not less than three times the value of
the gift, in addition to the penalty corresponding
to the crime agreed upon, if the same shall
have been committed.
If the gift was accepted by the officer in
consideration of the execution of an act which
does not constitute a crime, and the officer
executed said act, he shall suffer the same
penalty provided in the preceding paragraph;
and if said act shall not have been
accomplished, the officer shall suffer the
penalties of prision correccional in its medium
period and a fine of not less than twice the
value of such gift.
If the object for which the gift was received or
promised was to make the public officer refrain
from doing something which it was his official
duty to do, he shall suffer the penalties of
prision correccional in its maximum period to
prision mayor in its minimum period and a fine
not less than three times the value of the gift.
In addition to the penalties provided in the
preceding paragraphs, the culprit shall suffer
the penalty of special temporary
disqualification.
While the Sandiganbayan imposed the correct prison
term in applying the Indeterminate Sentence Law, the
amount of the fine is erroneous. Paragraph 1 of Article
210 of the Revised Penal Code, in relation to
paragraph 2 thereof, provides that if the act does not
constitute a crime, the fine shall not be less than three
times the value of the amount received. Evidence
shows that petitioner received an aggregate amount of
P5,800.00.12 He should therefore be ordered to pay a
fine not less than 3 times its value. Accordingly, a fine
of P18,000.00 is deemed reasonable.
WHEREFORE, in view of the foregoing, the petition is
DENIED. The decision of the Sandiganbayan in
Criminal Case No. 17030, finding petitioner guilty
beyond reasonable doubt of the crime of Direct Bribery
and imposing upon him the indeterminate prison term
of 3 years, 6 months, and 5 days of prision
correccional, as minimum, to 7 years, 8 months, and 9
days of prision mayor, as maximum, is AFFIRMED with
the MODIFICATION that the fine is increased to
P18,000.00.
In addition, petitioner shall suffer the penalty of special
temporary disqualification.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Carpio, and Azcuna,
JJ., concur.
(3) G.R. Nos. 147578-85 January 28, 2008
ROLANDO L. BALDERAMA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and JUAN S.
ARMAMENTO, respondents.
x------------------------------------------x
G.R. Nos. 147598-605 January 28, 2008
ROLANDO D. NAGAL, petitioner,
vs.
JUAN S. ARMAMENTO, private respondent
and
THE SPECIAL PROSECUTOR, public respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us are two consolidated petitions for review
on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse the Joint
Decision1 of the Sandiganbayan dated November 17,
2000 in Criminal Cases Nos. 20669, 20670, 20672,
20674, 20675, 20676, 20677, and 20678; and its
Resolution dated March 20, 2001.
Rolando L. Balderama, petitioner in G.R. Nos. 147578-
85, and Rolando D. Nagal, petitioner in G.R. Nos.
147598-605, were employed with the Land
Transportation Commission (LTO) assigned to the
Field Enforcement Division, Law Enforcement
Services. Juan S. Armamento, respondent in both
cases, operates a taxi business with a fleet of ten (10)
taxi units.
Acting on complaints that taxi drivers in the Ninoy
Aquino International Airport discriminate against
passengers and would transport them to their
destinations only on a "contract" basis, the LTO
created a team to look into the veracity of the
complaints. Petitioners in these cases were members
of the team, popularly known as "Flying Squad,"
together with Cipriano L. Lubrica and Cresencio de
Jesus.
On July 14, 1992, the team flagged down for inspection
an "SJ Taxi" owned by respondent. The team
impounded the taxi on the ground that its meter was
defective. However, upon inspection and testing by the
LTO Inspection Division, the results showed that
contrary to the report of the team, the meter waiting
time mechanism of the vehicle was not defective and
was functioning normally. The vehicle was released to
respondent.
On December 2, 1992, respondent, feeling aggrieved
of the malicious impounding of his vehicle, filed with the
Office of the Ombudsman a complaint for bribery and
violation of Section 3(e) of Republic Act (R.A.) No.
3019, as amended,2 against herein petitioners as well
as Lubrica and de Jesus. He alleged that prior to the
impounding of his taxi, the four LTO officers had been
collecting "protection money" from him. On February
15, 1992, they went to his office and proposed they
would not apprehend his drivers and impound his
vehicles for violations of LTO rules, provided he gives
them the amount of P400.00 every 15th and 30th day of
the month. They agreed to the reduced amount
of P300.00. On the same day, he started giving
them P300.00 and from then on, every 15th and
30th day of the month until June 15, 1992. Thereafter,
he failed to give them the agreed amount because his
business was not doing well.
Eventually, the Office of the Ombudsman filed with the
Sandiganbayan nine (9) Informations for violations of
Article 210 of the Revised Penal Code3 against
petitioners and the other members of the team,
docketed as Criminal Cases Nos. 20669-20677. All the
Informations were identically worded, except the date
of the commission of the crimes. For brevity, we
reproduce the Information in Criminal Case No. 20669
as sample, thus:
Criminal Case No. 20669
That on or about February 15, 1992 or for
sometime prior thereto in Makati, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused
all public officers, being all employees of the
Land transportation Office assigned with the
Field Enforcement Division, Law Enforcement
Services, committing the offense in relation to
their office and taking advantage of their
position, did then and there willfully, unlawfully
and feloniously solicit, demand and receive
from Juan Armamento, a taxicab operator, the
amount of P300.00 in consideration for the said
accused refraining from performing their official
duty of conducting inspections on the taxicab
units being operated by said Juan Armamento
to determine any possible violation of LTO
rules and regulations, thereby causing Juan
Armamento and the public service damage and
prejudice.
CONTRARY TO LAW.
They were also charged with violation of Section 3(e)
of R.A. No. 3019, as amended. The Information,
docketed as Criminal Case No. 20678, reads:
That on or about July 14, 1992 or for sometime
prior or subsequent thereto, in Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, all accused public officers,
being employees of the Land transportation
Office, assigned with the Field Enforcement
Division, Law Enforcement Services, while in
the discharge of their official administrative
functions, did then and there willfully, unlawfully
and criminally cause undue injury to Juan
Armamento, a taxicab operator, through
evident bad faith by apprehending and
impounding one (1) unit of his taxicab with
Plate No. PKD-726 for alleged violation of LTO
rules and regulations, in that, its meter is
defective (waiting time not functioning), which
was later on established to be not true, thereby
depriving said Juan Armamento of the use of
his taxicab unit for about three (3) days and to
realize income thereon for the same period, as
well as incur unnecessary expenses in
effecting the release of his impounded unit from
the impounding area of the LTO.
 CONTRARY TO LAW.
Upon arraignment on June 30, 1994, the accused,
assisted by counsel, pleaded not guilty. The cases
were consolidated and tried jointly. Prior thereto, they
were suspended pendente lite from the service for a
period of ninety (90) days.
On March 5, 1999, accused de Jesus died. The cases
against him were dismissed. The hearing proceeded
against petitioners and Lubrica.
In a Decision dated November 17, 2000, the
Sandiganbayan found petitioners and Lubrica guilty of
direct bribery in seven (7) of the nine (9) Informations
filed against them and were sentenced in each count
"to suffer the indeterminate penalty of imprisonment of
4 years and 2 months, as minimum, to 5 years, 4
months and 20 days, as maximum, within the range
of prision correccional, and to suffer the penalty of
special temporary disqualification." They were further
ordered to pay a fine of P300.00 without subsidiary
imprisonment in case of insolvency and "to restitute the
amount of P300.00 as alleged in the Informations."
They were acquitted in Criminal Cases Nos. 20671 and
20673 for failure of the prosecution to establish their
guilt beyond reasonable doubt.
Petitioners and Lubrica were also convicted in Criminal
Case No. 20678 for violation of Section 3(e) of R.A. No.
3019, as amended, and were sentenced to suffer
imprisonment of six (6) years and one (1) month, as
minimum, to ten (10) years and one (1) day, as
maximum. They were also disqualified perpetually from
holding public office and were ordered to indemnify the
respondent the amount of P1,500.00, representing his
lost income for the 3-day period that the taxi cab
remained in the LTO impounding unit.
Petitioners and Lubrica filed separate motions for
reconsideration arguing that they were not yet grouped
as a team on February 15, 1992, hence, there could be
no conspiracy. While the motion was pending
resolution, both petitioners filed separate motions for
new trial based on an affidavit dated December 22,
2000 executed by respondent recanting his previous
testimony and pointing to Lubrica and de Jesus as the
only culprits.
On March 20, 2001, the Sandiganbayan denied the
motions for reconsideration and the motions for new
trial. In denying the motions for reconsideration, the
Sandiganbayan ruled:
Anent the second argument, the Supreme
Court has made these pronouncements:
Direct proof is not essential to prove
conspiracy, as it may be shown by acts
and circumstances from which may
logically be inferred the existence of a
common design, or may be deduced
from the mode and manner in which the
offense was perpetuated. (see People
v. Cabiling, 74 SCRA 785; People v.
Tingson, 47 SCRA 243; People v.
Alonso, 73 SCRA 484).
Thus, for failure of the accused to controvert
prosecution’s evidence that all four of them
went to the office of the private complainant on
February 15, 1992 and offered him to refrain
from subjecting his taxi units to apprehension
for notation of LTO rules, provided that he
comes across with the amount of P400.00
(later reduced to P300.00) to be delivered twice
a month and it was accused Nagal who
received the P300.00 on April 30, 1992,
Balderama on May 30, in the presence of de
Jesus, Lubrica on February 15, February 28
together with Nagal, March 30 and June 15,
and that in fact, Manimtim witnessed the
incident which occurred on May 15 and
February 15, 1992 and saw Balderama and de
Jesus waiting in the mobile car together with
Nagal, this Court’s finding of conspiracy holds.
In denying the motions for new trial, the
Sandiganbayan held:
Retraction of testimonies previously given in
Court are viewed with disfavor. As a general
rule, a motion for new trial will not be granted if
based on an affidavit of a witness where the
effect is to free the appellant from participation
in the commission of the crime. The recantation
made by the private complainant after the
conviction of the accused is unreliable and
deserves scant consideration.
In the case of People v. Soria, 262 SCRA 739,
the Supreme Court declared:
Indeed, it would be dangerous rule to
reject the testimony taken before the
Court of justice simply because the
witness later changed his mind for one
reason or another, for such a rule will
make a solemn trial a mockery and will
place the investigation of truth at the
mercy of unscrupulous witnesses. It
bears stressing that a testimony in
court is made under conditions
calculated to discourage and forestall
falsehood.
Both petitioners filed with this Court separate petitions
for review on certiorari, both arguing that the
Sandiganbayan erred: (1) in finding that they are guilty
of the offenses charged; (2) in holding that petitioners
and their co-accused acted in conspiracy; and (3) in
disregarding the recantation made by respondent.
On January 4, 2003, Lubrica likewise filed with this
Court a petition for review on certiorari. In our Decision
dated February 26, 2007, we denied his petition for
being late. Our Decision became final and was
recorded in the Book of Entries of Judgments on April
20, 2007.
The sole issue for our resolution is whether the guilt of
the accused, now petitioners, in these cases has been
proved by evidence beyond reasonable doubt.
The crime of direct bribery as defined in Article 210 of
the Revised Penal Code contains the following
elements: (1) that the accused is a public officer; (2)
that he received directly or through another some gift
or present, offer or promise; (3) that such gift, present
or promise has been given in consideration of his
commission of some crime, or any act not constituting WHEREFORE, we DENY the petition. The challenged
a crime, or to refrain from doing something which is his Decision of the Sandiganbayan dated November 17,
official duty to do; and (4) that the crime or act relates 2000 in Criminal Cases Nos. 20669, 20670, 20672,
to the exercise of his functions as a public officer.4 20674, 20675, 20676, 20677 and 20678
is AFFIRMED in toto.
The Sandiganbayan found the above elements of
direct bribery present. It was duly established that the SO ORDERED.
accused demanded and received P300.00 as
"protection money" from respondent on several dates.
As against the prosecution’s evidence, all that the
accused could proffer was alibi and denial, the weakest
(4) G.R. No. L-65952 July 31, 1984
of defenses.
LAURO G. SORIANO, JR., petitioner,
Anent Criminal Case No. 20678, to hold a person liable
vs.
under Section 3(e) of R.A. No. 3019, the concurrence
THE HONORABLE SANDIGANBAYAN AND THE
of the following elements must be established beyond
PEOPLE OF THE PHILIPPINES, respondents.
reasonable doubt by the prosecution: (1) that the
accused is a public officer or a private person charged
in conspiracy with the former; (2) that the said public Dakila F. Castro for petitioner.
officer commits the prohibited acts during the
performance of his or her official duties or in relation to The Solicitor General for respondents.
his or her public positions; (3) that he or she causes
undue injury to any party, whether the government or a
private party; and (4) that the public officer has acted
with manifest partiality, evident bad faith or gross ABAD SANTOS, J.:
inexcusable negligence.5 The Sandiganbayan found
that petitioners and Lubrica participated directly in the The principal issue in this petition to review a decision
malicious apprehension and impounding of the taxi unit of the Sandiganbayan is whether or not the preliminary
of respondent, causing him undue injury.6 investigation of a criminal complaint conducted by a
Fiscal is a "contract or transaction" so as to bring it
Settled is the rule that findings of fact of the within the ambit of Section 3 (b) of Republic Act No.
Sandiganbayan in cases before this Court are binding 3019, otherwise known as the Anti-Graft and Corrupt
and conclusive in the absence of a showing that they Practices Act.
come under the established exceptions, among them:
1) when the conclusion is a finding grounded entirely The factual background is as follows:
on speculation, surmises and conjectures; 2) the
inference made is manifestly mistaken; 3) there is a
Thomas N. Tan was accused of qualified theft in a
grave abuse of discretion; 4) the judgment is based on
complaint lodged with the City Fiscal of Quezon City.
misapprehension of facts; 5) said findings of facts are
The case was docketed as I.S. No. 82-2964 and
conclusions without citation of specific evidence on
assigned for investigation to the petitioner who was
which they are based; and, 6) the findings of fact of the
then an Assistant City Fiscal. In the course of the
Sandiganbayan are premised on the absence of
investigation the petitioner demanded P4,000.00 from
evidence on record.7 We found none of these
Tan as the price for dismissing the case. Tan reported
exceptions in the present cases.
the demand to the National Bureau of Investigation
which set up an entrapment. Because Tan was hard
Petitioners’ prayer for complete acquittal on the put to raise the required amount only P2,000.00 in bills
strength of respondent’s affidavit of recantation fails to were marked by the NBI which had to supply one-half
impress us. thereof. The entrapment succeeded and an information
was filed with the Sandiganbayan in Criminal Case No.
A recantation or an affidavit of desistance is viewed 7393 which reads as follows:
with suspicion and reservation.8 The Court looks with
disfavor upon retractions of testimonies previously The undersigned Tanodbayan Special
given in court. It is settled that an affidavit of desistance Prosecutor accuses LAURO G.
made by a witness after conviction of the accused is SORIANO, for Violation of Section 3,
not reliable, and deserves only scant paragraph (b) of Republic Act 3019,
attention.9 The rationale for the rule is obvious: otherwise known as the Anti-Graft and
affidavits of retraction can easily be secured from Corrupt Practices Act, committed as
witnesses, usually through intimidation or for a follows:
monetary consideration. Recanted testimony is
exceedingly unreliable. There is always the probability
That on or about the
that it will later be repudiated.10 Only when there exist
21st day of March
special circumstances in the case which when coupled
1983, at Quezon City,
with the retraction raise doubts as to the truth of the
Philippines, and within
testimony or statement given, can retractions be
the jurisdiction of this
considered and upheld.11 As found by the
Honorable Court, the
Sandiganbayan, "(t)here is indubitably nothing in the
above-named
affidavit which creates doubts on the guilt of accused
accused, a public
Balderama and Nagal."
officer, being then and
still is an Assistant City
Fiscal of the Quezon
City Fiscal's Office,
detailed as the
Investigating Fiscal in
the case of MARIANNE
Z. LACAMBRA versus
THOMAS N. TAN,
docketed as I.S. No.
82-2964, for Qualified
Theft, taking advantage
of his official position
and with grave abuse After trial the Sandiganbayan rendered a decision with
of authority, did then the following dispositive portion:
and there wilfully,
unlawfully and WHEREFORE, the Court finds
feloniously demand accused Lauro G. Soriano, Jr., GUILTY
and request from beyond reasonable doubt, as Principal
Thomas N. Tan the in the Information, for Violation of
amount of FOUR Section 3, paragraph (b), of Republic
THOUSAND PESOS Act No. 3019, as amended, otherwise
(P4,000.00) Philippine known as the Anti-Graft and Corrupt
Currency, and actually Practices Act, and hereby sentences
received from said him to suffer the indeterminate penalty
Thomas N. Tan the of imprisonment ranging from SIX (6)
amount of TWO YEARS and ONE (1) MONTH, as
THOUSAND PESOS minimum, to NINE (9) YEARS and
(P2,000.00) Philippine ONE (1) DAY, as maximum; to suffer
Currency, in perpetual disqualification from public
consideration for a office; to suffer loss of all retirement or
favorable resolution by gratuity benefits under any law; and, to
dismissing the pay costs.
abovementioned case,
wherein said accused
Of the sum of Two Thousand Pesos
has to intervene in his
(P2,000.00) used in the entrapment
official capacity as such
operations, and which was fully
Investigating Fiscal.
recovered from the accused, One
Thousand Pesos (P1,000.00) shall be
CONTRARY TO LAW. returned to private complainant
Thomas N. Tan, and the other half, to
Manila, Philippines, the National Bureau of Investigation,
March 22, 1983. National Capital Region.

A motion to reconsider the decision( was denied by the

Sandiganbayan; hence the instant S petition.
G
The petitioner has raised several D legal questions plus
one factual question. The latter. is to the effect that the
Sandiganbayan convicted him on ) the weakness of his
defense and not on the strength E of the prosecution's
evidence. This claim is not Dmeritorious not only
because it is not for Us to review G the factual findings of
the court a quo but also because A a reading of its
decision shows that it explicitly R stated the facts
establishing the guilt of theD petitioner and the
competence of the witnesses who O testified against him.
C
.
As stated above, the principal issue is whether or not
L
the investigation conducted by the petitioner can be
A
regarded as a "contract or transaction" within the
B
purview of Sec. 3 (b) of R.A. No. 3019. On this issue
E
the petition is highly impressed with merit.
L
L
The afore-mentioned provision A reads as follows:
S
SEC. 3. Corrupt p practices of public
officers. — Ine addition to acts or
omissions of public
c officers already
penalized by existing
i law, the following
shall constitute corrupt
a practices of any
public officer and
l are hereby declared
to be unlawful: P
 (a) ...
(b) Directly or indirectly requesting or
receiving any gift, present, share,
percentage, or benefit, for himself or for
any other person, in connection with
any contract or transaction between the
Government and any other party,
wherein the public officer in his official
capacity has to intervene under the
law.
The petitioner states:
Assuming in gratia argumenti,
petitioner's guilt, the facts make out a
case of Direct Bribery defined and
penalized under the provision of Article
210 of the Revised Penal Code and not
a violation of Section 3, subparagraph
(b) of Rep. Act 3019, as amended.
The evidence for the prosecution
clearly and undoubtedly support, if at
all the offense of Direct Bribery, which
is not the offense charged and is not
likewise included in or is necessarily
included in the offense charged, which
is for violation of Section 3,
subparagraph (b) of Rep. Act 3019, as
amended. The prosecution showed
that: the accused is a public officer; in
consideration of P4,000.00 which was
allegedly solicited, P2,000.00 of which
was allegedly received, the petitioner
undertook or promised to dismiss a
criminal complaint pending preliminary
investigation before him, which may or
may not constitute a crime; that the act
of dismissing the criminal complaint
pending before petitioner was related
to the exercise of the function of his
office. Therefore, it is with pristine
clarity that the offense proved, if at all
is Direct Bribery. (Petition, p. 5.)
Upon the other hand, the respondents claim:
A reading of the above-quoted
provision would show that the term
'transaction' as used thereof is not
limited in its scope or meaning to a
commercial or business transaction but
includes all kinds of transaction,
whether commercial, civil or
administrative in nature, pending with
the government. This must be so,
otherwise, the Act would have so
stated in the "Definition of Terms",
Section 2 thereof. But it did not,
perforce leaving no other interpretation
than that the expressed purpose and
object is to embrace all kinds of
transaction between the government
and other party wherein the public
officer would intervene under the law.
(Comment, p. 8.)
It is obvious that the investigation conducted by the
petitioner was not a contract. Neither was it
a transactionbecause this term must be construed as
analogous to the term which precedes it. A transaction,
like a contract, is one which involves some
consideration as in credit transactions and this element
(consideration) is absent in the investigation conducted
by the petitioner.
In the light of the foregoing, We agree with the
petitioner that it was error for the Sandiganbayan to
have convicted him of violating Sec. 3 (b) of R.A. No.
3019.
The petitioner also claims that he cannot be convicted
of bribery under the Revised Penal Code because to
do so would be violative of as constitutional right to be
informed of the nature and cause of the accusation
against him. Wrong. A reading of the information which
has been reproduced herein clearly makes out a case
of bribery so that the petitioner cannot claim deprivation
of the right to be informed.
IN THE LIGHT OF THE FOREGOING, the judgment of
the Sandiganbayan is modified in that the petitioner is
deemed guilty of bribery as defined and penalized by
Article 210 of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate penalty of six (6)
months of arresto mayor, as minimum, to two (2) years
of prision correccional as maximum, and to pay a fine
of Two Thousand (P2,000.00) Pesos. The rest of the
judgment is hereby affirmed. Costs against the
petitioner.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino,
Concepcion, Jr., Guerrero, Melencio-Herrera, Plana,
Escolin, Relova, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.
(5) G.R. No. L-58889 July 31, 1986
NATHANIEL S. MANIPON, JR., petitioner,
vs.
SANDIGANBAYAN, Second Division composed of
HON. BERNARDO P. FERNANDEZ as Acting
Presiding Justice and HON. BUENAVENTURA J.
GUERRERO and HON. MOISES C. KALLOS, as
Associate Justices, respondents.
Guillermo B. Bandonill for petitioner.
The Solicitor General for respondents.
FERNAN, J.:
This is a case of direct bribery penalized under Article
210 of the Revised Penal Code.
In its decision dated September 30, 1981, the
Sandiganbayan found accused Nathaniel S. Manipon,
Jr., 31, guilty of direct bribery, sentenced him to four
months and twenty days of arresto mayor with
temporary special disqualification for eight years and
one day and a fine of P2,000.00 with subsidiary
imprisonment in case of insolvency and to pay the
costs.
Manipon came to this Court on petition for review on
certiorari seeking the reversal of the judgment of
conviction. The Court dismissed the petition, "the
question raised being factual and for lack of
merit." 1 However, upon motion for reconsideration, the Court
reconsidered its resolution and gave due course to the petition. 2
The facts of this case are as follows:
Nathaniel S. Manipon, Jr., a deputy sheriff of the Court
of First Instance of Baguio City and Benguet, Branch
IV, was assigned to enforce an order of the Minister of
Labor dated October 31, 1979 directing the Sheriff of
Baguio City or his deputy to execute the decision of the
labor arbiter in NLRC Case No. RB-1-C-1428-79
entitled "Longog Tabek, et al vs. Harry Dominguez et
al" and to make a return within thirty (30) days from
said date. 3 The labor arbiter's decision ordered Harry Dominguez, a
building contractor and the then municipal mayor of Tadian, to pay Longog
Tabek and the other judgment creditors the amount of P2,720.00 with
interest, as the balance of their work contract. 4
Pursuant to that assignment, Manipon on November 9,
1979 sent a notice to the Commercial Bank and Trust
branch [Comtrust] in Baguio City garnishing the bank
accounts of Dominguez. 5 The bank agreed to hold the accounts.
For one reason or another, Manipon did not inform the labor arbiter of the
garnishment nor did he exert efforts to immediately satisfy the judgment
under execution.
On November 12, 1979, Dominguez sought Manipon's
help in the withdrawal of the garnished account.
Manipon told Dominguez that the money could not be
withdrawn.
However, on December 27, 1979 when the two met
again at the Office of the National Intelligence and
Security Authority [NISA] in Baguio City, Manipon told
Dominguez that he "can remedy the withdrawal so they
will have something for the New Year." 6 Dominguez
interpreted this to mean that Manipon would withdraw the garnished amount
for a consideration. Dominguez agreed and they arranged to meet at the bank
later in the afternoon. After Manipon left, Dominguez confided the offer to
NISA Sub-Station Commander Luisito Sanchez. They then hatched up a plan
to entrap Manipon by paying him with marked money the next day. Col.
Sanchez and a Col. Aguana were able to put up P700.00 in fifty-peso bills
which were then authenticated, xeroxed and dusted with fluorescent
powder. 7
Thus, at about 4:00 o'clock in the afternoon of
December 28, 1979, Dominguez went to Comtrust as
planned. Manipon showed up with two companions,
named Deputy Sheriff Crisanto Flora and Baltazar
Pacis. Manipon delivered his letter to the bank lifting
the garnishment. 8 Then Dominguez prepared a withdrawal slip for
P2,500.00. 9 As soon as Dominguez received the money from the teller, he
took out P300.00 therefrom added it to the P 700.00 in marked bills and
handed the total amount of P l,000.00 to Manipon. Then they all left the bank.
Dominguez walked over to his car and drove off. Manipon and his two
companions walked down Session Road. Moments later, PC and NISA
operatives accosted them, seized the P1,000.00 from the left breast pocket
of Manipon and thereafter brought them to Camp Dangwa for questioning.
Manipon was subjected to an ultraviolet light test and found positive for
fluorescent powder. However, after executing a certification relative to the
money recovered, he refused to give any statement. 10 He filed his sheriff's
return unsatisfied on February 20, 1980 or after 114 days. 11
Originally, Manipon was charged with violation of
Presidential Decree No. 46 for having demanded and
received P l,000.00 from Dominguez, a private
individual, for a favor extended by him to the latter, i.e.,
by not enforcing the garnishment order issued to
Comtrust which was his official duty. However, in an
amended information dated February 16, 1981, the
charge was changed to direct bribery under the
Revised Penal Code. 12
Manipon was released on bail. When arraigned, he
pleaded not guilty. 13
In his brief, Manipon contends that the Sandiganbayan
erred in convicting him of direct bribery, in not giving
credence to the defense theory that there was novation
of the money judgment and in admitting illegally-
obtained evidence.
The crime of direct bribery as defined in Article 210 of
the Revised Penal Code consists of the following
elements: (1) that the accused is a public officer; (2)
that he received directly or through another some gift
or present, offer or promise; (3) that such gift, present
or promise has been given in consideration of his
commission of some crime, or any act not constituting
a crime, or to refrain from doing something which it is
his official duty to do, and (4) that the crime or act
relates to the exercise of his functions as a public
officer.14 The promise of a public officer to perform an act or to refrain from
doing it may be express or implied. 15
It is not disputed that at the time of the commission of
the crime Manipon was the deputy sheriff of the Court
of First Instance of Benguet and Baguio assigned to
implement the execution order issued in NLRC Case
No. RB-1-C-1428-79. It is also not disputed that
Manipon garnished the bank accounts of Dominguez
at Comtrust and that he lifted the same on December
28, 1979 after which he received P l,000.00 from
Dominguez.
It is the theory of the defense that the P1,000.00
Manipon collected from Dominguez on December 28,
1979 was not a bribe but a payment in partial
satisfaction of the judgment under execution to which
the judgment creditors headed by Longog Tabek had
agreed.
Manipon narrates that during his meeting with
Dominguez at the NISA office on December 27, 1979,
Dominguez requested Manipon to convey to the
creditors that he was only willing to pay for the time
being a partial amount of P1,000.00, the balance of P
1,720. 00 to be paid after the New Year. 16 So he visited
Longog Tabek who was the "lead man." Tabek, an illiterate, consented to the
lesser amount because he needed money badly. 17 His arrangements with
Tabek and Dominguez were all verbal. At that time he found no reason to
have some written memorandum for his own protection.
At Comtrust after Dominguez had given him the
P1,000.00 Manipon made a move to hand him a
temporary receipt but Dominguez brushed it aside and
said he was in a
hurry. 18
Manipon maintains that Dominguez had framed him up
because of a grudge. He said that in 1978 he and Flora
had levied execution against several vehicles owned
by Dominguez, an act which the latter had openly
resented. 19
The defense theory is so incredible that it leaves no
doubt whatsoever in the Court's mind that Manipon is
guilty of the crime charged.
It is very strange indeed that for such an important
agreement that would modify a final judgment, no one
took the bother of putting it down on paper. Of course
Manipon would have us believe that there was no need
for it because he trusted Dominguez and Tabek. And
yet did he not also claim that Dominguez had framed
him up because of a grudge? And if there was really an
agreement to alter the judgment, why did he not inform
the labor arbiter about it considering that it was the
labor arbiter who had issued the order of execution?
Manipon could not give satisfactory explanations
because there was no such agreement in the first
place.
The temporary receipt 20 adduced by Manipon, as correctly pointed
out by the Solicitor General, is a last-minute fabrication to provide proof of
the alleged agreement for the trial payment of the judgment debt. Contrary to
Manipon's claim, it is hard to believe that Dominguez was not interested in
getting said temporary receipt because precisely that was the proof he
needed to show that he had partially complied with his legal obligation.
The testimonies of Crisanto Flora and Longog Tabek
are of no help either to the defense. Flora is Manipon's
co-sheriff and is therefore biased. On the other hand,
Tabek, on several occasions on the witness stand,
answered with obvious hesitation, betraying himself to
be a rehearsed witness. While he claimed that he was
the supposed headman of the other creditors, he could
not present any authority that would allow him to speak
for them, let alone agree to receive a lesser amount in
their behalf. He even admitted that he did not know
their names. 21
Indeed, Manipon's behavior at the very outset, had
been marked with irregularities. As early as November
9, 1979, he had already garnished the bank accounts
of Dominguez at Comtrust, but he did not notify the
labor arbiter so that the corresponding order for the
payment by the bank of the garnished amount could be
made and the sum withdrawn immediately to satisfy the
judgment under execution. His lame excuse was that
he was very busy in the sheriff's office, attending to
voluminous exhibits and court proceedings. That was
also the same excuse he gave for not informing the
labor arbiter of the novation. In fact he candidly
admitted that he never communicated with the NLRC
concerning the garnishment. He returned the writ
unsatisfied only on February 20, 1980 although by its
express terms, it was returnable within thirty days from
October 29, 1979. 22 Clearly, Manipon had planned to get Dominguez
to acquiesce to a consideration for lifting the garnishment order.
Manipon was also asked about the affidavit he
executed during the preliminary investigation. 23 That
affidavit contained two annexes but the temporary receipt which he allegedly
prepared on December 28, 1979 was not included. He said he misplaced it
in his office and found it only several weeks after he had made the
affidavit. 24 This leads us to strongly suspect there was actually no temporary
receipt at all at the time of payment on December 28 and that it was
concocted by the defense as a last-ditch effort to make the authorities believe
that what had transpired was not a payoff but a legitimate partial satisfaction
of a judgment debt.
In the final analysis, it all boils down to credibility. In this
regard, the prosecution witnesses have acquitted
themselves welt The Sandiganbayan did not err in
giving weight and credence to their version instead of
Manipon's. Indeed, Manipon's guilt for the crime of
direct bribery has been proved beyond reasonable
doubt.
Dwelling on one last point, Manipon has pointed out
that the P1,000.00 was illegally seized because there
was no valid March warrant and therefore inadmissible.
The argument is untenable. The rule that searches and
seizures must be supported by a valid warrant is not an
absolute rule. There are at least three exceptions to the
rule recognized in this jurisdiction. These are: 1) search
incidental to an arrest, 2) search of a moving vehicle,
and 3) seizure of evidence in plain view. 25
In the case at bar, the records show that at about 2:00
p.m. on December 28,1979, NISA Sub-Station
Commander Colonel Luisito Sanchez held a final
briefing among his men and some operatives from the
Benguet Philippine Constabulary concerning the
planned entrapment. He had earlier received word from
Dominguez that the lifting of the garnishment would be
effected that afternoon and he informed them that
Manipon was asking money from Dominguez. 26 As
Colonel Sanchez earlier testified, part of the money to be withdrawn after
lifting the garnishment was to be given to the accused 27 for agreeing to lift
the order of garnishment. After the briefing which lasted from ten to fifteen
minutes, they an headed for the Comtrust bank.
NISA Agent Caesar Murla stationed himself near the
door of the bank so that he could observe what
transpired inside the bank. 28 He testified that he saw Dominguez
give the marked money to Manipon which the latter accepted and counted.
Upon seeing Manipon take the money from Dominguez, Agent Murla gave a
signal to some of the agents positioned nearby by placing his right hand on
his head to indicate that the money had changed hands. Immediately
thereafter, Dominguez left the bank, Manipon placed the money in his left
breast pocket and followed suit. As Manipon walked past Murla on his way
out, the latter gave another signal by putting his hand on his left breast to
indicate that Manipon had placed the money in his left breast pocket. 29
Upon noticing the second signal, the NISA agents and
the PC operatives approached Manipon and his two
companions. After Identifying themselves as peace
officers, they retrieved the P l,000.00 from Manipon.
Through it all, Manipon remained amazingly silent and
voiced no protest. 30
The search and seizure of the P1,000.00 from Manipon
would therefore fall within the first exception. The
search was made as an incident to a lawful arrest, in
accordance with our pronouncement in Moreno v. Ago
Chi 12 Phil. 439, reiterated in Alvero v. Dizon 76 Phil.
637, to wit:
An officer making an arrest may take
from the person arrested any money or
property found upon his person which
was used in the commission of the
crime or was the fruit of the crime or
which might furnish the prisoner with
the means of committing violence or
escaping, or which may be used in
evidence in the trial of the case.
The evident purpose of this exception is both to protect
the arresting officer against physical harm from the
person being arrested who might be armed with a
concealed weapon and also to prevent the person
arrested from destroying evidence within his
reach. 31
Since the other issues raised by Manipon are factual
they need not be discuss here.
WHEREFORE, in view of the foregoing, the instant
petition is denied for lack of merit, with costs against
petitioner-accused Nathaniel Manipon, Jr. The
decision of the Sandiganbayan dated September 30,
1981 is affirmed.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-
Herrera, Alampay, Gutierrez, Jr. Cruz and Paras, JJ.,
concur.
Art. 211- Indirect Bribery
(1) G.R. No. 75160 March 18, 1988
LEONOR FORMILLEZA, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN, First
Division and PEOPLE OF THE
PHILIPPINES, respondents.
K.V. Faylona & Associates for petitioner.
The Solicitor General for respondents.
GANCAYCO, J.:
This is a Petition for review of a Decision of the Sandiganbayan.
The records of the case disclose that petitioner Leonor
Formilleza has been with the government service for
around 20 years. She was the personnel supervisor of
the regional office of the National Irrigation
Administration (NIA) in Tacloban City, Leyte since
October 1, 1982. Her duties include the processing of
the appointment papers of employees.
On the other hand, a certain Mrs. Estrella Mutia was an
employee of the NIA from February, 1978 up to March,
1985. Her appointment was coterminous with a project
of the NIA. On December 31, 1983, her appointment
wag terminated. This notwithstanding, she continued
working for the NIA pursuant to the verbal instructions
of the regional director of the Administration.
Mrs. Mutia testified that she took steps to obtain either
a permanent or at the least a renewed appointment;
that when she approached the regional director about
the matter she was advised to see the petitioner who
was to determine the employees to be appointed or
promoted; and that the petitioner refused to attend to
her appointment papers unless the latter were given
some money.
On February 27, 1984, Mrs. Mutia reported her
problem to the Philippine Constabulary (PC) authorities
in the province. The PC officials told her that steps
were to be taken to entrap the petitioner. The
entrapment equipment consisted of marked paper
money bills worth P100.00. The PC officials concerned
were colleagues of the husband of Mrs. Mutia in the
PC.
The first attempt to entrap the petitioner was on
February 28, 1984. The plan did not materialize as the
petitioner did not show up at the designated
rendezvous at the NIA building canteen.
The second attempt was on February 29,1984, this
time with results. That morning, the petitioner and Mrs.
Mutia met in their service bus on their way to work. The
two women supposedly agreed to meet at the canteen
later that morning at 9:00 o'clock. Thereafter, Mrs.
Mutia notified the PC authorities who were to arrange
the entrapment. The PC soldiers involved in the
arrangement were Identified as Sergeants Eddie
Bonjoc, Efren Abanes and Ignacio Labong.
Everyone who was to participate in the entrapment was
ready. Mrs. Mutia went to see the petitioner in her office
after which the two of them proceeded to the canteen.
Some of their officemates — Mrs. Florida Sevilla and a
certain Mrs. Dimaano — joined them in the canteen.
They occupied two squareshaped tables joined
together. The petitioner sat at the head of the table with
Mrs. Mutia seated at her left, Mrs. Dimaano at her (the
petitioner's) right and Mrs. Sevilla at the right of Mrs.
Dimaano. Sergeants Bonjoc and Labong sat at another
table while Sergeant Abanes was alone in still another
table. The latter brought along a camera in order to
take photographs of the entrapment. The marked
money was folded altogether.
Mrs. Mutia maintains that after they had finished taking
their snacks, she handed the marked money bills under
the table with her right hand to the petitioner who
received the same with her left hand. At that moment,
Sergeant Bonjoc approached the petitioner and held
her hand holding the money bills. Sergeant Abanes
brought out his camera and took photo. graphs of the
sequence of events. He was able to take seven
photographs. 1
The petitioner was arrested by the soldiers despite her
objections to the entrapment. She was brought to the
PC crime laboratory in the locality where she was found
positive for ultra-violet powder. In the presence of the
corporate counsel of the NW the petitioner denied
accepting any bribe money from Mrs. Mutia.
The case was brought to the Sandiganbayan where it
was docketed as Criminal Case No. 9634. Arraigned
on January 1 0, 1985, the petitioner entered a plea of
not guilty and went to trial on May 13, 1985.
In the proceedings before the Sandiganbayan, the
prosecution argued that the entrapment arranged by
the PC operatives was n because the petitioner was
asking money from Mrs. Mutia in consideration for
having the appointment papers of the latter facilitated.
On the other hand, the petitioner maintains her
innocence — that there was no entrapment; the
scenario was but a scheme set up by Mrs. Mutia and
her husband's colleagues in the PC. The petitioner
denies having accepted the supposed bribe money.
The Sandiganbayan relying on the theory of the
prosecution observed in a decision promulgated on
July 14, 1986, 2as follows —
Upon consideration of the evidence.
We find the p petitions version credible.
Two days before the entrapment, Mrs.
Mutia complained to the PC authorities
about the inaction of the on her
appointment papers due to her failure
to give Mm money. She executed a
sworn statement to that effect, ... It was
the PC who planned the entrapment
and supplied the marked money. Sgt.
Efren Abanes who dusted the money
bills with fluoresence powder and who
was a member of the entrapment team,
witnessed the delivery and receipt of
the money by the accused and the
complainant and he saw how the folded
money was handed by Mrs. Mutia with
her right hand underneath the table and
received by the with her left hand. That
was also how Mrs. Mutia described the
manner she delivered the money to the
accused — the money bills were rolled
winch she handed to with her right
hand underneath the table. Although
Sgt. Abanes had a camera with him to
photograph the entrapment, he could
not prematurely expose the camera to
allow a shot of the actual giving of the
money lest the notice his presence and
intention and thereby thwart the
operation. But after the money had
been delivered and received, he
immediately took out his camera and
snapped pictures, one of them
depicting the accused held by Sgt.
Bonjoc and Labong on the left hand ...,
and another showing the accused also
held on the left hand by one of the PC
men, and the complainant, Mrs. Mutia,
drinking from a glass ...
The fact that Mrs. Mutia's husband is a
PC -An himself does not detract from
the credibility of Sgt. Abanes who took
part in the Sgt. Abanes entrapment,
took pictures, and testified about the
incident in court. Sets. Abanes Bonjoc
and Labong were not the only public
authorities privy to the operation. Capt.
Pedro Pates was the one to whom Mrs.
Mutia reported the accused demand for
money; it was he who broached the
Idea of entrapping the accused; and it
was Mador Fernando Pace who
supplied the money and caused it to be
marked with powder. It is inconceivable
that an these commissioned and non-
commissioned officers had lent
themselves to take part in an unholy
cabal of falsely incriminating a female
government employee on the mere
urging of one of their associates.
Just as unreasonable is the insinuation
that Mrs. Mutia had inveigled the
accused to the canteen and resorted to
the insidious machination of planting
money in her hand in a simulated
entrapment simply because she
thought the accused was not helping
her in her application for appointment
to a regular item.
Mrs. Florida Sevilla's presence on the
same table with the complainant and
the accused may be conceded. But her
testimony that she did not see anything
that took place between the
complainant and the accused before
the PC operative pounced upon the
accused, and the latter angrily asked
the complainant what she was trying to
do to her, does not improve the cause
of the defense. As portrayed by the
accused, she was at the head of the
rectangular table with the complainant
at her left: Mrs. Dimaano at her right,
and Mrs. Sevilla next to Mrs. Dimaano.
Since the money, according to the
complainant and Sgt. Abanes was
handed to and received by the accused
underneath the table, it is not surprising
that Mrs. Sevilla who was two seats
away from the accused did not see it. 3
The respondent court ruled that the crime committed
by the petitioner was not Direct Bribery as defined in
Article 210 of the Revised Penal Code cited in the
Information but Indirect Bribery as defined under Article
211 of the same code. Citing the case of People v.
Abesamis, 4 the respondent court was of the opinion
that she could be convicted for Indirect Bribery under
the Information for Direct Bribery to which she pleaded
and entered into trial inasmuch as it is the allegation of
facts rather than the denomination of the offense by the
provincial fiscal that determines the crime charged.
Thus, the respondent court found the petitioner guilty
of Indirect Bribery and sentenced her to four months
of arresto mayor, suspension from public office,
profession or calling, including the right of suffrage, and
public censure.
On August 23, 1986, the petitioner elevated the case
to this Court by way of the instant Petition for Review.
The thrust of the Petition is that the conclusions
reached by the Sandiganbayan are not supported by
the evidence. Moreover, the petitioner disputes the
applicability and/or correctness of the ruling of this
Court in People v. Abesamis relied upon by the
respondent court.
As instructed by this Court, the Office of the Solicitor
General submitted its Comment on the Petition. In
opposing the Petition, the Solicitor General maintains
that only questions of law may be raised in the instant
case and the respondent court did not commit any error
of law. The Solicitor General also stresses therein that
the findings of fact made by the Sandiganbayan are
supported by the evidence on record and deserve full
faith and credit. The Solicitor General adds that the
question of credibility is addressed mainly to the trier of
facts, in this case, the Sandiganbayan.
The parties submitted subsequent pleadings in support
of their stand. Thereafter, the case was deemed
submitted for decision.
We find merit in the Petition.
Presidential Decree No. 1606, as amended, governs
the procedure through which cases originating from the
Sandiganbayan are elevated to this Court.5 Under
Section 7 thereof, the decisions and final orders of the
Sandiganbayan are subject to review on certiorari by
the Supreme Court in accordance with Rule 45 of the
Rules of Court. This Court has ruled that only questions
of law may be raised in a petition for certiorari under
Rule 45, subject to certain rare exceptions. 6 Simply
stated, one way 7 through which a decision or final
order of the Sandiganbayan can be elevated to the
Supreme Court is a Petition for certiorari under Rule 45
and, as a general rule, only questions of law may be
raised therein. The Solicitor General cites the case
of Peñaverde v. Sandiganbayan 8 in support of this
view.
Going now to the question of law raised in the instant
Petition, We believe that the ruling in People v.
Abesamis, contrary to the contention of the petitioner,
is authority for the view that the allegation of facts, not
the denomination of the offense by the prosecutor,
determines the crime charged. Anent the argument on
the correctness of the ruling, the petitioner had not
succeeded in showing any cogent basis for reversing
or modifying the same.
The remaining argument that the judgment of
conviction is not supported by the evidence raises a
question of fact inasmuch as the resolution of the issue
would require this Court to sort out and re-examine the
evidence presented in the trial. Invoking the ruling of
this Court in Peñaverde v. Sandiganbayan, the
Solicitor General moves for the denial of the Petition.
The Solicitor General adds that the credibility of
witnesses is a matter better left to the appreciation of
the trial court, in this case, the Sandiganbayan.
Indeed, the general rule is that only questions of law
may be raised in a petition of this character. The
general rule admits exceptions, one of which is when
the findings of fact made by the trial court overlooked
certain facts of substance and value which, if
considered, might affect the result of the case. This
observation was made by this court in Peñaverde v.
Sandiganbayan, cited by the Solicitor General, to wit —
With respect to the allegation that there
was error on the part of respondent
Sandiganbayan in concluding that
petitioners conspired in the
commission of the offense, suffice it to
say that the basis of its finding was the
credibility of witnesses. Pursuant to
Section 7 of Presidential Decree No.
1606, in relation to Section 2, Rule 45
of the Rules of Court, the findings of
fact of the Sandiganbayan are entitled
to great respect and only questions of
laws (sic) may be raised to the
Supreme Court. Besides, well settled is
the rule that the findings of (the) trial
court on credibility of witnesses will not
be disturbed unless much findings
overlook certain facts of substance and
value which, if considered might affect
(the) results of (the) case. 9
We believe that the exception to the general rule calls
for application in this case.
The fundamental axiom underlying a criminal
prosecution is that before the accused may be
convicted of any crime, his guilt must be proved beyond
reasonable doubt. Thus, if there are substantial facts
which were overlooked by the trial court but which
could alter the results of the case in favor of the
accused, then such facts should be carefully taken into
account by the reviewing tribunal.
In the case before Us, there are substantial facts and
circumstances Which appear to be favorable to the
accused but which were not carefully considered by the
Sandiganbayan. The failure to do so is most
unfortunate considering that the Sandiganbayan is the
first and last recourse of the accused before her case
reaches the Supreme Court where findings of fact are
generally conclusive and binding.
The essential ingredient of indirect bribery as defined
in Article 211 of the Revised Penal Code 10 is that the
public officer concerned must have accepted the gift or
material consideration. There must be a clear intention
on the part of the public officer to take the gift so offered
and consider the same as his own property from then
on, such as putting away the gift for safekeeping or
pocketing the same. Mere physical receipt
unaccompanied by any other sign, circumstance or act
to show such acceptance is not sufficient to lead the
court to conclude that the crime of indirect bribery has
been committed. To hold otherwise will encourage
unscrupulous individuals to frame up public officers by
simply putting within their physical custody some gift,
money or other property.
Did the petitioner accept the supposed bribe money?
The Sandiganbayan noted that the photographs of the
entrapment show that the petitioner was accosted by
the PC soldiers after she accepted the marked money.
Against the evidence of the pro petition that the money
was handed to petitioner by Mrs. Mutia under the table
is the assertion of petitioner that it was when she stood
up that Mrs. Mutia suddenly placed something in her
hand which she did not know to be money and when
she saw that it was money she threw it away. 11 An
examination of the seven photographs that were
allegedly taken immediately after the passing of the
money shows that the petitioner was standing up when
the PC agents apprehended her. This corroborates
petitioner's story. There was no picture showing
petitioner to be seated which should be her position
immediately after the money was handed to her under
the table, which should be the case according to the
version of the prosecution.12 None of the photographs
show the petitioner in the process of appropriating or
keeping the money after it was handed to her. Two of
the seven photographs that were taken outside the
canteen appear to be of no relevance to the operation.
As the petitioner was admittedly handed the money,
this explains why she was positive for ultra-violet
powder. It is possible that she intended to keep the
supposed bribe money or may have had no intention to
accept the same. These possibilities exist but We are
not certain.
However, what is revealing is that Mrs. Sevilla and Mrs.
Dimaano were present around the table in the canteen
with the petitioner and Mrs. Mutia when the latter
allegedly handed the money to the petitioner. There
were other persons in the premises like the PC agents
whose Identities petitioner possibly did not know.
Under the circumstances and in such a public place it
is not probable that petitioner would have the nerve to
accept bribe money from Mrs. Mutia even under the
table. If the petitioner knew and was prepared to accept
the money from Mrs. Mutia at the canteen, the
petitioner would not have invited her officemate Mrs.
Sevilla to join them. Mrs. Sevilla stated she did not see
the alleged passing of the money. She could not have
seen the money as it was passed on under the table or
when, as petitioner said it was quickly placed in her
hand when she stood up. What Mrs. Sevilla is sure of
is that when they were about to leave the canteen, two
(2) men approached petitioner, one of whom took
pictures, and the petitioner shouted at Mrs. Mutia,
"What are you trying to do to me?" 13 The reaction of
petitioner is far from one with a guilty conscience.
Moral certainty, not absolute certainty, is needed to
support a judgment of conviction, Moral certainty is a
certainty that convinces and satisfies the reason and
conscience of those who are to act upon a given
matter. 14 Without this standard of certainty, it may not
be said that the guilt of the accused in a criminal
proceeding has been proved beyond reasonable
doubt.
With all these circumstances taken into account
altogether, We are left at a loss as to the guilt of the
accused. Overlooked by the Sandiganbayan, these
facts and circumstances make out a good case for the
petitioner.
Accordingly, the Court holds that the guilt of the
petitioner in Criminal Case No. 9634 has not been
proved beyond reasonable doubt. She is, therefore,
entitled to an acquittal.
WHEREFORE, in view of the foregoing, the Decision
of the Sandiganbayan in Criminal Case No. 9634 is
hereby SET ASIDE. The petitioner Leonor Formilleza
is hereby ACQUITTED on the basis of reasonable
doubt. We make no pronouncement as to costs. This
Decision is immediately executory.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr.,
Cruz, Paras, Padilla, Bidin, Sarmiento, Cortes and
Griño-Aquino, JJ., concur.
Melencio-Herrera and Feliciano, JJ., took no part.
Footnotes
2 Pages 21 to 33, Rollo. The case was
assigned to the First Division of the
Sandiganbayan composed of Justices
Francis Garchitorena, Conrado Molina
and Augusta Amores. Justice Molina
prepared the Decision.
7 Another available remedy is the
special civil action for certiorari under
Rule 65 when only jurisdictional issues
are raised.
10 Article 211 of the Revised Penal
Code provides as follows – Art
211, Indirect bribery. – The penalties of
arrests mayor, suspension in its
minimum and medium periods, and
public censure shall be imposed upon
any public officer who shall accept gifts
offered to him by reason of his office.
(2) G.R. No. 155574 November 20, 2006
TIMOTEO A. GARCIA, Petitioner,
vs.
SANDIGANBAYAN, Respondent.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court which seeks to set aside
and nullify the Decision1 of the Sandiganbayan dated 6
May 2002 which convicted petitioner Timoteo A. Garcia
of 56 counts of violation of Section 3(b) of Republic Act
No. 3019, as amended, otherwise known as the "Anti-
Graft and Corrupt Practices Act," in Criminal Cases
Nos. 24042 to 24098 (except 24078), and its
Resolution2 dated 2 October 2002 denying petitioner’s
Motion for Reconsideration.
The instant case stemmed from the Complaint of Maria
Lourdes Miranda against petitioner, then Regional
Director, Land Transportation Office (LTO), Region X,
Gilbert G. Nabo and Nery Tagupa, employees of the
same office, for violation of the Anti-Graft and Corrupt
Practices Act for their alleged frequent borrowing of
motor vehicles from Oro Asian Automotive Center
Corporation (Company). Finding probable cause for
violation thereof, Graft Investigation Officer II Gay
Maggie F. Balajadia-Violan recommended that
petitioner, Gilbert G. Nabo and Nery Tagupa be
indicted for violation of Section 3(b) of Republic Act No.
3019, as amended.
On 14 August 1997, 57 Informations were filed with the
Sandiganbayan against petitioner, Gilbert G. Nabo and
Nery Tagupa for violation of Section 3(b) of Republic
Act No. 3019, as amended. The Information in Criminal
Case No. 24042 reads:
That on or about the period covering January 9, 1993
to January 10, 1993 or sometime prior thereto, in
Cagayan de Oro City, Philippines, within the jurisdiction
of this Honorable Court, the said accused, TIMOTEO
A. GARCIA, GILBERT G. NABO and NERY TAGUPA,
being then public officers or employees of the Land
Transportation Office (LTO), Cagayan de Oro City,
taking advantage of their respective official positions,
and conspiring, confederating and mutually helping
one another and with intent to gain personal use or
benefit, did then and there willfully, unlawfully and
feloniously borrow One (1) unit Asian Automotive
Center’s Service Vehicle – Fiera Blue KBK-732, in
good running condition, spare tire, tools from Oro Asian
Automotive Corporation, which is engaged in the
business of vehicle assembly and dealership in
Cagayan de Oro City, knowing that said corporation
regularly transacts with the accused’s LTO Office for
the registration of its motor vehicles, in the reporting of
its engine and chassis numbers as well as the
submission of its vehicle dealer’s report and other
similar transactions which require the prior approval
and/or intervention of the said accused Regional
Director and employees and/or their said LTO office in
Cagayan de Oro City, to the damage and prejudice of
and undue injury to said Oro Asian Automotive
 Corporation, including complainant Maria24058 LourdesJuly 31, 1993 to August 1, One (1) unit TAMARAW HSPUR, KBN-15
Miranda.3 1993 color, in good running condition, w/ spare t
tire wrench
The fifty-six other Informations are similarly worded
except for the alleged dates of commission
24059 of theJuly 24, 1993 to July 25, One (1) unit TAMARAW HSPUR, KBN-15
offense, and the types/descriptions of the vehicles1993 color, in good running condition, w/ spare t
allegedly borrowed by them. The pertinent data in the tire wrench
other informations are as follows:
24060 August 7, 1993 to August 8, One (1) unit TAMARAW HSPUR, KBN-15
DATE OF COMMISSION TYPE/DESCRIPTION 1993 OF color, in good running condition, w/ spare t
VEHICLE tire wrench

January 16, 1993 24061

to One (1) unit FIERA BLUE August 14, 1993 to August One (1) unit TAMARAW HSPUR, KBN-15
January 17, 1993 15, 1993 color, in good running condition, w/ spare t
tire wrench
January 23, 1993 to One (1) unit FIERA BLUE KBK-732, service vehicle of
January 24, 1993 24062
Asian Automotive Center, in good August
running 21, 1993 to
condition August One (1) unit TAMARAW HSPUR, KBN-15
with
tools, spare tire 22, 1993 color, in good running condition, w/ spare
tire wrench
February 6, 1993 to One (1) unit FIERA BLUE KBK-732, in good running
February 7, 1993 condition with tools 24063 September 4, 1993 to One (1) unit AERO D HSPUR, KBP-375, w
September 5, 1993 with engine no. C190-484232, Chassis
February 13, 1993 to One (1) unit FIERA BLUE KBK-732, in good running 6787-C, in good running condition upholste
February 14, 1993 condition
24064 Morning of September 11, One (1) unit AERO D HSPUR, KBP-375, w
March 13, 1993 to March One (1) unit TOYOTA TAMARAW1993 yellow,toKBN-156, in
evening of in good running condition, upholstered sea
14, 1993 good running condition, with tools September
and spare tire
11, 1993 wrench, spare tire
Morning of March 20, 1993 One (1) unit TOYOTA24065
HSPUR YELLOW KBN-156,
September 18, with
1993 to One (1) unit AERO D HSPUR, KBP-3
o afternoon of March 20, spare tools, in good condition September 19, 1993 running condition, upholstered seats, side
1993 rear view mirror, jack w/ handle, tire wrenc
Morning of March 27, 1993 One (1) unit TAMARAW HSPUR,September
24066 yellow in color,
25,KBN-
1993 to One (1) unit AERO D HSPUR, KBP-375, g
o afternoon of March 27, 156, in good condition, with spareSeptember
tire, with jack
26,and tire
1993 condition, upholstered seats, side view
1993 wrench view mirror, jack w/ handle, tire wrench, se
April 24, 1993 to April 25, One (1) unit TAMARAW HSPUR, October
24067 Yellow in color,
23, KBN-
1993 to One (1) unit AERO D HSPUR, KBP-375, g
1993 156, in good condition, with spare tire, jack and tire
October 24, 1993 condition, upholstered seats, side view
wrench view mirror, jack w/ handle, tire wrench, se
April 25, 1993 and have One (1) unit AERO D24068 VAN KBN-865, maroon
October 30,in color
1993 to One (1) unit ISUZU, NNJ-917, white in c
been returned after use Asian Automotive Center’s Vehicle, in good running
October 31, 1993 running condition, side view mirror, jack w/
condition, with spare tire, tools, jack and tire wrench
24069 November 6, 1993 to One (1) unit AERO D HSPUR, KBP-375, g
May 15, 1993 to May 16, One (1) unit TOYOTA Fierra, yellow in color, 7,
November engine
1993no. condition, upholstered seats, side view
1993 4k-0907126, chassis no. CMCI-109247-C, in good view mirror, jack w/ handle, tire wrench, se
condition, jack, spare tire, tire wrench
24070 November 13, 1993 to One (1) unit AERO D HSPUR, KBP-375, g
May 29, 1993 to May 30, One (1) unit TAMARAW HSPUR,November KBN-156,14, yellow
1993 in condition, upholstered seats, side view
1993 color, in good running condition, w/ spare tire, jack and view mirror, jack w/ handle, tire wrench, se
tire wrench
24071 November 27, 1993 to One (1) unit AERO D-II HSPUR, KBP-375, g
June 5, 1993 to June 6, One (1) unit TAMARAW HSPUR,November KBN-156,28, yellow
1993 in condition, jack w/ handle, tire wrench, spar
1993 color, in good running condition, w/ spare tire, jack and
tire wrench 24072 December 4, 1993 to One (1) unit AERO D-II HSPUR, KBP-375, g
December 5, 1993 condition, jack w/ handle, tire wrench, spar
June 19, 1993 to June 20, One (1) unit TAMARAW HSPUR, KBN-156, yellow in
1993 color, in good running24073
condition, w/ spare tire, 11,
December jack and
1993 to One (1) unit AERO D HSPUR, white in colo
tire wrench December 12, 1993 full in dash instrumentation, jack w/ handle
in good running condition
June 26, 1993 to morning One (1) unit TAMARAW HSPUR, KBN-156, yellow in
of June 26, 1993 color, in good running24074
condition, w/ spare tire, 18,
December jack and
1993 to One (1) unit AERO D HSPUR, white in colo
tire wrench December 19, 1993 full in dash instrumentation, jack w/ handle
in good running condition
July 17, 1993 to July 18, One (1) unit TAMARAW HSPUR, KBN-156, yellow in
1993 color, in good running24075
condition, w/ spare 8,
January tire, jacktoand
1994 January One (1) unit AERO D HSPUR, white in colo
tire wrench 9, 1994 full in dash instrumentation, jack w/ handle
in good running condition
Morning of January 15, One (1) unit AERO D 24095 HSPUR, white
Augustin color,
25, KBP-375,
1994 to One (1) unit AERO D VAN with engine no. C
1994 to late afternoon of full in dash instrumentation, jack
August
w/ handle,
28, 1994
tire wrench chassis no. SMM90-8370-C, full in dash inst
January 15, 1994 in good running condition. maroon in color with plate no. KBN-865, in goo

January 29, 1994 to One (1) unit AERO D 24096

HSPUR, KBP-375,
Morning ofwhite
September
in color,3, One (1) unit AERO D HSPUR, white in color, K
January 30, 1994 w/o plate number 1994 to afternoon of in dash instrumentation, jack, tire wrench, in g
September 3, 1994 condition
24078 Withdrawn per Court Resolution dated July 3,
1998, p. 103 Crim. Case # 24042 24097 September 17, 1994 to One (1) unit AERO D HSPUR, white in color, K
September 18, 1994 in dash instrumentation, in good running condi
bruary 5, 1994 to One (1) unit AERO D HSPUR,24098white in color, KBP-375,
November 26, 1994fullto One (1) unit AERO D HSPUR, white in color, K
bruary 6, 1994 in dash instrumentation, jack w/ handle, tire wrench
November 27, 1994 in good in dash instrumentation, jack w/ handle, tire wr
running condition running condition4
bruary 12, 1994 to One (1) unit AERO D-II HSPUR, KBP-375, in good running
bruary 13, 1994 On 22 August 1997, the Sandiganbayan issued orders
condition, jack w/ handle, tire wrench, spare tire
for the arrest of the three accused5 and for the holding
bruary 26, 1994 of their departure
to One (1) unit AERO D HSPUR, white in color, KBP-375, full from the country.6 On 6 October
bruary 27, 1994 1997,inpetitioner
in dash instrumentation, jack w/ handle, tire wrench good posted a consolidated surety bond for
running condition his provisional liberty. 7

In a resolution
rch 4, 1994 to March 5, One (1) unit AERO D HSPUR, white in color, KBP-375, full dated 3 July 1998, the withdrawal of the
94 information
in dash instrumentation, jack w/ handle, tire wrench in good in Criminal Case No. 24078 was granted. 8
running condition
On 17 August 1998, when arraigned, petitioner and
accused full
rch 12, 1994 to March One (1) unit AERO D HSPUR, white in color, KBP-375, Tagupa, assisted by counsel de parte,
1994 in dash instrumentation, jack w/ handle, tire wrench in good guilty" to the charges.9 Accused Nabo
pleaded "not
running condition remains at large.

rch 19, 1994 to March One (1) unit AERO D HSPUR, white in color, KBP-375,
On 15full October 1998, pre-trial was
1994 in dash instrumentation, in good running condition,
concluded.with
10
Thereafter, trial ensued.
jack, tire wrench, spare tire.
The evidence of the prosecution, as summarized by the
ril 9, 1994 to April 10, One (1) unit AERO D HSPUR, white in color, KBP-375, full
Sandiganbayan, are as follows:
94 in dash instrumentation, jack w/ handle, tire wrench in good
running condition ESTANISLAO BARRETE YUNGAO (hereinafter,
"Yungao") declared that he was employed as the driver
ril 30, 1994 to May 1, One (1) unit AERO D HSPUR, white in color, KBP-375,
and liaisonfull
officer of the Oro Asian Automotive Center
94 in dash instrumentation, jack w/ handle, tire wrench in good (hereinafter, "the Company"), an
Corporation
running condition establishment engaged in the assembly of motor
vehicles, during the period covering the years 1991 to
y 7, 1994 to May 8, One (1) unit AERO D HSPUR, white in color, KBP-375, full Yungao had to officially report to the
1995. As such,
94 in dash instrumentation, jack w/ handle, tire wrench in good
Land Transportation Office ("LTO") of Cagayan de Oro
running condition City all the engine and chassis numbers prior to the
assembly of any motor vehicle. In the process, the
y 14, 1994 to May 15, One (1) unit AERO D HSPUR, white in color, KBP-375,
Company full had to secure from the LTO a Conduct
94 in dash instrumentation, jack w/ handle, tire wrench
Permitin after
good a motor vehicle has been completely
running condition assembled, for purposes of carrying out the necessary
road testing of the vehicle concerned. After the said
y 21, 1994 to May 22, One (1) unit AERO D HSPUR, white in color, KBP-375,
road testingfulland prior to its eventual sale/disposition,
94 in dash instrumentation, jack w/ handle, tire wrench in good
the vehicle has to be first properly registered with the
running condition LTO. Accused Garcia, in his capacity as the Director of
the LTO of Cagayan de Oro City, during all times
ne 4, 1994 to June 5, One (1) unit AERO D-II HSPUR, KBP-375, in good running
relevant to the instant cases, was the approving
94 condition, jack w/ handle, tire wrench, spare tire
authority on the aforesaid reportorial requirements and
the signatory of the said Conduct Permits.
ne 11, 1994 to June 12, One (1) unit AERO D-II HSPUR, KBP-375, in good running
94 condition, jack w/ handle, tire wrench, spare tire
By reason thereof, Yungao knew accused Garcia since
January of 1991. Yungao would always personally talk
ne 17, 1994 to June 19, One (1) unit AERO D-II HSPUR, KBP-375, in good running Garcia regarding the issuance of the
to accused
94 condition, jack w/ handle, tire wrench, spare tire
required Conduct Permit for any newly assembled
vehicle. Yungao would secure from accused Garcia as
y 2, 1994 to July 3, One (1) unit AERO D HSPUR, white in color, KBP-375, many as 30 fullto 40 of such permits in a year.
94 in dash instrumentation, jack w/ handle, tire wrench in good
running condition In the process, accused Garcia would regularly
summon Yungao to his office to tell him to inform either
y 23, 1994 to July 24, One (1) unit AERO D HSPUR, white in color, KBP-375, full
Aurora or Alonzo Chiong, the owners of the Company,
94 in dash instrumentation, jack w/ handle, tire wrench in good
that he (accused Garcia) would borrow a motor vehicle
running condition for purposes of visiting his farm. When Yungao could
not be contacted, accused Garcia would personally call
up the Company and talk to the owners thereof to
borrow the vehicle. Accused Garcia confided to
Yungao that he could not utilize the assigned
government vehicle for his own personal use during
Saturdays and Sundays. It was for this reason that he
had to borrow vehicles from the Chiongs to enable him
to visit his farm.
Yungao maintained that accused Garcia had been
regularly borrowing motor vehicles from the Chiongs
during the period covering January of 1993 up to and
until November of 1994. Accused Garcia would always
ask his representative to take the Company’s vehicle
on a Saturday morning. However, Yungao never
reported for work on Saturdays; thus, he was not the
one who actually released the borrowed motor vehicles
to the representative of accused Garcia. Nonetheless,
Yungao would be aware of the fact that accused Garcia
borrowed the vehicles requested because, for every
such instance, a corresponding delivery receipt is
issued, which is placed on top of his table for him to
place in the Company’s record files on the following
working day. The numerous delivery receipts would
show and indicate the actual number of times accused
Garcia had borrowed vehicles from the Company.
Finally, Yungao identified the affidavit which he
executed in connection with the subject cases.
On cross-examination, Yungao testified that it was his
duty to keep the permits relating to the road testing of
the motor vehicles assembled by the Company. These
permits were secured by him from accused Garcia
before the vehicles were eventually put on display or
presented to potential buyers. Although there was a
Regulation Officer at the LTO before whom the request
for the issuance of a Conduct Permit is to be presented,
Yungao was often told to go straight up to the room of
accused Garcia so that the latter could personally sign
the said permit. It was only when accused Garcia is
absent or is not in office that the papers submitted to
the LTO were attended to by his assistant.
Yungao testified that accused Garcia would always
make his request to borrow the Company’s motor
vehicle verbally and on a Friday. However, Yungao
admitted that he was not very familiar with the
signature of accused Garcia, and that the latter’s
signature did not appear in any of the delivery receipts.
During all these years, Yungao could only recall one
(1) instance when accused Garcia failed to approve the
Company’s request, and this was a request for an
extension of the usual "5-day road test" period granted
to the Company. Nonetheless, the Company found the
said disapproval to be acceptable and proper.
On questions propounded by the Court, Yungao
testified that the names and signatures of the persons
who actually received the Company’s vehicles were
reflected on the faces of the delivery receipts.
However, Yungao does not recognize the signatures
appearing on the said delivery receipts, including those
purportedly of accused Tagupa, because Yungao was
not present when the vehicles were taken.
The prosecution had intended to present another
witness in the person of Ms. Ma. Lourdes V. Miranda
(hereinafter, "Miranda"), who was present at the time
Yungao testified. Prior to her presentation, however,
the parties agreed to enter into stipulations and
admissions. Thus, it was stipulated that Miranda was
the mother of a child named Jane, who was run over
and killed in a vehicular accident; that the driver of the
ill-fated motor vehicle was accused Nabo; that
Miranda, thereafter, successfully traced the said
vehicle and eventually discovered the existence of
numerous delivery receipts in the files and possession
of the Company; and that said discovery led to the
institution of the subject criminal cases against herein
accused. As a result of such admissions and
stipulations, the proposed testimony of Miranda was,
thereafter, dispensed with.
AURORA J. CHIONG (hereinafter, "Chiong") declared
that she is the Vice-President and General Manager of
the Company, a business establishment engaged in
the assembly of motor vehicles. In the process, the
Company has to submit a Dealer’s Report to the LTO
prior to the assembly of a motor vehicle. After the
assembly is completed, the Company has to secure a
permit from the LTO for purposes of conducting the
necessary road testing of the newly assembled motor
vehicle.
In 1993, accused Garcia was the Regional Director of
the LTO in Cagayan de Oro City. He was the officer
who approves the needed Conduction Permit of newly
assembled motor vehicles. He was also the LTO officer
who approves and signs the Company’s annual LTO
Accreditation Certificate.
Chiong recounted that accused Garcia has a farm, and
that he would need a vehicle to transport water thereto.
For this purpose, he would, on a weekly basis, borrow
from the Company a motor vehicle, either by asking
from Chiong directly through telephone calls or through
Yungao, her Liaison Officer. Everytime accused Garcia
would borrow a motor vehicle, the Company would
issue a delivery receipt for such purpose, which has to
be signed by the person whom accused Garcia would
send to pick up the motor vehicle. Chiong was usually
the company officer who signed the delivery receipt for
the release of the borrowed motor vehicle to the
representative of accused Garcia. When she was not
in office, she would authorize her personnel to place
[their] initials on top of her name. On several occasions,
Chiong had seen accused Nabo affixing his signature
on the delivery receipt before taking out the borrowed
motor vehicles. Chiong was very sure that the driver
who picked up the motor vehicle from the Company
was the personnel of accused Garcia because the
latter would always call her up first before sending his
representative to get a vehicle. Chiong was likewise
very familiar with the voice of accused Garcia because
she had been dealing with him for a long period of time
already, and all the while she had always maintained a
cordial relationship with him.
On questions propounded by the Court, Chiong
testified that accused Garcia would ask his driver to get
a vehicle on a Saturday at around 6:30 o’clock in the
morning. He would return it in the late afternoon of the
same day. There was only one instance when accused
Garcia returned the motor vehicle on the day after, and
this was the time when the said vehicle had figured in
a vehicular accident which resulted in the death of a
certain Jane, the daughter of Miranda. Chiong was not
the complainant in the said vehicular accident case
because she could not afford to offend or antagonize
accused Garcia, and she had always considered the
lending of motor vehicles to accused Garcia as a public
relation thing.
Chiong clarified that the subject motor vehicles
occasionally borrowed by accused Garcia were all
company service cars and not newly assembled
vehicles. Finally, she testified that she gets irritated
whenever accused Garcia would ask for a vehicle at a
time when she herself would also need it. However,
under the circumstances, she had to give in to his
request.11
For the defense, petitioner took the witness stand,
while accused Tagupa did not present any evidence.
Petitioner testified that he was the Regional Director of
the 10th Regional Office of the LTO from August, 1987
to December, 1994. He downright denied borrowing
any motor vehicle from the Company arguing that his
signatures never appeared in the Delivery
Receipts12 submitted by the prosecution.13 He
admitted, though, that the Company has been
continually transacting business with his office properly
and officially, and has not, even for a single instance,
violated any rules with respect to assembly of motor
vehicles, and that there was no reason for the owners
of the Company to harbor any ill-feelings against
him.14 He further admitted that he had known Atty.
Aurora Chiong, Vice-President and General Manager
of the Company, even before he became Regional
Director when he was still the Chief of the Operations
Division.15 He added that employees of the LTO are
used to borrowing vehicles from their friends and that
this practice has been going on prior to his being
Regional Director. He claimed he repeatedly warned
his subordinates about the illegality of the same but
they merely turned a deaf ear.16 Lastly, he said his
driver, accused Nabo, had, on several occasions,
driven motor vehicles and visited him at his farm, and
that he rode with him in going home without allegedly
knowing that the vehicles driven by Nabo were merely
borrowed from his (Nabo) friends.17
On 6 May 2002, the Sandiganbayan promulgated the
assailed decision convicting petitioner of fifty-six
counts of violation of Section 3(b) of Republic Act No.
3019, as amended. Accused Tagupa was acquitted,
while the cases against accused Nabo, who remained
at large, were archived. The decretal portion of the
decision reads:
WHEREFORE, judgment is hereby rendered finding
accused TIMOTEO A GARCIA GUILTY beyond
reasonable doubt of fifty-six (56) counts of violation of
Section 3(b) of Republic Act No. 3019, otherwise
known as The Anti-Graft and Corrupt Practices Act.
Accordingly, said accused is hereby sentenced to: (i) in
each case, suffer an indeterminate sentence of
imprisonment for a period of six (6) years and one (1)
month, as minimum, to twelve (12) years and one (1)
month, as maximum; (ii) suffer all accessory penalties
consequent thereto; and (iii) pay the costs.
With respect to accused NERY TAGUPA, by reason of
the total lack of any evidence against him, he is hereby
ACQUITED.
As for accused Gilbert G. Nabo, considering that he
remained at large and jurisdiction over his person had
yet to be acquired, let the case as against him be
achieved.18
Petitioner is now before us assigning as errors the
following:
1. THE SANDIGANBAYAN ERRED IN
HOLDING THAT ALL THE ELEMENTS OF
SECTION 3(B) OF REPUBLIC ACT NO. 3019
WERE PRESENT IN CRIM. CASES NOS.
24042 TO 24098 (EXCEPT 24078) AND IN
FINDING THE HEREIN PETITIONER GUILTY
OF FIFTY SIX (56) COUNTS OF VIOLATION
THEREOF;
2. THE SANDIGANBAYAN ERRED IN
FINDING THE HEREIN PETITIONER GUILTY
BEYOND REASONABLE DOUBT OF FIFTY
SIX (56) COUNTS OF VIOLATION OF
SECTION 3(B) OF REPUBLIC ACT NO. 3019
ON THE BASIS OF FATALLY DEFECTIVE
INFORMATIONS WHEREIN THE FACTS
CHARGED NEVER CONSTITUTED AN
OFFENSE;
3. THE SANDIGANBAYAN ERRED IN
FINDING THE HEREIN PETITIONER GUILTY
BEYOND REASONABLE DOUBT OF FIFTY
SIX (56) COUNTS OF VIOLATION OF
SECTION 3(B) OF REPUBLIC ACT NO. 3019
ON THE BASIS OF EVIDENCE WHICH IS
INSUFFICIENT TO CONVICT (EVEN FOR A
SINGLE COUNT);
4. THE SANDIGANBAYAN ERRED AND IN
THE PROCESS VIOLATED THE
CONSTITUTIONAL AND LEGAL RIGHTS OF
THE HEREIN PETITIONER WHEN IT
SUPPLIED THE DEFICIENCIES IN THE
EVIDENCE OF THE PROSECUTION WITH
ASSUMPTIONS WHICH WERE NOT AT ALL
SUPPORTED BY THE EVIDENCE ON
RECORD;
5. THE SANDIGANBAYAN ERRED WHEN IT
OBSERVED DIFFERENT STANDARDS OF
JUSTICE BY ACQUITTING THE
PETITIONER’S CO-ACCUSED TAGUPA AND
CONVICTING THE HEREIN PETITIONER
WHEN THE SAME REASONING SHOULD
HAVE LED ALSO TO THE ACQUITTAL OF
THE PETITIONER.
In any criminal prosecution, it is necessary that every
essential ingredient of the crime charged must be
proved beyond reasonable doubt in order to overcome
the constitutional right of the accused to be presumed
innocent.19 To be convicted of violation of Section
3(b)20 of Republic Act No. 3019, as amended, the
prosecution has the burden of proving the following
elements: (1) the offender is a public officer; (2) who
requested or received a gift, a present, a share a
percentage, or a benefit (3) on behalf of the offender or
any other person; (4) in connection with a contract or
transaction with the government; (5) in which the public
officer, in an official capacity under the law, has the
right to intervene.21
Petitioner maintains that not all the elements of Section
3(b) have been established by the prosecution.
Petitioner focuses primarily on the fourth element. He
argues that the prosecution failed to show the specific
transactions of the Company with the LTO of Cagayan
de Oro that petitioner approved and/or intervened in so
that he could borrow from, or be lent by, the Company
a vehicle. Inasmuch as he was convicted by the
Sandiganbayan of fifty-six counts of violation of Section
3(b) for allegedly borrowing the Company’s vehicle
fifty-six times, the Sandiganbayan, he stresses, should
have at least pointed out what these transactions were.
This, petitioner claims, the Sandiganbayan failed to
show with certainty in its decision. Petitioner adds that
the prosecution did not even attempt to introduce
evidence to show what contract or transaction was
pending before the LTO over which petitioner had the
right to intervene being the Regional Director when, at
the period stated in all the fifty-six informations, he
borrowed a vehicle.
We agree with petitioner that the prosecution miserably
failed to prove the existence of the fourth element. It is
1âwphi 1
very clear from Section 3(b) that the requesting or
receiving of any gift, present, share, percentage, or
benefit must be in connection with "a contract or
transaction"22 wherein the public officer in his official
capacity has to intervene under the law. In the case at
bar, the prosecution did not specify what transactions
the Company had with the LTO that petitioner
intervened in when he allegedly borrowed the vehicles
from the Company. It is insufficient that petitioner
admitted that the Company has continually transacted
with his office. What is required is that the transaction
involved should at least be described with particularity
and proven. To establish the existence of the fourth
element, the relation of the fact of requesting and/or
receiving, and that of the transaction involved must be
clearly shown. This, the prosecution failed to do. The
prosecution’s allegation that the Company regularly
transacts with petitioner’s LTO Office for the
registration of its motor vehicles, in the reporting of its
engine and chassis numbers, as well as the
submission of its vehicle dealer’s report, and other
similar transactions, will not suffice. This general
statement failed to show the link between the 56
alleged borrowings with their corresponding
transactions.
Failing to prove one of the other elements of the crime
charged, we find no need to discuss the presence or
absence of the elements.
The next question to be resolved is: Can petitioner be
convicted of any other crime (i.e., Direct Bribery or
Indirect Bribery) charged in the informations?
The crime of direct bribery as defined in Article 21023 of
the Revised Penal Code consists of the following
elements: (1) that the accused is a public officer; (2)
that he received directly or through another some gift
or present, offer or promise; (3) that such gift, present
or promise has been given in consideration of his
commission of some crime, or any act not constituting
a crime, or to refrain from doing something which it is
his official duty to do; and (4) that the crime or act
relates to the exercise of his functions as a public
officer.24 Thus, the acts constituting direct bribery are:
(1) by agreeing to perform, or by performing, in
consideration of any offer, promise, gift or present an
act constituting a crime, in connection with the
performance of his official duties; (2) by accepting a gift
in consideration of the execution of an act which does
not constitute a crime, in connection with the
performance of his official duty; or (3) by agreeing to
refrain, or by refraining, from doing something which is
his official duty to do, in consideration of any gift or
promise.25
In the case under consideration, there is utter lack of
evidence adduced by the prosecution showing that
petitioner committed any of the three acts constituting
direct bribery. The two prosecution witnesses did not
mention anything about petitioner asking for something
in exchange for his performance of, or abstaining to
perform, an act in connection with his official duty. In
fact, Atty. Aurora Chiong, Vice-President and General
Manager of the Company, testified that the Company
complied with all the requirements of the LTO without
asking for any intervention from petitioner or from
anybody else from said office.26 From the evidence on
record, petitioner cannot likewise be convicted of Direct
Bribery.
Can petitioner be found guilty of Indirect Bribery?
Indirect bribery is committed by a public officer who
shall accept gifts offered to him by reason of his office.
The essential ingredient of indirect bribery as defined
in Article 21127 of the Revised Penal Code is that the
public officer concerned must have accepted the gift or
material consideration. In the case at bar, was the
prosecution able to show that petitioner indeed
accepted a gift from the Company? The alleged
borrowing of a vehicle by petitioner from the Company
can be considered as the gift in contemplation of the
law. To prove that petitioner borrowed a vehicle from
the Company for 56 times, the prosecution adduced in
evidence 56 delivery receipts28 allegedly signed by
petitioner’s representative whom the latter would send
to pick up the vehicle.
The prosecution was not able to show with moral
certainty that petitioner truly borrowed and received the
vehicles subject matter of the 56 informations. The
prosecution claims that petitioner received the
vehicles via his representatives to whom the vehicles
were released. The prosecution relies heavily on the
delivery receipts. We, however, find that the delivery
receipts do not sufficiently prove that petitioner
received the vehicles considering that his signatures do
not appear therein. In addition, the prosecution failed
to establish that it was petitioner’s representatives who
picked up the vehicles. The acquittal of one of the
accused (Nery Tagupa) who allegedly received the
vehicles from the Company further strengthens this
argument. If the identity of the person who allegedly
picked up the vehicle on behalf of the petitioner is
uncertain, there can also be no certainty that it was
petitioner who received the vehicles in the end.
Factual findings of the Sandiganbayan are conclusive
upon this Court except where: (1) the conclusion is a
finding grounded entirely on speculation, surmise and
conjectures; (2) the inference made is manifestly an
error or founded on a mistake; (3) there is grave abuse
of discretion; (4) the judgment is based on
misapprehension of facts; and (5) the findings of fact
are premised on a want of evidence and are
contradicted by evidence on record.29 In the case
before us, we are constrained to apply the exception
rather than the rule. We find that the ruling of the
Sandiganbayan that petitioners actually received the
vehicles through his representatives is grounded
entirely on speculation, surmise, and conjectures, and
not supported by evidence on record. The certainty of
petitioner’s receipt of the vehicle for his alleged
personal use was not substantiated.
WHEREFORE, all the above considered, the petition
is GRANTED. The Decision of the Sandiganbayan in
Criminal Cases Nos. 24042 to 24077 and 24079 to
24098 is REVERSED and SET ASIDE. For
insufficiency of evidence, the petitioner is
hereby ACQUITTED of the crime charged in the
informations. No costs.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
Footnotes
20
SEC. 3. Corrupt practices of public officers. –
In addition to acts or omissions of public
officers already penalized by existing law, the
following shall constitute corrupt practices of
any public officer and are hereby declared to
be unlawful:
xxxx
(b) Directly or indirectly requesting or
receiving any gift, present, share,
percentage, or benefit, for himself or for
any other person, in connection with
any contract or transaction between the
Government and any other party,
wherein the public officer in his official
capacity has to intervene under the
law.
23
Art. 210. Direct bribery. — Any public officer
who shall agree to perform an act constituting
a crime, in connection with the performance of
his official duties, in consideration of any offer,
promise, gift or present received by such
officer, personally or through, the mediation of
another, shall suffer the penalty of prision
mayor in its medium and minimum periods and
a fine not less than three times the value of the
gift, in addition to the penalty corresponding to
the crime agreed upon, if the same shall have
been committed.
If the gift was accepted by the officer in
consideration of the execution of an act
which does not constitute a crime, and
the officer executed said act, he shall
suffer the same penalty provided in the
preceding paragraph; and if said act
shall not have been accomplished, the
officer shall suffer the penalties of
prision correctional, in its medium
period and a fine of not less than twice
the value of such gift.
If the object for which the gift was
received or promised was to make the
public officer refrain from doing
something which it was his official duty
to do, he shall suffer the penalties of
prision correctional in its maximum
period to prision mayor in its minimum
period and a fine not less than three
times the value of such gift.
In addition to the penalties provided in
the preceding paragraphs, the culprit
shall suffer the penalty of special
temporary disqualification.
The provisions contained in the
preceding paragraphs shall be made
applicable to assessors, arbitrators,
appraisal and claim commissioners,
experts or any other persons
performing public duties. (As amended
by B.P. Blg. 871, May 29, 1985.)
(3) A.M. No. P-1597 March 1, 1978
EXECUTIVE JUDGE OSCAR R. VICTORIANO, CFI
NEGROS OCCIDENTAL, complainant,
vs.
ABRAHAM B. ALVIOR, CLERK III, OFFICE OF THE
CLERK OF COURT, CFI NEGROS
OCCIDENTAL,respondent.
MAKASIAR, J.:
This is an administrative charge against Abraham B.
Alvior, Clerk III, Administrative Staff, Office of the Clerk
of Court, CFI Negros Occidental (hereinafter, referred
to as respondent) for dishonesty, neglect of duty, and
misconduct in office, which was initiated by Executive
Judge Oscar R. Victoriano, CFI Negros Occidental
(hereinafter referred to as complainant) in a
memorandum dated December 8, 1976.
The records of this case reveal that:
On July 28, 1976, upon instruction of Atty. Aquiles G.
Java, officer-in-charge of the Office of the Clerk of
Court, Court of First Instance of Negros Occidental,
respondent prepared and signed Requisition and Issue
Voucher (RIV) No. 443, requisitioning various office
supplies for use of the administrative staff of the Court
of First Instance. Said voucher, which was presented
to and approved by Atty. Aquiles G. Java, was
thereafter filed with the Office of the Provincial Canvass
Committee. The latter body failed to act immediately on
the matter due to the absence of a complete
description opposite the items. As per testimony of
Nelson Villaroza, Rural Development Technician of the
Provincial Barangay Secretariat assigned to the
Provincial Canvass Committee with specific duty to
examine items or articles delivered as to quantity,
quality, specifications and prices thereof, when RIV
443 was delivered to his office in July, 1976, he could
not take any action thereon as there was no
specification of the items in the voucher. Villaroza
thereupon informed respondent through a certain Mr.
Caponpon of the omissions. Villaroza further declared
that someone got back the voucher for respondent
sometime in the second week of October, and that
subsequently, the said voucher was brought back to
him (Villaroza) on October 19, 1976 by one Genaro
Garbanzos, duly accomplished, together with the
different requests for quotations already fined up,
namely: request for quotation for Gella & Sons, for
Lopue's Mercantile Company, for Ernado Commercial,
and for Twin Supply.
After confirming the fact of delivery of the items
covered by subject requisition voucher by Ernado
Commerce and the signing of the Abstract Quotation of
Price, an inspection was made, and it was discovered
that the 100 bundles of braided abaca twine (item No.
4) were overpriced at P12.00 per unit; and that as a
result, Atty. Java was directed to inquire from the office
of the Provincial Governor how such overpricing could
have been sanctioned by the Provincial Canvass
Committee.
Accordingly, the civil security unit of the office of the
pro. provincial Governor of Negros Occidental
conducted an investigation and submitted its written
report dated November 22, 1976, finding that a
possible substitution of inferior quality abaca twine may
have been effected by Genaro Garbanzos (a
representative or middleman of Ernado Commercial, in
whose favor the award was made), and requesting
appropriate action with respect to herein respondent,
who connived with the former (Genaro Garbanzos) in
the commission of the fraud.
On the basis of the abovementioned report, Executive
Judge Oscar R. Victorians, CFI Negros Occidental in a
memorandum dated December 8, 1976, initiated an
administrative charge against respondent for
dishonesty, neglect of duty and mis-conduct in office,
giving him a period of five (5) days from receipt within
which to show cause in writing why he should not be
disciplined for his involvement in the transaction, with
option to have a formal administrative investigation.
Respondent filed a written answer and requested for a
formal administrative hearing, which Judge Victoriano
conducted from January 17 until March 1, 1977.
In his answer, respondent denied having had any
participation in the canvass of prices of the items
covered by such requisition and issue voucher,
claiming that it is the duty of the Provincial Canvass
Committee to determine the reasonableness of the
prices; that the abaca twine delivered by Garbanzos
and accepted by him conformed to the specification in
RIV 443 which he submitted and with a sample he had
presented to Garbanzos before the delivery, and
hence, there was no substitution; that all the items were
first inspected and accepted by the representative of
the Commission on Audit before they were received by
him; and that the charge of his having received P
200.00 Garbanzos is absolutely false.
Investigation by Judge Victoriano revealed that Genaro
Garbanzos manipulated the canvass to insure that
Ernado Commercial which he represented would be
declared the lowest bidder. Garbanzos admitted that
respondent gave him the requisition and issue voucher
after his assistance was requested together with the
blank forms of the requests for quotations asking him
to make the canvass of prices. He then placed the
prices of the various items on the request for quotation
for Ernado Commercial and signed it in behalf of
Ernado Commercial. He asked for the prices of the
items from Lopue's Mercantile Company which he
placed on the request for quotation and had it signed
by one of the salesgirls. He did the same thing with
respect to the request for quotation of Gella & Sons.
After filling up the requests for quotation, he left them
on the table of Villaroza. Villaroza declared along the
same lines, stating that on the third week of October,
1976 the requisition and issue voucher was returned to
his office by Garbanzos with some of the items already
complete with specifications and attached thereto were
the requests for quotations of Lopue's Mercantile
Company, Gella & Sons, Twin Supply, and Ernado
Commercial, as well as the abstract of quotation of
prices. He affixed his initial on the requests for
quotations for Gella & Sons and Lopue's Mercantile
Company and on the abstract of quotations which
would indicate that the prices were exact and
reasonable for the items although the presence of his
initials did not mean that he was the one who had
canvassed the prices of the various items. Ramonito
Padilla, also a member of the Provincial Canvass
Committee as representative of the Provincial
Governor, declared that the requests for quotations
were referred to him by Villaroza, after which he called
respondent Alvior who allegedly informed him that he
was the one who had made the canvass. Relying on
respondent Alvior, who explained to him that the
requisition was urgently needed, he (Padilla) directed
Villaroza to scrutinize the prices based on previous
quotations on file in the office. As the canvass was
allegedly done by respondent who represented the
requisitioner, a member of the Provincial Committee on
Canvass, and considering that according to
respondent the items had already been delivered, he
(Padilla) decided to affix his signature on the request
for quotations as well as on the abstract of quotations.
Investigation further revealed that Ramon Mayoga,
Assistant Chief of Division, Office of the Provincial
Auditor, stated that between 11:00 and 12:00 o'clock in
the morning of October 25, 1976. Garbanzos
requested him to inspect the items covered by RIV 443.
The requisition and issue voucher, the requests for
quotations, the certificate of acceptance, the abstract
of bids on quotation of prices and taxpayer's certificate
were presented to him, and on the basis of these
documents, he inspected the items in the Office of the
Clerk of Court in the presence of respondent Alvior and
Genaro Garbanzos and found them to be in order as to
specifications, quality and quantity. He then certified on
the requisition and issue voucher and on the invoice of
Ernado Commercial that the items had been inspected
as shown by the stamp mark duly initialed by him. The
same stamp mark appears on the certificate of
acceptance signed by respondent Alvior. He did not,
however, check on the reasonableness or the propriety
of the prices as he claims that this was the duty of the
Provincial Canvass Committee, After the delivery of the
items, Garbanzos prepared the provincial voucher for
the amount of P4,128.00 in payment of the supplies
delivered by Ernado Commerce duly approved by
Branch Clerk of Court Antonio Pura, since at that time
the officer- in-charge, Atty. Aquiles G. Java, was in
Manila.
Considering the foregoing findings of facts, Judge
Victoriano made the following conclusions and
recommendations:
1. There is no clear nor direct evidence
of collusion or connivance between
Genaro Garbanzos and respondent
Abraham Alvior or Ramonito Padilla
and Nelson Villaroza of the Provincial
Canvass Committee or Ramon
Mayoga of the office of the Provincial
Auditor in the overpricing of the abaca
twine from which Garbanzos
admittedly obtained an "overprice" of
P800.00 on that item alone;
2. There was definite laxity bordering
on negligence on the part of the
Provincial Canvass Committee of
Negros Occidental, particularly
Ramonito Padilla as representative of
the Provincial Government nor, and
Nelson Villaroza, detailed as
Canvasser, and Ramon Mayoga,
Assistant Division Chief, Office of the
Provincial Auditor of Negros Occidental
with duty to inspect deliveries of
supplies, which made possible and/or
facilitated the subject "overpricing" of
the abaca twine. It is recommended
that a copy of this report be authorized
by the Supreme Court to be furnished
the Provincial Governor and the
Provincial Auditor of Negros Occidental
for such remedial and disciplinary
measures they may doom proper to
take warranted by the circumstances.
3. Respondent Abraham Alvior was
likewise negligent or neglectful of duty
to a lesser degree in soliciting the
assistance of Genaro Garbanzos, a
private person having no official
connection with the provincial
government, and who represented a
competing bidder or supplier, to
facilitate or expected approval of the
requisition, and in accepting delivery of
the abaca twine notwithstanding he
was chargeable with knowledge that
the price of the article was excessive or
exorbitant. He is also chargeable with
misconduct in office for having received
money from Genaro Garbanzos as
token of gratitude in connection with
performance of official duty. The
charge of dishonesty is not borne out
by the evidence.
Considering that evidence is wanting
that he connived with Garbanzos in the
overpricing of the subject abaca twine
and that he may have been impelled
only by a desire to expedite early
approval and acquisition of the supplies
subject of the requisition urgently
needed by the office of the Clerk of
Court, and considering that this is the
first instance of official misfeasance or
malfeasance incurred by respondent
who has thus far been in the
government service for fifteen (15)
years, it is believed — and the
undersigned so recommends — that a
penalty of suspension for thirty (30)
days without pay would be sufficient
with admonition that in the future he
should observe greater care and
prudence in the discharge of his official
duties.
4. With respect to Genaro Garbanzos
and Ernado Commercial, it is
recommended that they be
permanently debarred from transacting
business with the provincial
government in the matter of
procurement of supplies and materials,
without prejudice to considering the
possible prosecution of Genaro
Garbanzos under existing law for
fraudulent and illegal acts committed
by him (pp. 23-26, rec.).
WE agree with the findings of Judge Victoriano but not
without modification. Indeed, the overpricing of the
abaca twine by Garbanzos could not have been
perpetrated were it not for the laxity or negligence of
the Provincial Canvass Committee, particularly
Ramonito Padilla and Nelson Villaroza. This is
apparent from Section 13 of Presidential Decree No.
526 which makes it incumbent on members of the
Canvass Committee to personally undertake the
canvass of prices. The procedure observed by
Garbanzos, therefore, was not only highly irregular but
clearly contrary to law.
Respondent Alvior's responsibility, however, is more
serious than mere negligence. Respondent herein
should be held liable for gross neglect of duty
notwithstanding that the evidence is wanting as to
direct connivance between him and Garbanzos. This is
also a clear case of misconduct in office as well as
dishonesty, which warrant a criminal prosecution for
indirect bribery under Article 211 of the Revised Penal
Code.
Anent respondent's gross neglect of duty, even
as arguendo that respondent had no. actual
participation in the canvass and thus, had nothing to do
with the manipulation of the price quotations effected
by Garbanzos, there is not a scintilla of doubt that it
was not proper for him (respondent Alvior) as
requisitioner to have solicited the assistance of
Garbanzos to facilitate the approval of the requisition,
thereby affording the latter the opportunity to
manipulate the prices to insure that Ernado
Commercial, which he represented, would be declared
the lowest bidder.
Moreover, respondent Alvior perused the requests for
quotations and even signed the abstract of bids which
admittedly showed the prices of the items as awarded
to Ernado Commercial. He could not have failed to
notice that the unit price of the abaca twine described
as "big" was patently excessive at P12.00 per unit for
each bundle of the braided type, which he actually
received. He could not have shut his eyes to the reality
that is the apparent overpricing of the abaca twine on
the mere excuse that the primary responsibility for
determination of the reasonableness of the price lies
with the Canvass Committee. Respondent could have
either refused acceptance of the items, or at the very
least, he could have called the attention of either the
Provincial Auditor or the Canvass Committee, His
failure to resort to either manifested not the slightest
concern for the interests of the government.
The charge against respondent Alvior for misconduct
in office for having received money, in connection with
the performance of his official duty, from Garbanzos,
as token of the latter's gratitude, is clearly meritorious.
Respondent's acceptance of money under the
circumstances is a dishonest act. In his report. after
conducting the investigation (pp. 21-22), Judge
Victoriano stated:
... That he was chargeable with
knowledge that Garbanzos would
realize no little profit from the
transaction must also be assumed. For
Garbanzos declared under oath that he
gave respondent P200.00 in token of
his gratitude. He was grateful because
respondent gave him the opportunity to
make such a big profit when requested
to help facilitate or expedite the
requisition. Or, probably because
respondent did not make any fuss
regarding the price of the abaca twine.
At any rate, it was improper for
respondent to have received any gift or
any amount from Garbanzos in
connection with the performance of
official duties. Respondent vehemently
insists that no credit should be
accorded Garbanzos' testimony on this
score. But the record shows no
plausible reason or motive why
Garbanzos would wittingly make such
imputation against respondent if it were
not true, considering that in the course
of his testimony he also made
damaging admissions against himself.
The suggestion that Garbanzos tried to
implicate respondent in an attempt to
save himself can hardly merit
credence. For, as already adverted to,
his having admitted giving sums of
money as part of his "rapport", not only
to respondent but also to Villaroza and
Mayoga, equally implicate him and
places him in a bad light. There is no
evidence of misunderstanding,
previous altercation, or differences
between respondent and Garbanzos
as to constitute sufficient motive for the
latter to incriminate him. On the
contrary, Garbanzos gave the amount
to respondent impelled by a feeling of
gratitude for him.
Being a public officer, and having accepted a gift in the
form of money which was offered to him by reason of
his office, herein respondent Alvior is chargeable with
indirect bribery punishable under Article 211 of the
Revised Penal Code. The fact that the evidence is
wanting as to direct connivance between Alvior and
Garbanzos is of no moment since in indirect bribery "it
is not necessary that the officer should do any
particular act or even promise to do an act, as it is
enough that he accepts gifts offered to him by reason
of his office" (See: L.B. Reyes, The Revised Penal
Code, Book II [Rev. Ed. 1971], p. 309; emphasis
supplied).
WHEREFORE, RESPONDENT ABRAHAM B.
ALVIOR IS HEREBY DISMISSED FROM THE
SERVICE WITH FORFEITURE OF ALL
RETIREMENT PRIVILEGES AND WITH PREJUDICE
TO RE- INSTATEMENT IN THE NATIONAL AND
LOCAL GOVERNMENT AS WELL AS IN ANY
GOVERNMENT INSTRUMENTALITY OR AGENCY
INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS.
A COPY OF THIS DECISION IS LIKEWISE HEREBY
FURNISHED:
(A) THE OFFICE OF THE PROVINCIAL FISCAL FOR
FURTHER INVESTIGATION REGARDING THE
CRIMINAL PROSECUTION OF RESPONDENT
ALVIOR FOR INDIRECT BRIBERY;
(B) THE HONORABLE PROVINCIAL GOVERNOR AS
WELL AS THE PROVINCIAL AUDITOR, PROVINCE
OF NEGROS OCCIDENTAL, FOR WHATEVER
REMEDIAL AND DISCIPLINARY MEASURES THEY
MAY DEEM PROPER TO TAKE UNDER THE
CIRCUMSTANCES; AND
(C) THE RECORDS SECTION TO BE ENTERED IN
THE 201 FILE OF RESPONDENT ABRAHAM B.
ALVIOR.
SO ORDERED.
Castro, CJ., Fernando, Teehankee, Barredo, Antonio,
Muñoz Palma, Aquino, Concepcion, Jr., Santos,
Fernandez, and Guerrero, JJ., concur.
Art. 212- Corruption of Public Officials
RA 3019 see also RA6173 and RA 1379
(1) G.R. Nos. 61776 to 61861, March 23, 1984
REYNALDO R. BAYOT, Petitioner, v.
SANDIGANBAYAN (SECOND DIVISION) and
PEOPLE OF THE PHILIPPINES, Respondents.
Renato J. Bihasa for Petitioner.
The Solicitor General for Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
EX POST FACTO LAW; LAWS PROVIDING FOR
SUSPENSION FROM OFFICE OF PUBLIC
OFFICERS PENDING TRIAL, NOT IN VIOLATION OF
CONSTITUTION. — There is no merit in petitioner’s
contention that Section 13 of Republic Act 3019, as
amended by Batas Pambansa Blg. 195, which includes
the crime of Estafa thru Falsification of Public
Document as among the crimes subjecting the public
officer charged therewith with suspension from office
pending action in court, is a penal provision which
violates the constitutional prohibition against the
enactment of ex post facto law.
2. CRIMINAL LAW; CRIMES COMMITTED BY
PUBLIC OFFICERS; SUSPENSION FROM OFFICE
PENDING TRIAL; APPLICABILITY THEREOF TO
ANY OFFICE WHICH THE OFFICER CHARGED MAY
BE HOLDING CASE AT BAR. — The claim of
petitioner that he cannot be suspended because he is
presently occupying a position different from that under
which he is charged is untenable. The amendatory
provision clearly states that any incumbent public
officer against whom any criminal prosecution under a
valid information under Republic Act 3019 or for any
offense involving fraud upon the government or public
funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended
from office. Thus, by the use of the word "office" the
same applies to any office which the officer charged
may be holding, and not only the particular office under
which he was charged.
DECISION
RELOVA, J.:
Petitioner Reynaldo R. Bayot is one of the several
persons accused in more than one hundred (100)
counts of Estafa thru Falsification of Public Documents
before the Sandiganbayan. The said charges stemmed
from his alleged involvement, as a government auditor
of the Commission on Audit assigned to the Ministry of
Education and Culture, together with some
officers/employees of the said Ministry, the Bureau of
Treasury and the Teacher’s Camp in Baguio City, in the
preparation and encashment of fictitious TCAA checks
for non-existent obligations of the Teacher’s Camp
resulting in damage to the government of several
million pesos. The first thirty-two (32) cases were filed
on July 25, 1978.
In the meantime, petitioner ran for the post of municipal
mayor of Amadeo, Cavite in the local elections held in
January 1980. He was elected.
On May 30, 1980, the Sandiganbayan promulgated a
decision convicting herein petitioner and some of his
co-accused in all but one of the thirty-two (32) cases
filed against them. Whereupon, appeals were taken to
this Court and the cases are now pending review in
G.R. Nos. L-54645-76.
However, on March 16, 1982, Batas Pambansa Blg.
195 was passed amending, among others, Section 13
of Republic Act No. 3019. The said section, as
amended, reads —
"Sec. 13. Suspension of and Loss of Benefits. —
Any incumbent public officer against whom any
criminal prosecution under a valid information under
this Act or under Title 7, Book II of the Revised Penal
Code or for any offense involving fraud upon
government or public funds or property whether as a
simple or as a complex offense and in whatever stage
of execution and mode of participation, is pending in
court, shall be suspended from office. Should he be
convicted by final judgment he shall lose all retirement
or gratuity benefits under any law, but if acquitted, he
shall be entitled to reinstatement and to the salaries
and benefits which he failed to receive during
suspension, unless in the meantime administrative
proceedings had been filed against him."cralaw
virtua1aw library
Thereafter, in other cases pending before the
respondent court in which herein petitioner is one of the
accused, the prosecution filed a motion to suspend all
the accused-public officers pendente lite from their
respective offices or any other public office which they
may be occupying pending trial of their
cases.chanrobles.com.ph : virtual law library
On July 22, 1982, respondent court issued an order
directing the suspension of all the accused including
herein petitioner "from their public positions or from any
other public office that they may be holding . . ." (p. 26,
Rollo).
Herein petitioner filed a motion for reconsideration
alleging that "to apply the provision of Batas Pambansa
Blg. 195 to the herein accused would be violative of the
constitutional guarantee of protection against an ex
post facto law" (p. 28, Rollo). The motion was denied
by respondent court in a resolution dated September 6,
1982. Hence, this petition for certiorari.
It is the submission of petitioner that respondent court
acted without jurisdiction or in excess of jurisdiction
amounting to lack of jurisdiction or with grave abuse of
discretion in suspending petitioner from office as Mayor
of Amadeo, Cavite, pendente lite because —
1. Republic Act 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, as amended by
Batas Pambansa Blg. 195, is a penal statute in which
case the provision of said Act must be strictly construed
in favor of the accused and against the State;
2. A close perusal of Batas Pambansa Blg. 195,
as well as the proceedings therein of the Batas
Pambansa is absent of the legislative intent to have
said Batas Pambansa Blg. 195 applied retroactively;
3. In the supposition that Batas Pambansa Blg.
195 is to be applied retroactively, its application would
violate the Constitutional provision against enactment
of ex post facto law; and,
4. Petitioner cannot be suspended to the position
of which he was duly elected by the people of Amadeo,
Cavite, based on an act which has nothing to do with
his present position.
We find no merit in petitioner’s contention that Section
13 of Republic Act 3019, as amended by Batas
Pambansa Blg. 195, which includes the crime of Estafa
thru Falsification of Public Document as among the
crimes subjecting the public officer charged therewith
with suspension from office pending action in court, is
a penal provision which violates the constitutional
prohibition against the enactment of ex post facto law.
Paragraph 3 of Article 24 of the Revised Penal Code
clearly states that suspension from the employment or
public office during the trial or in order to institute
proceedings shall not be considered as penalty. It is not
a penalty because it is not imposed as a result of
judicial proceedings. In fact, if acquitted, the official
concerned shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during
suspension. Those mentioned in paragraph Nos. 1, 3
and 4 of said Article 24 are merely preventive
measures before final judgment. Not being a penal
provision, therefore, the suspension from office,
pending trial, of the public officer charged with crimes
mentioned in the amendatory provision committed
before its effectivity does not violate the constitutional
provision on ex post facto law. Further, the claim of
petitioner that he cannot be suspended because he is
presently occupying a position different from that under
which he is charged is untenable. The amendatory
provision clearly states that any incumbent public
officer against whom any criminal prosecution under a
valid information under Republic Act 3019 or for any
offense involving fraud upon the government or public
funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended
from office. Thus, by the use of the word "office" the
same applies to any office which the officer charged
may be holding, and not only the particular office under
which he was charged.
ACCORDINGLY, instant petition for certiorari is hereby
DISMISSED for lack of merit.
SO ORDERED.
(2) G.R. No. 86899-903 May 15, 1989
GOVERNOR AMOR D. DELOSO, petitioner,
vs.
THE SANDIGANBAYAN, THE PEOPLE OF THE
PHILIPPINES, and THE SECRETARY OF THE
DEPARTMENT OF LOCAL GOVERNMENT AND
COMMUNITY DEVELOPMENT, respondents.
Angara, Abello, Concepcion, Regala & Cruz for
petitioner.
The Office of the Solicitor General for public
respondent.
GUTIERREZ, JR., J.:
This petition for certiorari seeks to annul and set aside
the resolution of the Sandiganbayan dated February
10, 1989 in Criminal Cases Nos. 9200 to 9204 which
preventively suspended petitioner Amor D. Deloso
(accused in the criminal cases) pendente lite from his
position as provincial governor of Zambales and from
any office that he may be holding.
The petitioner was the duly elected mayor of Botolan,
Zambales in the local elections of November 1971.
While he occupied the position of mayor, a certain Juan
Villanueva filed a letter complaint with the Tanodbayan
accusing him of having committed acts in violation of
the Anti-Graft Law (Republic Act 3019) in relation to the
award of licenses to operate fish corrals in the
municipal waters of Botolan, Zambales during the
period 1976 to 1978 and the issuance of five (5)
tractors of the municipality to certain individuals
allegedly without any agreement as to the payment of
rentals.
The complaint with respect to the award of licenses to
operate fish corrals was dismissed. As regards the
other complaint, the Tanodbayan filed five (5) separate
informations, all dated May 30, 1984 accusing the
petitioner of violation of Section 3(e), of the Anti-Graft
Law with the Sandiganbayan. The cases were
docketed as Criminal Cases Nos. 9200-9204. Except
for the names of the individuals who were allegedly
favored by the petitioner and the dates when these
favors were made, the informations uniformly alleged:
That on or about 3 February 1978 in the
Municipality of Botolan, Zambales,
Philippines and within the jurisdiction of
this Honorable Court, accused AMOR
D. DELOSO, a public officer being then
the Municipal Mayor of the Municipality
of Botolan, Zambales, taking
advantage of his public and official
position, did then and there wilfully,
unlawfully and feloniously give
unwarranted benefits to Daniel Ferrer
thru manifest partiality and evident bad
faith in the discharge of his official
functions by issuing to him a tractor
purchased by the Municipality of
Botolan thru a loan financed by the
Land Bank of the Philippines for lease
to local farmers at reasonable cost,
without any agreement as to the
payment of rentals for the use of tractor
by Daniel Ferrer thereby causing
undue injury to the Municipality of
Botolan. (Rollo, p. 30)
A motion to quash the informations was denied by the
Sandiganbayan. A motion for reconsideration was
likewise denied.
The petitioner then filed a petition before us (G.R. Nos.
69963-67) to annul the Sandiganbayan's resolutions
denying the petitioner's motion to quash and motion for
reconsideration.
In a resolution dated July 28,1988, we dismissed the
petition for lack of merit. The resolution became final
and executory on October 17, 1988.
The petitioner was arraigned on January 6, 1989
before the Sandiganbayan. He pleaded NOT GUILTY
to the charges against him.
The Office of the Special Prosecutor then filed a motion
to suspend the petitioner pendente lite pursuant to
Section 13 of Republic Act No. 3019.
On February 10, 1989, the Sandiganbayan issued the
questioned resolution, the dispositive portion of which
reads:
IN VIEW OF THE FOREGOING, the
accused Amor D. Deloso is
suspended pendente lite from his
position as Provincial Governor of
Zambales and from any other office
that he may now be holding.
Let a copy of this Resolution be
furnished to the Secretary of the
Department of Local Government for
implementation and for him to inform
this Court of the action he has taken
thereon within five (5) days from receipt
hereof. (Rollo, p. 94)
The day following his receipt of the resolution, or on
February 16, 1989, the petitioner filed the instant
petition.
On February 17, 1989, the petitioner filed an urgent
motion with the Sandiganbayan requesting that the
execution and implementation of the February 10,
1989 suspension order be held in abeyance pending
determination of the merits of the petition. The motion
was denied prompting the petitioner to ask the Court
for an earlier setting of the trial of the cases which was
denied in an order dated February 22, 1989.
In denying the plea for an earlier schedule of the trial of
the cases, the Sandiganbayan said:
The Court notes that these cases have
already been set for May 15, 16 and 17
as well as June 5, 6 and 7, 1989 at 8:00
o'clock in the morning and 2:00 o'clock
in the afternoon. While the accused
claims that this period is ordinately far,
the Court must also be contend with its
own calendar. It will be easy enough for
this Court to give the accused an earlier
setting. However, such a setting will be
best a pretence since other cases have
already been set between now and
May 15 where in many instances the
accused themselves are also under
suspension by reason of the same
provision of law. Under the above
circumstances, no other earlier setting
can be granted to the accused without
making that setting merely a sham
since other cases which have been set
earlier will naturally have a right to
expect priority. (Rollo, p. 135)
In view of this development, the petitioner filed an
urgent supplemental application for temporary
restraining order and/ or writ of preliminary injunction to
enjoin the Sandiganbayan, the Secretary of Local
Government and Community Development, and all
those acting in their behalf from executing and
implementing the February 10, 1989 resolution of the
Sandiganbayan.
We treat the respondent's Comment as an answer and
decide this petition on its merits.
The petitioner questions the constitutionality of the
suspension provision of Section 13 of the Anti-Graft
Law (Republic Act No. 3019).
This same issue was raised in the case of Layno v.
Sandiganbayan (136 SCRA 536 [1985]). After
considering the facts as well as the merits of the case,
the Court ruled that the petition need not be resolved
through a ruling on the validity of the provision on
mandatory suspension. We instead, decided the case
in relation to the principles of due process and equal
protection of the law.
Faced with similar factual circumstances in the instant
petition, we apply anew the ruling in the Layno case
and decide the instant petition in relation to the
principles of due process and equal protection without
having to declare categorically whether or not the
suspension provision of Republic Act 3019 should be
struck down as invalid. We limit ourselves to
ascertaining whether or not, under the circumstances
of this case, an indefinite suspension becomes
unreasonable.
As early as 1974, then Justice Fred Ruiz Castro
expressed in a separate opinion the mischief which
would result if the Court allows the indefinite
suspension of elective local officials charged with
violations of the Anti Graft and Corrupt Practices Act:
The central point of Senator Padilla's
position is that the penalty of
suspension is definitely much lower
than that of removal and it would be
incongruous if we give to the penalty of
suspension more serious
consequences than are attached to the
penalty of removal. Senator Padilla
opted for the immediate restoration of
the respondent to his position once the
favorable result of the election is
known.
Parenthetically, it must be stated that
while there was an exchange of views
between Senator Ganzon and Senator
Manglapus on the Anti-Graft Law, the
exchange was limited to the matter of
the commencement of the investigation
of the charges, which, according to
Senator Ganzon, cannot be made
within one year prior to an election.
And so it is that, on the basis of my
discussion above, I bewail the apathy
of the majority of the Court toward
efforts to seek enlightenment on legal
issues of grave importance from the
deliberations of Congress upon the
said issues. It is not quite becoming of
judicial magistrates to shunt aside a
suggestion that the interplay of legal
provisions be carefully studied and
analyzed.
In the deliberations of the Court on this
case, I suggested that we examine the
possible delimiting effects of the
provisions of the first sentence of
section 5 of the Decentralization Act on
the provisions of the Anti-Graft and
Corrupt Practices Act insofar as the
suspension from office of an elective
local official is concerned. In no
uncertain words did I focus the
attention of the Court on the serious
ever-present possibility of harassment
of an elective local official taking the
form of the filing of a valid information
against him under the provisions of the
Anti-Graft and Corrupt Practices Act
after his exoneration in an
administrative case involving the same
offense.
I also pointedly brought out the matter
of the notorious delay in the courts of
justice which could effectively frustrate
an elected or re-elected local official
 from discharging the duties of his office
for the entire term of his office, and thus
nullify the will of the people who elected
him. I likewise asked the Court to
consider the situation where an elective
local official runs for the National
Assembly and is elected despite the
fact that he is under suspension under
the authority of the provisions of the
Anti-Graft and Corrupt Practices Act,
and sought a definitive answer to the
question. What then would happen to
the suspension meted out to him since
it is the National Assembly that
determines whether he should assume
and continue in office?
All these and other germane questions
were brushed aside by the majority of
the Court with the sweeping statement
that the provisions of the
Decentralization Act apply only to
administrative cases. It is the ex
cathedra attitude, this kind of slothful
thinking, that I find abhorrent and
therefore deplore " (Oliveros v. Villaluz,
57 SCRA 163, 197-198 [1974])
Petitioner Deloso was elected governor of the Province
of Zambales in the January 18, 1988 local elections.
The regular term of a governor is only 3 years although
he shall serve until noon of June 30, 1992 by special
provision of the Constitution. (Section 8, Article X,
Section 2, Article XVIII, Constitution). He was,
however, ordered suspended from performing his
duties as governor by the Sandiganbayan pursuant to
Section 13 of Republic Act No. 3019 by virtue of the
criminal charges filed against him. The order of
suspension does not have a definite period so that the
petitioner may be suspended for the rest of his term of
office unless his case is terminated sooner. An
extended suspension is a distinct possibility
considering that the Sandiganbayan denied the
petitioner's plea for earlier dates of trial of his cases on
the ground that there are other cases set earlier which
have a right to expect priority.
Under these circumstances the preventive suspension
which initially may be justified becomes unreasonable
thus raising a due process question. As we ruled
in Layno, Sr. v. Sandiganbayan, (supra):
Petitioner is a duly elected municipal
mayor of Lianga, Surigao del Sur. His
term of office does not expire until
1986. Were it not for this information
and the suspension decreed by the
Sandiganbayan according to the Anti-
Graft and Corrupt Practices Act, he
would have been all this while in the full
discharge of his functions as such
municipal mayor. He was elected
precisely to do so. As of October 26,
1983, he has been unable to. It is a
basic assumption of the electoral
process implicit in the right of suffrage
that the people are entitled to the
services of elective officials of their
choice. For misfeasance or
malfeasance, any of them could, of
course, be proceeded against
administratively or, as in this instance,
criminally. In either case, his culpability
must be established. Moreover, if there
be a criminal action, he is entitled to the
constitutional presumption of
innocence. A preventive suspension
may be justified. Its continuance,
however, for an unreasonable length of
time raises a due process question. For
even if thereafter he were acquitted, in
the meanwhile his right to hold office
had been nullified. Clearly, there would
be in such a case an injustice suffered
by him. Nor is he the only victim. There
is injustice inflicted likewise on the
people of Lianga. They were deprived
of the services of the man they had
elected to serve as mayor. In that
sense, to paraphrase Justice Cardozo,
the protracted continuance of this
preventive suspension had outrun the
bounds of reason and resulted in sheer
oppression. A denial of due process is
thus quite manifest. It is to avoid such
an unconstitutional application that the
order of suspension should be lifted.
Moreover, in the earlier case of Garcia v. The
Executive Secretary, (6 SCRA 1 [1962]) we ruled on
the issue as to whether the preventive suspension
beyond the maximum period of 60 days, provided in
Section 35 of the Civil Service Act of 1959 (Republic
Act 2260) is illegal and void. Paulino Garcia, the
petitioner in the cited case was the Chairman of the
National Science Development Board appointed by the
President of the Philippines. He was charged with
electioneering and dishonesty in office. Pending
investigation of the administrative charges against him,
he was suspended by the Executive Secretary by
authority of the President. In view of his indefinite
suspension, he filed a petition praying in effect that the
60-day period prescribed in the Civil Service Law for
preventive suspension having already expired, he be
reinstated in the service pursuant to Section 35 of the
said Act. The respondents opposed the petition on the
ground that the petitioner was a presidential appointee
and therefore not covered by the 60-day preventive
suspension limit under Section 35 of the then Civil
Service Act. The respondents maintained that the
petitioner could be indefinitely suspended. In ruling in
favor of the petitioner, the Court stated:
To adopt the theory of respondents that
an officer appointed by the President,
facing administrative charges can be
preventively suspended indefinitely,
would be to countenance a situation
where the preventive suspension can,
in effect, be the penalty itself without a
finding of guilt after due hearing,
contrary to the express mandate of the
Constitution (No officer or employee in
the Civil Service shall be removed or
suspended except for cause as
provided by law. [Art. XII, Sec. 4,
Constitution of the Philippines]) and the
Civil Service Law (No officer or
employee in the Civil Service shall be
removed or suspended except for
cause as provided by law and after due
 process). ... In the guise of a preventive
suspension, his term of office could be
shortened and he could, in effect, be
removed without a finding of a cause
duly established after due hearing, in
violation of the Constitution ... (at pp. 8-
9)
The question that now arises is whether or not the
ruling in the Garcia case where the suspension was
ordered by no less than the President of the Philippines
is applicable to an elective official facing criminal
charges under the Anti-Graft Law and suspended
under Section 13, thereof.
The guarantee to an equal protection of the law
necessitates the application of the ruling in the Garcia
v. Executive Secretary. Thus, we explained in the
Layno case, to wit:
... If the case against petitioner Layno
were administrative in character the
Local Government Code would be
applicable. It is therein clearly provided
that while preventive suspension is
allowable for the causes therein
enumerated, there is this emphatic
limitation on the duration thereof; 'In all
cases, preventive suspension shall not
extend beyond sixty days after the start
of said suspension.' (Batas Pambansa
Blg. 337, Section 63 (2), last sentence.
The first sentence reads as follows:
'Preventive suspension may be
imposed at any time after the issues
are joined, when there is reasonable
ground to believe that the respondent
has committed the act or acts
complained of, when the evidence of
culpability is strong, when the gravity of
the offense so warrants, or when the
continuance in office of the respondent
influence the witnesses or pose a
threat to the safety and integrity of the
records and other evidence'). It may be
recalled that the principle against
indefinite suspension applies equally to
national government officials. So it was
held in the leading case of Garcia v.
Hon. Secretary (116 Phil. 348 [1962]).
According to the opinion of Justice
Barrera: 'To adopt the theory of
respondents that an officer appointed
by the President, facing administrative
charges, can be preventively
suspended indefinitely, would be to
countenance a situation where the
preventive suspension can, in effect,
be the penalty itself without a finding of
guilt after due hearing, contrary to the
express mandate of the Constitution
and the Civil Service Law.' (Ibid. 351-
352) Further: 'In the guise of a
preventive suspension, his term of
office could be shortened and he could
in effect, be removed without a finding
of a cause duly established after due
hearing, in violation of the Constitution.'
(Ibid. 352) Clearly then, the policy of
the law mandated by the Constitution
frowns at a suspension of indefinite
duration. In this particular case, the
mere fact that petitioner is facing a
charge under the Anti-Graft and
Corrupt Practices Act does not justify a
different rule of law. To do so would be
to negate the safeguard of the equal
protection guarantee. (at p. 542)
The application of the Garcia injunction against
preventive suspensions for an unreasonable period of
time applies with greater force to elective officials and
especially to the petitioner whose term is a relatively
short one. The interests of the sovereign electorate and
the province of Zambales cannot be subordinated to
the heavy case load of the Sandiganbayan and of this
Court.
It would be most unfair to the people of Zambales who
elected the petitioner to the highest provincial office in
their command if they are deprived of his services for
an indefinite period with the termination of his case
possibly extending beyond his entire term simply
because the big number of sequestration, ill-gotten
wealth, murder, malversation of public finds and other
more serious offenses plus incidents and resolutions
that may be brought to the Supreme Court prevents the
expedited determination of his innocence or guilt.
The order dated February 10, 1989 suspending the
petitioner without a definite period can not be
sanctioned. We rule that henceforth a preventive
suspension of an elective public officer under Section
13 of Republic Act 3019 should be limited to the ninety
(90) days under Section 42 of Presidential Decree No.
807, the Civil Service Decree, which period also
appears reasonable and appropriate under the
circumstances of this case.
The petitioner also questions the applicability of
Section 13 of Republic Act 3019 as amended by
Batasan Pambansa Blg. 192 to him. He opines that the
suspension provision as amended which qualifies the
public officer as incumbent does not apply to him since
he is now occupying the position of governor and
not mayor, the position wherein he was charged under
the Anti-Graft Law.
This argument is untenable. The issue was settled in
the case of Bayot v. Sandiganbayan (128 SCRA 383
(1984), in this wise:
... Further, the claim of petitioner that
he cannot be suspended because he is
presently occupying a position different
from that under which he is charged is
untenable. The amendatory provision
clearly states that any incumbent public
officer against whom any criminal
prosecution under a valid information
under Republic Act 3019 or for any
offense involving fraud upon the
government or public funds or property
whether as a simple or as a complex
offense and in whatever stage or
execution and mode of participation, is
pending in court, shall be suspended
from office. Thus, by the use of the
word office the same applies to any
office which the officer charged may be
 holding, and not only the particular
office under which he was charged.
One last point. Should the purposes behind preventive
suspensions such as preventing the abuse of the
prerogatives of the office, intimidation of witnesses,
etc., become manifest, the respondent court is not
bereft of remedies or sanctions. The petitioner may still
be suspended but for specifically expressed reasons
and not from an automatic application of Section 13 of
the Anti-Graft and Corrupt Practices Act.
WHEREFORE, the instant petition is GRANTED. The
preventive suspension imposed on petitioner Amor D.
Deloso by virtue of the February 10, 1989 resolution of
the Sandiganbayan should be limited to only ninety
(90) days after which Deloso will assume once again
the functions of governor of Zambales, without
prejudice to the continuation of the trial of the pending
cases against him in the Sandiganbayan. This decision
is immediately executory. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras,
Feliciano, Padilla, Bidin, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Gancayco and Sarmiento, JJ., is on leave.
(3) G.R. No. 129913 September 26, 1997
DINDO C. RIOS, petitioner,
vs.
THE SECOND DIVISION OF THE
SANDIGANBAYAN, THE PEOPLE OF THE
PHILIPPINES, THE DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT, and THE
PROVINCIAL GOVERNOR OF
ROMBLON, respondents.
RESOLUTION
ROMERO, J.:
This is a petition for certiorari to set aside the resolution
of the Sandiganbayan, dated March 24, 1997, granting
the motion of the Office of the Special Prosecutor
(OSP) to suspend petitioner Dindo C. Rios pendente
lite, and its resolution dated June 25, 1997 denying his
Motion for Reconsideration.
On March 6, 1996, an information was filed against
petitioner who is the incumbent Mayor of the
Municipality of San Fernando, Romblon for alleged
unauthorized disposition of confiscated lumber, in
violation of Republic Act No. 3019, otherwise known as
Anti-Graft and Corrupt Practices Act. The information
alleged:
That on or about May 16, 1994, in San
Fernando, Romblon, and within the jurisdiction
of this Honorable Court, the above named
accused, a public officer, . . . while in the
performance and taking advantage of his
official functions, and with evident bad faith, did
then and there willfully, unlawfully and
criminally cause the disposition of confiscated,
assorted and sawn tanguile lumber consisting
of 1,319 pieces without proper authority
therefor, thus, causing undue injury to the
Government.
Before his arraignment, petitioner filed a "Motion to
Quash Information and Recall Warrant of Arrest,"
dated August 4, 1996, on the ground that the
information was invalid as there was no probable cause
to hold him liable for violation of Section 3(e), R.A. No.
3019.1
On September 16, 1996, the OSP filed a "Motion to
Suspend Accused (herein petitioner) Pendente Lite," to
which petitioner filed an "Opposition," reiterating the
same ground stated in his motion to quash.
The Sandiganbayan overruled the argument in its
resolution of October 14, 1996. Thereupon, petitioner
filed a verified petition with this Court which was
docketed as G.R. No. 126771. Among the issues
raised was the alleged invalidity of the information. The
Court resolved to deny this petition on December 4,
1996 on the ground that the Sandiganbayan committed
to grave abuse of discretion in rendering the
questioned judgment.
When the petitioner was arraigned on January 20,
1997, he entered a plea of "not guilty" no longer
questioning the validity of the information against him.
On March 24, 1997, the Sandiganbayan granted the
OSP's motion to suspend petitioner in an order which
provides in part:
WHEREFORE, accused Dindo C. Rios is
ordered suspended from his position as Mayor
of the Municipality of San Fernando, Romblon
and from any other public position he may be
holding for a period of ninety (90) days counted
from receipt of this Resolution. The Honorable
Secretary of the Department of Interior and
Local Government, Quezon City, and the
Provincial Governor of Romblon, Romblon are
ordered furnished with copies of this Resolution
so that they may implement the same and
report on their actions thereon.
SO ORDERED.
Petitioner filed a motion for reconsideration which was
subsequently denied in a resolution dated June 25,
1997. Hence, this petition.
In support of his petition, petitioner posits the following
arguments:
I. THE SANDIGANBAYAN COMMITTED A
GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT THE FACTS CHARGED IN THE
INFORMATION CONSTITUTE A VIOLATION
OF REPUBLIC ACT 3019.
II. THE SANDIGANBAYAN COMMITTED A
GRAVE ABUSE OF DISCRETION WHEN IT
PROVIDED FOR SUSPENSION OF NINETY
 (90) DAYS IN CLEAR DISREGARD OF THE
PROVISION OF THE LOCAL GOVERNMENT
CODE.
The first argument propounded by petitioner has
already been passed upon by this Court when it held
that the act of disposing of confiscated lumber without
prior authority from DENR and the Sangguniang Bayan
constituted a violation of Sec. 3(e) of R.A.
3019.2 Therefore, there is probable cause to hold
petitioner liable for such act, for which the information
was validly filed. Although any further discussion of this
issue would be unnecessary, the Sandiganbayan's
ruling is herein reiterated as a reminder to public
officials of their crucial role in society and the trust
lodged upon them by the people.
The act complained of in this case is "the disposition
(by petitioner) of confiscated, assorted and sawn
lumber consisting of 1,319 pieces without proper
authority therefor, thus causing undue injury to the
Government."
Petitioner maintains that the mere fact that he acted
beyond the scope of his authority by selling the
confiscated lumber without the prior approval of the
DENR through its Community Environment and
Natural Resources Offices and without a resolution
from the Sangguniang Bayan, does not constitute a
violation of Section 3(e) of R.A. No. 3019. What
renders the disposition of lumber contrary to law is any
resulting "undue injury" which, however, is absent in
this case because the proceeds of the dispositions
went to the coffers of the Municipal Government.
The Sandiganbayan, however, asserted:
First, any act or omission that is not in
consonance with the prescribed norms of
conduct inflicts injury to the Government, for
the reason that it is a disturbance of law and
order. This is more so when, as in this case, the
alleged offender is the highest officer in the
Municipal Government, because he sets a
reprehensible example to his constituents.
Second, the assertion that no undue injury was
caused because the proceeds of the
disposition of confiscated lumber went to the
Municipal Government gratuitously assumes
that the price at which the lumber was disposed
of was the reasonable market value thereof
and that all the proceeds were paid to the local
government. The assertion is further based on
the wrong assumption that the lumber
belonged to the municipality of which the
accused was mayor. It was the National
Government, as distinguished to (sic) local
governments, the owned it, (Sec. 2(a), RA
3019) there being no evidence that the National
Government had disposed of the lumber in any
manner.3
We cannot agree more with the Sandiganbayan. This
Court would like to stress adherence to the doctrine
that public office is a public trust. Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice,
and lead modest lives. Public servants must bear in
mind this constitutional mandate at all times to guide
them in their actions during their entire tenure in the
government service.4 "The good of the service and the
degree of morality which every official and employee in
the public service must observe, if respect and
confidence are to be maintained by the Government in
the enforcement of the law, demand that no untoward
conduct on his part, affecting morality, integrity and
efficiency while holding office should be left without
proper and commensurate sanction, all attendant
circumstances taken into account."5
The suspension pendente lite meted out by the
Sandiganbayan is, without doubt, a proper and
commensurate sanction against petitioner. Having
ruled that the information filed against petitioner is
valid, there can be no impediment to the application of
Section 13 of R.A. No. 3019 which states, inter alia:
Sec. 13. Suspension and loss of benefits. —
Any incumbent public officer against whom any
criminal prosecution under a valid information
under this Act of under Title 7, Book II of the
Revised Penal Code or for any offenses
involving fraud upon government or public
funds or property, whether as a simple or as a
complex offense and in whatever stage of
execution and mode of participation, is pending
in court, shall be suspended from office.
It is settled jurisprudence that the aforequoted
provision makes it mandatory for the Sandiganbayan
to suspend any public officer who has been validly
charged with a violation of R.A. No. 3019, Book II, Title
7 of the Revised Penal Code, or any offense involving
fraud upon government or public funds or property.6
"The court trying a case has neither discretion nor duty
to determine whether preventive suspension is
required to prevent the accused from using his office to
intimidate witnesses or frustrate in prosecution or
continue committing malfeasance in office."7 This is
based on the presumption that unless the public officer
is suspended, he may frustrated his prosecution or
commit further acts of malfeasance or both.
On the other hand, we find merit in petitioner's second
assigned error. The Sandiganbayan erred in imposing
a 90 day suspension upon petitioner for the single case
filed against him. Under Section 63 (b) of the Local
Government Code, "any single preventive suspension
of local elective officials shall not extend beyond sixty
(60) days."8
WHEREFORE, the appealed decision of the
Sandiganbayan is AFFIRMED subject to the
MODIFICATION that the suspension be reduced to 60
days.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ.,
concur.
Footnotes
1 Sec. 3. Corrupt practices of public
officers. — In addition to acts or
omissions of public officers already
penalized by existing law, the following
shall constitute corrupt practices of any
 public officer and are hereby declared
to be unlawful:
xxx xxx xxx
(e) Causing any undue injury to any
party, including the Government, or
giving any private party any
unwarranted benefits, advantage or
preference in the discharge of his
official, administrative or judicial
functions through manifest partiality,
evident bad faith or gross inexcusable
negligence. This provision shall apply
to officers and employees of offices or
government corporations charged with
the grant of licenses or permits or other
concessions.
6 Bunye v. Escareal, 226 SCRA 332
(1993); Gonzaga v. Sandiganbayan,
201 SCRA 417 (191); People v.
Albano, 163 SCRA 511 (1988);
Bolastig v. Sandiganbayan, 235 SCRA
103 (1994).
8 "Sec. 63 (b). Preventive suspension
may be imposed at any time after the
issues are joined, when the evidence of
guilt is strong, and given the gravity of
the offense, there is great probability
that the continuance in office of the
respondent could influence the
witnesses or pose a threat to the safety
and integrity of the records and other
evidence; Provided, That, any single
preventive suspension of local elective
officials shall not extend beyond sixty
(60) days: Provided, further, That in the
event that several administrative cases
are filed against an elective official, he
cannot be preventively suspended for
more than ninety (90) days within a
single year on the same ground or
grounds existing and known at the time
of the first suspension."
(4) G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty,
unleashes the full fury of his pen in defense of the rights
of the individual from the vast powers of the State and
the inroads of societal pressure. But even as he draws
a sacrosanct line demarcating the limits on individuality
beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with
very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties
is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted,
individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection. The
only purpose for which power can be rightfully
exercised over any member of a civilized community,
against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable
right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of
laws that would compel obeisance to its collective
wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to
unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies.
In the process, the web of rights and State impositions
became tangled and obscured, enmeshed in threads
of multiple shades and colors, the skein irregular and
broken. Antagonism, often outright collision, between
the law as the expression of the will of the State, and
the zealous attempts by its members to preserve their
individuality and dignity, inevitably followed. It is when
individual rights are pitted against State authority that
judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as
amended by RA 7659,2 wishes to impress upon us that
the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid
from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it
abolishes the element of mens rea in crimes already
punishable under The Revised Penal Code, all of
which are purportedly clear violations of the
fundamental rights of the accused to due process and
to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law claimed
by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any
asset, property, business, enterprise or material
possession of any person within the purview of Section
Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates
and/or business associates by any combination or
series of the following means or similar schemes:
(1) Through misappropriation, conversion,
misuse, or malversation of public funds or raids
on the public treasury;
 (2) By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks
or any other form of pecuniary benefit from any
person and/or entity in connection with any
government contract or project or by reason of
the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions,
agencies or instrumentalities, or government
owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or
(6) By taking advantage of official position,
authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties.
- Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-
gotten wealth through a combination or series of
overt or criminal acts as described in Section 1 (d)
hereof, in the aggregate amount or total value of at
least fifty million pesos (P50,000,000.00) shall be guilty
of the crime of plunder and shall be punished by
reclusion perpetua to death. Any person who
participated with the said public officer in the
commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating
circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties
and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State
(underscoring supplied).
Section 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful
scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed
before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558,
for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for
violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and
3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563,
for violation of Sec. 7, par. (d), of RA 6713 (The Code
of Conduct and Ethical Standards for Public Officials
and Employees); (d) Crim. Case No. 26564, for Perjury
(Art. 183 of The Revised Penal Code); and, (e) Crim.
Case No. 26565, for Illegal Use Of An Alias (CA No.
142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for
the remand of the case to the Ombudsman for
preliminary investigation with respect to specification
"d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a," "b," and "c" to give
the accused an opportunity to file counter-affidavits
and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were
only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness
of the law under which they are charged were never
raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER
exists to justify the issuance of warrants for the arrest
of the accused." On 25 June 2001 petitioner's motion
for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable
offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended
Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply
to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving
the predicate crimes of plunder and therefore violates
the rights of the accused to due process; and, (c)
Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of
Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is
presumed to be in harmony with the
Constitution.3 Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to
encroach upon the duties and powers of another. Thus
it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate
branch - the legislature.
If there is any reasonable basis upon which the
legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of
the majority. Hence in determining whether the acts of
the legislature are in tune with the fundamental law,
courts should proceed with judicial restraint and act
with caution and forbearance. Every intendment of the
law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the question
of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we
held that as long as there is some basis for the decision
of the court, the constitutionality of the challenged law
will not be touched and the case will be decided on
other available grounds. Yet the force of the
presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and
palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the
positive commands of the fundamental law be unduly
eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be
no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."5 And petitioner has
miserably failed in the instant case to discharge his
burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would
enable the accused to determine the nature of his
violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required
or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts
by himself or in connivance with members of
his family, relatives by affinity or consanguinity,
business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired
ill-gotten wealth through a combination or
series of the following overt or criminal acts: (a)
through misappropriation, conversion, misuse,
or malversation of public funds or raids on the
public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share,
percentage, kickback or any other form of
pecuniary benefits from any person and/or
entity in connection with any government
contract or project or by reason of the office or
position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets
belonging to the National Government or any
of its subdivisions, agencies or
instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d)
by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking; (e) by
establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or (f) by taking advantage of official
position, authority, relationship, connection or
influence to unjustly enrich himself or
themselves at the expense and to the damage
and prejudice of the Filipino people and the
Republic of the Philippines; and,
3. That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide
or rule that would inform those who are subject to it
what conduct would render them liable to its penalties,
its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending
one charged with its violation; and more importantly,
the accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the
act of a public officer in amassing or accumulating ill-
gotten wealth of at least ₱50,000,000.00 through a
series or combination of acts enumerated in Sec. 1,
par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks
the language of the law, indicating with reasonable
certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-
Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,'
together with Jose 'Jinggoy' Estrada, Charlie 'Atong'
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas,
and John DOES & Jane Does, of the crime of Plunder,
defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as
follows:
That during the period from June, 1998 to January
2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY wit
h his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY OR A TOTAL OF MORE OR LESS ONE
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL BILLION EIGHT HUNDRED FORTY SEVEN
POSITION, AUTHORITY, RELATIONSHIP, MILLION FIVE HUNDRED SEVENTY EIGHT
CONNECTION, OR INFLUENCE, did then and there THOUSAND FIFTY SEVEN PESOS AND
willfully, unlawfully and criminally amass, accumulate FIFTY CENTAVOS (₱1,847,578,057.50); AND
and acquire BY HIMSELF, DIRECTLY OR BY COLLECTING OR RECEIVING,
INDIRECTLY, ill-gotten wealth in the aggregate DIRECTLY OR INDIRECTLY, BY HIMSELF
amount or TOTAL VALUE of FOUR BILLION NINETY AND/OR IN CONNIVANCE WITH JOHN
SEVEN MILLION EIGHT HUNDRED FOUR DOES AND JANE DOES, COMMISSIONS OR
THOUSAND ONE HUNDRED SEVENTY THREE PERCENTAGES BY REASON OF SAID
PESOS AND SEVENTEEN PURCHASES OF SHARES OF STOCK IN
CENTAVOS (₱4,097,804,173.17), more or THE AMOUNT OF ONE HUNDRED EIGHTY
less, THEREBY UNJUSTLY ENRICHING HIMSELF NINE MILLION SEVEN HUNDRED
OR THEMSELVES AT THE EXPENSE AND TO THE THOUSAND PESOS (₱189,700,000.00)
DAMAGE OF THE FILIPINO PEOPLE AND THE MORE OR LESS, FROM THE BELLE
REPUBLIC OF THE PHILIPPINES, through ANY OR CORPORATION WHICH BECAME PART OF
A combination OR Aseries of overt OR criminal THE DEPOSIT IN THE EQUITABLE-PCI
acts, OR SIMILAR SCHEMES OR MEANS, described BANK UNDER THE ACCOUNT NAME 'JOSE
as follows: VELARDE;'

(a) by receiving OR collecting, directly or (d) by unjustly enriching himself FROM

indirectly, on SEVERAL INSTANCES, COMMISSIONS, GIFTS, SHARES,
MONEY IN THE AGGREGATE AMOUNT OF PERCENTAGES, KICKBACKS, OR ANY
FIVE HUNDRED FORTY-FIVE MILLION FORM OF PECUNIARY BENEFITS, IN
PESOS (₱545,000,000.00), MORE OR LESS, CONNIVANCE WITH JOHN DOES AND
FROM ILLEGAL GAMBLING IN THE FORM JANE DOES, in the amount of MORE OR
OF GIFT, SHARE, PERCENTAGE, LESS THREE BILLION TWO HUNDRED
KICKBACK OR ANY FORM OF PECUNIARY THIRTY THREE MILLION ONE HUNDRED
BENEFIT, BY HIMSELF AND/OR in FOUR THOUSAND ONE HUNDRED
connection with co-accused CHARLIE SEVENTY THREE PESOS AND SEVENTEEN
'ATONG' ANG, Jose 'Jinggoy' Estrada, CENTAVOS (₱3,233,104,173.17) AND
Yolanda T. Ricaforte, Edward Serapio, AND DEPOSITING THE SAME UNDER HIS
JOHN DOES AND JANE DOES, in ACCOUNT NAME 'JOSE VELARDE' AT THE
consideration OF TOLERATION OR EQUITABLE-PCI BANK."
PROTECTION OF ILLEGAL GAMBLING;
We discern nothing in the foregoing that is vague or
(b) by DIVERTING, RECEIVING, ambiguous - as there is obviously none - that will
misappropriating, confuse petitioner in his defense. Although subject to
converting OR misusing DIRECTLY OR proof, these factual assertions clearly show that the
INDIRECTLY, for HIS OR THEIR elements of the crime are easily understood and
PERSONAL gain and benefit, public funds in provide adequate contrast between the innocent and
the amount of ONE HUNDRED THIRTY the prohibited acts. Upon such unequivocal assertions,
MILLION PESOS (₱130,000,000.00), more or petitioner is completely informed of the accusations
less, representing a portion of the TWO against him as to enable him to prepare for an
HUNDRED MILLION PESOS intelligent defense.
(₱200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under Petitioner, however, bewails the failure of the law to
R.A. No. 7171, by himself and/or in provide for the statutory definition of the terms
connivance with co-accused Charlie 'Atong' "combination" and "series" in the key phrase "a
Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio combination or series of overt or criminal acts" found in
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Sec. 1, par. (d), and Sec. 2, and the word "pattern" in
Rajas, AND OTHER JOHN DOES & JANE Sec. 4. These omissions, according to petitioner,
DOES; (italic supplied). render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the
(c) by directing, ordering and compelling, FOR right to be informed of the nature and cause of the
HIS PERSONAL GAIN AND BENEFIT, the accusation against him, hence, violative of his
Government Service Insurance System fundamental right to due process.
(GSIS) TO PURCHASE 351,878,000
SHARES OF STOCKS, MORE OR LESS, and The rationalization seems to us to be pure sophistry. A
the Social Security System (SSS), statute is not rendered uncertain and void merely
329,855,000 SHARES OF STOCK, MORE OR because general terms are used therein, or because of
LESS, OF THE BELLE CORPORATION IN the employment of terms without defining them; 6 much
THE AMOUNT OF MORE OR LESS ONE less do we have to define every word we use. Besides,
BILLION ONE HUNDRED TWO MILLION there is no positive constitutional or statutory command
NINE HUNDRED SIXTY FIVE THOUSAND requiring the legislature to define each and every word
SIX HUNDRED SEVEN PESOS AND FIFTY in an enactment. Congress is not restricted in the form
CENTAVOS (₱1,102,965,607.50) AND MORE of expression of its will, and its inability to so define the
OR LESS SEVEN HUNDRED FORTY FOUR words employed in a statute will not necessarily result
MILLION SIX HUNDRED TWELVE in the vagueness or ambiguity of the law so long as the
THOUSAND AND FOUR HUNDRED FIFTY legislative will is clear, or at least, can be gathered from
PESOS (₱744,612,450.00), RESPECTIVELY,
the whole act, which is distinctly expressed in the
Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted
in their natural, plain and ordinary acceptation and
signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those
words.8 The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers -
to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"
Combination - the result or product of combining; the
act or process of combining. To combine is to bring into
such close relationship as to obscure individual
characters.
Series - a number of things or events of the same class
coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and
"series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on
the bill which eventually became RA 7080 or the
Plunder Law:
DELIBERATIONS OF THE BICAMERAL
COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition
of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF. Now when
we say combination, we actually mean to say, if there
are two or more means, we mean to say that number
one and two or number one and something else are
included, how about a series of the same act? For
example, through misappropriation, conversion,
misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that
- DELIBERATIONS ON SENATE BILL NO. 733, 6 June
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that
two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but
combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say
combination, we mean, two different acts. It cannot be
a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated,
so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination.
Because when we say combination or series, we seem
to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from
ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or
series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term
"series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not
be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two
different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
1989
SENATOR MACEDA: In line with our interpellations
that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would
the Sponsor consider deleting the words "a series of
overt or," to read, therefore: "or conspiracy
COMMITTED by criminal acts such as." Remove the
idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination
of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies
several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to
be prosecuted under the particular crime. But when we
say "acts of plunder" there should be, at least, two or
more.
SENATOR ROMULO: In other words, that is already
covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination,"
it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1,
par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1,
par. (d), subpar. (3).
On the other hand, to constitute a series" there must
be two (2) or more overt or criminal acts falling under
the same category of enumeration found in Sec. 1, par.
(d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par.
(d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists
of at least a combination or series of overt or criminal
acts enumerated in subsections (1) to (6) of Sec. 1 (d).
Secondly, pursuant to Sec. 2 of the law, the pattern of
overt or criminal acts is directed towards a common
purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And
thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal.
As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method'
which the principal accused and public officer and
others conniving with him follow to achieve the
aforesaid common goal. In the alternative, if there is no
such overall scheme or where the schemes or methods
used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common
goal.
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances,
petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has
been formulated in various ways, but is most commonly
stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It
can only be invoked against that specie of legislation
that is utterly vague on its face, i.e., that which cannot
be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle.10 But the
doctrine does not apply as against legislations that are
merely couched in imprecise language but which
nonetheless specify a standard though defectively
phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first
may be "saved" by proper construction, while no
challenge may be mounted as against the second
whenever directed against such activities.11 With more
reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed
conduct when measured by common understanding
and practice.12It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated.
An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its
provisions, especially where, because of the nature of
the act, it would be impossible to provide all the details
in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that
the Plunder Law is vague and overbroad do not justify
a facial review of its validity -
The void-for-vagueness doctrine states that "a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process
of law."13 The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms."14
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with narrow
specificity."15 The possible harm to society in permitting
some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech
of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes.
Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the
First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and,
again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger
must establish that no set of circumstances exists
under which the Act would be valid."18 As for the
vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all
its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the
conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one
to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other
persons or other situations in which its application
might be unconstitutional."20 As has been pointed out,
"vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." 21 Consequently,
there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court whose
activities are constitutionally protected.22 It constitutes a
departure from the case and controversy requirement
of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract
contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely
if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the
controversy, the impact on the legislative process of
the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes
has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort," 25 and
is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must
be examined in the light of the conduct with which the
defendant is charged.27
In light of the foregoing disquisition, it is evident that the
purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more
imagined than real. Ambiguity, where none exists,
cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want
of scientific precision in the law. Every provision of the
law should be construed in relation and with reference
to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption
of constitutionality and validity of the Plunder Law.
A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators
who voted for its passage, petitioner must be aware
that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full
knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must
be mentioned if only to illustrate and emphasize the
point that courts are loathed to declare a statute void
for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no
reasonable construction that will support and give it
effect. In that case,
petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Actfor being vague. Petitioners
posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law
meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the
Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits
through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official
function and that their right to be informed of the nature
and cause of the accusation against them was violated
because they were left to guess which of the three (3)
offenses, if not all, they were being charged and
prosecuted.
In dismissing the petition, this Court held that Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident
bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may
be committed, and the use of all these phrases in the
same Information does not mean that the indictment
charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems
lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary,
p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice,
C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt
Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:
x x x or giving any private party any unwarranted
benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act
3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official,
administrative or judicial functions, in giving any private
party benefits, advantage or preference which is
unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident
bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing
vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that
case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly
stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it
requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to
the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has
in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is
entitled to an acquittal.29 The use of the "reasonable
doubt" standard is indispensable to command the
respect and confidence of the community in the
application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of
proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our
free society that every individual going about his
ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction
except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is
charged.30 The following exchanges between Rep.
Rodolfo Albano and Rep. Pablo Garcia on this score
during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF
REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary
in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt.
If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not
work against the right of the accused especially so if
the amount committed, say, by falsification is less than
₱100 million, but the totality of the crime committed is
₱100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in
the information needs to be proved beyond reasonable
doubt. What is required to be proved beyond
reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an
enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3
pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable
doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but
considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series
of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to
accumulate only ₱50,000 and in the crime of extortion,
he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under
this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now
convict him?
MR. GARCIA: With due respect, Mr. Speaker, for
purposes of proving an essential element of the crime,
there is a need to prove that element beyond
reasonable doubt. For example, one essential element
of the crime is that the amount involved is ₱100 million.
Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would
be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts
involved in those transactions which were proved.
Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did
not in any manner refashion the standard quantum of
proof in the crime of plunder. The burden still remains
with the prosecution to prove beyond any iota of doubt
every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each
and every component of the crime suffers from a
dismal misconception of the import of that provision.
What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to
form a combination or series which would constitute a
pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been
committed by the accused in furtherance of the overall
unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth. To illustrate, supposing that
the accused is charged in an Information for plunder
with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty
(50) raids, it being sufficient to prove by pattern at least
two (2) of the raids beyond reasonable doubt provided
only that they amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings
us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme
or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated
otherwise, such pattern arises where the prosecution
is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a
by-product of the proof of the predicate acts. This
conclusion is consistent with reason and common
sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more,
than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore
not required to make a deliberate and conscious effort
to prove pattern as it necessarily follows with the
establishment of a series or combination of the
predicate acts.
Relative to petitioner's contentions on the purported
defect of Sec. 4 is his submission that "pattern" is "a
very important element of the crime of plunder;" and
that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such
that without it the accused cannot be convicted of
plunder -
JUSTICE BELLOSILLO: In other words, cannot an
accused be convicted under the Plunder Law without
applying Section 4 on the Rule of Evidence if there is
proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of
individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the
elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a
conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your
Honor.
JUSTICE BELLOSILLO: Can you not disregard the
application of Sec. 4 in convicting an accused charged
for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place
Section 4 lays down a substantive element of the law x
xxx
JUSTICE BELLOSILLO: What I said is - do we have to
avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4
is two pronged, it contains a rule of evidence and it
contains a substantive element of the crime of plunder.
So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond
reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that
far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that
Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the
prosecution.32
We do not subscribe to petitioner's stand. Primarily, all
the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to
Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4
is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4
does not define or establish any substantive right in
favor of the accused but only operates in furtherance
of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking
Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by
the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the
sake of argument that Sec. 4 is flawed and vitiated for
the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all,
the existing rules on evidence can supplant Sec. 4
more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of
this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions
of this Act and the application of such provisions to
other persons or circumstances shall not be affected
thereby.
Implicit in the foregoing section is that to avoid the
whole act from being declared invalid as a result of the
nullity of some of its provisions, assuming that to be the
case although it is not really so, all the provisions
thereof should accordingly be treated independently of
each other, especially if by doing so, the objectives of
the statute can best be achieved.
As regards the third issue, again we agree with Justice
Mendoza that plunder is a malum in se which requires
proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes
are mala in se the element of mens rea must be proven
in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder
was committed "willfully, unlawfully and criminally." It
thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates
the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following
remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be
required to convict him would not be evidence for each
and every individual criminal act but only evidence
sufficient to establish the conspiracy or scheme to
commit this crime of plunder.33
However, Senator Tañada was discussing §4 as
shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the
Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would
provide for a speedier and faster process of attending
to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge
is conspiracy to commit plunder, the prosecution need
not prove each and every criminal act done to further
the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal
acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern
are concerned, however, the elements of the crime
must be proved and the requisite mens rea must be
shown.
Indeed, §2 provides that -
Any person who participated with the said public officer
in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating
circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates
quite clearly that mens rea is an element of plunder
since the degree of responsibility of the offender is
determined by his criminal intent. It is true that §2 refers
to "any person who participates with the said public
officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there
is no canon against using common sense in construing
laws as saying what they obviously mean." 35
Finally, any doubt as to whether the crime of plunder is
a malum in se must be deemed to have been resolved
in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable
by reclusion perpetua to death. Other heinous crimes
are punished with death as a straight penalty in R.A.
No. 7659. Referring to these groups of heinous crimes,
this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated
like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her
growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as
well as murder, rape, parricide, infanticide, kidnapping
and serious illegal detention, where the victim is
detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him
were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped,
which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to
be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the government
and impoverished the population, the Philippine
Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself
in the structures of society and the psyche of the
populace. [With the government] terribly lacking the
money to provide even the most basic services to its
people, any form of misappropriation or misapplication
of government funds translates to an actual threat to
the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this
context, no less heinous are the effects and
repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses
involving government officials, employees or officers,
that their perpetrators must not be allowed to cause
further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that
plunder is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se37 and
it does not matter that such acts are punished in a
special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance
against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late
in the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history.
The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the
State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption
and obscene profligacy of officials in high places which
have shaken its very foundation. The anatomy of graft
and corruption has become more elaborate in the
corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the
coffers of the government. Drastic and radical
measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and
economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed
to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and
institutional fiber of our nation. The Plunder Law,
indeed, is a living testament to the will of the legislature
to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in
public office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national importance
can equal the amount of interest and passion
generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial
under a virginal statute. This continuing saga has
driven a wedge of dissension among our people that
may linger for a long time. Only by responding to the
clarion call for patriotism, to rise above factionalism and
prejudices, shall we emerge triumphant in the midst of
ferment.
PREMISES CONSIDERED, this Court holds that RA
7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
PLEASE SEE DISSENTING OPINION
(5) G.R. No. 124067 March 27, 1998
PERLA A. SEGOVIA, REYNALDO C. SANTIAGO
and WINIFREDO SM. PANGILINAN, petitioners vs.
The SANDIGANBAYAN, PEOPLE OF THE
PHILIPPINES, and the PRESIDENT of the
NATIONAL POWER CORPORATION, respondents.
DECISION
NARVASA, C.J.:
The special civil action of certiorari and prohibition at
bar seeks nullification of two (2) Resolutions of the
Second Division of the Sandiganbayan issued in
Criminal Case No. 21711 -- in which petitioners are
prosecuted for violation of the Anti-Graft and Corrupt
Practices Act : Republic Act No. 3019, as amended.
The resolution assailed are:
1) that dated February 1, 1996, which ordered
petitioners preventive suspension for ninety (90) days
in accordance with Section 13 of said R.A 3019; and
2) that dated February 23, 1996, which denied
petitioners motion for reconsideration of the
suspension order.
The primary issue raised is whether it is mandatory or
discretionary for the Sandiganbayan to place under
preventive suspension public officers who stand
accused before it, pursuant to said Section 13 of the
law. Section 13 reads:
Sec. 13 Suspension and Loss of benefits. -- Any
incumbent public officer against whom any criminal
prosecution under a valid information under this Act or
under Title 7, Book II of the Revised Penal Code or for
any offense involving fraud upon government or public
funds or propertty, whether as a simple or as a complex
offense in whatever stage of execution and mode of
participation, is pending in court, shall be suspended
from office. ** **
It is petitioners' submission that preventive suspension
under this section rest in the sound discretion of the
Sandiganbayan despite the ostensibly mandatory
language of the statute, and that that discretion was
gravely abused by the Sandiganbayan, or it exceeded
its jurisdiction, when it decreed their suspension.
Petitioners -- Perla Segovia, Reynaldo Santiago, and
Winifredo SM Pangilinan -- all hold regular executive
positions in the National Power Corporation (NPC).
They -- together with two other officers who have since
resigned from the NPC, namely: Gilberto A. Pastoral
and Cecilia D. Vales -- were designated by the NPC
Board to compose the Contracts Committee for said
NPCs Mindanao Grid LDC & SCADA/EMS System
Operation Control Center and Facilities Project.
The Contracts Committee thus constituted conducted
the prequalification and bidding procedures for the
project. The lowest and second lowest bidders were
the Joint Venture of INPHASE and T & D, and Urban
Consolidated Constructors, Inc., respectively. The
Technical Task Force on Bid Evaluation of the NPC
reviewed all the bids submitted and recommended
approval of the results. The contracts Committee,
however, declared the lowest bidder (Joint Venture)
disqualified after verification from the Philippines
Contractors Accredition Board that that group, as well
as the second lowest bidder (Urban) had been
downgraded, thereby rending both ineligible as
bidders.
The Contracts Committee also stated that since a
review of relevant factors disclosed that the other bids
had exceeded the Approved Agency Estimates and the
Allowable Government Estimates for Options A and B
of the Project, it was was needful for the NPC Board to
declare a failure of bidding and direct a re-bidding. The
recommendation was unanimously approved by the
NPC Board; but for reasons not appearing on record
(and, in any event, not relevant to the inquiry), the
project was eventually cancelled.
Obviously feeling aggrieved by the turn of events,
Urban filed a complaint with the Office of the
Ombudsman against the Chairman and Members of
the Board of Directors of NPC; the Chairman (Gilberto
Pascual) and Members of the NPC Contracts Awards
Committee; the Chairman (Perla Segovia) of the Pre-
Qualification Bids & Awards Committee; the Manager
(Cecilia D. Vales) of the Contracts Management Office,
and two others.[1] Urban alleged that before the
bidding, Joint Venture had been disqualified, but the
Contracts Committee, without basis and in order to
favor it, reconsidered its disqualification and thus
enabled it to take part in the bidding and in fact to
submit the lowest bid; that the NPC was already poised
to award the contract to Joint Venture but because
Urban protested, it was compelled to "post-disqualify"
the former; however, intead of awarding the contract
for the project to Urban as the second lowest bidder,
the Committee and the NPC Board declared a failure
of bidding and ultimately cancelled the project. These
acts, it is claimed, constituted a violation of the Anti-
Graft and Corrupt Practices Act.
A preliminary investigation was conducted by the
Ombudsmans Office after which Graft Investigation
Officer A.A. Amante submitted a Resolution dated
August 2, 1994[2]recommending, among others, that:
1) petitioners Perla Segovia, Reynaldo Santiago,
Winifredo SM Pangilinan, as well as Gilberto Pastoral
and Cecilia Vales be charged with a violation of Section
3 (e) of RA 3019 of having in one way or the other
extended undue advantage to Joint Venture through
manifest partiality, evident bad faith and gross
inexcusable negligence; and
2) the NPC President, NPC charman and Members of
the Board of Directors be cleared of the ** complaint as
their official actuation of sustaining a failure of bidding
and the consequent re-bidding is supported by factual
and legal basis.
Assistant Ombudsman Abelardo L. Aportadera, Jr.,
favorably endorsed the recommendation which was
eventually approved on December 6, 1994 by Hon.
Conrado M. Vasquez, then the Ombudsman.[3]
An information was accordingly filed with the
Sandiganbayan against petitioners Segovia, Santiago,
and Pangilinan, as well as Pastoral and Vales,
docketed as Criminal Case No. 21711. They were
charged with infringement of Section 3 (e) of RA 3019:
i,e., causing undue injury to any party, including the
Government, or giving any party any unwarranted
benefits, advantage or preference in the discharge of
his official, administrative or judicial function through
manifest partiality, evident bad faithy or gross
inexcusable negligence.
Petioners sought and obtained a reinvestigation of their
case but gained no benefit thereby. For although the
reinvestigating officer made a recommendation on
March 7, 1995 that the information against petitioners
be withdrawn -- because the prima facie case had
already been overthrown, considering that, as it now
stands, the evidence at hand cannot stand judicial
scrunity[4] -- and that recommendation met with the
aprroval of the Special Prosecutor, it was ultimately
turned down by the chief Special Prosecutor[5] on April
18, 1995, and on April 20, 1995, by the Ombudsman
himself.[6]
The case thus proceeded in the Sandiganbayan. The
accused were arraigned and entered pleas of not
guilty; and a pre-trial was held which resulted in
stipulation of facts embodied in an order dated January
11, 1996.[7]
Earlier, the People had filed a Motion to Suspend
Accused Pendente Lite dated October 24, 1995,
invoking Section 13 of RA 3019., as amended, and
relevant jurisprudence, and alleging that the
information/s is /are valid.[8]
Petitioner opposed the motion.[9] In their pleading
dated November 28, 1995, the theorized that the
explicit terms of the law notwithstanding, their
suspension was not mandatory in the premises. They
claimed that the admissions at the pre-trial show that
the transactions in question resulted in no unwarranted
benefits, advantage or preference, or injury, to anyone;
that two of the five accused were no longer employees
of the NPC; that two of the five accused were no longer
employees of the NPC; that the positions that Segovia,
Pangilinan and Santiago continued to occupy in the
NPC were quite sentitive and had no relation to
prequalification of contractors, biddings or awards --
which was an additional function temporarily assigned
to them and for which the received no compensation at
all -- and their suspension might cause delay of vital
projects of the NPC; and that under the circumstances
obtaining, they were in no position to tamper with any
evidence.
Petitioners opposition was overruled. On January 31,
1996 the Sandiganbayan[10] handed down its
Resolution suspending them for a period of ninety (90)
days.[11] The Sandiganbayan held that the suspension
was mandated under the law upon a finding that a
proper preliminary investigation had been conducted ,
the information was valid, and the accused were
charged with any of the crimes specified in the law; and
stressed that its authority and power to suspend the
accused had been repeatedly upheld in several
precedents. It subsequently denied petitioners motion
for reconsideration dated February 14, 1996,
(c)onsidering the paucity of the(ir) arguments ** and in
the light of the mass of jurisprudence involving the
power and authority of this Court to issue orders for
preventive suspension of the accused **.[12]
Petitioners would now have this Court strike down
these resolution because supposedly rendered in
excess of jurisdiction or with grave abuse of discretion.
The court will not do so. In no sense may the challeged
resolutions be stigmatized as so clearly capricious,
whimsical, oppressive, egregiously erroneous or
wanting in logic as to call for invalidation by the
extraordinary writ of certiorari. On the contrary, in
promulgating those resolution, the Sandiganbayan did
but adhere to the clear command of the law and what
it calls a mass of jurispudence emanating from this
Court, sustaining its authority to decree suspension of
public officials and employees indicted before it.
Indeed, that the theory of discretionary suspension
should still be advocated to this late date, despite the
mass of jurisprudence relevant to the issue, it little short
of amazing, bordering on contumacious disregard of
the solemn magisterial pronouncements of the Highest
court of the land.
Republic Act no. 3019 was enacted by Congress more
than 37 years ago, on August 17, 1960, becoming
effective on the same date. The law was later amended
by Republic Act No. 3047, Presidential Decree 677 and
Presidential Decree No. 1288. The last amendment --
to Section 13 thereof -- was introduced by Batas
Pambansa Bilang 195, approved on March 16, 1972.
The validity of Section 13, R.A. 3019, as amended --
treating of the suspension pendente lite of an accused
public officer -- may no longer be put at issue, having
been repeatedly upheld by this Court. As early as 1984,
in Bayot v. Sandiganbayan,[13] the Court held by this
Court. As suspension was not penal in character but
merely a preventive measure before final judgement;
hence, the suspension of a public officer charged with
one of the crimes listed in the amending law, committed
before said amendment, does not violate the
constitutional provision against an ex post facto law.
The purpose of suspension is to prevent the accused
public officer from frustrating or hampering his
prosecution by intimidating or influencing witnesses or
tampering with documentary evidence, or from
committing further acts of malfeasance while in
office.[14] Substantially to the same effect was the
Courts holding in 1991, in Gonzaga v.
Sandiganbayan,[15] that preventive suspension is not
violative suspension remains entitled to the
constitutional presumption of innocence since his
culpability must still be established.
The Anti-Graft and Corrupt Practices Act implicitly
recognizes that the power of preventive suspension
lies in the court in which the criminal charge is filed;
once a case is filed in court, all other acts connected
with the discharge of court functions -- including
preventive suspension -- should be aknowledged as
within the competence of the court that has taken
cognizance thereof, no violation of the doctrine of
separation of powers being perceivable in that
acknowledgment.[16]
The provision of suspension pendente lite applies to all
persons indicated upon a valid information under Act,
whether they be appointive or elective officials; or
permenent or temporary employees, or pertaining to
the career or non-career service.[17] It appears to a
Public High School Principal;[18] a Municipal
Mayor;[19] a Governor;[20] a Congressman;[21] a
Department of Science and Technology (DOST) non-
career Project Manager;[22] a Commissioner of the
Presidential Commission on Good Government
(PCGG).[23] The term office in Section 13 of the law
applies to any office in relation to which he is
charged.[24]
It is mandatory for the court to place under preventive
suspension a public officer accused before it.[25]
Imposition of suspension, however, is not automatic or
self-operative. A precondition therefor is the existence
of a valid information, determined at a pre-suspension
hearing. Such a hearing is in accord with the spirit of
the law, considering the serious and far-reaching
consequences of a suspension of a public official even
before his conviction, and the demands of public
interest for speedy determination of the issues involved
in the case.[26] The purpose of the pre-suspension
hearing is basically to detrmine the validity of the
information and thereby furnish the court with a basis
to either suspend the accused and proceed with the
trial on the merits of the case, or refuse suspension of
the latter and dismiss the case, or correct any part of
the proceeding which impairs its validity.27 The
accused should be given adequate oppurtunity to
challege the validity or regularity of the criminal
proceedings against him; e.g. that he has not been
afforded the right to due preliminary investigation; that
he has not been afforded the right to due preliminary
investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the
Revised Penal Code) warranting his mandatory
suspension from office under Section 13 of the Act; or
that the information is subject to quashal on any of the
grounds set out in Rule 117 of the Rules of Court.28
But once a proper determination of the validity of the
Information has been made, it becomes the ministerial
duty of the court to forthwith issue the order of
preventive suspension of the accused official on the
pretext that the order denying the latters motion to
quash is pending review before the appellate courts.29
However, the preventive suspension may not be of
indefinite duration or for an unreasonable length of
time; it would be constitutionally proscribed otherwise
as it raises, at the very least, questions of denial of due
process and equal protection of the laws.30 The Court
has thus laid down the rule that preventive suspension
may not exceed the maximum period of ninety (90)
days in consonance with Presidential Decree No. 807
(the Civil Service Decree), noew Section 52 of the
Administrative Code of 1987.31
While petitioners concede that this Court has almost
consistently ruled that the preventive suspension
contemplated in Section 13 of RA 3019 is mandantory
in character, they nonetheless urge the Court to
consider their case an exception because of the
peculiar circumstances thereof. They assert that the
evils sought to be avoidedby seperating a public official
from the scene of his alleged misfeasance while the
same is being investigated32 -- e.g., to preclude the
abuse of the prerogative of ** (his) office, such as
through intimidation of witnesses,33 or the tampering
with documentary evidence -- will not occur in the
present situation where:
1. The Project has been cancelled.
2. (Their) ** official duties no longer pertain, in any
manner, to the prequalification of contractors dealing
with the NPC. Neither are they now involved in any
bidding for or awarding of contracts, ** it (being)
emphasized (in this connection) that they were merely
designated as ad hoc members of the Committee
without additional compensation for their additional
duties.
3. All the relevant documentary evidence had been
submitted either to the Ombudsman or the Honorable
Sandiganbayan.
They conclude that their preventive suspension at this
point would actually be purposeless, as there is no
more need for precautionary measures against their
abuse of the prerogatives of their office.
The arguments are not new. They have been advanced
and rejected in earlier cases. They will again be so
rejected in this case.
The Courts pronouncements in Bolastig v.
Sandiganbayan, supra.,34 are germane:
Our holding that, upon the filing of a valid information
charging violation of Republic Act No. 30 19, Book II,
Title 7 of the Revised Penal Code, or fraud upon
government or public property, it is the duty of the court
to place the accused under preventive suspension
disposes of petitioners other contention that since the
trial in the Sandiganbayan is now over with respect to
the presentation of evidence for the prosecution there
is no longer any danger that petitioner would intimidate
prosecutions witnesses. The fact is that the possibility
that the accused would intimidate witnesses or
otherwise hamper his prosecution is just one of the
grounds for preventive suspension. The other one is, **
to prevent the accused from committing further acts of
malfeasance while in office.
Bolastig also disposes of the other contention that vital
projects of NPC may be delayed by their preventive
suspension, viz.:35
Finally, the fact that petitioners preventive suspension
may deprive the people of Samar of the services of an
official elected by them, at least temporarily, is not a
sufficient basis for reducing what is otherwise a
mandatory period prescribed by law. The vice
governor, who has likewise been elected by them, will
act as governor. (The Local Government Code of 1991,
sec. 46[a]) Indeed, even the Constitution authorizes
the suspension for not more than sixty days of
members of Congress found guilty of disorderly
behavior, (Art. VI, sec. 16[3]) thus rejecting the view
expressed in one case (Alejandrino v. Quezon. 46 Phil.
83, 96 [1924]) that members of the legislature could not
be suspended because in the case of suspension,
unlike in the case of removal, the seat remains filled but
the constitutents are deprived of reprensation.
The firmly entrenched doctrine is that under Section 13
of the Anti-Graft and Corrupt Practices Law, the
suspension of a public officer is mandatory after a
determination has been made of the validity of the
information in a pre-suspension hearing conducted for
that purpose.
In Socrates v. Sandiganbayan, et al.,36 decided fairly
recently, the Court again expatiated on the mandatory
character of suspension pendente lite under Section 13
of R.A. No. 3019 and the nature of the pre-suspension
hearing.
This Court has ruled that under Section 13 of the anti-
graft law, the suspension of a public officer is
mandatory after the validity of the information has been
upheld in a pre-suspension hearing conducted for that
purpose. This pre-suspension hearing is conducted to
determine basically the validity of the information, from
which the Court can have a basis to either suspend the
accused and proceed with the trial on the merits of the
case, or withhold the suspension of the latter and
dismissed the case, or correct any part of the
proceeding which impairs its validity. That hearing may
be treated in the same manner as a challenge to the
validity of the information by way of a motion to quash
(See People vs. Albano, etc., et. al., L-45376-77, July
28, 1988, 163 SCRA 511)
In the leading case of Luciano, et al. vs. Mariano, et al.
(L-32950, July 30, 1971, 40 SCRA 187), we have set
out the guidelines to be followed by the lower courts in
the exercise of the power of suspension under Section
13 of the law, to wit:
(c) By way of broad guidelines for the lower courts in
the exercise of the power of suspension from office of
public officers charged under a valid information under
the provisions of Republic Act No. 3019 or under the
provisions of the Revised Penal Code on bribery,
pursuant to section 13 of said Act, it may be briefly
stated that upon the filing of such information, the trial
court should issue an order with proper notice requiring
the accused officer to show cause at a specific date of
hearing why he shoud not be ordered suspended from
office pursuant to the cited mandatory provisions of the
Act. Where either the prosecution seasonably files a
motion for an order of suspension or the accused in
turn files a motion to quash the information or
challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties
at a hearing held for determining the validity of the
information, and thereafter hand down its ruling,
issuing the corresponding order of suspension should
it uphold the validity of the information or withhold such
suspension in the contrary case.
(d) No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to
challenge the validity of the criminal proceedings
against him, e.g., that he has not been afforded the
right of due preliminary investigation, the act for which
he stands charged do not constitute a violation of the
provisions of Republic Act No. 3019 or of bribery
provisions of the Revised Penal Code which would
warrant his mandatory suspension from office under
Section 13 of the Act, or he may present a motion to
quash the information on any of the grounds provided
in the Rule 117 of the Rules of Court. The mandatory
suspension decreed by the act upon determination of
the pendency in court or crimianl prosecution for
violation of the Anti-Graft Act or for bribery under a valid
information requires at the same time that the hearing
be expeditious, and not unduly protracted such as to
thwart the prompt suspension envisioned by the Act.
Hence, if the trial court, say, finds the ground alleged in
the quashal motion not to be indubitable, then it shall
be called upon to issue the suspension order upon its
upholding the validity of the information and setting the
same for trial on the merits.
With the aforequoted jurisrudential authority as the
basis, it is evident that upon a proper determination of
the validity of the information, it bacomes mandatory
for the court to immmediately issue the suspension
order. The rule on the matter is specific and
categorical. It leaves no room for interpretation. It is not
within the courts discretion to hold in abeyance the
suspension of the accused officer on the pretext that
the order denying the motion to quash is pending
review before the appellate courts. Its discretion lies
only during the pre-suspension hearing where it is
required to ascertain whether or not (1) the accused
had been afforded due preliminary investigation prior
to the filling of the information against him, (2) the acts
for which he was charged constitute a violation of the
provisions of Republic Act. No. 3019 or of the
provisions of title 7, Book II of the revised Penal Code,
or (3) the information against him can be quashed,
under any of the grounds provided in Section 2, Rules
117 of the Rules of Court. (People vs. Albana, etc., at
al. Supra, fn. 26)
Once the information is found to be sufficient in form
and substance, then the court must issue the order of
suspension as a matter of course. There are no ifs and
buts about it. This is because a preventive suspension
is not penalty. It is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned
shall be entitled to reinstatement and to the salaries
and benefits which he failed to receive during
suspension. In view of this latter provisions, the
accused elective public officer does not stand to be
prejudiced by the immediate enforcement of the
suspension order in the event that the information is
subsequently declared null and void on appeal and the
case dismissed as against him. Taking into
consideration the public policy involved in preventively
suspending a public officer charged under a valid
information, the protection of public interest will
definitely have to prevail over the private interest of the
accused. (Bayot vs. Sandiganbayan, et al., G.R. Nos.
61776-61861, March 23, 1984, 128 SCRA 383)
To further emphasize the ministerial duty of the court
under Section 13 of Republic Act No. 3019, it is said
that the court trying the case has neither discretion nor
duty to determine whether or not a preventive
suspension is required to prevent the accused from
using his office to intimidate witnesses or frustrate his
prosecution or continue commiting malfeasance in
office. The presumption is that unless the accused is
suspended, he may frustrate his prosecution or commit
further acts of malfeasance or do both, in same way
that upon a finding that there is probable cause to
believe that a crime has been committed and that the
accused is probably guilty thereof, the law requires the
judge to issue a warrant for the arrest of the accused.
The law does not require the court to determine
whether the accused is likely to escape or evade the
jurisdiction of the court.
The Court is satisfied that the Second Division of the
Sandiganbayan, after upholding the validity of the
information against petitioners, correctly ordered their
preventive suspension from any public office for period
of ninety (90) days.
As was stressed in Libanan v. Sandiganbayan 37
** When the statute is clear and explicit, there is hardly
room for any extended court ratiocination or
rationalization of the law. Republic Act No. 3019
unequivocally mandates the suspension of a public
official from office pending a criminal prosecution
against him. This Court has repeatedly held that such
preventive suspension is mandatory **, and there are
no ifs and buts about it.
WHEREFORE, the petition in this case is hereby
DISMISSED for lack of merit. Cost against petitioners.
SO ORDERED.
Romero, Kapunan, and Purisima JJ. concur.
(6) G.R. Nos. 169823-24 September 11, 2013
HERMINIO T. DISINI, Petitioner,
vs.
THE HON. SANDIGANBAYAN, FIRST DIVISION,
AND THE PEOPLE OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. Nos. 174764-65
HERMINIO T. DISINI, Petitioner,
vs.
SANDIGANBAYAN, FIRST DIVISION, AND THE
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The Sandiganbayan has exclusive original jurisdiction
over the criminal action involving petitioner
notwithstanding that he is a private individual
considering that his criminal prosecution is intimately
related to the recovery of ill-gotten wealth of the
Marcoses, their immediate family, subordinates and
close associates.
The Case
Petitioner Herminio T. Disini assails via petition for
certiorari there solutions promulgated by the
Sandiganbayan in Criminal Case No. 28001and
Criminal Case No. 28002, both entitled People v.
Herminio T. Disini, on January 17, 2005 (denying his
motion to quash the informations) 1 and August 10,
2005 (denying his motion for reconsideration of the
denial of his motion to quash),2 alleging that the
Sandiganbayan (First Division) thereby committed
grave abuse of discretion amounting to lack or excess
of jurisdiction.
Antecedents
The Office of the Ombudsman filed two informations
dated June 30,2004 charging Disini in the
Sandiganbayan with corruption of public officials,
penalized under Article 212 in relation to Article 210 of
the Revised Penal Code (Criminal Case No. 28001),
and with a violation of Section 4(a) of Republic Act
3019 (R.A. No. 3019), also known as the Anti-Graft and
Corrupt Practices Act (Criminal Case No. 28002).
The accusatory portions of the informations read as construct, respectively, the said PROJECT, and
follows: subsequently, request and receive subcontracts for
Power Contractors, Inc. owned by accused DISINI, and
Criminal Case No. 28001 Engineering and Construction Company of Asia
(ECCO-Asia), owned and controlled by said Ferdinand
That during the period from 1974 to February 1986, in E. Marcos, which stated amounts and subcontracts
Manila, Philippines, and within the jurisdiction of this constituted kickbacks, commissions and gifts as
Honorable Court, accused HERMINIO T. DISINI, material or pecuniary advantages, for securing and
conspiring together and confederating with the then obtaining, as accused DISINI did secure and obtain,
President of the Philippines Ferdinand E. Marcos, did through the direct intervention of said Ferdinand E.
then and there, willfully, unlawfully and feloniously Marcos, for Burns and Roe the engineering and
offer, promise and give gifts and presents to said architectural contract, and for Westinghouse the
Ferdinand E. Marcos, consisting of accused DISINI’s construction contract, for the PROJECT.
ownership of two billion and five hundred (2.5 billion)
shares of stock in Vulcan Industrial and Mining CONTRARY TO LAW.4
Corporation and four billion (4 billion)shares of stock in
The Energy Corporation, with both shares of stock On August 2, 2004, Disini filed a motion to
having then a book value of ₱100.00 per share of quash,5 alleging that the criminal actions had been
stock, and subcontracts, to Engineering and extinguished by prescription, and that the informations
Construction Company of Asia, owned and controlled did not conform to the prescribed form. The
by said Ferdinand E. Marcos, on the mechanical and Prosecution opposed the motion to quash.6
electrical construction work on the Philippine Nuclear
Power Plant Project("Project") of the National Power On September 16, 2004, Disini voluntarily submitted
Corporation at Morong, Bataan, all for and in himself for arraignment to obtain the Sandiganbayan’s
consideration of accused Disini seeking and obtaining favorable action on his motion for permission to travel
for Burns and Roe and Westinghouse Electrical abroad.7 He then entered a plea of not guilty to both
Corporation (Westinghouse), the contracts to do the informations.
engineering and architectural design and to construct,
respectively, the Project, as in fact said Ferdinand E. As stated, on January 17, 2005, the Sandiganbayan
Marcos, taking undue advantage of his position and (First Division) promulgated its first assailed resolution
committing the offense in relation to his office and in denying the motion to quash.8
consideration of the aforesaid gifts and presents, did
award or cause to be awarded to said Burns and Roe
Disini moved for the reconsideration of the resolution
and Westinghouse, the contracts to do the engineering
dated January 17, 2005,9 but the Sandiganbayan (First
and architectural design and to construct the Project,
Division) denied his motion on August 10, 2005 through
respectively, which acts constitute the crime of
the second assailed resolution.10
corruption of public officials.
Issues
CONTRARY TO LAW.3
Undaunted, Disini commenced this special civil action
Criminal Case No. 28002
for certiorari, alleging that:
That during the period 1974 to February 1986, in
A. THE RESPONDENT COURT HAS NO
Manila, Philippines, and within the jurisdiction of the
JURISDICTION OVER THEOFFENSES
Honorable Court, accused HERMINIO T. DISINI,
CHARGED.
conspiring together and confederating with the then
President of the Philippines, Ferdinand E. Marcos,
being then the close personal friend and golfing partner 1. THE RESPONDENT COURT
of said Ferdinand E. Marcos, and being further the GRAVELY ERRED WHEN ITRULED
husband of Paciencia Escolin-Disini who was the first THAT SECTION 4, PARAGRAPHS (A)
cousin of then First Lady Imelda Romualdez-Marcos AND (B) OFREPUBLIC ACT NO. 8249
and family physicianof the Marcos family, taking DO NOT APPLY SINCE
advantage of such close personal relation, intimacy THEINFORMATIONS WERE "FILED
and free access, did then and there, willfully, unlawfully PURSUANT TO E.O. NOS. 1,2, 14
and criminally, in connection with the Philippine AND 14-A".
Nuclear Power Plant (PNPP)Project ("PROJECT") of
the National Power Corporation (NPC) at Morong, 2. THE RESPONDENT COURT
Bataan, request and receive from Burns and Roe, a GRAVELY ERRED WHEN
foreign consultant, the total amount of One Million U.S. ITASSUMED JURISDICTION
Dollars ($1,000,000.00),more or less, and also from WITHOUT HAVING MET
Westinghouse Electric THEREQUISITE UNDER SECTION 4
Corporation(WESTINGHOUSE), the total amount of OF R.A. 8249 THAT THEACCUSED
Seventeen Million U.S. Dollars($17,000,000.00), more MUST BE A PUBLIC OFFICER.
or less, both of which entities were then having
business, transaction, and application with the B. THE RESPONDENT COURT ACTED WITH
Government of the Republic of the Philippines, all for SUCH GRAVEABUSE OF DISCRETION
and in consideration of accused DISINI securing and WHEN IT EFFECTIVELY IGNORED,
obtaining, as accused Disini did secure and obtain, the DISREGARDED, AND DENIED
contract for the said Burns and Roe and Westinghouse PETITIONER’SCONSTITUTIONAL AND
to do the engineering and architectural design, and STATUTORY RIGHT TOPRESCRIPTION.
 1. THE RESPONDENT COURT 13. Defendants Herminio T. Disini and Rodolfo Jacob,
GRAVELY ERRED INDETERMINING by themselves and/or in unlawful concert, active
THE APPLICABLE PRESCRIPTIVE collaboration and willing participation of defendants
PERIOD. Ferdinand E. Marcos and Imelda R. Marcos, and taking
undue advantage of their association and influence
2. THE RESPONDENT COURT with the latter defendant spouses in order to prevent
GRAVELY ERRED INDETERMINING disclosure and recovery of ill-gotten assets, engaged in
THE COMMENCEMENT OF devices, schemes, and stratagems such as:
THEPRESCRIPTIVE PERIOD.
xxxx
3. THE RESPONDENT COURT
GRAVELY ERRED INDETERMINING (c) unlawfully utilizing the Herdis Group of Companies
THE POINT OF INTERRUPTION OF and Asia Industries, Inc. as conduits through which
THEPRESCRIPTIVE PERIOD. defendants received, kept, and/or invested improper
payments such as unconscionably large commissions
C. BY MERELY ASSUMING THE PRESENCE from foreign corporations like the Westinghouse
OF GLARINGLYABSENT ELEMENTS IN THE Corporation; (d) secured special concessions,
OFFENSES CHARGED TOUPHOLD THE privileges and/or benefits from defendants Ferdinand
‘SUFFICIENCY’ OF THE INFORMATIONS E. Marcos and Imelda R. Marcos, such as a contract
INCRIMINAL CASE NOS. 28001 AND 28002, awarded to Westinghouse Corporation which built an
THE RESPONDENTCOURT inoperable nuclear facility in the country for a
DEMONSTRATED ITS PREJUDGMENT scandalously exorbitant amount that included
OVER THE SUBJECT CASES AND ACTED defendant’s staggering commissions – defendant
WITH GRAVE ABUSE OF ITSDISCRETION. Rodolfo Jacob executed for HGI the contract for the
aforesaid nuclear plant;15
D. THE RESPONDENT COURT ACTED WITH
GRAVE ABUSE OFDISCRETION IN Through its letter dated April 8, 1991,16 the PCGG
REFUSING TO QUASH THE transmitted the records of Criminal Case No. 28001
INFORMATIONSDESPITE THEIR UTTER and Criminal Case No. 28002 to then Ombudsman
FAILURE TO COMPLY WITH Conrado M. Vasquez for appropriate action, to wit:
THEPRESCRIBED FORM, THUS
EFFECTIVELY DENYING THEACCUSED HIS In line with the decision of the Supreme Court in the
CONSTITUTIONAL AND STATUTORY case of EduardoM. Cojuangco, Jr. versus the PCGG
RIGHTTO BE INFORMED OF THE NATURE (G.R. Nos. 92319–92320) dated October 2, 1990, we
AND CAUSE OF THEACCUSATION are hereby transmitting to your Office for appropriate
AGAINST HIM.11 action the records of the attached criminal case which
we believe is similar to the said Cojuangco case in
Ruling certain aspects, such as: (i) some parts or elements are
also parts of the causes of action in the civil
The petition for certiorari has no merit. complaints[-]filed with the Sandiganbayan; (ii) some
properties or assets of the respondents have been
sequestered; (iii) some of the respondents are also
1.Preliminary Considerations
party defendants in the civil cases.
To properly resolve this case, reference is made to the
Although the authority of the PCGG has been upheld
ruling of the Court in G.R. No. 175730 entitled Herminio
by the Supreme Court, we are constrained to refer to
Disini v. Sandiganbayan,12 which involved the civil
you for proper action the herein-attached case in view
action for reconveyance, reversion, accounting,
of the suspicion that the PCGG cannot conduct an
restitution, and damages (Civil Case No. 0013 entitled
impartial investigation in cases similar to that of the
Republic v. HerminioT. Disini, et al.) filed by the
Cojuangco case. x x x
Presidential Commission on Good
Government(PCGG) against Disini and others.13 The
amended complaint in Civil Case No. 0013 alleged that Ostensibly, the PCGG’s letter of transmittal was
Disini had acted in unlawful concert with his co- adverting to the ruling in Cojuangco, Jr. v. Presidential
defendants in acquiring and accumulating ill-gotten Commission on Good Government (Cojuangco,
wealth through them is appropriation of public funds, Jr.),17 viz:
plunder of the nation’s wealth, extortion,
embezzlement, and other acts of corruption,14 as x x x The PCGG and the Solicitor General finding a
follows: prima facie basis filed a civil complaint against
petitioner and intervenors alleging substantially the
4. Defendant HERMINIO T. DISINI is a close associate same illegal or criminal acts subject of the subsequent
of defendant Ferdinand E. Marcos and the husband of criminal complaints the Solicitor General filed with the
the first cousin of Defendant Imelda R. Marcos. By PCGG for preliminary investigation. x x x.
reason of this relationship xxx defendant Herminio
Disini obtained staggering commissions from the Moreover, when the PCGG issued the sequestration
Westinghouse in exchange for securing the nuclear and freeze orders against petitioner’s properties, it was
power plant contract from the Philippine government. on the basis of a prima facie finding that the same were
ill-gotten and/or were acquired in relation to the illegal
xxxx disposition of coconut levy funds. Thus, the Court finds
that the PCGG cannot possibly conduct the preliminary
investigation of said criminal complaints with the "cold
neutrality of an impartial judge," as it has prejudged the
matter. x x x18
xxxx
The Court finds that under the circumstances of the
case, the PCGG cannot inspire belief that it could be
impartial in the conduct of the preliminary investigation
of the aforesaid complaints against petitioner and
intervenors. It cannot possibly preside in the said
preliminary investigation with an even hand.
The Court holds that a just and fair administration of
justice can be promoted if the PCGG would be
prohibited from conducting the preliminary
investigation of the complaints subject of this petition
and the petition for intervention and that the records of
the same should be forwarded to the Ombudsman,
who as an independent constitutional officer has
primary jurisdiction over cases of this nature, to
conduct such preliminary investigation and take
appropriate action.19 (Bold emphasis supplied)
It appears that the resolutions of the Office of the
Ombudsman, following its conduct of the preliminary
investigation on the criminal complaints thus
transmitted by the PCGG, were reversed and set aside
by the Court in Presidential Commission on Good
Government v. Desierto,20
with the Court requiring the Office of the Ombudsman
to file the informations that became the subject of
Disini’s motion to quash in Criminal Case No.28001
and Criminal Case No. 28002.
2.
Sandiganbayan has exclusive and
original jurisdiction over the offenses charged
Disini challenges the jurisdiction of the Sandiganbayan
over the offenses charged in Criminal Case No. 28001
and Criminal Case No. 28002.He contends that: (1) the
informations did not allege that the charges were being
filed pursuant to and in connection with Executive
Order (E.O.) Nos.1, 2, 14 and 14-A; (2) the offenses
charged were not of the nature contemplated by E.O.
Nos. 1, 2, 14 and 14-A because the allegations in the
informations neither pertained to the recovery of ill-
gotten wealth, nor involved sequestration cases; (3) the
cases were filed by the Office of the Ombudsman
instead of by the PCGG; and (4) being a private
individual not charged as a co-principal, accomplice or
accessory of a public officer, he should be prosecuted
in the regular courts instead of in the Sandiganbayan.
The Office of the Solicitor General (OSG) counters that
the Sandiganbayan has jurisdiction over the offenses
charged because Criminal Case No. 28001 and
Criminal Case No. 28002 were filed within the purview
of Section 4 (c) of R.A. No. 8249; and that both cases
stemmed from the criminal complaints initially filed by
the PCGG pursuant to its mandate under E.O. Nos. 1,
2, 14 and 14-A to investigate and file the appropriate
civil or criminal cases to recover ill-gotten wealth not
only of the Marcoses and their immediately family but
also of their relatives, subordinates and close
associates.
We hold that the Sandiganbayan has jurisdiction over
Criminal Case No. 28001 and Criminal Case No.
28002.
Presidential Decree (P.D.) No. 1606 was the law that
established the Sandiganbayan and defined its
jurisdiction. The law was amended by R.A. No. 7975
and R.A. No. 8249. Under Section 4 of R.A. No. 8249,
the Sandiganbayan was vested with original and
exclusive jurisdiction over all cases involving:
a. Violations of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act
No.1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one
or more of the accused are officials occupying
the following positions in the government
whether in a permanent, acting or interim
capacity, at the time of the commission of the
offense:
xxxx
b. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection (a) of this section in relation to their
office.
c. Civil and criminal cases filed pursuant to and
in connection with Executive Order Nos. 1, 2,
14 and 14-A, issued in 1986. (Bold emphasis
supplied)
In cases where none of the accused are occupying
positions corresponding to salary grade ‘27’ or higher,
as prescribed in the said Republic Act No. 6758, or
military or PNP officers mentioned above, exclusive
original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal
trial court and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdiction as
provided in Batas Pambansa Blg. 129, as amended.
xxxx
In case private individuals are charged as co-
principals, accomplices or accessories with the public
officers or employees, including those employed in
government-owned or controlled corporations, they
shall be tried jointly with said public officers and
employees in the proper courts which shall exercise
exclusive jurisdiction over them. x x x x
It is underscored that it was the PCGG that had initially
filed the criminal complaints in the Sandiganbayan,
with the Office of the Ombudsman taking over the
investigation of Disini only after the Court issued in
Cojuangco, Jr. the directive to the PCGG to refer the
criminal cases to the Office of the Ombudsman on the
ground that the PCGG would not be an impartial office
following its finding of a prima facie case being
established against Disini to sustain the institution of
Civil Case No. 0013.
Also underscored is that the complaint in Civil Case No.
0013 and the informations in Criminal Case No. 28001
and Criminal Case No. 28002involved the same
transaction, specifically the contracts awarded through
the intervention of Disini and President Marcos in favor
of Burns & Roe to do the engineering and architectural
design, and Westinghouse to do the construction of the
Philippine Nuclear Power Plant Project (PNPPP).
Given their sameness in subject matter, to still
expressly aver in Criminal Case No.28001 and
Criminal Case No. 28002 that the charges involved the
recovery of ill-gotten wealth was no longer
necessary.21 With Criminal Case No.28001 and
Criminal Case No. 28002 being intertwined with Civil
Case No.0013, the PCGG had the authority to institute
the criminal prosecutions against Disini pursuant to
E.O. Nos. 1, 2, 14 and 14-A.
That Disini was a private individual did not remove the
offenses charged from the jurisdiction of the
Sandiganbayan. Section 2 of E.O. No.1, which tasked
the PCGG with assisting the President in "the recovery
of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in
the Philippines or abroad, including the takeover or
sequestration of all business enterprises and entities
owned or controlled by them, during his administration,
directly or through nominees, by taking undue
advantage of their public office and/or using their
powers, authority, influence, connections or
relationship," expressly granted the authority of the
PCGG to recover ill-gotten wealth covered President
Marcos’ immediate family, relatives, subordinates and
close associates, without distinction as to their private
or public status.
Contrary to Disini’s argument, too, the qualifying clause
found in Section 4 of R.A. No. 824922
applied only to the cases listed in Subsection 4aand
Subsection 4b of R.A. No. 8249, the full text of which
follows:
xxxx
a. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No.1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials
occupying the following positions in the government
whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade ‘27’ and higher,
of the Compensation and Position
Classification Act of 1989(Republic Act No.
6758), specifically including:
(a) Provincial governors, vice-
governors, members of the
sangguniang panlalawigan and
provincial treasurers, assessors,
engineers and other provincial
department heads;
(b) City mayors, vice-mayors, members
of the sangguniang panlungsod, city
treasurers, assessors engineers and
other city department heads;
(c) Officials of the diplomatic service
occupying the position of consul and
higher;
(d) Philippine army and air force
colonels, naval captains, and all
officers of higher rank;
(e) Officers of the Philippine National
Police while occupying the position of
provincial director and those holding
the rank of senior superintendent or
higher;
(f) City and provincial prosecutors and
their assistants, and officials and
prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or
managers of government-owned or -
controlled corporations, state
universities or educational institutions
or foundations;
(2) Members of Congress and officials thereof
classified as Grade‘27’ and up under the
Compensation and Position Classification Act
of 1989;
(3) Members of the judiciary without prejudice
to the provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the
provisions of the Constitution; and
(5) All other national and local officials
classified as Grade ‘27’and higher under the
Compensation and Position Classification Act
of 1989. b. Other offenses or felonies whether
simple or complexed with other crimes
committed by the public officials and
employees mentioned in subsection a of this
section in relation to their office. (bold
emphasis supplied)
xxxx
Unquestionably, public officials occupying positions
classified as Grade 27 or higher are mentioned only in
Subsection 4a and Subsection 4b,signifying the plain
legislative intent of limiting the qualifying clause to such
public officials. To include within the ambit of the
qualifying clause the persons covered by Subsection
4c would contravene the exclusive mandate of the
PCGG to bring the civil and criminal cases pursuant to
and in connection with E.O. Nos. 1, 2, 14 and 14-A. In
view of this, the Sandiganbayan properly took
cognizance of Criminal Case No. 28001 and Criminal
Case No. 28002 despite Disini’s being a private
individual, and despite the lack of any allegation of his
being the co-principal, accomplice or accessory of a
public official in the commission of the offenses
charged.
3.
The offenses charged in the
informations have not yet prescribed
In resolving the issue of prescription, the following must
be considered, namely: (1) the period of prescription
for the offense charged;(2) the time when the period of
prescription starts to run; and (3) the time when the
prescriptive period is interrupted.23
The information in Criminal Case No. 28001 alleged
that Disini had offered, promised and given gifts and
presents to Ferdinand E. Marcos; that said gifts were
in consideration of Disini obtaining for Burns & Roe and
Westinghouse Electrical Corporation (Westinghouse)
the contracts, respectively, to do the engineering and
architectural design of and to construct the PNPPP;
and that President Marcos did award or cause to be
awarded the respective contracts to Burns & Roe and
Westinghouse, which acts constituted the crime of
corruption of public officials.24
The crime of corruption of public officials charged in
Criminal Case No. 28001 is punished by Article 212 of
the Revised Penal Code with the" same penalties
imposed upon the officer corrupted." 25 Under the
second paragraph of Article 210 of the Revised Penal
Code (direct bribery),26 if the gift was accepted by the
officer in consideration of the execution of an act that
does not constitute a crime, and the officer executes
the act, he shall suffer the penalty of prision mayor in
its medium and minimum periods and a fine of not less
than three times the value of the gift. Conformably with
Article 90 of the Revised Penal Code,27 the period of
prescription for this specie of corruption of public
officials charged against Disini is 15 years.
As for Criminal Case No. 28002, Disini was charged
with a violation of Section 4(a) of R.A. No. 3019. By
express provision of Section 11 of R.A. No. 3019, as
amended by Batas Pambansa Blg. 195, the offenses
committed under R.A. No. 3019 shall prescribe in 15
years. Prior to the amendment, the prescriptive period
was only 10 years. It became settled in People v.
Pacificador,28 however, that the longer prescriptive
period of 15years would not apply to crimes committed
prior to the effectivity of Batas Pambansa Blg. 195,
which was approved on March 16, 1982, because the
longer period could not be given retroactive effect for
not being favorable to the accused. With the
information alleging the period from 1974 to
February1986 as the time of the commission of the
crime charged, the applicable prescriptive period is 10
years in order to accord with People v. Pacificador .
For crimes punishable by the Revised Penal Code,
Article 91 thereof provides that prescription starts to run
from the day on which the crime is discovered by the
offended party, the authorities, or their agents. As to
offenses punishable by R.A. No. 3019, Section 2 of
R.A. No. 332629 states:
Section 2. Prescription shall begin to run from the day
of the commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings
are instituted against the guilty person, and shall begin
to run again if the proceedings are dismissed for
reasons not constituting double jeopardy.
The ruling on the issue of prescription in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto30 is also enlightening, viz:
Generally, the prescriptive period shall commence to
run on the day the crime is committed. That an
aggrieved person "entitled to an action has no
knowledge of his right to sue or of the facts out of which
his right arises," does not prevent the running of the
prescriptive period. An exception to this rule is the
"blameless ignorance" doctrine, incorporated in
Section 2 of Act No. 3326. Under this doctrine, "the
statute of limitations runs only upon discovery of the
fact of the invasion of a right which will support a cause
of action. In other words, the courts would decline to
apply the statute of limitations where the plaintiff does
not know or has no reasonable means of knowing the
existence of a cause of action." It was in this accord
that the Court confronted the question on the running
of the prescriptive period in People v. Duque which
became the cornerstone of our 1999 Decision in
Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto (G.R. No. 130149), and the
subsequent cases which Ombudsman Desierto
dismissed, emphatically, on the ground of prescription
too. Thus, we held in a catena of cases, that if the
violation of the special law was not known at the time
of its commission, the prescription begins to run only
from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts.
Corollary, it is safe to conclude that the prescriptive
period for the crime which is the subject herein,
commenced from the date of its discovery in 1992 after
the Committee made an exhaustive investigation.
When the complaint was filed in 1997, only five years
have elapsed, and, hence, prescription has not yet set
in. The rationale for this was succinctly discussed in the
1999 Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, that "it was well-high impossible for the
State, the aggrieved party, to have known these crimes
committed prior to the 1986EDSA Revolution, because
of the alleged connivance and conspiracy among
involved public officials and the beneficiaries of the
loans." In yet another pronouncement, in the 2001
Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto (G.R. No. 130817), the Court
held that during the Marcos regime, no person would
have dared to question the legality of these
transactions. (Citations omitted)31
Accordingly, we are not persuaded to hold here that the
prescriptive period began to run from 1974, the time
when the contracts for the PNPP Project were awarded
to Burns & Roe and Westinghouse. Although the
criminal cases were the offshoot of the sequestration
case to recover ill-gotten wealth instead of behest
loans like in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, the
connivance and conspiracy among the public officials
involved and the beneficiaries of the favors illegally
extended rendered it similarly well-nigh impossible for
the State, as the aggrieved party, to have known of the
commission of the crimes charged prior to the EDSA
Revolution in 1986. Notwithstanding the highly
publicized and widely-known nature of the PNPPP, the
unlawful acts or transactions in relation to it were
discovered only through the PCGG’s exhaustive
investigation, resulting in the establishment of a prima
facie case sufficient for the PCGG to institute Civil
Case No. 0013 against Disini. Before the discovery, the
PNPPP contracts, which partook of a public character,
enjoyed the presumption of their execution having
been regularly done in the course of official functions.32
Considering further that during the Marcos regime, no
person would have dared to assail the legality of the
transactions, it would be unreasonable to expect that
the discovery of the unlawful transactions was possible
prior to 1986.
We note, too, that the criminal complaints were filed
and their records transmitted by the PCGG to the Office
of the Ombudsman on April 8, 1991for the conduct the
preliminary investigation.33 In accordance with Article
91 of the
Revised Penal Code34 and the ruling in Panaguiton, Jr.
v. Department of Justice,35 the filing of the criminal
complaints in the Office of the Ombudsman effectively
interrupted the running of the period of prescription.
According to Panaguiton:36
In Ingco v. Sandiganbayan and Sanrio Company
Limited v. Lim, which involved violations of the Anti-
Graft and Corrupt Practices Act(R.A. No. 3019) and the
Intellectual Property Code (R.A. No. 8293),which are
both special laws, the Court ruled that the prescriptive
period is interrupted by the institution of proceedings
for preliminary investigation against the accused. In the
more recent case of Securities and Exchange
Commission v. Interport Resources Corporation, the
Court ruled that the nature and purpose of the
investigation conducted by the Securities and
Exchange Commission on violations of the Revised
Securities Act, another special law, is equivalent to the
preliminary investigation conducted by the DOJ in
criminal cases, and thus effectively interrupts the
prescriptive period.
The following disquisition in the Interport Resources
case is instructive, thus:
While it may be observed that the term "judicial
proceedings" in Sec. 2 of Act No. 3326 appears before"
investigation and punishment" in the old law, with the
subsequent change in set-up whereby the investigation
of the charge for purposes of prosecution has become
the exclusive function of the executive branch, the term
"proceedings" should now be understood either
executive or judicial in character: executive when it
involves the investigation phase and judicial when it
refers to the trial and judgment stage. With this
clarification, any kind of investigative proceeding
instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient
to toll prescription.
Indeed, to rule otherwise would deprive the injured
party the right to obtain vindication on account of
delays that are not under his control.
The prevailing rule is, therefore, that irrespective of
whether the offense charged is punishable by the
Revised Penal Code or by a special law, it is the filing
of the complaint or information in the office of the public
prosecutor for purposes of the preliminary investigation
that interrupts the period of prescription. Consequently,
prescription did not yet set in because only five years
elapsed from 1986, the time of the discovery of the
offenses charged, up to April 1991, the time of the filing
of the criminal complaints in the Office of the
Ombudsman.
The informations were sufficient in form and substance
It is axiomatic that a complaint or information must
state every single fact necessary to constitute the
offense charged; otherwise, a motion to dismiss or to
quash on the ground that the complaint or information
charges no offense may be properly sustained. The
fundamental test in determining whether a motion to
quash may be sustained based on this ground is
whether the facts alleged, if hypothetically admitted,
will establish the essential elements of the offense as
defined in the law.37 Extrinsic matters or evidence
aliunde are not considered.38
The test does not require absolute certainty as to the
presence of the elements of the offense; otherwise,
there would no longer be any need for the Prosecution
to proceed to trial.
The informations in Criminal Case No. 28001
(corruption of public officials) and Criminal Case No.
28002 (violation of Section 4(a) of RA No.3019) have
sufficiently complied with the requirements of Section
6, Rule110 of the Rules of Court, viz:
Section 6. Sufficiency of complaint or information. — A
complaint or information is sufficient if it states the
name of the accused; the designation of the offense
given by the statute; the acts or omissions complained
of as constituting the offense; the name of the offended
party; the approximate date of the commission of the
offense; and the place where the offense was
committed.
When the offense is committed by more than one
person, all of them shall be included in the complaint or
information.
The information in Criminal Case No. 28001 alleging
corruption of public officers specifically put forth that
Disini, in the period from 1974 to February 1986 in
Manila, Philippines, conspiring and confederating with
then President Marcos, willfully, unlawfully and
feloniously offered, promised and gave gifts and
presents to President Marcos, who, by taking undue
advantage of his position as President, committed the
offense in relation to his office, and in consideration of
the gifts and presents offered, promised and given by
Disini, President Marcos caused to be awarded to
Burns & Roe and Westinghouse the respective
contracts to do the engineering and architectural
design of and to construct the PNPPP. The felonious
act consisted of causing the contracts for the PNPPP
to be awarded to Burns & Roe and Westinghouse by
reason of the gifts and promises offered by Disini to
President Marcos.
The elements of corruption of public officials under
Article 212 of the Revised Penal Code are:
1. That the offender makes offers or promises,
or gives gifts or presents to a public officer; and
 2. That the offers or promises are made or the WHEREFORE, the Court DISMISSES the petition for
gifts or presents are given to a public officer certiorari; AFFIRMS the resolutions promulgated on
under circumstances that will make the public January 17, 2005 and August 10, 2005 by the
officer liable for direct bribery or indirect Sandiganbayan (First Division) in Criminal Case No.
bribery. 28001 and Criminal Case No. 28002; and DIRECTS
petitioner to pay the costs of suit.
The allegations in the information for corruption of
public officials, if hypothetically admitted, would SO ORDERED.
establish the essential elements of the crime. The
information stated that: (1) Disini made an offer and LUCAS P. BERSAMIN
promise, and gave gifts to President Marcos, a public Associate Justice
officer; and (2) in consideration of the offers, promises
and gifts, President Marcos, in causing the award of the WE CONCUR:
contracts to Burns & Roe and Westinghouse by taking
advantage of his position and in committing said act in
Footnotes
relation to his office, was placed under circumstances
that would make him liable for direct bribery.39 21
See the Section 1(A), Rules and Regulations
of the PCGG, to wit:
The second element of corruption of public officers
simply required the public officer to be placed under
circumstances, not absolute certainty, that would make Section 1.Definition. – (A) "Ill-gotten
him liable for direct or indirect bribery. Thus, even wealth" is hereby defined as any asset,
without alleging that President Marcos received or property, business enterprise or
accepted Disini’s offers, promises and gifts – an material possession of persons within
essential element in direct bribery – the allegation that the purview of Executive Orders 1 and
President Marcos caused the award of the contracts to 2, acquired by him directly or indirectly
Burns & Roe and Westinghouse sufficed to place him through dummies, nominees, agents,
under circumstances of being liable for direct bribery. subordinates and/or business
associates by any combination or
series of the following means or similar
The sufficiency of the allegations in the information
schemes:
charging the violation of Section 4(a) of R.A. No. 3019
is similarly upheld. The elements of the offense under
Section 4(a) of R.A. No. 3019 are: (1) Through misappropriation,
conversion, or misuse or
malversation of public funds or
1. That the offender has family or close
raids on the public treasury;
personal relation with a public official;
(2) Through the receipt, directly
2. That he capitalizes or exploits or takes
or indirectly, of any
advantage of such family or close personal
commission, gift, share,
relation by directly or indirectly requesting or
percentage, kickbacks or any
receiving any present, gift, material or
other form of pecuniary benefit
pecuniary advantage from any person having
from any person and/or entity in
some business, transaction, application,
connection with any
request or contract with the government;
government contract or project
or by the reason of the office or
3. That the public official with whom the position of the official
offender has family or close personal relation concerned;
has to intervene in the business transaction,
application, request, or contract with the
(3) By the illegal or fraudulent
government.
conveyance or disposition of
assets belonging to the
The allegations in the information charging the violation government or any of its
of Section 4(a) of R.A. No. 3019, if hypothetically subdivisions, agencies or
admitted, would establish the elements of the offense, instrumentalities or
considering that: (1) Disini, being the husband of government-owned or
Paciencia Escolin-Disini, the first cousin of First Lady controlled corporations;
Imelda Romualdez-Marcos, and at the same time the
family physician of the Marcoses, had close personal
(4) By obtaining, receiving or
relations and intimacy with and free access to
accepting directly or indirectly
President Marcos, a public official; (2) Disini, taking
any shares of stock, equity or
advantage of such family and close personal relations,
any other form of interest or
requested and received $1,000,000.00 from Burns &
participation in any business
Roe and $17,000,000.00 from Westinghouse, the
enterprise or undertaking;
entities then having business, transaction, and
application with the Government in connection with the
PNPPP; (3) President Marcos, the public officer with (5) Through the establishment
whom Disini had family or close personal relations, of agricultural, industrial or
intervened to secure and obtain for Burns & Roe the commercial monopolies or
engineering and architectural contract, and for other combination and/or by
Westinghouse the construction of the PNPPP. the issuance, promulgation
 and/or implementation of
decrees and orders intended to
benefit particular persons or
special interests; and
(6) By taking undue advantage
of official position, authority,
relationship or influence for
personal gain or benefit. (Bold
emphasis supplied)
22
In cases where none of the accused are
occupying positions corresponding to salary
grade ‘27’ or higher, as prescribed in the said
Republic Act No. 6758, or military or PNP
officers mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court,
municipal trial court and municipal circuit trial
court as the case may be, pursuant to their
respective jurisdiction as provided in Batas
Pambansa Blg. 129, as amended."
25
Article 212. Corruption of public officials. —
The same penalties imposed upon the officer
corrupted, except those of disqualification and
suspension, shall be imposed upon any person
who shall have made the offers or promises or
given gifts or presents described in the
preceding articles."
26
Article 210. Direct bribery. — Any public
officer who shall agree to perform an act
constituting a crime, in connection with the
performance of this official duties, in
consideration of any offer, promise, gift or
present received by such officer, personally or
through the mediation of another, shall suffer
the penalty of prision mayor in its medium and
maximum periods and a fine of not less than
the value of the gift and not less than three
times the value of the gift in addition to the
penalty corresponding to the crime agreed
upon, if the same shall have been committed.
If the gift was accepted by the officer in
consideration of the execution of an act
which does not constitute a crime, and
the officer executed said act, he shall
suffer the same penalty provided in the
preceding paragraph; and if said act
shall not have been accomplished, the
officer shall suffer the penalties of
prision correccional, in its medium
period and a fine of not less than twice
the value of such gift.
If the object for which the gift was
received or promised was to make the
public officer refrain from doing
something which it was his official duty
to do, he shall suffer the penalties of
prision correccional in its maximum
period and a fine of not less than the
value of the gift and not less than three
times the value of such gift.
In addition to the penalties provided in
the preceding paragraphs, the culprit
shall suffer the penalty of special
temporary disqualification. The
provisions contained in the preceding
paragraphs shall be made applicable to
assessors, arbitrators, appraisal and
claim commissioners, experts or any
other persons performing public duties.
27
Article 90. Prescription of crime. — Crimes
punishable by death, reclusion perpetua or
reclusionte mporal shall prescribe in twenty
years. Crimes punishable by other afflictive
penalties shall prescribe in fifteen years.
Those punishable by a correctional
penalty shall prescribe in ten years;
with the exception of those punishable
by arresto mayor, which shall prescribe
in five years.
The crime of libel or other similar
offenses shall prescribe in one year.
The crime of oral defamation and
slander by deed shall prescribe in six
months. Light offenses prescribe in two
months.
When the penalty fixed by law is a
compound one, the highest penalty
shall be made the basis of the
application of the rules contained in the
first, second and third paragraphs of
this article.
34
Article 91. Computation of prescription of
offenses. — The period of prescription shall
commence to run from the day on which the
crime is discovered by the offended party, the
authorities, or their agents, and shall be
interrupted by the filing of the complaint or
information, and shall commence to run again
when such proceedings terminate without the
accused being convicted or acquitted, or are
unjustifiably stopped for any reason not
imputable to him. The term of prescription shall
not run when the offender is absent from the
Philippine Archipelago.
39
The elements of direct bribery are:
1. The offender is a public officer;
2. The offender accepts an offer or
promise or receives a gift or present by
himself or through another;
3. That such offer or promise be
accepted or gift or present be received
by the public officer with a view to
committing some crime, or in
consideration of the execution of an act
which does not constitute a crime but
the act must be unjust, or to refrain
from doing something which it is his
official duty to do; and 4. The act which
the offender agrees to perform or which
he executes is connected with the
 performance of his official duties Corporation and approving payment
(Magno v. Commission on Elections, thereof to said corporation in violation
G.R. No. 147904, October 4, 2002,390 of the Anti-Graft and corrupt Practices
SCRA 495, 499). Act.

except only as to the dates of the commission of the

offense, voucher numbers, and amounts involved.
(7) G.R. No. 70332-43 November 13, 1986
Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860.
GENEROSO TRIESTE, SR., petitioner, 6861, and 6862 were allegedly committed in July,
vs. 1980; Criminal Cases Nos. 6863 and 6864, in August,
SANDIGANBAYAN (SECOND 1980; and Criminal Cases Nos. C-865, 6866 and 6867
DIVISION), respondent. in October, 1980. The separate vouchers involved in
the twelve (12) cases are said to be the following:
Arturo M. de Castro for petitioner.
Crim. Case #6856, Vchr #211-90-10-
The Solicitor General for respondent. 174 at P558.80

ALAMPAY, J.: Crim. Case #6857, Vchr #211-80-10-

187 at 943.60
The present case relates to an appeal by way of a
Petition for Review of the decision promulgated on Crim. Case #6858, Vchr #211-80-10-
November 6, 1984, by the Sandiganbayan convicting 189 at 144.00
the herein petitioner, Generoso Trieste, Sr., of twelve
(12) separate violations of Section 3 paragraph (h) of Crim. Case #6859, Vchr #211-80-10-
Republic Act 3019, otherwise known as the Anti-Graft 190 at 071.30
and Corrupt Practices - Act, which petitioner were
accused of in Criminal Cases Nos. 6856-6867 of said Crim. Case #6860, Vchr #211-80-10-
Court. Petitioner's motion for reconsideration and/or 191 at 270.00
new trial was denied by the respondent
Sandiganbayan under its Resolution of March 11, Crim. Case #6861, Vchr #211-80-10-
1985. 232 at 1,820.00

The twelve (12) separate Informations filed by the Crim. Case #6862, Vchr #211-80-10-
Tanodbayan against the herein petitioner for violation 239 at 1,085.80
of Section 3 (h) of the Anti-Graft Law are all similarly
worded as the information presented in Criminal Case Crim. Case #6863, Vchr #211-80-10-
No. 6856 which is hereunder quoted: 407 at 150.00

That on or about the month of July, Crim. Case #6864, Vchr #211-80-12-
1980 and some time subsequent 494 at 500.00
thereto, in the municipality of
Numancia, Aklan, Philippines, and
Crim. Case #6865, Vchr #211-81-04-
within the jurisdiction of this Honorable
61 at 840.00
Court, the abovenamed accused,
being then the Municipal Mayor and
member of the Committee on Award of Crim. Case #6866, Vchr #211-81-04-
the Municipality of Numancia, Aklan 62 at 787.00
and as such, had administrative control
of the funds of the municipality and Crim. Case #6867, Vchr #211-81-04-
whose approval is required in the 63 at 560.00
disbursements of municipal funds, did
then and there wilfully and unlawfully
have financial or pecuniary interest in a
business, contract or transaction in
connection with which said accused
intervened or took part in his official
capacity and in which he is prohibited
by law from having any interest, to wit
the purchases of construction materials
by the Municipality of Numancia, Aklan
from Trigen Agro-Industrial
Development Corporation, of which the
accused is the president, incorporator,
director and major stockholder paid
under Municipal Voucher No. 211-90-
10-174 in the amount of P558.80 by
then and there awarding the supply and
delivery of said materials to Trigen
Agro-Industrial Development
 following
5 shall constitute corrupt
practices
0 of any public officer and are
hereby declared to be unlawful:
(Consolidated Comment, pg. 4; Rollo,
325) xxx xxx xxx

After trial, the Sandiganbayan rendered the challenged (h) Directly or indirectly having financial
decision dated November 6, 1984, convicting the or pecuniary interest in any business,
petitioner in all the twelve (12) criminal cases, (Rollo, contract or transaction in connection
pp. 324-325) and in each case he was sentenced,"...to with which he intervenes or takes part
suffer the indeterminate penalty of imprisonment in his official capacity, or in which he is
ranging from THREE (3) YEARS and ONE (1) DAY as prohibited by the Constitution or by any
the minimum, to SIX (6) YEARS and ONE (1) DAY as law from having any interest.
the maximum, to further suffer perpetual
disqualification from the public office, and to pay the The elements essential in the
cost of the action." (pp. 37-40, Decision; Rollo, 322). commission of the crime are:

After the petition for review was filed in this case and a) The public officer has financial or
pending the submission by respondent of its comment pecuniary interest in a business,
to the petition, herein petitioner presented to this Court contract or transaction;
on June 7, 1985, an urgent petition to lift the order of
the Sandiganbayan dated September 12, 1983, b) In connection with which he
suspending him from Office as the elected Municipal intervenes in his official capacity.
Mayor of Numancia, Aklan. His term was to expire in
1986. No objection to the petition for the lifting of the
Concurrence of both elements is
suspension order was interposed by the Solicitor
necessary as the absence of one will
General. Accordingly, and pursuant to the resolution of
not warrant conviction. (Rollo, pp. 338-
this Court dated October 1, 1985, petitioner's
339).
preventive suspension was lifted and his reinstatement
as Municipal Mayor of Numancia, Aklan was ordered
to take effect immediately. The earlier view taken by the Solicitor General's Office
was that petitioner's evidence of divestment of interest
in Trigen 'Corporation, which is said to have been
A supplemental petition, dated October 10, 1985, was
effected on February 25, 1980, before the petitioner
later filed by petitioner's new counsel in collaboration
assumed the Mayorship, should have been presented
with the original counsel on record of petitioner. In this
at the earliest opportunity before the Tanodbayan and
supplemental pleading, it was vigorously stressed that
because this was not done by him the resolution of the
the petitioner did not, in any way, intervene in making
Tanodbayan finding a prima facie case against
the awards and payment of the purchases in question
petitioner should be sustained. Furthermore, petitioner
as he signed the voucher only after all the purchases
was faulted because the transfer of his interest in the
had already been made, delivered and paid for by the
corporate stock of Trigen Corporation should have
Municipal Treasurer. It was further pointed out that
been recorded in the Securities and Exchange
there was no bidding at all as erroneously adverted to
Commission but no evidence of this sort, was
in the twelve informations filed against herein petitioner
presented. The consolidated comment also played up
because the transactions involved were emergency
the advertisement of Trigen Corporation in the program
direct purchases by personal canvass.
of the Rotary Club of Kalibo, Aklan, showing the printed
name of petitioner as the President-Manager of the
Upon leave of the Court given, the former Solicitor said corporation. (Consolidated Comment; Rollo, pp.
General filed a consolidated comment dated 340-341)
November 4, 1984, to the original petition filed in this
case dated April 30, 1985 as well as on the
Petitioner filed a Reply controverting the allegations
supplemental petition dated October 10, 1985. He
and arguments recited in the aforestated Consolidated
argued the dismissal of the petition on the ground that
Comment of the Solicitor General.
the same raise factual issues which are, therefore, non-
reviewable (Consolidated Comment, pg. 20; Rollo,
341). The submission made by the Office of the After considering the pleadings filed and deliberating
Solicitor General in the Consolidated Comment dated on the issues raised in the petition and supplemental
November 4, 1986, are hereunder quoted: petition for review on certiorari of the decision of the
Sandiganbayan, as well as the consolidated comment
and the reply thereto filed by petitioner's counsel, the
xxx xxx xxx
Court in its resolution of January 16, 1986, gave due
course to the petition and required the parties to file
The impugned decision convicted their respective briefs.
petitioner for violation of Section 3 (h),
paragraph (h) of the Anti-Graft and
Petitioner's exhaustive and well-reasoned out Brief
Corrupt Practices Act which reads as
which was filed with the Court on April 14, 1986, raised
follows:
the following legal questions.
SEC. 3. Corrupt Practices of Public
xxx xxx xxx
Officers. - In addition to acts or
omissions of public officers already
penalized by existing laws, the
 From the foregoing recital of facts, the
following legal questions arise:
1. Does the mere signing by a
Municipal Mayor of municipal vouchers
and other supporting papers covering
purchases of materials previously
ordered by the Municipal Treasurer
without the knowledge and consent of
the former, subsequently delivered by
the supplier, and, thereafter paid by the
same Municipal Treasurer also without
the knowledge and consent of the
Municipal Mayor, constitute a violation
of the provisions of Section 3 (h) of
Rep. Act No. 3019 otherwise known as
the Anti-Graft and Corrupt Practices
Act?
2. Does the mere signing of the mere
documents above constitute the kind of
intervention of taking part in (his)
official capacity within the context of the
above-mentioned law?
3. Was damage or prejudice, as an
element of the offense under Section 3
(h) of the said law, caused to the
Government or the Municipality of
Numancia as a result of the contracts
in question and as a corollary thereto,
was undue advantage and gained by
the transacting corporation?
4. Was there divestment on the part of
the herein petitioner of his shares in
Trigen Agro-Industrial Development
Corporation long before the questioned
transactions? (Appellant's Brief, page
15)
It was then discus and argued by the petitioner that the
prosecution failed to establish the presence of all the
elements of the offense, and more particularly to
adduce proof that petitioner has, directly or indirectly, a
financial or pecuniary interest in the imputed business
contracts or transactions.
Discussion of petitioner's arguments in this regard will
not however, be recited anymore as this was obviated
when a new Solicitor General, after seeking and
obtaining several extensions of time to file its Brief in
this case at bar, filed on October 7, 1986, a
"Manifestation For Acquittal" (in lieu of the People's
Brief). Rollo, 293).
The new Solicitor General's Office after adopting the
statement of facts recited in the consolidated comment
of the former Solicitor General's Office moved for the
acquittal of the petitioner, upon acknowledging and
concluding that:
xxx xxx xxx
Petitioner has divested his interest with
Trigen
Petitioner sought to establish that
before he assumed office as mayor on
March 3, 1980, he had already sold his
shares with Trigen to his sister Mrs.
Rosene Trieste-Tuason. The sale was
made by corresponding indorsements
to her stock certificate which was duly
recorded in the stock and transfer book
of the corporation.
Respondent Sandiganbayan however
doubts the sale because the same was
not reported to the SEC. SEC records,
as the prosecution evidence show, do
not reflect the sale and petitioner still
appears as the firm's President.
The prosecution's evidence to
establish non-divestment of petitioner's
interest with Trigen is weak. Anyway,
Trigen has not updated its reports to
the SEC since 1976. It have not even
submitted its financial annual report
ever since. Absence of the sales report
in the SEC does not mean that the sale
did not take place. Reporting the sale is
not a mandatory requirement.
Sales of stocks need not be reported to
SEC
In any event, the law only requires
submission of annual financial reports,
not sales or disposal of stocks (Section
141, Corporation Code of the
Philippines).
Upholding the evidence of petitioner's
divestment of his interest with Trigen
would necessarily allow him to act
freely in his official capacity in the
municipality's dealings or transactions
with Trigen. That in itself is sufficient to
acquit him of the crimes charged.
(Rollo, pp. 299-300).
In the matter of the alleged intervention of petitioner,
the Office of the Solicitor General itself subscribes to
and on its own volition place on record the following
observations:
Prosecution failed to prove charges; evidence
discloses absence of bidding and award
The prosecution's lone witness,
Treasurer Aniceto Vega, testified that
there never was a public bidding
conducted because all the transactions
were made by direct purchases from
Trigen.
Q. In other words, in all
these transactions
there never really was
any public bidding?
A. Yes, Sir. There was
no public bidding.
Q. And these
purchases were made
 by direct purchases Testimonial and documentary
from the establishment evidence confirms that petitioner
of Trigen? signed vouchers after payment

A. Yes, Sir. (pp. 36-37, Additional facts which respondent

Tsn., Oct. 26, 1983) Court failed to consider and which
could have altered the outcome of the
In the absence of a public bidding and case in the following uncontroverted
as emphatically declared by the testimony of Josue Maravilla:
prosecution's sole witness Vega that all
the transactions were on direct Q. When these
purchases from Trigen, how can one municipal vouchers
ever imagine that petitioner has were prepared by the
awarded the supply and delivery of municipal treasurer, as
construction materials to Trigen as you said, and then
specifically charged in the twelve (12) presented to Mayor
informations? The charges are of Trieste for his
course baseless and even contradict signature, were the
the evidence of the prosecution itself. purchases in question
already paid?
Even the respondent Court finally
found that petitioner did not intervene A. They had already
during the bidding and award, which of been paid for, sir.
course is a false assumption because
of Vega's testimony that there was no Q. Previously, prior to
public bidding at all. Respondent Court the signature of Mayor
said: Trieste?

. . . . In short, accused's A. Yes, sir.

intervention may not be present during
the bidding and award, but his liability A.J. ESCAREAL:
may also come in when he took part in
said transactions such as signing the
Q. Under what
vouchers under certifications 1, 2 and 3
authority were they
thereof, to make it appear that the
paid?
transactions were regular and proper.
(Resolution dated March 11, 1985
denying petitioner's motion for A. Under official receipt
reconsideration/new trial, page 7). issued by Trigen.

No evidence to prove petitioner Q. Who authorized the

approved payment payment?

Now, did petitioner intervene by A. The municipal

approving payments to Trigen as also treasurer who paid the
charged in the information? Can there materials.
be intervention after payment.
ATTY. CONSULTA:
Vega testified that petitioner signed the
twelve (12) municipal vouchers Q. You said they had
(Exhibits A to L) for the purchase and already been paid for.
payment of construction materials. It Do you know of any
was sometime after delivery of the receipts issued by
construction materials that he (Vega) Trigen to indicate that
signed and paid the twelve (12) - at the time these
municipal vouchers (pages 5 to 7), municipal vouchers
decision of respondent Sandiganbayan were signed by Mayor
dated November 2, 1984). The Trieste, the materials
prosecution has not presented had already been
evidence to show as to when petitioner delivered and paid by
signed the twelve (12) municipal the municipality to
vouchers. But it can safely be assumed Trigen?
as a matter of procedure that petitioner
had signed the voucher after Treasurer xxx xxx xxx
Vega signed and paid them., (Rello, pp.
301-303) A. Yes, sir

xxx xxx xxx Q. Now, what exhibits

particularly do you
know were issued
 by Trigen to indicate Q. Now, do you know
that payments were why Mr. Vega asked
made prior to the that those municipal
signing of the municipal vouchers be
vouchers by Mayor nevertheless signed in
Trieste? spite of the fact that he
knew that the amounts
A. Exhibits A, G, B, F, had already been
C, D, Exhibit I and disbursed and paid by
Exhibit H. him to Trigen?

xxx xxx xxx A. He said that the

municipal vouchers for
Q. Now, Mr. Maravilla, record purposes is
aside from these necessary to be signed
prosecution's exhibits by the mayor. (Tsn.,
which are Trigen Mar. 5, 1984, pp. 19-
receipts showing 49).
payments long before
the municipal vouchers Inasmuch as Treasurer Vega signed
were prepared, what and paid the vouchers after the
can you say about the materials were delivered, petitioner's
other municipal signature on the vouchers after
vouchers in this case in payment is not, we submit the kind of
reference to payments intervention contemplated under
made by Trigen to the Section 3(h) of the Anti-Graft Law.
municipality?
xxx xxx xxx
ESCAREAL:
What is contemplated in Section 3(h) of
Payment made by the anti-graft law is the actual
Trigen? intervention in the transaction in which
one has financial or pecuniary interest
ATTY. CONSULTA: in order that liability may attach.
(Opinion No. 306, Series 1961 and
Opinion No. 94, Series 1972 of the
I am sorry, Your Honor,
Secretary of Justice). The official need
made to Trigen by the
not dispose his shares in the
municipality?
corporation as long as he does not do
anything for the firm in its contract with
A. Official receipts the office. For the law aims to prevent
issued by Trigen also the don-tenant use of influence,
indicate that when authority and power (Deliberation on
municipal vouchers Senate Bill 293, May 6, 1959,
marked Exhibits E, B, Congressional Record, Vol. 11, page
C, D, F, G, H, I were 603).
prepared, they had
already been delivered
There is absolutely no evidence that
and the amounts
petitioner had, in his capacity as Mayor,
indicated therein were
used his influence, power, and
already prepared by
authority in having the transactions
the municipal treasurer.
given to Trigen. He didn't ask anyone-
neither Treasurer Vega nor Secretary
Q. Did you say already Maravilla for that matter, to get the
made by the municipal construction materials from Trigen.
treasurer-the amounts
were already paid by
Trigen did not gain any undue
the municipal
advantage in the transaction
treasurer?
Petitioner should not be faulted for
A. Already paid.
Trigen's transaction with the
municipality, which by the way, has
Q. Who disbursed the been dealing with it even before
funds evidenced by the petitioner had assumed the mayorship
Trigen official receipts? on March 3, 1980. Personal canvasses
conducted found that Trigen's offer was
A. The municipal the lowest, most reasonable, and
treasurer, then Mr. advantageous to the municipality. . . .
Vega. (Rollo, pp. 307-308; Emphasis
supplied).
It is also an acknowledged fact that there was no
complaint for non-delivery, underdelivery or overpricing
regarding any of the transactions.
Considering the correct facts now brought to the
attention of this Court by the Solicitor General and in
view of the reassessment made by that Office of the
issues and the evidence and the law involved, the
Court takes a similar view that the affirmance of the
decision appealed from cannot be rightfully sustained.
The conscientious study and thorough analysis made
by the Office of the Solicitor General in this case truly
reflects its consciousness of its role as the People's
Advocate in the administration of justice to the end that
the innocent be equally defended and set free just as it
has the task of having the guilty punished. This Court
will do no less and, therefore, accepts the submitted
recommendation that the decision and resolution in
question of the respondent Sandiganbayan be
reversed and that as a matter of justice, the herein
petitioner be entitled to a judgment of acquittal.
WHEREFORE, the decision rendered by the
Sandiganbayan, dated November 2, 1984, in Criminal
Cases Nos. 6856 to 6867, finding the herein petitioner,
Generoso Trieste, Sr. guilty of the violations of Section
3 paragraph (h) of Republic Act 3019, as amended, is
hereby set aside and reversing the appealed judgment,
a new judgment is now rendered ACQUITTING
Generoso Trieste, Sr., of said offenses charged against
him with costs de oficio.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa,
Gutierrez, Jr., Cruz and Paras, JJ., concur.
Melencio-Herrera, J., took no part.
Feliciano, J., is on leave.
(8) G.R. Nos. L-51065-72
ARTURO A. MEJORADA, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and THE
PEOPLE OF THE PHILIPPINES, respondents.
CORTES, J.:
This petition for certiorari seeks to reverse the May 23,
1979 decision of the Sandiganbayan finding the
accused Arturo A. Mejorada in Criminal Cases Nos.
002-009 guilty beyond reasonable doubt of violating
Section 3(E) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.
Eight informations were filed by the Provincial Fiscal
against the petitioner and jointly tried before the
Sandiganbayan. The eight informations substantially
allege the same set of circumstances constituting the
offense charged, Criminal Case No. 002 reads as
follows:
That in (sic) or about and during the period
comprised from October 1977 to February
1978, in the municipality of Pasig, Metro
Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, being employed in the Office of the
Highway District Engineer, Pasig, Metro
Manila, as Right-of-Way-Agent conspiring and
confederating together with two (2) other John
Does whose true Identities and present
whereabouts are still unknown, with evident
bad faith, and for personal gain, did then and
there wilfully, unlawfully and feloniously,
directly intervene, work for, and facilitate the
approval of one Isagani de Leon's claim for the
payment in the removal and reconstruction of
his house and a part of his land expropriated by
the government having been affected by the
proposed Pasig-Sta Cruz-Calamba Road. 2nd
IBRD Project at Binangonan, Rizal, while the
accused, Arturo A. Mejorada is in the discharge
of his official and/or administrative functions
and after said claim was approved and the
corresponding PNB Check No. SN 5625748
was issued and encashed in the amount of
P7,200.00 given only P1,000.00 to claimant
(Isagani de Leon), appropriating, applying and
converting to themselves the amount of
P6,200.00, thereby causing damage and
prejudice to Isagani de Leon and the
government in the aforementioned amount of
P6,200.00.
Contrary to law.
Except for the date of the commission of the offense,
the name of the aggrieved private party, the PNB
Check number, the amount involved and the number
or John Does, the seven other informations are
verbatim repetitions of the above.
The facts are found by the respondent Sandiganbayan
are as follows:
Arturo A. Mejorada was a public officer who was first
employed as a temporary skilled laborer in the Bureau
of Public Works on March 16, 1947, and then as right-
of-way agent in the Office of the Highway District
Engineer, Pasig, Metro Manila, from February, 1974 up
to December 31, 1978. As a right-of-way agent, his
main duty was to negotiate with property owners
affected by highway constructions or improvements for
the purpose of compensating them for the damages
incurred by said owners.
Among those whose lots and improvements were
affected by the widening of the proposed Pasig-Sta.
Cruz-Calamba Road. 2nd IBRD Project, at
Binangonan, Rizal were Isagani de Leon, Isaac Carlos,
Napoleon Maybituin, Dominga Villaroza, Florentino de
la Cruz, Cipriano Aran, Celestina S. Mallari and
Rodolfo Rivera, all residents of Mambog, Binangonan,
Rizal.
Sometime in October or November 1977, petitioner
contacted the aforenamed persons and informed them
that he could work out their claims for payment of the
values of their lots and/or improvements affected by the
widening of said highway. In the process, Mejorada
required the claimants to sign blank copies of the
"Sworn Statement on the Correct and Fair Market
Value of Real Properties" and "Agreement to Demolish,
Remove and Reconstruct improvements" pertinent to
their claims. The claimants complied without bothering
to find out what the documents were all about as they
were only interested in the payment of damages.
In said "Sworn Statements" and "Agreements to
Demolish", the value of the respective properties of the
claimants were made to appear very much higher than
the actual value claimed by them. Likewise, the said
"Agreements to Demolish" reflected the value of the
improvements as per assessor" which on the average
was only P2,000.00 lower than the value declared by
the owners in their sworn statements. The value as per
assessor was, in turn, supported by the Declarations of
Real Property in the names of the claimants containing
an assessed value exactly the same as that stated in
the Agreements to Demolish "as per assessor", except
the claims of De la Cruz and Aran where there is only
a difference of P400.00 and P200.00, respectively. It
turned out, however, that said Declarations of Property
are not really intended for the claimants as they were
registered in the names of other persons, thus showing
that they were all falsified.
A few months after processing the claims, accused
accompanied the claimants to the Office of the
Highway District Engineer at the provincial capitol of
Pasig, Metro Manila, to receive payments and
personally assisted the claimants in signing the
vouchers and encashing the checks by certifying as to
their Identities and guaranteeing payment.
Right after the claimants had received the proceeds of
their checks, accused accompanied them to his car
which was parked nearby where they were divested of
the amounts paid to them leaving only the sum of
P1,000.00 to each, except Isaac Carlos to whom
P5,000.00 was left, explaining to them that there were
many who would share in said amounts. All the
claimants were helpless to complaint because they
were afraid of the accused and his armed companion.
The claimants, through the assistance of counsel, filed
their complaints with the Provincial Fiscal's Office of
Pasig, Metro Manila, narrating in their supporting sworn
statements what they later testified to in court.
Five issues are raised in this petition to review the
decision of the Sandiganbayan:
I. Whether or not the essential elements constituting
the offense penalized by section 3(e) of Republic Act
No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act have been clearly and
convincingly proven by the prosecution;
II. Whether or not the Sandiganbayan is a court of
competent jurisdiction duly constituted in accordance
with Pres. Dec. No. 1606;
III. Whether or not the penalty imposed upon the
petitioner is excessive and contrary to the three-fold
rule as provided for by Article 70 of the Revised Penal
Code;
IV. Whether or not there is a variance between the
offense charged in the information and the offense
proved;
V. Whether or not the conclusion drawn from the record
of the Sandiganbayan in arriving at a verdict of
conviction of petitioner is correct is a question of law
which this Honorable Court is authorized to pass upon.
I. Petitioner contends that the eight informations filed
against him before the Sandiganbayan are fatally
defective in that it failed to allege the essential
ingredients or elements constituting the offense
penalized by Section 3(e) of Rep. Act No. 3019.
The section under which the accused-petitioner was
charged provides:
Sec. 3. Corrupt practices of public officers. In
addition to acts or omissions of public officers
already penalized by existing law, the following
shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful.
xxx xxx xxx
(e) Causing any undue injury to any party,
including the Government, or giving any private
party any unwarranted benefits, advantage or
preference in the discharge of his official
administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the
grant of licenses or permits or other
concessions.
Petitioner enumerated three elements which, in his
opinion, constitute a violation of Section 3(e).
First, that the accused must be a public officer charged
with the duty of granting licenses or permits or other
concessions. Petitioner contends that inasmuch as he
is not charged with the duty of granting licenses,
permits or other concessions, then he is not the officer
contemplated by Section 3 (e).
Section 3 cited above enumerates in eleven
subsections the corrupt practices of any public officers
declared unlawful. Its reference to "any public officer"
is without distinction or qualification and it specifies the
acts declared unlawful. We agree with the view
adopted by the Solicitor General that the last sentence
of paragraph (e) is intended to make clear the inclusion
of officers and employees of officers or government
corporations which, under the ordinary concept of
"public officers" may not come within the term. It is a
strained construction of the provision to read it as
applying exclusively to public officers charged with the
duty of granting licenses or permits or other
concessions.
The first element, therefore, of Section 3 (e) is that the
accused must be a public officer. This, the informations
did not fail to allege.
Second, that such public officer caused undue injury to
any party, including the Government, or gave any
private party unwarranted benefits, advantage or
preference in the discharge of his official administrative
or judicial functions.
Petitioner denies that there was injury or damage
caused the Government because the payments were
allegedly made on the basis of a document solely made
by the Highway District Engineer to which petitioner
had no hand in preparing. The fact, however, is that the
government suffered undue injury as a result of the
petitioner's having inflated the true claims of
complainants which became the basis of the report
submitted by the Highway District Engineer to the
Regional Director of the Department of Highways and
which eventually became the basis of payment. His
contention that he had no participation is belied by the
fact that as a right-of-way-agent, his duty was precisely
to negotiate with property owners who are affected by
highway constructions for the purpose of
compensating them.
On the part of the complainants, the injury caused to
them consists in their being divested of a large
proportion of their claims and receiving payment in an
amount even lower than the actual damage they
incurred. They were deprived of the just compensation
to which they are entitled.
Third, the injury to any party, or giving any private party
any unwarranted benefits, advantage or preference
was done through manifest, partiality, evident bad faith
or gross inexcusable negligence.
Petitioner argues that for the third element to be
present, the alleged injury or damage to the
complainants and the government must have been
caused by the public officer in the discharge of his
official, administrative or judicial functions and
inasmuch as when the damage was caused to the
complainants, he was no longer discharging his official
administrative functions, therefore, he is not liable for
the offense charged.
The argument is devoid of merit. The Sandiganbayan
established the fact that the petitioner took advantage
of his position as a right-of-way-agent by making the
claimants sign the aforementioned agreements to
demolish and sworn statements which contained
falsified declarations of the value of the improvements
and lots. There was evident bad faith on the part of the
petitioner when he inflated the values of the true claims
and when he divested the claimants of a large share of
the amounts due them.
In view of the above holding. We also dispose of the
fourth issue which relates to the allegation that
petitioner cannot be convicted for a violation of the Anti-
Graft Law because the evidence adduced by the
prosecution is not the violation of Section 3 (e) but the
crime of robbery. Contrary to the petitioner averment.
We find no variance between the offense charged in
the information and the offense proved. The
prosecution was able to establish through the
corroborating testimonies of the witnesses presented
how through evident bad faith, petitioner caused
damage to the claimants and the Government. The
manner by which the petitioner divested the private
parties of the compensation they received was part of'
the scheme which commenced when the petitioner
approached the claimants and informed them that he
could work out their claims for payment of the values of
their lots and/or improvements affected by the widening
of the Pasig-Sta. Cruz-Calamba Road. The evidence
presented by the prosecution clearly establish a
violation of Section 3(e).
II. The petitioner also assails the competency of the
Sandiganbayan to hear and decide this case. He
argues that before the Sandiganbayan could legally
function as a judicial body, at least two (2) divisions, or
majority of the justices shall have been duly constituted
and appointed.
We previously ruled on this matter in the case of De
Guzman v. People (G.R. No. 54288, December 15,
1982, 119 SCRA 337). In that case, the petitioner De
Guzman questioned the authority of the
Sandiganbayan to hear and decide his case on the
same ground that herein petitioner assails its
jurisdiction. The Court upheld the authority of the
Sandiganbayan saying that:
Although the Sandiganbayan is composed of a
Presiding Justice, and eight Associate
Justices, it does not mean that it cannot validly
function without all of the Divisions constituted.
Section 3 of P.D. 1606 provides that the
"Sandiganbayan shall sit in three divisions of
three justices each" while Section 5 thereof
provides that the unanimous vote of three
justices of a division shall be necessary for the
pronouncement of a judgment.
Thus the Sandiganbayan functions in Divisions
of three Justices each and each Division
functions independently of the other. As long as
a division has been duly constituted it is a
judicial body whose pronouncements are
binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a
unanimous Decision of the First Division duly
constituted. It thus met the requirement for the
pronouncement of a judgment as required by
Section 5 of P.D. 1606 supra.
III. The third issue raised by the petitioner concerns the
penalty imposed by the Sandiganbayan which totals
fifty-six (56) years and eight (8) days of imprisonment.
Petitioner impugns this as contrary to the three-fold rule
and insists that the duration of the aggregate penalties
should not exceed forty (40) years.
Petitioner is mistaken in his application of the three-fold
rule as set forth in Article 70 of the Revised Penal
Code. This article is to be taken into account not in the
imposition of the penalty but in connection with the
service of the sentence imposed (People v. Escares,
102 Phil. 677 [1957]). Article 70 speaks of "service" of
sentence, "duration" of penalty and penalty "to be
inflicted". Nowhere in the article is anything mentioned
about the "imposition of penalty". It merely provides
that the prisoner cannot be made to serve more than
three times the most severe of these penalties the
maximum of which is forty years.
The Sandiganbayan, therefore, did not commit any
error in imposing eight penalties for the eight
informations filed against the accused-petitioner. As
We pointed out in the case of People v. Peralta, (No.
L-19069, October 29, 1968, 25 SCRA 759, 783-784):
 ... Even without the authority provided by
Article 70, courts can still impose as many
penalties as there are separate and distinct
offenses committed, since for every individual
crime committed, a corresponding penalty is
prescribed by law. Each single crime is an
outrage against the State for which the latter,
thru the courts of justice, has the power to
impose the appropriate penal sanctions.
In the light of the above reasons, petitioner cannot
assail the penalty imposed upon him as harsh, cruel
and unusual (See Veniegas v. People, G.R. No. 57601-
06 July 20, 1982, 115 SCRA 790, 792).
We deem it unnecessary to pass upon the fifth issue
raised in view of the foregoing discussion.
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-
Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.
(9) G.R. No. 109991 May 22, 1995
ELIAS C. QUIBAL AND ANTONIO U.
DENIEGA, petitioners,
vs.
THE HON. SANDIGANBAYAN (Second Division)
and PEOPLE OF THE PHILIPPINES, respondents.
PUNO, J.:
Petitioners ELIAS C. QUIBAL and ANTONIO U.
DENIEGA, the mayor and treasurer, respectively, of
the municipality of Palapag, Northern Samar, and
Eduardo C. Guevarra, a private individual, were
charged with violation of Section 3 (e) of Republic Act
No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act.
The Information 1 against them reads:
That on or about February 16, 1988, or
sometime prior or subsequent thereto,
in Palapag, Northern Samar, within the
jurisdiction of this Honorable Court, the
accused public officers, namely, ELIAS
C. QUIBAL, Municipal Mayor of
Palapag, Northern Samar, and
ANTONIO U. DENIEGA, then
Municipal Treasurer of Palapag,
Northern Samar, while in the discharge
of their public functions, through
evident bad faith and manifest partiality
in conspiracy with EDUARDO C.
GUEVARRA, a private contractor
representing Floters Construction, did
then and there wilfully and unlawfully
cause undue injury, by effecting
payment in the amount of
P650,000.000 when the actual cost of
the public market of Palapag, Northern
Samar, was only P301,754.65, thereby
giving unto the said private contractor
unwarranted benefits to the damage
and prejudice of the government in the
total amount of P348,345.35.
Only accused Elias C. Quibal and Antonio U. Deniega
were arrested, tried and convicted. Accused Eduardo
C. Guevarra remains at large.
The evidence on record established the following:
On November 27, 1987, the municipality of Palapag,
Northern Samar, represented by its OIC vice-mayor
Teodoro C. Bello, entered into a contract2 with the
Floters Construction Company, represented by
accused Eduardo C. Guevarra, for the Construction of
the municipal public market. The period for the
completion of the project was one hundred (100) days.
The price was P652,562.60.
From February 16, 1988 to April 12, 1988, accused
Mayor Quibal and Municipal Treasurer Deniega,
issued four (4) PNB checks in favor of the contractor in
the total amount of P650,000.00. However, sometime
in June 1988, after receipt of said payments, the
contractor abandoned the project.
On August 31, 1988, a COA Special Audit Team
composed of Provincial Auditor Marissa Bayona and
Engineers Bienvenido Bayani and Robert Bajar
inspected the progress of the construction of the
Palapag municipal market.3 It discovered several
irregularities. It found out that only about 36.24% of the
construction of the municipal market has been
completed despite the lapse of the contract period of
100 days. The actual cost of the finished work on the
project was only P301,746.65. Unfinished work on the
municipal market, as evaluated, cost P348,235.35. It
was also established that the contractor had already
been paid P650,000.00 despite the non-completion of
the building. The vouchers accompanying said
payments were not properly filled-up and the required
supporting documents were not attached. The
disbursement vouchers (Exhibits "E" to "E-3")
submitted by municipal treasurer Deniega to Provincial
Auditor Bayona were unsigned. Likewise, the payment
to the contractor in the amount of P340,000.00 was not
accompanied by any Certificate of Acceptance issued
by the COA. COA rules require such certificate of
acceptance if the disbursement involves more than
P200, 000.00.
In a letter4 dated January 26, 1989, Provincial Auditor
Marissa Bayona submitted an inspection report to the
COA Regional Director recommending that appropriate
legal action be taken against the municipal mayor,
treasurer and the contractor in connection with the
construction of the Palapag public market. In a
letter5 dated April 7, 1989, the Ombudsman informed
Mayor Quibal of the charges filed against him by the
COA. On May 12, 1989, Mayor Quibal requested the
COA Regional Director for a re-audit of the cost
valuation of the said construction project.6 His request
was denied.
Sometime in November 1989, petitioners still
continued the construction of the municipal market
using the stockpile of materials previously purchased
by the contractor and the contractor's retention fee.
They completed the construction at the end of
December 1989. The municipal government then
started leasing the market stalls in January 1990.
The two (2) accused public officers testified in their
defense. Accused Deniega, municipal treasurer,
admitted that he disbursed the total amount of
P650,000.00 to the contractor, viz:
a) P340,000.00, released on February
16, 1988, based on the voucher
(Exhibit "F-3") presented to him by the
contractor, which was duly approved by
the mayor.
b) P60,000.00, released on February
26, 1988; based on the voucher
presented to him by the contractor
(Exh- "F-2");
c) P200,000.00, released on March 14,
1988, also based on a voucher (Exh.
"F"); and
d) P50,000.00, released on April 22,
1988 (Exh. "F-1"), also based on a
similar voucher.
But he claimed that he submitted complete and signed
vouchers and the required supporting documents to
the Office of the Provincial Auditor. He insisted that the
unsigned vouchers presented in court by the
prosecution were not the vouchers which supported the
payments they made.
For his part, accused mayor Quibal explained that he
paid the contractor more than his accomplished work
to enable the latter to immediately purchase
construction materials which were then selling at a low
price. He further maintained that the audit team should
have included the value of these construction materials
(still unused at the time of audit) in its evaluation of the
project. He urged that these unused materials were
worth approximately P348,235.35, which would justify
his payments to the contractor in the total amount of
P650,000.00.
After trial on the merits, the Sandiganbayan (Second
Division) promulgated, a Decision7 finding accused
public officials guilty beyond reasonable doubt as co-
principals of the crime charged. The dispositive portion
reads:
WHEREFORE, premises considered,
the Court finds accused Elias Quibal y
Capati and Antonio Deniega y Ubas
GUILTY beyond reasonable doubt as
co-principals for violation of Section 3,
paragraph (e) of Republic Act No.
3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices
Act, in relation to Section 9 (a) thereof,
and applying Act No. 4103, as
amended, otherwise known as the
Indeterminate Sentence Law, the Court
imposes upon each accused the
penalties of imprisonment ranging from
SIX (6) YEARS and ONE (1) MONTH
to TEN (10) YEARS and ONE (1) DAY;
perpetual disqualification from public
office; and, to indemnify the
Municipality of Palapag, Northern
Samar, jointly and severally, the
amount of P348,345.35 without
subsidiary imprisonment in case of
insolvency.
With costs.
Considering that their co-accused
Eduardo C. Guevarra has not yet been
brought within the jurisdiction of this
Court up to this date, let this case be
archived as against him without
prejudice to its revival in the event of
his arrest or voluntary submission to
the jurisdiction of this Court.
SO ORDERED.8
The two (2) accused moved for a reconsideration. It
was denied. Hence this petition.
Petitioners contend that:
I
RESPONDENT SANDIGANBAYAN
(SECOND DIVISION) ERRED IN NOT
UPHOLDING THE CONSTITUTIONAL
RIGHT OF PETITIONERS TO "DUE
PROCESS" BY NOT ALLOWING RE-
EXAMINATION AND RE-AUDIT OF
THE PROJECT WHICH HAS
ALREADY BEEN COMPLETED AND
UTILIZED FOR PUBLIC USE.
II
RESPONDENT SANDIGANBAYAN
(SECOND DIVISION) ERRED IN NOT
RESOLVING THAT THE GUILT OF
THE PETITIONERS HAS NOT BEEN
PROVEN BEYOND REASONABLE
DOUBT BECAUSE —
a) NO UNDUE INJURY HAS BEEN
CAUSED TO THE GOVERNMENT
WITH THE FULL COMPLETION OF
THE PROJECT.
b) PETITIONERS DID NOT ACT WITH
MANIFEST PARTIALITY, EVIDENT
BAD FAITH AND GROSS
INEXCUSABLE NEGLIGENCE.
We affirm petitioners' conviction.
Petitioners were charged with a violation of Section 3
(e) of R.A. 3019, viz:
Sec. 3. Corrupt practices by public
officers. — In addition to acts or
omissions of public officers already
penalized by existing law, the following
shall constitute corrupt practice of any
public officer and are hereby declared
to be unlawful:
 xxx xxx xxx
(e) Causing any undue
injury to any party,
including the
Government, or giving
any private party any
unwarranted benefits,
advantage or
preference in the
discharge of his official,
administrative or
judicial functions
through manifest
partiality, evident bad
faith or gross
inexcusable
negligence. This
provision shall apply to
officers and employees
of offices of
government
corporations charged
with the grant of
licenses or permits or
other concessions.
Violation of Section 3 (e) of R.A. 3019 requires proof of
the following facts, viz:
1. The accused is a public officer
discharging administrative or official
functions or private persons charged in
conspiracy with them;
2. The public officer committed the
prohibited act during the performance
of his official duty or in relation to his
public position
3. The public officer acted with manifest
partiality, evident bad faith or gross,
inexcusable negligence; and
4. His action caused undue injury to the
Government or any private party, or
gave any party any unwarranted
benefit, advantage or preference to
such parties.9
Petitioners insist that their guilt has not been proved
beyond reasonable doubt for they did not act with
manifest partiality, evident bad faith or gross,
inexcusable negligence nor did they cause any injury
or damage to the municipal government for the
construction of the municipal market was eventually
completed.
We reject these contentions.
The construction of the municipal market should have
been finished on March 7, 1988. At the time of the audit
on August 31, 1988, however, only 36.24% of the
construction of the market has been completed .Yet,
out of the contract price of P652,562.60, petitioners
already raid the contractor a total of P650,000.00. In so
doing, petitioners disregarded the provision in the
contract that payment should be based on the
percentage of work accomplishment. Moreover, the
contract provided that in case of delay in the
completion of the project, the contractor shall be liable
for liquidated damages at the rate of 1/10 of 1% of the
contract price per day of delay. 10 Petitioners did not
impose this provision against the contractor. By their
acts, petitioners clearly acted with manifest partiality
and evident bad faith relative to the construction of the
municipal market.
Petitioners' acts and omissions are, to say the least,
grossly negligent. Gross negligence is the pursuit of a
course of conduct which would naturally and
reasonably result in injury. It is an utter disregard of or
conscious indifference to consequences. 11 In cases
involving public officials, there is gross negligence
when a breach of duty is flagrant and palpable. 12
In the case at bench, petitioners' acts and omissions
demonstrated an utter lack of care in enforcing the
contract for the construction of the public market and a
reckless disregard of the COA rules and regulations
regarding disbursement of municipal funds. Petitioners
contend that they released P650,000.00 of the contract
price to enable the contractor to take advantage of the
low cost of construction materials prevailing at that
time. Plainly, petitioners' act violates the provision of
the contract requiring that payment shall be made on
the basis of the percentage of completion of the project.
Moreover, as correctly pointed out by the
Sandiganbayan:
. . . The escalation of prices of
construction materials which allegedly
prompted Quibal to pay the contractor
prematurely is not a justification that
would absolve the accused public
officers from criminal liability. The
parties could have included an
escalation clause in the contract. . .
. Moreover, there is a law which
authorizes the adjustment of contract
price (R. A. 5979, as amended by PD
No. 454).
xxx xxx xxx
Petitioners also insist that no undue injury or damage
or caused to the municipal government considering the
later completion of the public market.
We cannot share this myopic view. The construction of
the municipal market was completed only at the end of
December 1989 when it should have been finished by
March 7, 1988. This unnecessary delay of almost two
(2) years caused considerable monetary loss to the
municipal government in the form of monthly rentals.
The least that petitioners should have done was to
enforce the penalty clause of the contract (providing for
payment of liquidated damages in case of breach)
when the contractor failed to meet his deadline on
March 7, 1988. Instead of doing so, petitioners even
made two (2) additional payments to the contractor (on
March 14 and April 22, 1988) in the total sum of
P250,000.00. Thus, it cannot be the successfully
argued that the acts and omissions of petitioners did
not cause damage injury to the municipal government.
Finally, to bolster their claim of denial of due process,
petitioners cite the case of Tinga v. People of the
Philippines. 13 Petitioners' reliance on the Tinga case is
misplaced. In said case, we ruled that Tinga was
denied due process when the Commission on Audit
refused to conduct a re-evaluation of the
accountabilities of Tinga. The ruling was based on the
Court's finding that COA's evaluation of Tinga's
accountabilities was replete with errors, thus:
The Sandiganbayan Decision is
replete with findings of errors in the
audit made of petitioner's
accountability. Thus, it said: (a) "We
are not prepared to repeat the same
mistake as the audit team and prefer to
credit Catalino Y. Tinga for said sum of
P12,654.80 deductible from his alleged
shortage" . . . ; (b) the claim of the
defense that Tinga was a victim of
robbery is fully supported . . . resulting
in a total loss of P10,708.14 . . . . The
COA auditing team ought to have
credited the accused in this amount in
his total accountability for the
accused never pocketed to his benefit
this amount lost . . . ; (c) Court records
indubitably attest to the fact that
Laurencio R. Masong, collection clerk
of the Municipal Treasurer's office of
Bogo, Cebu, failed to turn over to the
accused collections in the total sum of
P7,398.30 in October 1976, for which
reason said employee was charged
and convicted of the crime of
Malversation of Public Funds . . . . Why
then should the COA auditors include
the said sum in the accountability of
Tinga? . . . ; (d) "We find it relevant to
observe that a careful examination of
Exh. "L-1" shows that the entry for
withdrawal of voucher no. . . . has two
circles with a cross inside before and
after the entry, indicating a cancellation
or mistake thereat . . . . Thus, the sum
of P30,000 appears to be honestly
disputed, which also served as basis
for the accused to insist on a review or
re-audit" . . . ; (e) "Such conclusion of
the COA arose from many errors
committed during the audit
examination. . . .
xxx xxx xxx
By the denial of the re-audit, petitioner
was, as claimed by him, not given the
right to be fully heard before the charge
was filed against him at a time when
the records were still available and past
transactions still fresh in the memory of
all concerned. He was given the
chance to defend before the
Sandiganbayan yes, but as said Court
itself observed "Tinga continued to
pursue his quest for a re-audit in his
honest belief that he had not malversed
any government funds. In the process,
many but not all disbursement
vouchers were located in the office of
the Municipal Treasurer of Bogo, Cebu,
. . . ." Perhaps, if he had been re-
audited and his accountability
reviewed, a different result may have
been produced.
Petitioners also claim that considering the value of the
unused stockpile of construction materials and
supplies, a re-audit would prove that the payment they
made was justified and that the actual cost of the
project at the time of the initial inspection is indeed
P650,000.00. We hold that the suggested re-audit
would not exonerate the petitioners. The re-audit
cannot blur the fact that undue damage has already
been caused to the municipal government in view of
the delay in the construction of the municipal market
and the failure of the petitioners to enforce the penalty
clause in the construction contract.
IN VIEW WHEREOF, the appealed Decision is hereby
AFFIRMED in toto. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Regalado and Mendoza, JJ., concur.
PLUNDER
(1) G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner,
vs.
SANDIGANBAYAN (Third Division) and PEOPLE
OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty,
unleashes the full fury of his pen in defense of the rights
of the individual from the vast powers of the State and
the inroads of societal pressure. But even as he draws
a sacrosanct line demarcating the limits on individuality
beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with
very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties
is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who
would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted,
individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection. The
only purpose for which power can be rightfully
exercised over any member of a civilized community,
against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable
right of the State to self-preservation. With the end of
maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of
laws that would compel obeisance to its collective
wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to
unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies.
In the process, the web of rights and State impositions
became tangled and obscured, enmeshed in threads
of multiple shades and colors, the skein irregular and
broken. Antagonism, often outright collision, between
the law as the expression of the will of the State, and
the zealous attempts by its members to preserve their
individuality and dignity, inevitably followed. It is when
individual rights are pitted against State authority that
judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as
amended by RA 7659,2 wishes to impress upon us that
the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid
from the constitutionally infirm. He therefore makes a
stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it
abolishes the element of mens rea in crimes already
punishable under The Revised Penal Code, all of
which are purportedly clear violations of the
fundamental rights of the accused to due process and
to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law claimed
by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any
asset, property, business, enterprise or material
possession of any person within the purview of Section
Two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates
and/or business associates by any combination or
series of the following means or similar schemes:
(1) Through misappropriation, conversion,
misuse, or malversation of public funds or raids
on the public treasury;
(2) By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks
or any other form of pecuniary benefit from any
person and/or entity in connection with any
government contract or project or by reason of
the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions,
agencies or instrumentalities, or government
owned or controlled corporations and their
subsidiaries;
(4) By obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking;
(5) By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or
(6) By taking advantage of official position,
authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of
the Filipino people and the Republic of the
Philippines.
Section 2. Definition of the Crime of Plunder, Penalties.
- Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-
gotten wealth through a combination or series of
overt or criminal acts as described in Section 1 (d)
hereof, in the aggregate amount or total value of at
least fifty million pesos (P50,000,000.00) shall be guilty
of the crime of plunder and shall be punished by
reclusion perpetua to death. Any person who
participated with the said public officer in the
commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating
circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties
and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State
(underscoring supplied).
Section 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful
scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed
before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558,
for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for
violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and
3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563,
for violation of Sec. 7, par. (d), of RA 6713 (The Code
of Conduct and Ethical Standards for Public Officials
and Employees); (d) Crim. Case No. 26564, for Perjury
(Art. 183 of The Revised Penal Code); and, (e) Crim.
Case No. 26565, for Illegal Use Of An Alias (CA No.
142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for
the remand of the case to the Ombudsman for
preliminary investigation with respect to specification
"d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a," "b," and "c" to give
the accused an opportunity to file counter-affidavits
and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were
only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness
of the law under which they are charged were never
raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division,
issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER
exists to justify the issuance of warrants for the arrest
of the accused." On 25 June 2001 petitioner's motion
for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the
Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable
offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended
Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed
its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply
to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral
arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a)
The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving
the predicate crimes of plunder and therefore violates
the rights of the accused to due process; and, (c)
Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of
Congress to so classify it.
Preliminarily, the whole gamut of legal concepts
pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is
presumed to be in harmony with the
Constitution.3 Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to
encroach upon the duties and powers of another. Thus
it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate
branch - the legislature.
If there is any reasonable basis upon which the
legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of
the majority. Hence in determining whether the acts of
the legislature are in tune with the fundamental law,
courts should proceed with judicial restraint and act
with caution and forbearance. Every intendment of the
law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the question
of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we
held that as long as there is some basis for the decision
of the court, the constitutionality of the challenged law
will not be touched and the case will be decided on
other available grounds. Yet the force of the
presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and
palpably transgresses the hallowed domain of the
organic law, it must be struck down on sight lest the
positive commands of the fundamental law be unduly
eroded.
Verily, the onerous task of rebutting the presumption
weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be
no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."5 And petitioner has
miserably failed in the instant case to discharge his
burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would
enable the accused to determine the nature of his
violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required
or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts
by himself or in connivance with members of
his family, relatives by affinity or consanguinity,
business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired
ill-gotten wealth through a combination or
series of the following overt or criminal acts: (a)
through misappropriation, conversion, misuse,
or malversation of public funds or raids on the
public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share,
percentage, kickback or any other form of
pecuniary benefits from any person and/or
entity in connection with any government
contract or project or by reason of the office or
position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets
belonging to the National Government or any
of its subdivisions, agencies or
instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d)
by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking; (e) by
establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or (f) by taking advantage of official
position, authority, relationship, connection or
influence to unjustly enrich himself or
themselves at the expense and to the damage
and prejudice of the Filipino people and the
Republic of the Philippines; and,
3. That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide BENEFIT, BY HIMSELF AND/OR in
or rule that would inform those who are subject to it connection with co-accused CHARLIE
what conduct would render them liable to its penalties, 'ATONG' ANG, Jose 'Jinggoy' Estrada,
its validity will be sustained. It must sufficiently guide Yolanda T. Ricaforte, Edward Serapio, AND
the judge in its application; the counsel, in defending JOHN DOES AND JANE DOES, in
one charged with its violation; and more importantly, consideration OF TOLERATION OR
the accused, in identifying the realm of the proscribed PROTECTION OF ILLEGAL GAMBLING;
conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the (b) by DIVERTING, RECEIVING,
act of a public officer in amassing or accumulating ill- misappropriating,
gotten wealth of at least ₱50,000,000.00 through a converting OR misusing DIRECTLY OR
series or combination of acts enumerated in Sec. 1, INDIRECTLY, for HIS OR THEIR
par. (d), of the Plunder Law. PERSONAL gain and benefit, public funds in
the amount of ONE HUNDRED THIRTY
In fact, the amended Information itself closely tracks MILLION PESOS (₱130,000,000.00), more or
the language of the law, indicating with reasonable less, representing a portion of the TWO
certainty the various elements of the offense which HUNDRED MILLION PESOS
petitioner is alleged to have committed: (₱200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under
"The undersigned Ombudsman, Prosecutor and OIC- R.A. No. 7171, by himself and/or in
Director, EPIB, Office of the Ombudsman, hereby connivance with co-accused Charlie 'Atong'
accuses former PRESIDENT OF THE REPUBLIC OF Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio
THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' Rajas, AND OTHER JOHN DOES & JANE
together with Jose 'Jinggoy' Estrada, Charlie 'Atong' DOES; (italic supplied).
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio (c) by directing, ordering and compelling, FOR
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, HIS PERSONAL GAIN AND BENEFIT, the
and John DOES & Jane Does, of the crime of Plunder, Government Service Insurance System
defined and penalized under R.A. No. 7080, as (GSIS) TO PURCHASE 351,878,000
amended by Sec. 12 of R.A. No. 7659, committed as SHARES OF STOCKS, MORE OR LESS, and
follows: the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR
That during the period from June, 1998 to January LESS, OF THE BELLE CORPORATION IN
2001, in the Philippines, and within the jurisdiction of THE AMOUNT OF MORE OR LESS ONE
this Honorable Court, accused Joseph Ejercito BILLION ONE HUNDRED TWO MILLION
Estrada, THEN A PRESIDENT OF THE REPUBLIC NINE HUNDRED SIXTY FIVE THOUSAND
OF THE PHILIPPINES, by SIX HUNDRED SEVEN PESOS AND FIFTY
himself AND/OR in CONNIVANCE/CONSPIRACY wit CENTAVOS (₱1,102,965,607.50) AND MORE
h his co-accused, WHO ARE MEMBERS OF HIS OR LESS SEVEN HUNDRED FORTY FOUR
FAMILY, RELATIVES BY AFFINITY OR MILLION SIX HUNDRED TWELVE
CONSANGUINITY, BUSINESS ASSOCIATES, THOUSAND AND FOUR HUNDRED FIFTY
SUBORDINATES AND/OR OTHER PERSONS, BY PESOS (₱744,612,450.00), RESPECTIVELY,
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL OR A TOTAL OF MORE OR LESS ONE
POSITION, AUTHORITY, RELATIONSHIP, BILLION EIGHT HUNDRED FORTY SEVEN
CONNECTION, OR INFLUENCE, did then and there MILLION FIVE HUNDRED SEVENTY EIGHT
willfully, unlawfully and criminally amass, accumulate THOUSAND FIFTY SEVEN PESOS AND
and acquire BY HIMSELF, DIRECTLY OR FIFTY CENTAVOS (₱1,847,578,057.50); AND
INDIRECTLY, ill-gotten wealth in the aggregate BY COLLECTING OR RECEIVING,
amount or TOTAL VALUE of FOUR BILLION NINETY DIRECTLY OR INDIRECTLY, BY HIMSELF
SEVEN MILLION EIGHT HUNDRED FOUR AND/OR IN CONNIVANCE WITH JOHN
THOUSAND ONE HUNDRED SEVENTY THREE DOES AND JANE DOES, COMMISSIONS OR
PESOS AND SEVENTEEN PERCENTAGES BY REASON OF SAID
CENTAVOS (₱4,097,804,173.17), more or PURCHASES OF SHARES OF STOCK IN
less, THEREBY UNJUSTLY ENRICHING HIMSELF THE AMOUNT OF ONE HUNDRED EIGHTY
OR THEMSELVES AT THE EXPENSE AND TO THE NINE MILLION SEVEN HUNDRED
DAMAGE OF THE FILIPINO PEOPLE AND THE THOUSAND PESOS (₱189,700,000.00)
REPUBLIC OF THE PHILIPPINES, through ANY OR MORE OR LESS, FROM THE BELLE
A combination OR Aseries of overt OR criminal CORPORATION WHICH BECAME PART OF
acts, OR SIMILAR SCHEMES OR MEANS, described THE DEPOSIT IN THE EQUITABLE-PCI
as follows: BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE;'
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES, (d) by unjustly enriching himself FROM
MONEY IN THE AGGREGATE AMOUNT OF COMMISSIONS, GIFTS, SHARES,
FIVE HUNDRED FORTY-FIVE MILLION PERCENTAGES, KICKBACKS, OR ANY
PESOS (₱545,000,000.00), MORE OR LESS, FORM OF PECUNIARY BENEFITS, IN
FROM ILLEGAL GAMBLING IN THE FORM CONNIVANCE WITH JOHN DOES AND
OF GIFT, SHARE, PERCENTAGE, JANE DOES, in the amount of MORE OR
KICKBACK OR ANY FORM OF PECUNIARY LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED
 FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE
EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or
ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the
elements of the crime are easily understood and
provide adequate contrast between the innocent and
the prohibited acts. Upon such unequivocal assertions,
petitioner is completely informed of the accusations
against him as to enable him to prepare for an
intelligent defense.
Petitioner, however, bewails the failure of the law to
provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a
combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in
Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being
impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the
accusation against him, hence, violative of his
fundamental right to due process.
The rationalization seems to us to be pure sophistry. A
statute is not rendered uncertain and void merely
because general terms are used therein, or because of
the employment of terms without defining them;6 much
less do we have to define every word we use. Besides,
there is no positive constitutional or statutory command
requiring the legislature to define each and every word
in an enactment. Congress is not restricted in the form
of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result
in the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the
Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted
in their natural, plain and ordinary acceptation and
signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those
words.8 The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers -
to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"
Combination - the result or product of combining; the
act or process of combining. To combine is to bring into
such close relationship as to obscure individual
characters.
Series - a number of things or events of the same class
coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and
"series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on
the bill which eventually became RA 7080 or the
Plunder Law:
DELIBERATIONS OF THE BICAMERAL
COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition
of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF. Now when
we say combination, we actually mean to say, if there
are two or more means, we mean to say that number
one and two or number one and something else are
included, how about a series of the same act? For
example, through misappropriation, conversion,
misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that
-
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that
two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but
combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say
combination, we mean, two different acts. It cannot be
a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated,
so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination.
Because when we say combination or series, we seem
to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from
ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or
series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term
"series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not
be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two
different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June
1989
SENATOR MACEDA: In line with our interpellations
that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would
the Sponsor consider deleting the words "a series of
overt or," to read, therefore: "or conspiracy
COMMITTED by criminal acts such as." Remove the
idea of necessitating "a series." Anyway, the criminal
acts are in the plural.
SENATOR TANADA: That would mean a combination
of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies
several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to
be prosecuted under the particular crime. But when we
say "acts of plunder" there should be, at least, two or
more.
SENATOR ROMULO: In other words, that is already
covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination,"
it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1,
par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1,
par. (d), subpar. (3).
On the other hand, to constitute a series" there must
be two (2) or more overt or criminal acts falling under
the same category of enumeration found in Sec. 1, par.
(d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par.
(d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and
"series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in
Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists
of at least a combination or series of overt or criminal
acts enumerated in subsections (1) to (6) of Sec. 1 (d).
Secondly, pursuant to Sec. 2 of the law, the pattern of
overt or criminal acts is directed towards a common
purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And
thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal.
As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method'
which the principal accused and public officer and
others conniving with him follow to achieve the
aforesaid common goal. In the alternative, if there is no
such overall scheme or where the schemes or methods
used by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a common
goal.
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances,
petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has
been formulated in various ways, but is most commonly
stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It
can only be invoked against that specie of legislation
that is utterly vague on its face, i.e., that which cannot
be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it
violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle.10 But the
doctrine does not apply as against legislations that are
merely couched in imprecise language but which
nonetheless specify a standard though defectively
phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first
may be "saved" by proper construction, while no
challenge may be mounted as against the second
whenever directed against such activities.11 With more
reason, the doctrine cannot be invoked where the
assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is
void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed
conduct when measured by common understanding
and practice.12It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not
absolute precision or mathematical exactitude, as
petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated.
An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its
provisions, especially where, because of the nature of
the act, it would be impossible to provide all the details
in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that
the Plunder Law is vague and overbroad do not justify
a facial review of its validity -
The void-for-vagueness doctrine states that "a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process
of law."13 The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms."14
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with narrow
specificity."15 The possible harm to society in permitting
some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech
of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes.
Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the
First Amendment."16 In Broadrick v. Oklahoma,17 the
Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and,
again, that "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial
challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger
must establish that no set of circumstances exists
under which the Act would be valid."18 As for the
vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all
its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the
conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases
or, as they are called in American law, First
Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one
to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other
persons or other situations in which its application
might be unconstitutional."20 As has been pointed out,
"vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as
applied' to a particular defendant." 21 Consequently,
there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court whose
activities are constitutionally protected.22 It constitutes a
departure from the case and controversy requirement
of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract
contexts.23 But, as the U.S. Supreme Court pointed out
in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely
if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the
controversy, the impact on the legislative process of
the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of
case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes
has been described as "manifestly strong medicine," to
be employed "sparingly and only as a last resort," 25 and
is generally disfavored.26 In determining the
constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must
be examined in the light of the conduct with which the
defendant is charged.27
In light of the foregoing disquisition, it is evident that the
purported ambiguity of the Plunder Law, so tenaciously
claimed and argued at length by petitioner, is more
imagined than real. Ambiguity, where none exists,
cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want
of scientific precision in the law. Every provision of the
law should be construed in relation and with reference
to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption
of constitutionality and validity of the Plunder Law.
A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators
who voted for its passage, petitioner must be aware
that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full
knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must
be mentioned if only to illustrate and emphasize the
point that courts are loathed to declare a statute void
for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no
reasonable construction that will support and give it
effect. In that case,
petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Actfor being vague. Petitioners
posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law
meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to
penalize. Petitioners further argued that the
Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits
through manifest partiality; (b) giving of "unwarranted"
benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official
function and that their right to be informed of the nature
and cause of the accusation against them was violated
because they were left to guess which of the three (3)
offenses, if not all, they were being charged and
prosecuted.
In dismissing the petition, this Court held that Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of
vagueness. The phrases "manifest partiality," "evident
bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may
be committed, and the use of all these phrases in the
same Information does not mean that the indictment
charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems
lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary,
p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice,
C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt
Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:
x x x or giving any private party any unwarranted
benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act
3019, as amended).
It is not at all difficult to comprehend that what the
aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official,
administrative or judicial functions, in giving any private
party benefits, advantage or preference which is
unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident
bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing
vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that
case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly
stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it
requires only proof of a pattern of overt or criminal acts
showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done
by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to
the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has
in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is
entitled to an acquittal.29 The use of the "reasonable
doubt" standard is indispensable to command the
respect and confidence of the community in the
application of criminal law. It is critical that the moral
force of criminal law be not diluted by a standard of
proof that leaves people in doubt whether innocent
men are being condemned. It is also important in our
free society that every individual going about his
ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction
except upon proof beyond reasonable doubt of every
fact necessary to constitute the crime with which he is
charged.30 The following exchanges between Rep.
Rodolfo Albano and Rep. Pablo Garcia on this score
during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF
REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary
in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt.
If we will prove only one act and find him guilty of the
other acts enumerated in the information, does that not
work against the right of the accused especially so if
the amount committed, say, by falsification is less than
₱100 million, but the totality of the crime committed is
₱100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in
the information needs to be proved beyond reasonable
doubt. What is required to be proved beyond
reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an
enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for
which he was charged just because, say, instead of 3
pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable
doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but
considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series
of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to
accumulate only ₱50,000 and in the crime of extortion,
he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under
this bill through the interpretation on the rule of
evidence, it is just one single act, so how can we now
convict him?
MR. GARCIA: With due respect, Mr. Speaker, for
purposes of proving an essential element of the crime,
there is a need to prove that element beyond
reasonable doubt. For example, one essential element
of the crime is that the amount involved is ₱100 million.
Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would
be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts
involved in those transactions which were proved.
Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is ₱100 million, then
there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did
not in any manner refashion the standard quantum of
proof in the crime of plunder. The burden still remains
with the prosecution to prove beyond any iota of doubt
every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each
and every component of the crime suffers from a
dismal misconception of the import of that provision.
What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to
form a combination or series which would constitute a
pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been
committed by the accused in furtherance of the overall
unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth. To illustrate, supposing that
the accused is charged in an Information for plunder
with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty
(50) raids, it being sufficient to prove by pattern at least
two (2) of the raids beyond reasonable doubt provided
only that they amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings
us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme
or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated
otherwise, such pattern arises where the prosecution
is able to prove beyond reasonable doubt the predicate
acts as defined in Sec. 1, par. (d). Pattern is merely a
by-product of the proof of the predicate acts. This
conclusion is consistent with reason and common
sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more,
than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore
not required to make a deliberate and conscious effort
to prove pattern as it necessarily follows with the
establishment of a series or combination of the
predicate acts.
Relative to petitioner's contentions on the purported
defect of Sec. 4 is his submission that "pattern" is "a
very important element of the crime of plunder;" and
that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such
that without it the accused cannot be convicted of
plunder -
JUSTICE BELLOSILLO: In other words, cannot an
accused be convicted under the Plunder Law without
applying Section 4 on the Rule of Evidence if there is
proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of
individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the
elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a
conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your
Honor.
JUSTICE BELLOSILLO: Can you not disregard the
application of Sec. 4 in convicting an accused charged
for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place
Section 4 lays down a substantive element of the law x
xxx
JUSTICE BELLOSILLO: What I said is - do we have to
avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4
is two pronged, it contains a rule of evidence and it
contains a substantive element of the crime of plunder.
So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond
reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that
far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that
Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the
prosecution.32
We do not subscribe to petitioner's stand. Primarily, all
the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to
Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4
is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of
establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4
does not define or establish any substantive right in
favor of the accused but only operates in furtherance
of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking
Sec. 4, a conviction for plunder may be had, for what is
crucial for the prosecution is to present sufficient
evidence to engender that moral certitude exacted by
the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the
sake of argument that Sec. 4 is flawed and vitiated for
the reasons advanced by petitioner, it may simply be
severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all,
the existing rules on evidence can supplant Sec. 4
more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of
this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions
of this Act and the application of such provisions to
other persons or circumstances shall not be affected
thereby.
Implicit in the foregoing section is that to avoid the
whole act from being declared invalid as a result of the
nullity of some of its provisions, assuming that to be the
case although it is not really so, all the provisions
thereof should accordingly be treated independently of
each other, especially if by doing so, the objectives of
the statute can best be achieved.
As regards the third issue, again we agree with Justice
Mendoza that plunder is a malum in se which requires
proof of criminal intent. Thus, he says, in his
Concurring Opinion -
x x x Precisely because the constitutive crimes
are mala in se the element of mens rea must be proven
in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder
was committed "willfully, unlawfully and criminally." It
thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates
the requirement of mens rea and that is the reason he
claims the statute is void, petitioner cites the following
remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be
required to convict him would not be evidence for each
and every individual criminal act but only evidence
sufficient to establish the conspiracy or scheme to
commit this crime of plunder.33
However, Senator Tañada was discussing §4 as
shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the
Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would
provide for a speedier and faster process of attending
to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge
is conspiracy to commit plunder, the prosecution need
not prove each and every criminal act done to further
the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal
acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern
are concerned, however, the elements of the crime
must be proved and the requisite mens rea must be
shown.
Indeed, §2 provides that -
Any person who participated with the said public officer
in the commission of an offense contributing to the
crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and
extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating
circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates
quite clearly that mens rea is an element of plunder
since the degree of responsibility of the offender is
determined by his criminal intent. It is true that §2 refers
to "any person who participates with the said public
officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there
is no canon against using common sense in construing
laws as saying what they obviously mean." 35
Finally, any doubt as to whether the crime of plunder is
a malum in se must be deemed to have been resolved
in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable
by reclusion perpetua to death. Other heinous crimes
are punished with death as a straight penalty in R.A.
No. 7659. Referring to these groups of heinous crimes,
this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated
like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her
growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal
detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as
well as murder, rape, parricide, infanticide, kidnapping
and serious illegal detention, where the victim is
detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him
were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped,
which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to
be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the government
and impoverished the population, the Philippine
Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself
in the structures of society and the psyche of the
populace. [With the government] terribly lacking the
money to provide even the most basic services to its
people, any form of misappropriation or misapplication
of government funds translates to an actual threat to
the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this
context, no less heinous are the effects and
repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses
involving government officials, employees or officers,
that their perpetrators must not be allowed to cause
further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that
plunder is a heinous offense implies that it is a malum
in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se37 and
it does not matter that such acts are punished in a
special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance
against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA
7659, the amendatory law of RA 7080, on constitutional
grounds. Suffice it to say however that it is now too late
in the day for him to resurrect this long dead issue, the
same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history.
The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the
State, and becomes, by necessary effect, assimilated
in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption
and obscene profligacy of officials in high places which
have shaken its very foundation. The anatomy of graft
and corruption has become more elaborate in the
corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the
coffers of the government. Drastic and radical
measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and
economically catastrophic looting of the national
treasury. Such is the Plunder Law, especially designed
to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and
institutional fiber of our nation. The Plunder Law,
indeed, is a living testament to the will of the legislature
to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in
public office.
These are times that try men's souls. In the checkered
history of this nation, few issues of national importance
can equal the amount of interest and passion
generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial
under a virginal statute. This continuing saga has
driven a wedge of dissension among our people that
may linger for a long time. Only by responding to the
clarion call for patriotism, to rise above factionalism and
prejudices, shall we emerge triumphant in the midst of
ferment.
PREMISES CONSIDERED, this Court holds that RA
7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
(2) G.R. No. 220598
GLORIA MACAPAGAL ARROYO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND THE
SANDIGANBAYAN, (First Division), Respondents
RESOLUTION
BERSAMIN,, J.:
On July 19, 2016, the Court promulgated its decision,
disposing:
WHEREFORE, the Court GRANTS the petitions
for certiorari; ANNULS and SETS ASIDE the
resolutions issued in Criminal Case No. SB-12-CRM-
0174 by the Sandiganbayan on April 6, 2015 and
September 10, 2015; GRANTSthe petitioners'
respective demurrers to evidence; DISMISSES
Criminal Case No. SB-12-CRM-0174 as to the
petitioners GLORIAMACAPAGAL-
ARROYO and BENIGNOAGUAS for insufficiency of
evidence; ORDERS the immediate release from
detention of said petitioners; and MAKES no
pronouncements on costs of suit.
SO ORDERED. 1
On August 3, 2016, the State, through the Office of the
Ombudsman, has moved for the reconsideration of the
decision, submitting that:
I. THIS HONORABLE COURT'S GIVING DUE
COURSE TO A CERTIORARI ACTION ASSAILING
AN INTERLOCUTORY ORDER DENYING
DEMURRER TO EVIDENCE VIOLA TES RULE 119,
SECTION 23 OF THE RULES OF COURT, WHICH
PROVIDES THAT AN ORDER DENYING THE
DEMURRER TO EVIDENCE SHALL NOT BE
REVIEWABLE BY APPEAL OR BY
CERTIORARI BEFORE JUDGMENT.
II. THE HONORABLE COURT COMMITTED GRAVE
ERRORS WHICH AMOUNT TO A VIOLATION OR
DEPRIVATION OF THE STATE'S FUNDAMENTAL
RIGHT TO DUE PROCESS OF LAW.
A. THE DECISION
REQUIRES ADDITIONAL ELEMENTS IN
THE PROSECUTION OF
PLUNDER, VIZ. IDENTIFICATION OF THE
MAIN PLUNDERER AND PERSONAL
BENEFIT TO HIM/HER, BOTH OF WHICH
ARE NOT PROVIDED IN THE TEXT OF
REPUBLIC ACT (R.A.) NO. 7080.
B. THE EVIDENCE PRESENTED BY THE
PROSECUTION WAS NOT FULLY TAKEN
INTO ACCOUNT, INCLUDING BUT NOT
LIMITED TO THE IRREGULARITIES IN THE
CONFIDENTIAL/INTELLIGENCE FUND (CIF)
DISBURSEMENT PROCESS,
QUESTIONABLE PRACTICE OF CO-
MINGLING OF FUNDSAND AGUAS'
REPORTS TO THE COMMISSION ON AUDIT
(COA) THAT BULK OF THE
PHP365,997,915.00 WITHDRAWN FROM
THE PHILIPPINE CHARITY SWEEPSTAKES
OFFICE'S (PCSO) CIF WERE DIVERTED TO
THE ARROYO-HEADED OFFICE OF THE
PRESIDENT.
C. ARROYO AND AGUAS, BY
INDISPENSABLE COOPERATION, IN
CONSPIRACY WITH THEIR COACCUSED IN
SB-12-CRM-0174, COMMITTED PLUNDER
VIA· A COMPLEX ILLEGAL SCHEME
WHICH DEFRAUDED PCSO IN HUNDREDS
OF MILLIONS OF PESOS.
D. EVEN ASSUMING THAT THE ELEMENTS
OF PLUNDER WERE NOT PROVEN
BEYOND REASONABLE DOUBT, THE
EVIDENCE PRESENTED BY THE PEOPLE
SHOWS, BEYOND REASONABLE DOUBT,
THAT ARROYO, AGUAS AND THEIR
COACCUSED IN SB-12-CRM-0174 ARE
GUILTY OF MALVERSATION.2
In contrast, the petitioners submit that the decision has
effectively barred the consideration and granting of the
motion for reconsideration of the State because doing
so would amount to the re-prosecution or revival of the
charge against them despite their acquittal, and would
thereby violate the constitutional proscription against
double jeopardy.
Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points
out that the State miserably failed to prove the corpus
delicti of plunder; that the Court correctly required the
identification of the main plunderer as well as personal
benefit on the part of the raider of the public treasury to
enable the successful prosecution of the crime of
plunder; that the State did not prove the conspiracy that
justified her inclusion in the charge; that to sustain the
case for malversation against her, in lieu of plunder,
would violate her right to be informed of the accusation
against her because the information did not necessarily
include the crime of malversation; and that even if the
information did so, the constitutional prohibition against
double jeopardy already barred the re-opening of the
case for that purpose.
Petitioner Benigno B. Aguas echoes the contentions of
Arroyo in urging the Com1 to deny the motion for
reconsideration.
In reply, the State avers that the prohibition against
double jeopardy does not apply because it was denied
its day in court, thereby rendering the decision void;
that the Court should re-examine the facts and pieces
of evidence in order to find the petitioners guilty as
charged; and that the allegations of the information
sufficiently included all that was necessary to fully
inform the petitioners of the accusations against them.
Ruling of the Court
The Court DENIES the motion for reconsideration for
its lack of merit.
To start with, the State argues' that the consolidated
petitions for certiorari were improper remedies in light
of Section 23, Rule 119 of the Rules of Court expressly
prohibiting the review of the denial of their demurrer
prior to the judgment in the case either by appeal or
by certiorari; that the Court has thereby limited its own
power, which should necessarily prevent the giving of
due course to the petitions for certiorari, as well as the
undoing of the order denying the petitioners' demurrer
to evidence; that the proper remedy under the Rules of
Court was for the petitioners to proceed to trial and to
present their evidence-in-chief thereat; and that even if
there had been grave abuse of discretion attending the
denial, the Court's certiorari powers should be
exercised only upon the petitioners' compliance with
the stringent requirements of Rule 65, particularly with
the requirement that there be no plain, speedy or
adequate remedy in the ordinary course of law, which
they did not establish.
Section 23, Rule 119 of the Rules of Court, pertinently
provides:
Section 23. Demurrer to evidence. – xxx
xxxx
The order denying the motion for leave of court to
file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or
by certiorari before judgment. (n)
The argument of the State, which is really a repetition
of its earlier submission, was squarely resolved in the
decision, as follows:
The Court holds that it should take cognizance of the
petitions for certiorari because the Sandiganbayan, as
shall shortly be demonstrated, gravely abused its
discretion amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not
proper to assail such an interlocutory order issued by
the trial court because of the availability of another
remedy in the ordinary course of law. Moreover,
Section 23, Rule 119 of the Rules of Court expressly
provides that "the order denying the motion for leave of
court to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or
by certiorari before judgment." It is not an insuperable
obstacle to this action, however, that the denial of the
demurrers to evidence of the petitioners was an
interlocutory order that did not terminate the
proceedings, and the proper recourse of the demurring
accused was to go to trial, and that in case of their
conviction they may then appeal the conviction, and
assign the denial as among the errors to be reviewed.
Indeed, it is doctrinal that the situations in which the writ
of certiorari may issue should not be limited, because
to do so -
x x x would be to destroy its comprehensiveness and
usefulness. So wide is the discretion of the com1 that
authority is not wanting to show that certiorari is more
discretionary than either prohibition
or mandamus. In the exercise of oursuperintending
control over other courts, we are to be guided by
all the circumstances of each particular case 'as
the ends of justice may require.' So it is that the writ
will be granted where necessary to prevent a
substantial wrong or to do substantial justice.
The Constitution itself has imposed upon the Court and
the other courts of justice the duty to correct errors of
jurisdiction as a result of capricious, arbitrary,
whimsical and despotic exercise of discretion by
expressly incorporating in Section 1 of Article VIII the
following provision:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. The
exercise of this power to correct grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government cannot be
thwarted by rules of procedure to the contrary or
for the sake of the convenience of one side. This is
because the Court has the bounden constitutional
duty to strike down grave abuse of
discretion whenever and wherever it is committed.
Thus, notwithstanding the interlocutory character
and effect of the denial of the demurrers to
evidence, the petitioners as the accused could
avail themselves of the remedy of certiorari when
the denial was tainted with grave abuse of
discretion. As we shall soon show,
the Sandiganbayan as the trial court was guilty of
grave abuse of discretion when it capriciously
denied the demurrers to evidence despite the
absence of competent and sufficient evidence to
sustain the indictment for plunder, and despite the
absence of the factual bases to expect a guilty
verdict.3
We reiterate the foregoing resolution, and stress that
the prohibition contained in Section 23, Rule 119 of
the Rules of Court is not an insuperable obstacle to the
review by the Court of the denial of the demurrer to
evidence through certiorari. We have had many rulings
to that effect in the past. For instance, in Nicolas v.
Sandiganbayan,4the Court expressly ruled that the
petition for certiorari was the proper remedy to assail
the denial of the demurrer to evidence that was tainted
with grave abuse of discretion or excess of jurisdiction,
or oppressive exercise of judicial authority.
Secondly, the State submits that its right to due
process was violated because the decision imposed
additional elements for plunder that neither ' Republic
Act No. 7080 nor jurisprudence had theretofore
required, i.e., the identification of the main plunderer,
and personal benefit on the part of the accused
committing the predicate crime of raid on the public
treasury. The State complains that it was not given the
opportunity to establish such additional elements; that
the imposition of new elements fu1iher amounted to
judicial legislation in violation of the doctrine of
separation of powers; that the Court nitpicked on the
different infirmities of the information despite the issue
revolving only around the sufficiency of the evidence;
and that it established all the elements of plunder
beyond reasonable doubt.
The State cites the plain meaning rule to highlight that
the crime of plunder did not require personal benefit on
the part of the raider of the public treasury. It insists that
the definition of raids on the public
treasury, conformably with the plain meaning rule, is
the taking of public money through fraudulent or
unlawful means, and such definition does not require
enjoyment or personal benefit on the part of plunderer
or on the part of any of his co-conspirators for them to
be convicted for plunder.
The submissions of the State are unfounded.
The requirements for the identification of the main
plunderer and for personal benefit in the predicate act
of raids on the public treasury have been written in R.A.
No. 7080 itself as well as embedded in pertinent
jurisprudence. This we made clear in the decision, as
follows:
A perusal of the information suggests that what the
Prosecution sought to show was an implied conspiracy
to commit plunder among all of the accused on the
basis of their collective actions prior to, during and after
the implied agreement. It is notable that the
Prosecution did not allege that the conspiracy among
all of the accused was by express agreement, or was
a wheel conspiracy or a chain conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners were
charged, Section 2 of Republic Act No. 7080 (Plunder
Law) states:
Section 2. Definition of the Crime of Plunder:
Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by
affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates
or acquires ill-gotten wealth through a combination or
series of overt criminal acts as described in Section 1
(d) hereof in the aggregate amount or total value of at
least Fifty million pesos (₱50,000,000.00) shall be
guilty of the crime of plunder and shall be punished
by reclusion perpetua to death. Any person who
participated with the said public officer in the
commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal
Code, shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties
and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. [As
Amended by Section 12, Republic Act No. 7659 (The
Death Penalty Law)]
Section l(d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act, the
term:
xxxx
d. "Ill-gotten wealth" means any asset, property,
business enterprise or material possession of any
person within the purview of Section two (2) hereof,
acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business
associates by any combination or series of the
following means or similar schemes:
1. Through misappropriation, conversion,
misuse, or malversation of public funds or raids
on the public treasury;
2. By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks
or any/or entity in connection with any
government contract or project or by reason of
the office or position of the public officer
concerned;
3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
Government or any of its subdivisions,
agencies or instrumentalities or government-
owned or controlled corporations and their
subsidiaries;
4. By obtaining, receiving or accepting directly
or indirectly any shares of stock, equity or any
other form of interest or participation including
the promise of future employment in any
business enterprise or undertaking;
5. By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or
6. By taking undue advantage of official
positi0n, authority, relationship, connection or
influence to unjustly enrich himself or
themselves at the expense and to the damage
and prejudice
The law on plunder requires that a particular public
officer must be identified as the one who amassed,
acquired or accumulated ill-gotten wealth because
it plainly states that plunder is committed by any
public officer who, by himself or in connivance with
members of his family, relatives by affinity or
consanguinity, business associates, subordinates
or other persons, amasses, accumulates or
acquires ill-gotten wealth in the aggregate amount
or total value of at least ₱50,000,000.00 through
a combination or series of overt criminal acts as
described in Section l(d) hereof. Surely, the law
requires in the criminal charge for plunder against
several individuals that there must be a main
plunderer and her co-conspirators, who may be
members of her family, relatives by affinity or
consanguinity, business associates, subordim1tes
or other persons. In other words, the allegation of
the wheel conspiracy or express conspiracy in the
information was appropriate because the main
plunderer would then be identified in either
manner. Of course, implied conspiracy could also
identify the main plunderer, but that fact must be
properly alleged and duly proven by the
Prosecution.
This interpretation is supported by Estrada v.
Sandiganbayan, where the Court explained the nature
of the conspiracy charge and the necessity for the main
plunderer for whose benefit the amassment,
accumulation and acquisition was made, thus:
There is no denying the fact that the "plunder of an
entire nation resulting in material damage to the
national economy" is made up of a complex and
manifold network of crimes. In the crime of plunder,
therefore, different parties may be united by a common
purpose. In the case at bar, the different accused and
their different criminal acts have a commonality - to
help the former President amass, accumulate or
acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in
the Amended Information alleged the different
participation of each accused in the conspiracy. The
gravamen of the conspiracy charge, therefore, is
not that each accused agreed to receive protection
money from illegal gambling, that each
misappropriated a portion of the tobacco excise tax,
that each accused ordered the GSIS and SSS to
purchase shares of Belle Corporation and receive
commissions from such sale, nor that each unjustly
enriched himself from commissions, gifts and
kickbacks; rather, it is that each of them, by their
individual acts, agreed to participate, directly or
indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former
President Estrada. 5 [bold underscoring supplied for
emphasis]
Indeed, because plunder is a crime that only a public
official can commit by amassing, accumulating, or
acquiring ill-gotten wealth in the aggregate amount or
total value of at least ₱50,000,000.00, the identification
in the information of such public official as the main
plunderer among the several individuals thus charged
is logically necessary under the law itself. In particular
reference to Criminal Case No. SB-12-CRM-0174, the
individuals charged therein - including the petitioners -
were 10 public officials; hence, it was only proper to
identify the main plunderer or plunderers among the 10
accused who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the total
value of at least ₱50,000,000.00.
The phrase raids on the public treasury as used in
Section 1 (d) of R. A. No. 7080 is itself ambiguous. In
order to ascertain the objective meaning of the phrase,
the act of raiding the public treasury cannot be divided
into parts. This is to differentiate the predicate act
of raids on the public treasury from other offenses
involving property, like robbery, theft,
or estafa. Considering that R.A. No. 7080 does not
expressly define this predicate act, the Court has
necessarily resorted to statutory construction. In so
doing, the Court did not adopt the State's submission
that personal benefit on the part of the accused need
not be alleged and shown because doing so would
have defeated the clear intent of the law itself, 6 which
was to punish the amassing, accumulating, or
acquiring of ill-gotten wealth in the aggregate amount
or total value of at least ₱150,000,000.00 by any
combination or series of acts of misappropriation,
conversion, misuse, or malversation of public funds or
raids on the public treasury.
As the decision has observed, the rules of statutory
construction as well as the deliberations of Congress
indicated the intent of Congress to require personal
benefit for the predicate act of raids on the public
treasury, viz.:
The phrase raids on the public treasury is found in
Section 1 (d) of R.A. No. 7080, which provides:
Section l .Definition of Terms. – xxx
xxxx
d) Ill-gotten wealth means any asset, prope1iy,
business enterprise or material possession of any
person within the purview of Section Two (2) hereof,
acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business
associates by any combination or series of the
following means or similar schemes:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public
treasury;
xxxx
To discern the proper import of the phrase raids on
the public treasury, the key is to look at the
accompanying words: misappropriation,
conversion, misuse or malversation of public
funds. This process is conformable with the maxim
of statutory construction noscitur a sociis, by
which the correct construction of a particular word
or phrase that is ambiguous in itself or is equally
susceptible of various meanings may be made by
considering the company of the words in which the
word or phrase is found or with which it is
associated. Verily, a word or phrase in a statute is
always used in association with other words or
phrases, and its meaning may, therefore, be
modified or restricted by the latter.
To convert connotes the act of using or disposing of
another's property as if it were one's own; to
misappropriate means to own, to take something for
one's own benefit; misuse means "a good, substance,
privilege, or right used improperly, unforcsccably, or
not as intended;" and malversation occurs when "any
public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or
shall consent, through abandonment or negligence,
shall permit any other person to take such public funds,
or property, wholly or partially." The common thread
that binds all the four terms together is that the public
officer used the property taken. Considering that raids
on the public treasury is in the company of the four
other terms that require the use of the property taken,
the phrase raids on the public treasury similarly
requires such use of the property taken. Accordingly,
the Sandiganbayan gravely erred in contending that
the mere accumulation and gathering constituted the
forbidden act of raids on the public treasury. Pursuant
to the maxim of noscitur a sociis, raids on the public
treasury requires the raider to use the property taken
impliedly for his personal benefit.7
The Prosecution asserts that the Senate deliberations
removed personal benefit as a requirement for
plunder. In not requiring personal benefit,
the Sandiganbayan quoted the following exchanges
between Senator Enrile and Senator Tafiada, viz.:
Senator Enrile. The word here, Mr. President, "such
public officer or person who conspired or knowingly
benefited". One does not have to conspire or
rescheme. The only element needed is that he
"knowingly benefited". A candidate for the Senate for
instance, who received a political contribution from a
plunderer, knowing that the contributor is a plunderer
and therefore, he knowingly benefited from the
plunder, would he also suffer the penalty, Mr.
President, for life imprisonment?
Senator Tafiada. In the committee amendments, Mr.
President, we have deleted these lines 1 to 4 and part
of line 5, on page 3. But, in a way, Mr. President, it is
good that the Gentleman is bringing out these
questions, I believe that under the examples he has
given, the Court will have to...
Senator Enrile. How about the wife, Mr. President, he
may not agree with the plunderer to plunder the country
but because she is a dutiful wife or a faithful husband,
she has to keep her or his vow of fidelity to the spouse.
And, of course, she enjoys the benefits out of the
plunder. Would the Gentleman now impute to her or
him the crime of plunder simply because she or he
knowingly benefited out of the fruits of the plunder and,
therefore, he must suffer or he must suffer the penalty
of life imprisonment?
The President. That was stricken out already in the
Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and
part of line 5 were stricken out in the Committee
amendment. But, as I said, the examples of the
Minority Floor Leader are still worth spreading
the Record. And, I believe that in those examples, the
Court will have just to take into consideration all the
other circumstances prevailing in the case and the
evidence that will be submitted.
The President. In any event, 'knowingly benefited' has
already been stricken off."
The exchanges between Senator Enrile and Senator
Tañada reveal, therefore, that what was removed from
the coverage of the bill and the final version that
eventually became the law was a person who was not
the main plunderer or a co-conspirator, but one who
personally benefited from the plunderers' action. The
requirement of personal benefit on the part of the main
plunderer or his co-conspirators by virtue of their
plunder was not removed.
As a result, not only did the Prosecution fail to show
where the money went but, more importantly, that GMA
and Aguas had personally benefited from the same.
Hence, the Prosecution did not prove the predicate act
of raids on the public treasury beyond reasonable
doubt. 8
Thirdly, the State contends that the Court did not
appreciate the totality of its evidence, particularly the
different irregularities committed in the disbursement of
the PCSO funds, i.e., the commingling of funds, the
non-compliance with LOI No. 1282, and the unilateral
approval of the disbursements. Such totality, coupled
with the fact of the petitioners' indispensable
cooperation in the pilfering of public funds, showed the
existence of the conspiracy to commit plunder among
all of the accused.
The contention lacks basis.
As can be readily seen from the decision, the Court
expressly granted the petitioners' respective demurrers
to evidence and dismissed the plunder case against
them for insufficiency of evidence because:
x x x the Sandiganbayan as the trial court was guilty of
grave abuse of discretion when it capriciously denied
the demurrers to evidence despite the absence of
competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of
the factual bases to expect a guilty verdict. 9
Such disposition of the Court fully took into
consideration all the evidence adduced against the
petitioners. We need not rehash our review of the
evidence thus adduced, for it is enough simply to stress
that the Prosecution failed to establish the corpus
delicti of plunder - that any or all of the accused public
officials, particularly petitioner Arroyo, had amassed,
accumulated, or acquired ill-gotten wealth in the
aggregate amount or total value of at least
₱50,000,000.00.
Fourthly, in accenting certain inadequacies of the
allegations of the information, the Court did not engage
in purposeless nitpicking, and did not digress from the
primary task of determining the sufficiency of the
evidence presented by the State against the
petitioners. What the Court thereby intended to achieve
was to highlight what would have been relevant in
the proper prosecution of plunder and thus enable
itself to discern and determine whether the evidence of
guilt was sufficient or not. In fact, the Court
categorically clarified that in discussing the essential
need for the identification of the main plunderer it was
not harping on the sufficiency of the information, but
was only enabling itself to search for and to find the
relevant proof that unequivocally showed petitioner
Arroyo as the "mastermind" - which was how the
Sandiganbayan had characterized her participation - in
the context of the implied conspiracy alleged in the
information. But the search came to naught, for the
information contained nothing that averred her
commission of the overt act necessary to implicate her
in the supposed conspiracy to commit the crime of
plunder. Indeed, the Court assiduously searched for
but did not find the sufficient incriminatory evidence
against the petitioners. Hence, the Sandiganbayan
capriciously and oppressively denied their demurrers
to evidence.
Fifthly, the State posits that it established at least a
case for malversation against the petitioners.
Malversation is defined and punished under Article 217
of the Revised Penal Code, which reads thusly:
Article 217. Malversation of public funds or property;
Presumption of malversation. - Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other
person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its
medium and maximum periods, if the amount
involved in the misappropriation or
malversation does not exceed two hundred
pesos.
2. The penalty of prision mayor in its minimum
and medium periods, if the amount involved is
more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum
period to reclusion temporal in its minimum
period, if the amount involved is more than six
thousand pesos but is less than twelve
thousand pesos.
4. The penalty of reclusion temporal, in its
medium and maximum periods, if the amount
involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed
or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming
any public funds or property with which he is
chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put
such missing funds or property to personal use. (As
amended by RA 1060).
The elements of malversation are that: (a) the offender
is an accountable public officer; (b) he/she is
responsible for the misappropriation of public funds or
property through intent or negligence; and (c) he/she
has custody of and received such funds and property
by reason of his/her office. 10
The information in Criminal Case No. SB-12-CRM-
017411 avers:
The undersigned Assistant Ombudsman and Graft
Investigation and Prosecution Officer III, Office of the
Ombudsman, hereby accuse GLORIA MACAPAGAL-
ARROYO, ROSARIO C. URIARTE, SERGIO O.
VALENCIA, MANUEL L. MORATO, JOSE R. TARUC
V, RAYMUNDO T. ROQUERO, MA. FATIMA AS.
VALDES, BENIGNO B. AGUAS, REYNALDO A.
VILLAR and NILDA B. PLARAS, of the crime
of PLUNDER, as defined by, and penalized under
Section 2 of Republic Act (R.A.) No. 7080, as amended
by R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June 2010
or sometime prior or subsequent thereto, in Quezon
City, Philippines, and within the jurisdiction of this
Honorable Court, accused GLORIA MACAPAGAL-
ARROYO, then the President of the Philippines,
ROSARIO C. URIARTE, then General Manager and
Vice Chairman, SERGIO 0. VALENCIA, then
Chairman of the Board of Directors, MANUEL L. MORA
TO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO,
MA. FATIMA AS. VALDES, then members of the Board
of Directors, BENIGNO B. AGUAS, then Budget and
Accounts Manager, all of the Philippine Charity
Sweepstakes Office (PCSO), REYNALDO A. VILLAR,
then Chairman, and NILDA B. PLARAS, then Head of
Intelligence/Confidential Fund Fraud Audit Unit, both of
the Commission on Audit, all public officers committing
the offense in relation to their respective offices and
taking undue advantage of their respective official
positions, authority, relationships, connections or
influence, conniving, conspiring and confederating with
one another, did then and there willfully, unlawfully and
criminally 'amass,, accumulate and/or acquire directly
or indirectly, ill-gotten wealth in the aggregate amount
or total value of THREE HUNDRED SIXTY FIVE
MILLION NINE HUNDRED NINETY SEVEN
THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP365,997,915.00), more or less, through any or a
combination or a series of overt or criminal acts, or
similar schemes or means, described as follows:
(a) diverting in several instances, funds from
the operating budget of PCSO to its
Confidential/Intelligence Fund that could be
accessed and withdrawn at any time with
minimal restrictions, and converting, misusing,
and/or illegally conveying or transferring the
proceeds drawn from said fund in the
aforementioned sum, also in several instances,
to themselves, in the guise of fictitious
expenditures, for their personal gain and
benefit;
(b) raiding the public treasury by withdrawing
and receiving, in several instances, the above-
mentioned amount from the
Confidential/Intelligence Fund from PCSO's
accounts, and or unlawfully transferring or
conveying the same into their possession and
control through irregularly issued disbursement
vouchers and fictitious expenditures; and
(c) taking advantage of their respective official
positions, authority, relationships, connections
or influence, in several instances, to unjustly
enrich themselves in the aforementioned sum,
at the expense of, and the damage and
prejudice of the Filipino people and the
Republic of the Philippines.
CONTRARY TO LAW.
In thereby averring the predicate act of malversation,
the State did not sufficiently allege the aforementioned
essential elements of malversation in the information.
The omission from the information of factual details
descriptive of the aforementioned elements of
malversation highlighted the insufficiency of the
allegations. Consequently, the State's position is
entirely unfounded.
Lastly, the petitioners insist that the consideration and
granting of the motion for reconsideration of the State
can amount to a violation of the constitutional
prohibition against double jeopardy because their
acquittal under the decision was a prior jeopardy within
the context of Section 21, Article III (Bill of Rights) of
the 1987 Constitution, to wit:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another
prosecution for the same act.
The insistence of the petitioners is fully warranted.
Indeed, the consideration and granting of the motion
for reconsideration of the State will amount to the
violation of the constitutional guarantee against double
jeopardy.
The Court's consequential dismissal of Criminal Case
No. SB-12- CRM-0174 as to the petitioners for
insufficiency of evidence amounted to their acquittal of
the crime of plunder charged against them. In People
v. Tan, 12the Court shows why:
In People v. Sandiganbayan, this Com1 explained the
general rule that the grant of a demurrer to evidence
operates as an acquittal and is, thus, final and
unappealable, to wit:
The demurrer to evidence in criminal cases, such
as the one at bar, is ''filed after tile prosecution had
rested its case," and when the same is granted, it
calls "for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount
to an acquittal of the accused." Such dismissal of
a criminal case by the grant of demurrer to
evidence may not be appealed, for to do so would
be to place the accused in double jeopardy. The
verdict being one of acquittal, the case ends there.
xxxx
The rule on double jeopardy, however, is not without
exceptions. In People v. Laguio, Jr., this Court stated
that the only instance when double jeopardy will not
attach is when the RTC acted with grave abuse of
discretion, thus:
... The only instance when double ,jeopardy will not
attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction,
such as where the prosecution was denied the
opportunity to present its case or where the trial was a
sham. However, while certiorari may be availed of to
correct an erroneous acquittal, the petitioner in such an
extraordinary proceeding must clearly demonstrate
that the trial court blatantly abused its authority to a
point so grave as to deprive it of its very power to
dispense justice. 13
The constitutional prohibition against placing a person
under double jeopardy for the same offense bars not
only a new and independent prosecution but also an
appeal in the same action after jeopardy had
attached. 14 As such, every acquittal becomes
final immediately upon promulgation and cannot be
recalled for correction or amendment. With the
acquittal being immediately final, granting the State's
motion for reconsideration in this case would violate the
Constitutional prohibition against double jeopardy
because it would effectively reopen the prosecution
and subject the petitioners to a second
jeopardy despite their acquittal.
It is cogent to remind in this regard that the
Constitutional prohibition against double jeopardy
provides to the accused three related protections,
specifically: protection against a second prosecution
for the same offense after acquittal; protection against
a second prosecution for the same offense after
conviction; and protection against multiple
punishments for the same offense. 15The rationale for
the three protections is expounded in United States v.
Wilson: 16
The interests underlying these three protections
arc quite similar. When a defendant has been once
convicted and punished for a particular crime,
principles of fairness and finality require that he
not be subjected to the possibility of further
punishment by being again tried or sentenced for
the same offense.Ex pa rte Lange, 18 Wall 163
(1874); In re Nielsen, 131 U.S. 176 (1889). When a
defendant has been acquitted of an offense, the
Clause guarantees that the State shall not be
permitted to make repeated attempts to convict
him,
"thereby subjecting him to embarrassment,
expense and ordeal, and compelling him to live in
a continuing state of anxiety and insecurity, as well
as enhancing the possibility that, even though
innocent, he may be found guilty."
Green v. United States, 355 U.S. 184, 187-188 (1957).
The policy of avoiding multiple trials has been
regarded as so important that exceptions to the
principle have been only grudgingly allowed.
Initially, a new trial was thought to be unavailable
after appeal, whether requested by the prosecution
or the defendant. See United States v. Gibert, 25 F.
Cas. 1287 (No. 15,204) (CCD Mass. 1834) (Story,
J.). It was not until 1896 that it was made clear that
a defendant could seek a new trial after conviction,
even though the Government enjoyed no similar
right. United States v. Ball, 163 U.S. 662. (Bold
underscoring supplied for emphasis)
WHEREFORE, the Court DENIES the motion for
reconsideration for lack of merit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RA 7080
Art. 217 – Malversation
(1) G.R. No. 82067 April 10, 1992
LUCILYN T. ZAMBRANO, petitioner,
vs.
SANDIGANBAYAN (Second Division) and the
PEOPLE OF THE PHILIPPINES, respondents.
PARAS J.:
This is a petition for review on certiorari of the
decision * dated January 8, 1986 of the respondent
Sandiganbayan in Crim. Case No. 2559 entitled
"People of the Philippines v. Lucilyn Zambrano y
Tesoro" which convicted petitioner of malversation of
public funds.
The petitioner was charged before the Sandiganbayan
with malversation of public funds, allegedly committed
as follows:
That on or about and during the period
from January 20, 1976 to January 24,
1980, in Cotabato and within the
jurisdiction of this Honorable Court the
accused LUCILYN T. ZAMBRANO,
being then employed at the National
Grains Authority, now the National
Food Authority as Cashier I and
designated as Special Disbursing
Officer at Cotabato City and as such,
accountable for the public funds
collected and received by reason of her
position, did then and there willfully,
unlawfully and feloniously and with
grave abuse of confidence,
misappropriate, misapply and
embezzle and convert to her own
personal use and benefit from said
funds the sum of ONE MILLION TWO
HUNDRED SEVEN THOUSAND
EIGHT HUNDRED THIRTY FIVE
PESOS AND NINETEEN CENTAVOS
(P1,207,835.19), Philippine Currency
 to the damage and prejudice of the
National Grains Authority, now the
National Food Authority,
ALL CONTRARY TO LAW. (Original
Record, p. 1; Rollo,
pp. 6-7)
On August 28, 1986, the Sandiganbayan rendered a
decision convicting petitioner for malversation of public
funds, (Original Record, pp. 301-341) but Petitioner
filed a motion for new trial (Ibid., pp. 348-350) and said
motion was granted in a resolution issued by the
Sandiganbayan, on October 13, 1986 (Ibid., pp. 363-
366).
Upon arraignment, the accused-petitioner Lucilyn T.
Zambrano entered a plea of not guilty to the crime
charged (Ibid., pp. 28; 30-31).
The trial of the case ensued.
The prosecution's lone witness, Carlito Capinpin, an
auditor of the COA assigned in National Food Authority
(NFA) whose duties were to pre-audit, and post-audit
claims and disbursements of accountable officers in
said office, declared that he conducted an audit
examination of the accounts and accountabilities of the
accused comprising the period from January 20, 1976
to January 24, 1980 after receipt of a copy of "Cash on
Hand Per Count Report" made by the resident auditor.
He and together with the other members of the special
audit team created by NFA who conducted the
investigation, divided the work by the assignment of a
particular account to audit to each of them and came
up with a report, the results of which may be
summarized in the following manner:
The cash advances of herein petitioner under the
Cereal Procurement Fund (CPF) as Special
Disbursement Officer have a total of P10,543,165.56
while her cash disbursements amounted to
P10,115,620.49, leaving a shortage of P427,545.07.
Her operational funds from January 20, 1976 to
January 24, 1980 amounted to P13,019,344.78 while
credits to her accountability totalled P12,442,951.82,
thus leaving a shortage of P576,392.96. Her record of
collections and deposits for the same period shows that
she had debits to her accountability in the total amount
of P13,305,659.18, whereas the credits thereto
amounted to P13,101,762.02. Thus, there is a
shortage of P203,897.16. All these shortages reached
a total of P1,207,835.19 (Hearing of August 3, 1981,
TSN, pp. 9-21; Hearing of February 28, 1984, TSN, pp.,
93-97).
When asked to explain the entries in the Audit
Examination Report, Capinpin clarified each and every
item under investigation such as: Cereal Procurement
Fund which is the summary of the accountabilities of
the accused as special disbursing officer for the period
covered, July 30, 1977 to January 24, 1980. Debit to
accountability refers to the cash advances and
replenishments made by the special disbursing officer
to serve as her fund for the purchase of palay in
connection with the procurement operation of the NFA.
The advances were in the form of cash supported by
cash vouchers, replenishment vouchers which are also
supported by purchase receipts. These purchase
receipts were the actual expenses or disbursements
made by the special disbursing officer for the procured
palay in her capacity as special disbursing officer
(Hearing of February 28, 1984, TSN, pp. 66-68).
In view of the shortage found, a demand letter was sent
to Lucilyn Zambrano dated July 2, 1980 requiring her
to restitute or pay the said shortage. To date no
restitution has been made by the accused (Hearing of
August 3, 1981, TSN, pp. 9-21).
On clarificatory questions made by the Court, Capinpin
admitted that the report submitted by the team does not
contain references or cross references to the pertinent
supporting documents. What was embodied in the
transmittal letter was the total accountability on the net
shortage of the accused. The summary of
accountability of the accused both as disbursing officer
and as special collecting officer are duly supported by
general schedules with references to their respective
amount (Decision, Crim. Case No. 2559, Rollo, p. 24).
He claimed that he personally examined all the entries
contained in the cash books, despite the absence of his
signature to show that he had actually made
examinations thereon. In going over the cash books he
counter-checked them with entries made by the
accused herself, under the columns "Treasury
Warrant", "Journal Voucher" or "Official Receipts" as
against the documents themselves, and found that all
the entries appearing in the cash books have their
corresponding vouchers (Hearing of November 26,
1984, TSN, pp. 155-156).
Capinpin further declared that (a) the number of the
vouchers representing cash advances or
replenishments to the accused are all reflected in the
schedules attached to the audit report; (b) all vouchers
recorded in the registers were obtained by the team
and duly accounted for; (c) the vouchers were not only
checked but the audit team saw to it that the supporting
papers were complete; and (d) the audit team followed
COA standard procedures in conducting their
examination (Decision, Criminal Case No. 2559, Rollo,
p. 62).
On the other hand, the defense presented Cesario
Mateo as an expert witness, who is a Certified Public
Accountant (CPA) and private practitioner. Long before
he became a free lancer, he was connected with the
government, employed as Auditing Clerk of the Rice
and Corn Administration (RCA) now NFA, then as a
proof clerk of the First United Bank, then with the COA
as Assistant Auditor until he worked abroad as
Assistant Account of Bauchi State Investment and
Development Corporation in Nigeria which is a
government corporation.
Mateo claimed that he, together with a former COA
Auditor and personnel of the Sandiganbayan, started
examining and reviewing ten (10) boxes of exhibits of
the prosecution late in September and ended early in
January 2, 1986. Thereafter, he submitted a written
report to Atty. Ontimare, with a summary of his findings
and observations (Hearing of January 29, 1986, TSN,
pp. 163-171).
Cross-examined on his report, particularly on his
statement that the cash advances amounting to P1
million pesos were neither supported by cash vouchers
nor check vouchers, he explained that nowhere in the
documents submitted by the prosecution was he able
to find the particular vouchers in support thereof and
hence should not be included as cash advances.
Confronted with Exhibits "YYYYY-1" to "YYYYY-20"
pertaining to twenty (20) check vouchers in the amount
of P50.000.00 each with a total of P1 million pesos, he
denied having seen them. However, his examination
shows that the accused made disbursements
amounting to more or less P1 million pesos but he
could not determine the total amount of disbursements
as well as the total accountability of the accused.
According to his report, more than P800,000.00 was
overstated.
Specifically, Mateo pointed out that the accused
instead of having a shortage of P1,207,835.19 as
determined by the audit team, should be credited with
an average of P1,912,065.00 as follows:
P 1,000,000.00 — not supported with
cash vouchers and check
vouchers;
180,004.20 — overstatement of cash
advances for Acct. No. 805
(SDO)
113,652.36 — disallowed cash items
24,200.00) —
1,143.45) — no official receipts and
Abstract of Collections or
Report of Collections
592,964.99 — over deposits for Acct.
No. 805 (CPF)
—————
P1,912,065.00
Otherwise stated, the government owes the accused
P704,229.81 (Hearing of April 14, 1966, TSN, pp. 191-
197; Decision, Criminal Case No. 2559, pp. 48-
49; Rollo, p. 62).
As previously stated, accused's testimony was taken
during the new trial granted by the Court after she had
waived her right to testify in her defense.
Luctlyn T. Zambrano declared that since September 1,
1966 she occupied various positions in the defunct
RCA, now NFA, during which time she was never
charged administratively or criminally nor was her
attention ever called to any anomaly or irregularities in
the discharge of her duties.
On February 6, 1975, she was appointed Cashier I on
a permanent basis at the NGA National Branch,
allegedly offered to her by Director Juanito Cabalu,
despite the fact that she had no units in accounting but
only in nursing. Nevertheless, she accepted the
position as an opportunity for promotion (Hearing of
February 5, 1987, TSN, pp., 224-227).
As Cashier I, her duties were to collect and disburse
funds. While her actual station was in Cotabato City,
Regional Office, her area of responsibility includes
Maguindanao province.
As a collecting officer, she collects the proceeds of the
sale of cereals like rice, corn and sorgum. Although she
did not actually participate in the selling of cereals, the
proceeds of the sale were turned over to her which
were evidenced by proper receipts and these receipts
together with the amounts that she received were
entered by her in the cash books. She pre-signed the
receipts she issued especially in the remote areas in
the different buying stations and then she collected the
proceeds from her aides as against the receipts issued
by her. The transactions made were paid either in cash
by direct retailers or consumers or in checks by
government agencies or offices. These checks were
placed in the collection report, made payable to the
NGA, main office, and deposited in the Philippine
National Bank (PNB) on the following day.
As Special Disburing Officer (SDO), she went out to
Cotabato City and to Maguindanao for the purpose of
disbursing funds in her accountability. She submitted
her periodic report weekly to the accounting section.
These reports were denominated as Collection and
Disbursement reports. The former included the sales of
cereals while the latter was divided into many
accounts. During this period, she was also audited in
her accountabilities and there was no shortage found
(Hearing of February 5, 1987, TSN, pp. 233-243).
During the fiscal year 1978, Auditor Abundo of the
NGA, called her to his office and he told her that her
account was liquidated by him and he found a shortage
of ten thousand (P10,000.00) pesos in the Cereal
Procurement Funds. Aside from the fact that she was
still under liquidation at that time, the finding of Abundo
was not reflected in any report nor was any official
action taken thereon.
Nevertheless, Abundo offered to help her with the
shortage, for a certain amount. And so she gave him
P5,000.00 from her personal funds and later for cash
advances of P200,000,00 from the office funds for
which Abundo did not sign receipts nor did he liquidate
them.
Aside from Abundo, she gave also cash advances to
Regional Director Juanito Cabalu amounting to
P80,000.00 for his representation expenses, salaries,
fish to be sent to Malacañang and also personal
expenses. These cash advances were covered by
receipts but Cabalu was able to liquidate the amount of
P70,000.00 only which she turned over to Imelda
Marquez, Cashier of the NGA, after she was
investigated by the MSD and she did not know if the
MSD was aware of the unliquidated cash advances of
Cabalu. She was informed later that the investigation
conducted by MSD revealed that she incurred a
shortage of P500,000.00, more or less (Hearing of
February 6, 1987. TSN, pp., 253-270).
She also admitted that she has a cash advance of one
million pesos in one voucher only but she did not use
this amount for her own personal use. This cash
advance was given to Manager Serio Pituc of Sultan
Kudarat on the instructions of Director Cabalu. The one
million pesos cash advance was recorded in her name,
then it was given to Manager Pituc, who signed the
original of the voucher in the presence of the cashier of
Sultan Kudarat and Mrs. Marquez. Although she was
furnished a cory of the report of the audit team finding
her short of one million plus, she was not given a
chance to explain her position (Hearing of May 28,
1987, TSN, pp. 285-291).
On cross-examination, she admitted that she cannot
validly disburse an amount of P1 million pesos because
her disbursement ceiling was only P150,000.00
(Hearing of May 29, 1987, TSN, pp. 296-302),
On re-direct, she explained that the cash advances
given to Cabalu were not credited in her favor and that
the cash advance of P1 million pesos in one single
transaction despite her cash disbursement ceiling of
P150,000.00 was approved by the Regional Director
and it passed through accounting procedures leading
her to presume that the voucher was in order (Hearing
of May 29, 1987, TSN, pp. 303-306).
In reply to the questions asked by the Court, she said
that she gave cash advances to Abundo and Cabalu,
Regional Auditor and Regional Director of the NGA
respectively ranging from the amount of P200,000.00
to P1 million pesos despite their failure to execute the
proper documents or receipts out of fear, that she might
be kicked out of her job or transferred to another
station. On the other hand, she believes that she will
not be held liable for the shortage because these are
circumstances that would justify or exempt her from
criminal liability (Hearing of May 29, 1987, TSN, pp.
307-312).
On January 8, 1968, the Sandiganbayan rendered its
decision, the decretal portion of which reads as follows:
WHEREFORE, judgment is hereby
rendered finding accused Lucilyn
Zambrano y Tesoro GUILTY beyond
reasonable doubt as Principal in the
offense of Malversation of Public Funds
as defined and penalized in Article 217,
paragraph 4, of the Revised Penal
Code, and there being no modifying
circumstance in attendance, after
applying the Indeterminate Sentence
Law, hereby sentences her to suffer the
indeterminate penalty ranging from
TWELVE (12) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS
of reclusion temporal as the minimum,
to EIGHTEEN (18) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY, likewise
of reclusion temporal as the maximum;
to pay a fine of P1,207,835.19 equal to
the funds malversed; to indemnify the
Government of the Republic of the
Philippines in the same amount of
P1,207,835.19 and to pay the costs of
this action.
SO ORDERED. (Rollo, p. 70)
Hence, this petition.
The Court En Banc of this Court in its resolution dated
November 15, 1988 gave due course to the petition
and considered this case submitted for decision (Rollo,
Resolution, p. 109).
The main issue in this case is whether or not the guilt
of the accused-petitioner had been established beyond
reasonable doubt.
The petition is devoid of merit.
After a careful study of the records of this case,
including the detailed testimony of the witnesses, no
cogent reason can be found to depart from the
conclusion reached by the Sandiganbayan that
petitioner had indeed been negligent in the handling of
the funds which had been turned over to her.
In the crime of malversation, all that is necessary for
conviction is proof that the accountable officer had
received the public funds and that he did not have them
in his possession when demand therefor was made
and he could not satisfactorily explain his failure so to
account. An accountable public officer may be
convicted for malversation even if there is no direct
evidence of personal misappropriation, where he has
not been able to explain satisfactorily the absence of
the public funds involved (De Guzman v. People, 119
SCRA 337 [1982]; Bacasnot y Callao v.
Sandiganbayan, 155 SCRA 379 [l987]).
Under Article 217 of the Revised Penal Code, there
is prima facie evidence of malversation where the
accountable public officer fails to have duly forthcoming
any public funds with which he is chargeable upon
demand by duly authorized officer. As this Court has
pointed out, this presumption juris tantum is founded
upon human experience (Estepa v. Sandiganbayan,
182 SCRA 269 [l990]) and shall be prima
facie evidence that he/she has put such missing funds
or property to personal use (Corpuz v. People, 194
SCRA 73 [1991]).
In the case at bar, petitioner was neither able to
produce the missing amount of P1,207,835.19 nor
adequately explain her failure to produce that amount.
Petitioner failed to offer any convincing evidence to
support her alternative claims that she did not incur any
shortage in her accountabilities. She even tried to
exculpate herself but in vain, by throwing blame on
others for her failure to account for the missing money,
making it appear that she was either acting under
orders of her superiors or that she acted out of fear or
duress, but as correctly found by the Sandiganbayan
her testimonial evidence does not clearly or positively
establish the legal or factual bases thereof. Among
others, she knew that the supposed orders of her
superior were not for a lawful purpose or even if lawful,
as she claimed them to be, the means used to carry
out said orders were not lawful. She admitted she did
not use the proper official forms or procedures in doling
out funds belonging to the government and more
importantly she exceeded her cash disbursement
ceiling for the disbursement of funds amounting to
P150,000.00.
Her defense witness Mateo while pointing out that the
missing cash advances including the P1,000,000.00
were not duly supported by check or cash voucher,
failed or omitted to explain why they were posted in the
cash books of the accused, in her own handwriting if
she really did not receive them (Decision, Criminal
Case No. 2559, pp. 49-52; Rollo, pp. 62-65).
Conversely, the audit examination made was based on
petitioner's own cash books and all the checks and
vouchers were duly checked and verified. In fact the
People's witness declared that (a) the numbers of
vouchers representing cash advances or
replenishments to the petitioner are all reflected in the
schedules attached to the audit report; (b) all vouchers
recorded in the registers were obtained by the team
and duly accounted for; (c) the vouchers were not only
checked but the audit team saw to in that their
supporting papers were complete; and (d) the audit
team followed COA standard procedures in conducting
their examination. As found by respondent court, the
evidence presented by the prosecution in its totality is
overwhelming and conclusive (Decision, Criminal Case
No. 2559, p. 52; Rollo, p. 65).
Verily, the elements of the crime imputed to the
petitioner in the information were duly established not
only by the testimony of the prosecution's only witness
but also by the documentary evidence offered.
Under the foregoing circumstances, it is evident that
the defense has not successfully rebutted the prima
faciepresumption of malversation. The evidence of the
prosecution is overwhelming and has not been
overcome by the petitioner. The presumed innocence
of the accused must yield to the positive finding that
she malversed the sum of P1,207,835.19 to the
prejudice of the public whose confidence she has
breached.
PREMISES CONSIDERED, the petition is DENIED
and the assailed decision of the Sandiganbayan is
AFFIRMED in all respects,
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Nocon, JJ., concur.
Feliciano and Bellosillo, JJ., are on leave.
(2) G.R. No. 101978. April 7, 1993.
EDUARDO P. PILAPIL, petitioner,
vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA
and PEOPLE OF THE PHILIPPINES, respondents.
Ramon A. Gonzales for petitioner.
The Solicitor General for public respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
MOTION TO QUASH; ABSENCE OF PRELIMINARY
INVESTIGATION, NOT A GROUND. — The absence
of a preliminary investigation is not a ground to quash
a complaint or information under Section 3, Rule 117
of the Rules of Court.
2. ID.; ID.; PRELIMINARY INVESTIGATION;
ABSENCE THEREOF DOES NOT AFFECT
JURISDICTION OF COURTS NOR IMPAIR VALIDITY
OF INFORMATION. — The absence of preliminary
investigation does not affect the court's jurisdiction over
the case. Nor do they impair the validity of the
information or otherwise render it defective, but, if there
were no preliminary investigations and the defendants,
before entering their plea, invite the attention of the
court to their absence, the court, instead of dismissing
the Information, should conduct such investigation,
order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may
be conducted . . . (Sanciangco, Jr. vs. People, G.R. No.
72830, 149 SCRA 1 [1987] and reiterated in Doromal
vs. Sandiganbayan, G.R. No. 85468, 177 SCRA 354
[1989]).
3. ID.; ID.; MOTION TO QUASH; LACK OF
JURISDICTION BY THE COURT AS A GROUND,
CONSTRUED. — The lack of jurisdiction contemplated
in Section 3(b), Rule 117 of the Revised Rules of Court
refers to the lack of any law conferring upon the court
the power to inquire into the facts, to apply the law and
to declare the punishment for an offense in a regular
course of judicial proceeding. When the court has
jurisdiction, as in this case, any irregularity in the
exercise of that power is not a ground for a motion to
quash.
4. ID.; JURISDICTION; ABSENCE THEREOF, NOT
SUBJECT TO WAIVER. — Lack of jurisdiction is not
waivable but absence of preliminary investigation is
waivable. In fact, it is frequently waived.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE
PROCESS; NOT DENIED WHERE PETITIONER
WAS REQUIRED TO ANSWER THE CHARGES
AGAINST HIM. — The facts on record show that in an
order dated October 3, 1990, Deputy Ombudsman
Domingo required petitioner to answer the charges
against him as stated in the affidavits-complaints and
supporting documents thereto. Petitioner fully complied
with said order and filed his and his witnesses'
affidavits. In other words, petitioner was properly
apprised of the act complained of and given ample
opportunity to rebut the same. Thus, petitioner could
not validly raise violation of his right to due process
because the bases for the information filed by the
Ombudsman were all reflected in the complaint and the
evidence supporting it.
6. REMEDIAL LAW; CRIMINAL PROCEDURE;
PRELIMINARY INVESTIGATION; NOTHING MORE
THAN THE SUBMISSION OF THE PARTIES'
AFFIDAVITS AND COUNTER-AFFIDAVITS. — In
Cinco vs. Sandiganbayan, (G.R. Nos. 92362-67, 202
SCRA 727 [1991]) this Court held that preliminary
investigation is nothing more than the submission of
the parties' respective affidavits, counter-affidavits and
evidence to buttress their separate allegations.
7. ID.; ID.; ID.; MERELY INQUISITORIAL. —
Preliminary investigation is merely inquisitorial, and it
is often the only means of discovering whether a
person may be reasonably charged with a crime, to
enable the prosecutor to prepare his complaint or
information.
8. ID.; ID.; NATURE OF CRIMINAL CHARGES
DETERMINED BY ACTUAL RECITAL OF FACTS. —
The real nature of the criminal charge is determined not
from the caption or preamble of the information nor
from the specification of the provision of law alleged to
have been violated, they being conclusions of law, but
by the actual recital of facts in the complaint or
information. . . . it is not the technical name given by
the Fiscal appearing in the title of the information that
determines the character of the crime but the facts
alleged in the body of the Information.
9. ID.; ID.; PRELIMINARY INVESTIGATION;
DEEMED WAIVED BY FAILURE TO SEASONABLY
INVOKED RIGHT THERETO. — The right to a
preliminary investigation is not a fundamental right and
may be waived expressly or by silence. Failure of
accused to invoke his right to a preliminary
investigation constituted a waiver of such right and any
irregularity that attended it. The right may be forfeited
by inaction and can no longer be invoked for the first
time at the appellate level.
10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN AFTER
THE CASE HAS BEEN FILED. — Under the last
paragraph of Section 7, Rule 112 of 1985 Rules on
Criminal Procedure, the right to ask for preliminary
investigation is recognized even after the case has
already been filed.
11. ID.; ID.; PROBABLE CAUSE, DEFINED. —
Probable cause has been defined in the leading case
of Buchanan vs. Vda. de Esteban (32 Phil. 365) as the
existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he
was prosecuted. Probable cause is a reasonable
ground of presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution
and prudence to believe, or entertain an honest or
strong suspicion, that a thing is so.
12. ID.; SPECIAL CIVIL ACTION; CERTIORARI;
FINDING BY THE SANDIGANBAYAN OF PROBABLE
CAUSE FOR VIOLATION OF ANTI-GRAFT AND
PRACTICES ACT, NOT IN EXCESS OF
JURISDICTION NOR WITH GRAVE ABUSE OF
DISCRETION. — Having found that respondent court
has not acted in excess of jurisdiction nor with grave
abuse of discretion in finding the existence of probable
cause in the case at bar and consequently, in denying
the motion to quash and motion for reconsideration of
petitioner, We dismiss as clearly unfounded the
insinuations of petitioner that Presiding Justice Francis
Garchitorena used the influence of his office in initiating
the complaint against him. We agree with respondent
court that the act of bringing to the attention of
appropriate officials possible transgression of the law
is as much an obligation of the highest official of the
land as it is the responsibility of any private citizen.
DECISION
NOCON, J p:
In this petition for certiorari and mandamus, petitioner
seeks to annul the resolutions of respondent
Sandiganbayan in Criminal Case No. 16672, entitled
"People of the Philippines vs. Eduardo P. Pilapil" dated
June 27, 1991 denying his motion to quash the
information for Violation of Section 3(e) of Republic Act
No. 3019, as amended. as well as the resolution dated
September 5, 1991 denying his motion for
reconsideration. Petitioner predicated his motion to
quash on the ground of lack of jurisdiction over his
person because the same was filed without probable
cause. In addition thereto, petitioner cites the fact that
the information for violation of the Anti-Graft Law was
filed although the complaint upon which the preliminary
investigation was conducted is for malversation.
The antecedent facts of the case are as follows:
On October 16, 1987, the Philippine Charity
Sweepstakes Office (PCSO) donated one ambulance
(a Mitsubishi L-300) to the Municipality of Tigaon,
Camarines Sur. Petitioner, who is the Congressman of
the 3rd District of Camarines Sur, received the
ambulance in behalf of the municipality. However, he
did not deliver the ambulance to said municipality.
Unaware of the donation, the Sangguniang Bayan of
the municipality passed a resolution (Resolution No.
16, Series of 1988) requesting PCSO for an
ambulance. Said request was reiterated in their
Resolution No. 117, Series of 1988. The mayor of the
municipality, Eleanor P. Lelis, thereafter sought the
intercession of Sandiganbayan Presiding Justice
Francis Garchitorena, who is from the said
municipality, regarding said request. Thereafter,
Justice Garchitorena contacted the PCSO and learned
about the ambulance previously donated by the latter
to Tigaon through petitioner. He accordingly informed
Mayor Lelis that the municipality's request cannot be
favorably acted upon in view of the previous donation.
Mayor Lelis reiterated the municipality's request for an
ambulance making reference to the certification of the
municipal treasurer that no vehicle from the PCSO or
from anyone has been received.
Upon verification of the whereabouts of the Mitsubishi
L-300 by the PCSO from the petitioner, the latter
indicated his willingness to return the ambulance. In a
letter dated December 22, 1988, he requested that said
vehicle be donated instead to the Municipality of
Tinambac, same province. Finally, on December 26.
1988, he personally returned the ambulance, then
already painted to cover the logo of the PCSO and the
other markings thereon.
With the return of the Mitsubishi L-300 to the PCSO,
the Municipality of Tigaon, through Mayor Lelis, finally
received a brand new Besta Kia Ambulance unit
complete with all accessories.
On January 2, 1989, Justice Garchitorena wrote the
then Chief Justice Marcelo B. Fernan relating to him
the whole story of the ambulance.
On January 25, 1989, Justice Garchitorena also sent
Deputy Ombudsman Jose C. Colayco a letter-
complaint against petitioner regarding said ambulance.
Said letter-complaint was referred by Ombudsman
Conrado M. Vasquez to the Deputy Ombudsman for
Luzon, Manuel C. Domingo, for appropriate action.
Thereupon, Deputy Ombudsman Domingo required
Justice Garchitorena to submit all relevant records and
documents, as well as his affidavit and those of his
witnesses. Failing in this regard, Justice Garchitorena
was requested anew to comply. In his stead, Anthony
D. Jamora, the Regional manager of the Special
Projects Department of the PCSO and Mayor Lelis of
Tigaon, Camarines Sur, submitted their respective
affidavits.
On October 3, 1990, Deputy Ombudsman Domingo
issued an order requiring petitioner to submit his
counter-affidavit, affidavits of his witnesses and other
controverting evidence. This order was captioned as
Case No. OMB-1-89-0168 for "Malversation of Public
Property under Article 217 of the Revised Penal Code."
On October 22, 1990, petitioner submitted his counter-
affidavit denying the imputation of said offense claiming
that the vehicle was not equipped with any medical
attachments or facilities so he was constrained to
request PAGCOR for assistance to finance its
conversion into a medical ambulance which is
evidenced by his letter dated November 15, 1987 to
Mrs. Alice Reyes. He claimed that it was only on April
28, 1988 that PAGCOR acted on his request, but in lieu
of financial assistance, said office donated
accessories, which can be installed at an estimated
cost of P5,000.00. Thus, he allegedly made personal
representations with PAGCOR for the latter to shoulder
the expenses of the installation. While awaiting for the
financial assistance, petitioner claimed, in explanation
why the logo of PCSO and the other markings on the
vehicle were removed, that he acceded to the
suggestion of his staff to include the name of PAGCOR
on the sides of the ambulance in view of the substantial
contribution of the latter.
On December 5, 1990, Ombudsman Investigator Isaac
D. Tolentino issued a resolution finding no probable
cause for malversation and recommended that the
case be dismissed, which recommendation was
approved by Deputy Ombudsman Domingo.
On January 5, 1991, Assistant Ombudsman Abelardo
Aportadera, Jr. recommended the disapproval of the
aforesaid resolution and instead, suggested the filing
of criminal information for violation of Article 217 of the
Revised Penal Code. This was followed by another
resolution to the same effect by Special Prosecution
Officer Wilfredo Orencia dated February 14, 1991.
On April 1, 1991, Ombudsman Conrado Vasquez
issued a resolution sustaining the finding of
Ombudsman Investigator Tolentino that there is no
malversation but found in the same resolution, a prima
facie case for violation of Section 3(e) of Republic Act
No. 3019, the dispositive part of which states:
"WHEREFORE, it is hereby directed that the
information to be filed against the respondent should
be for a violation of Section 3(e) of R.A. 3019." 1
On April 3, 1991, an information for violation of Section
3(e) of Republic Act No. 3019, docketed as Criminal
Case No. 16672, against petitioner was filed, to wit:
"The undersigned Special Prosecution Officer III
accuses EDUARDO P. PILAPIL of the crime for
'Violation of Section 3(e) of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, committed as follows:
'That on or about October 16, 1987 and subsequent
thereto, in the Municipality of Tigaon, Province of
Camarines Sur and within the jurisdiction of this
Honorable Court, the accused is a public officer, he
being the Congressman of the Third Congressional
District of Camarines Sur, while in the discharge of his
official functions and taking advantage of his public
position, acted with manifest partiality and evident bad
faith, did then and there willfully cause undue injury to
the Municipality of Tigaon, Camarines Sur, when he
failed to deliver the ambulance, Mitsubishi Van L-300,
received by him on behalf of the said municipality in a
Deed of Donation executed by the Philippine Charity
Sweepstakes Office in its favor, to the prejudice and
damage of the said municipal government.
CONTRARY TO LAW." 2
On April 12, 1991, a warrant of arrest was issued
against petitioner. On April 18, 1991, he was allowed
to deposit the sum of P15,000.00 in court to be
considered as bail bond and the warrant of arrest was
recalled.
On May 2, 1991, petitioner filed a motion to quash on
the ground that respondent Sandiganbayan has no
jurisdiction over his person because the information
was filed without probable cause since there is
absolutely no proof adduced in the preliminary
investigation of any of the elements of the crime
defined in Section 3(e) of Republic Act No. 3019. On
June 27, 1991, respondent court denied the said
motion to quash holding that the factual and legal
issues and/or questions raised are evidentiary in nature
and are matters of defense, the validity of which can be
best passed upon after a full-blown trial on the merits.
On September 5, 1991, respondent court denied
petitioner's motion for reconsideration of the said
resolution and set the arraignment of petitioner on
October 21, 1991 at 8:30 a.m.
On October 12, 1991, petitioner filed the present
petition and by reason of such filing, respondent court
ordered that the arraignment be held in abeyance.
Petitioner enumerates the following as his reasons for
filing the petition:
"I. THAT RESPONDENT COURT IS ACTING
WITHOUT OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION IN DENYING
THE MOTION TO QUASH.
II. THAT RESPONDENT COURT IS NEGLECTING A
LEGAL DUTY IN NOT QUASHING THE
INFORMATION OR DISMISSING THE CASE.
III. THAT PETITIONER HAS NO PLAIN, SPEEDY
AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW EXCEPT THE PRESENT
PETITION." 3
Stated otherwise, the issue in this case is whether or
not the Sandiganbayan committed grave abuse of
discretion in denying petitioner's motion to quash and
motion for reconsideration.
Petitioner harps on the lack of preliminary investigation
on the specific charge of violation of Sec. 3(e),
Republic Act No. 3019, as amended, filed before the
Sandiganbayan. He alleges that the preliminary
investigation was conducted for the charge of
malversation.
At the outset, this Court bears mention of the
rudimentary rule that the absence of a preliminary
investigation is not a ground to quash a complaint or
information under Section 3, Rule 117 of the Rules of
Court. The proper procedure in case of lack of
preliminary investigation is to hold in abeyance the
proceedings upon such information and the case
remanded to the Office of the Provincial Fiscal or the
Ombudsman, for that matter, for him or the Special
Prosecutor to conduct a preliminary investigation. 4
Thus, We enunciated in Sanciangco, Jr. vs. People, 5
and reiterated in Doromal vs. Sandiganbayan, 6 that:
"The absence of preliminary investigation does not
affect the court's jurisdiction over the case. Nor do they
impair the validity of the information or otherwise
render it defective, but, if there were no preliminary
investigations and the defendants, before entering their
plea, invite the attention of the court to their absence,
the court, instead of dismissing the Information, should
conduct such investigation, order the fiscal to conduct
it or remand the case to the inferior court so that the
preliminary investigation may be conducted . . ."
Petitioner takes exception to the doctrine and urges
this Court to take a second look arguing that lack of
preliminary investigation affects the court's jurisdiction
because it is violative of due process. He reasons out
that jurisprudence abounds with the rule that denial of
due process is grave jurisdictional defeat rendering the
judgment void.
We are not persuaded. The lack of jurisdiction
contemplated in Section 3(b), Rule 117 of the Revised
Rules of Court refers to the lack of any law conferring
upon the court the power to inquire into the facts, to
apply the law and to declare the punishment for an
offense in a regular course of judicial proceeding.
When the court has jurisdiction, as in this case, any
irregularity in the exercise of that power is not a ground
for a motion to quash. Reason is not wanting for this
view. Lack of jurisdiction is not waivable but absence
of preliminary investigation is waivable. In fact, it is
frequently waived.
We now come to the question of whether there was no
preliminary investigation conducted in this case
necessitating the suspension of the proceedings in the
case until after the outcome of such preliminary
investigation.
The facts on record show that in an order dated
October 3, 1990, Deputy Ombudsman Domingo
required petitioner to answer the charges against him
as stated in the affidavits-complaints and supporting
documents thereto. Petitioner fully complied with said
order and filed his and his witnesses' affidavits. In other
words, petitioner was properly apprised of the act
complained of and given ample opportunity to rebut the
same. Thus, petitioner could not validly raise violation
of his right to due process because the bases for the
information filed by the Ombudsman were all reflected
in the complaint and the evidence supporting it. In
Cinco vs. Sandiganbayan, 7 this Court held that
preliminary investigation is nothing more than the
submission of the parties' respective affidavits,
counter-affidavits and evidence to buttress their
separate allegations.
Petitioner attaches significance to the fact that the
preliminary investigation conducted by the
Ombudsman against him was under the title of
"malversation." According to him, this is not sufficient
to justify the filing of the charge of violation of Anti-Graft
and Corrupt Practices Law.
Petitioner loses sight of the fact that preliminary
investigation is merely inquisitorial, and it is often the
only means of discovering whether a person may be
reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information. The
preliminary designation of the offense in the directive
to file a counter-affidavit and affidavits of one's
witnesses is not conclusive. Such designation is only a
conclusion of law of Deputy Ombudsman Domingo.
The Ombudsman is not bound by the said qualification
of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation
and on the basis of which, he may formulate and
designate the offense and direct the filing of the
corresponding information. In fact, even, the
designation of the offense by the prosecutor in the
information itself has been held inconclusive, to wit:
". . . the real nature of the criminal charge is determined
not from the caption or preamble of the information nor
from the specification of the provision of law alleged to
have been violated, they being conclusions of law, but
by the actual recital of facts in the complaint or
information . . . it is not the technical name given by the
Fiscal appearing in the title of the information that
determines the character of the crime but the facts
alleged in the body of the Information." 8
Petitioner cites the case of Luciano vs. Mariano, 9 in
support of its view that a new preliminary investigation
is needed. In said case, however, the original charge
for falsification was dismissed for being without any
factual or legal basis and the category of the offense
was raised as the alleged violation of the Anti-Graft
Law was a graver charge. In the case at bar, there is
no dismissal to speak of because under the rules of
procedure of the office of the Ombudsman, a complaint
may be dismissed only upon the written authority or
approval of the Ombudsman. Besides, even the
petitioner admits that the violation of the Anti-Graft law
did not raise the category of the offense of
malversation.
The case of Doromal vs. Sandiganbayan, 10 also cited
by petitioner as another authority, is likewise
inapplicable as in said case, the information was
annulled as the then incumbent Tanodbayan was
without authority to conduct preliminary investigations
and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the
Ombudsman. With the annulment of the information,
this Court held that a new preliminary investigation of
the charge was in order not only because the first was
a nullity but also because the accused demands it as
his right. In the case at bar, there is no old or new
information. Only one information was filed as a result
of the preliminary investigation conducted by the office
of the Ombudsman.
Even on the assumption that no preliminary
investigation was conducted for the information filed,
petitioner waived his right thereto for failure to ask the
Sandiganbayan or the Ombudsman for a new
preliminary investigation. On this score again,
petitioner's case is different from the Luciano and
Doromal cases where the attention of the lower court
was called to the lack of a new preliminary
investigation. Petitioner bewailed the absence of a new
preliminary investigation only before this Court. It is
noteworthy that his only basis for quashing the
information is the alleged lack of jurisdiction of the court
over his person because there is no probable cause for
the filing of the information.
It is well-settled that the right to a preliminary
investigation is not a fundamental right and may be
waived expressly or by silence. 11 Failure of accused
to invoke his right to a preliminary investigation
constituted a waiver of such right and any irregularity
that attended it. 12 The right may be forfeited by
inaction and can no longer be invoked for the first time
at the appellate level. 13
Petitioner's argument that he could not have asked for
a new preliminary investigation in the Office of the
Ombudsman since he came to know about the charge
only after the information was filed in the
Sandiganbayan, is not tenable. Under the last
paragraph of Section 7, Rule 112 of 1985 Rules on
Criminal Procedure, the right to ask for preliminary
investigation is recognized even after the case has
already been filed, to wit:
"If the case has been filed in court without a preliminary
Investigation having been first conducted, the accused
may within five (5) days from the time he learns of the
filing of the information, ask for a preliminary
investigation with the same right to adduce evidence to
his favor in the manner prescribed in this Rule."
Clearly, the alleged lack of a valid preliminary
investigation came only as an afterthought to gain a
reversal of the denial of the motion to quash. Sad to
say, this last ditch effort came a bit late. His failure to
invoke this right below constituted a waiver of such
right.
As aforesaid, what was submitted for consideration
below was the motion to quash of petitioner on the
ground of want of jurisdiction by the trial court over his
person because of the filing of an information without
probable cause. There being no probable cause,
according to petitioner, then there could be no basis to
issue a warrant of arrest and hence, the respondent
court had no jurisdiction over his person.
Contesting the findings of respondent court that
probable cause exists in this case, petitioner insists
that there is no competent proof that all the elements
of Section 3(e) of the Anti-Graft law are present,
namely: that an act was done (1) causing undue injury
to the government, (2) with manifest partiality or
evident bad faith, and (3) by a public officer in the
discharge of his official duties.
Petitioner argues that the injury contemplated under
the law is real or actual damage and since there is
absolutely no proof of real or actual damages suffered
by the municipality, the finding of undue injury by the
Ombudsman has no factual basis. Concomitantly, he
says that since there is no undue injury, then, there can
be no bad faith, as bad faith is inseparable from undue
injury for undue injury must be through bad faith. He
claims that failure to inform the mayor of the donation,
that he returned the vehicle after one year; that he kept
the vehicle in storage; and that he caused the
repainting to erase the words PCSO are not evidence
of bad faith since they cannot manifest a deliberate
intent to do wrong or cause damage.
Finally, petitioner claims that the element of "public
office in the discharge of official duties" is also absent
as his acceptance of the vehicle in question from
PCSO and its non-delivery to the municipality of Tigaon
was not done in the discharge of his duty as a
congressman tasked with enacting laws. If at all, he
admits, the act was done in his private capacity as
political leader in his district.
We agree with respondent court that the presence or
absence of the elements of the crime are evidentiary in
nature and are matters of defense, the truth of which
can best be passed upon after a full-blown trial on the
merits.
Probable cause has been defined in the leading case
of Buchanan vs. Vda. de Esteban 14 as the existence
of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within
the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was
prosecuted.
Probable cause is a reasonable ground of presumption
that a matter is, or may be, well founded, such a state
of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is
so" 15 The term does not mean "actual and positive
cause" nor does it import absolute certainty. It is merely
based on opinion and reasonable belief. Thus, a finding
of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense
charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.
Whether an act was done causing undue injury to the
government and whether the same was done with
manifest partiality or evident bad faith can only be
made out by proper and sufficient testimony.
Necessarily, a conclusion can be arrived at when the
case has already proceeded on sufficient proof.
At the moment, in passing on a motion to set aside an
information on the ground that the accused has been
charged without probable cause, the court should not
be guided by the rule that accused must be shown to
be guilty beyond a reasonable doubt, but rather
whether there is sufficient evidence which inclines the
mind to believe, without necessarily leaving room for
doubt, that accused is guilty thereof.
Having thus found that respondent court has not acted
in excess of jurisdiction nor with grave abuse of
discretion in finding the existence of probable cause in
the case at bar and consequently, in denying the
motion to quash and motion for reconsideration of
petitioner, We dismiss as clearly unfounded the
insinuations of petitioner that Presiding Justice Francis
Garchitorena used the influence of his office in initiating
the complaint against him. We agree with respondent
court that the act of bringing to the attention of
appropriate officials possible transgression of the law
is as much an obligation of the highest official of the
land as it is the responsibility of any private citizen.
WHEREFORE, the instant petition for certiorari and
mandamus is hereby DISMISSED for lack of merit.
SO ORDERED.
(3) G.R. No. L-54288 December 15, 1982
ARTURO DE GUZMAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE
SANDIGANBAYAN, respondents.
Augusto S. Jimenez for petitioner.
Solicitor General for respondents.
MELENCIO-HERRERA, J.:
An appeal by certiorari from the Decision of respondent
Sandiganbayan 1 in Criminal Case No. 190 convicting
petitioner, Arturo de Guzman, of Malversation of Public
Funds.
We resolved to "(a) give due course to the petition and
(b) require the parties to file their respective
Memoranda on the constitutional questions raised."
1. Petitioner assails the rule-making power of
the Sandiganbayan as violative of Article X, section
5(5) of the Constitution, which vests on the Supreme
Court the power to promulgate rules concerning
pleading, practice and procedure in all Courts.
It is true that Section 9 of Presidential Decree No. 1606,
the law creating the Sandiganbayan vests it with rule-
making power, thus:
Sec. 9. Rule-making Power. — The
Sandiganbayan shall have the power to
promulgate its own rules of procedure
and, pending such promulgation, the
Rules of Court shall govern its
proceedings.
However, since the Sandiganbayan is a Court, its rule-
making power must be construed, out of "constitutional
necessity" as being subject to the approval of the Rules
by the Supreme Court. Mr. Justice Antonio Barredo
had expressed this view in his Concurring Opinion in
"Nuñez vs. Sandiganbayan 111 SCRA 433, 455
(January 30, 1982), when he said:
... the rule-making power granted to it
(the Sandiganbayan) by P.D. 1606
must of constitutional necessity be
understood as signifying that any rule it
may promulgate cannot have force and
effect unless approved by the Supreme
Court, as if they have originated
therefrom.
The "Rules of the Sandiganbayan" were promulgated
on January 10, 1979, and Rule XVIII thereof expressly
provides that they "shall take effect upon approval."
The approval referred to can only refer to approval by
the Supreme Court. The Sandiganbayan has
submitted its Rules to this Court. In the absence of any
action of approval or disapprobation from this Court
the Sandiganbayan has to be guided by the Rules of
Court. 2 We have reviewed the proceedings before
the Sandiganbayan and we have not found any indication
therein of contravention of the Rules of Court.
2. Petitioner also impugns the authority of the First
Division of the Sandiganbayan to hear and decide his
case contending that inasmuch as it was the only
division which had been constituted, it could not legally
function as a judicial body and, consequently, he was
placed in a "precarious predicament".
This argument must also fail. Although
the Sandiganbayan is composed of a Presiding Justice
and eight Associate Justices 3, it does not mean that it
cannot validly function without all of the Divisions
constituted. Section 3 of PD 1606 provides that "the
Sandiganbayan shall sit in three divisions of three
Justices each". While Section 5 thereof provides that "the
unanimous vote of the three justices in a division shall be
necessary for the pronouncement of a judgment."
Thus, the Sandiganbayan functions in Divisions of
three Justices each and each Division functions
independently of the other. As long as a Division has
been duly constituted it is a judicial body whose
pronouncements are binding as judgments of
the Sandiganbayan.
The judgment convicting petitioner was a unanimous
Decision of the First Division duly constituted. It thus
met the requirement for the pronouncement of a
judgment as required by Section 5 of PD 1606 supra.
We find no substance to the argument that no member
could be expected to dissent because no special
Division of five Justices could then be formed,
considering that the Decision was a unanimous one
and there was no indication that any one of the three
Justices had intended to dissent.
3. Petitioner's contention that there is a dilution of his
right to appeal inasmuch as Decisions of the
Sandiganbayan are subject to review by this Court only
by certiorari under Rule 45 of the Rules of Court 4 and,
consequently, he is deprived of his right to appeal on
questions of fact, is neither meritorious. On this point, this
Court, speaking through Chief Justice Enrique M.
Fernando, stressed in the Nuñez case:
Even from the standpoint then of the
American decisions relied upon, it
cannot be successfully argued that
there is a dilution of the right to appeal.
Admittedly, under Presidential Decree
No. 1486, there is no recourse to the
Court of Appeals, the review coming
from this Court. ... Would the omission
of the Court of Appeals as an
intermediate tribunal deprive petitioner
of a right vital to the protection of his
liberty? The answer must be in the
negative. In the first place, his
innocence or guilt is passed upon by
 the three-judge court of a division of
respondent Court. Moreover, a
unanimous vote is required, failing
which 'the Presiding Justice shall
designate two other justices from
among the members of the Court to sit
temporarily with them, forming a
division of five justices and the
concurrence of a majority of such
division shall be necessary for
rendering judgment. Then if convicted,
this Court has the duty if he seeks a
review to see whether any error of law
was committed to justify a reversal of
the judgment. Petitioner makes much,
perhaps excessively so as to the wont
of advocates, of the fact that there is no
review of the facts. What cannot be
sufficiently stressed is that this Court in
determining whether or not to give due
course to the petition for review must
be convinced that the constitutional
presumption of innocence has been
overcome. In that sense, it cannot be
said that on the appellate level there is
no way of scrutinizing whether the
quantum of evidence required for a
finding of guilt has been satisfied. The
standard as to when there is proof of
such weight to justify a conviction is set
forth in People vs. Dramayo. 5
Justice Barredo, in his Concurring Opinion also observed:
... I believe that the accused has a
better guarantee of a real and full
consideration of the evidence and the
determination of the facts where there
are three judges actually seeing and
observing the demeanor and conduct
of the witnesses. It is Our constant
jurisprudence that the cases where
pivotal points are shown to have been
overlooked by them. With more reason
should this rule apply to the review of
the decision of a collegiate trial court.
Moreover, when the Court of Appeals
passes on an appeal in a criminal case,
it has only the records to rely on, and
yet the Supreme Court has no power to
reverse its findings of fact, with only the
usual exceptions already known to all
lawyers and judges. I strongly believe
that the review of the decisions of the
Sandiganbayan whose three justices
have actually seen and observed the
witnesses as provided for in P.D. 1606
is a more iron-clad guarantee that no
person accused before such special
court will ever be finally convicted
without his guilt appearing beyond
reasonable doubt as mandated by the
Constitution. 6
4. Petitioner's argument that he was deprived of his right
to a preliminary investigation as the same was
conducted ex parte has much less to recommend it.
Petitioner failed to appear at said investigation despite
notice thereof received by a member of his family, in the
same way that the formal administrative investigation
against him for dishonesty, conduct prejudicial to the best
interest of the service, and for violation of civil service
rules and regulations was similarly conducted ex
parte because of petitioner's failure to appear despite due
notice served upon and received by his wife, where he
was found guilty as charged and dismissed from the
service effect following his last day of service, with pay
(Exhibit "C").
Besides, an ex parte preliminary investigation is
authorized under section 11 of PD 911, reading:
... If respondent cannot be
subpoenaed, or if subpoenaed he does
not appear before the investigating
fiscal or state prosecutor, the
preliminary investigation shall proceed
without him. ...
It should also be recalled that the statutory right to a
preliminary investigation may be waived expressly or
impliedly. Petitioner waived it when he failed to appear
for such investigation despite notice. The denial of his
petition for reinvestigation by the Tanodbayan was a
matter of discretion with the latter.
5. Finally, petitioner's contention that his conviction is
not in accord with the law and jurisprudence is
unmeritorious. The judgment against petitioner
sentenced him as follows:
WHEREFORE, judgment is hereby
rendered finding accused Arturo de
Guzman guilty beyond reasonable
doubt as principal of the crime of
Malversation of Public Funds, as
defined and penalized in Article 217,
paragraph 4, of the Revised Penal
Code; and in default of any modifying
circumstance in attendance,
sentencing him to an indeterminate
penalty ranging from Twelve (12) Years
and one (1) Day, as minimum, to
Eighteen (18) Years, Eight (8) Months
and One (1) Day, as maximum, both
of reclusion temporaral, with the
accessories provided by law and with
credit for preventive imprisonment
undergone, if any, in accordance with
the provision of Article 29 of the
Revised Penal Code, as amended by
Republic Act 6127; to suffer perpetual
special disqualification; to pay a fine in
the amount of Seventy Six Thousand
Five Hundred Twenty One and 37/100
Pesos P 76,521.37); to indemnify the
City of Manila, Republic of the
Philippines, in the same amount of
Seventy Six Thousand Five Hundred
Twenty One and 37/100 Pesos
(P76,521.37) representing the amount
malversed and, to pay the costs.
We find that the Sandiganbayan has not committed
any error of law in convicting petitioner. For the period
from May 22, 1978 to June 7, 1978, petitioner, as
Travelling Collector and an accountable officer,
collected the total amounhat his conviction is not in
accord with law and jurisprudence is unmeritorious.
The judgmt of P 204,319.32 from various agencies
(Veterinary Inspection Board, Public Health
Laboratory, North Cemetery, among others) but
remitted to the General Teller (Mr. Gerardo Verder now
retired), Cash Division Department of Finance, City of
Manila, only P 127,797.95, thus resulting in a shortage
of P 76,521.37. Said shortgage pertained to collections
of petitioner from the Veterinary Inspection Board
(Exhibits "H-1-i" to "H-1-n").
Petitioner's contention that his accountability was not
proven considering that the audit examination was
conducted in his absence and after he had signed the
Report of Examination (Exhibit "H") in blank presented
to him by Auditing Examiner Maximo Pielago, thus
making said procedure irregular, is neither persuasive.
If he was not present during the audit examination,
petitioner himself was to blame for he should have
known that when he received a demand letter from
Pielago to produce his accountabilities (Exhibit "G") on
June 5, 1978 an examination would be forthcoming.
Upon petitioner's assurance that he had no more
existing accountabilities as he had ceased to make
collections due to his expected promotion, and his
promise to produce his accountabilities on June 7 or 8,
1978, Pielago presented said Report of Examination to
petitioner for signature. On this point, we are in full
agreement with the findings of respondent Court:
Neither is there any merit in the
accused's asseverations that his
accountability has not been proved. It
is true that as candidly admitted by
Auditing Examiner Pielago himself, he
made the accused sign the Report of
Examination (Exhibit H) in blank even
before any examination could be
conducted. But, this rather irregular
procedure is not altogether without any
reasonable explanation. As
uncontradictedly explained by Pielago,
he resorted to that course of action
because, upon his first demand to the
accused for the production of his cash
and cash items, the latter already told
him that he had nothing to account for
anymore because he had since ceased
making collection in anticipation of his
then supposed pending promotion.
Evidently, because of this assurance
from the accused, Pielago may have
thought that the projected examination
would be merely proforma and could
not possibly result in anything but a
zero-zero balance as far as the
accounts of the accused were
concerned. 7
It must be emphasized that petitioner did not report - for
work anymore beginning June 9, 1978, despite a demand
from Pielago for the production of his accountabilities
(Exhibit "M"), a reminder of his criminal liability, and the
fact that administrative charges had been filed against
him for violation of civil service rules and regulations and
conduct prejudicial to the best interests of the service
(Exhibit "F"). Pielago thus proceeded with the audit
examination of petitioner's accountability from the official
records available namely:
... Official Receipts issued by him to
collection agents from whom he
received public funds (Exhibits H-1-a to
H-1-n); Daily Statements of Collections
Exhibits I, I-1 to I-7) and Official
Receipts (Exhibits L, L-1 to L-8)
covering remittances made by him of
his collection to the General Teller, the
Ledger reflecting entries of collections
made by him from the Veterinary
Inspection Board (Exhibits Q, Q-1, Q-1-
a to Q-1-f, Q-2, Q-2-a to Q-2-e); and
the Cashbooks also recording his
remittances of his collections to the
General Teller (Exhibits J, J-1, J-1-a, J-
2, J-2-a, K, K-1, K-I-a K-2-a, and K-2-
b) 8
As against the above documentary evidence, petitioner's
posture that he had turned over his collections everyday
to Mr. Gerardo Verder the General Teller then, who had
assured him that he would do the explaining, is lame,
indeed. Besides, he could not but admit his accountability
for receipts, with serial nos. 155901 to 155990, issued by
him, but under the accountability of Gregorio Sano a
travelling collector, because of petitioner's own pending
request for transfer of accountability. 9
In the face of the evidence presented, petitioner failed to
overcome the presumption under Art. 217 of the Revised
Penal Code that the failure of a public officer to have duly
forthcoming any public funds or property with which he is
chargeable, upon demand by any public officer, shall
be prima facie evidence that he has put such missing
funds to personal use. In Malversation, all that is
necessary to prove is that the defendant received in his
possession public funds, that he could not account for
them and did not have them in his possession and that he
could not give a reasonable excuse for the disappearance
of the same. An accountable public officer may be
convicted of Malversation even if there is no direct
evidence of misappropriation and the only evidence is that
there is a shortage in his accounts which he has not been
able to explain satisfactorily. 10
Neither do we find tenable petitioner's contention that his
accountability was not established as the Report of
Examination was denominated by Pielago as
"preliminary". As held by respondent Court:
True, the report of the audit aforesaid
was denominated as 'preliminary'. But,
this does not imply that the same may
not be taken as basis for determining
the extent of the accountability of the
accused as of the date of said audit. If
there was anything tentative about the
finding made, it was only because
collections of the accused under official
receipts known to be still in his
possession and the stubs of which had
not yet been submitted, were not yet
accounted for. Hence, the only
meaning that the term 'preliminary' had
in the premises was that the amount of
shortage could still be increased if all
said receipts are eventually found and
taken into account. But, on the basis of
the records available to the auditor, the
amount of shortage established could
not but be considered final.
All told, we are convinced that the constitutional
presumption of innocence in petitioner's favor has been
overcome and his guilt established beyond reasonable
doubt.
WHEREFORE, the judgment appealed from,
convicting petitioner of the crime of Malversation of
Public Funds, is hereby affirmed. Costs against
petitioner, Arturo de Guzman.
SO ORDERED.
Fernando, C.J., Aquino, Guerrero, Abad Santos, De
Castro, Plana, Escolin Vasquez, Relova and Gutierrez,
Jr., JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring:
Reiterates his concurrence with the grounds of Justice
Makasiar's dissent in Nunez vs. Sandiganbayan, G. R.
Nos. 50581 and 50617, Jan. 30, 1982.
MAKASIAR, J., concurring and dissenting:
I reiterate my concurring and dissenting opinion in the
Nuñez case; because the crime was committed several
days before the promulgation on June 11, 1978 of P.D.
No. 1486 and eleven (11) months before the
promulgation on December 10, 1978 of P.D. 1606.
Separate Opinions
TEEHANKEE, J., concurring:
Reiterates his concurrence with the grounds of Justice
Makasiar's dissent in Nunez vs. Sandiganbayan, G. R.
Nos. 50581 and 50617, Jan. 30, 1982.
MAKASIAR, J., concurring and dissenting:
I reiterate my concurring and dissenting opinion in the
Nuñez case; because the crime was committed several
days before the promulgation on June 11, 1978 of P.D.
No. 1486 and eleven (11) months before the
promulgation on December 10, 1978 of P.D. 1606.
(4) G.R. No. L-61442 May 9, 1989
MODESTO A. MAHINAY, petitioner,
vs.
THE SANDIGANBAYAN AND THE PEOPLE OF THE
PHILIPPINES, respondents.
Patricio A. Ngaseo for petitioner.
The Solicitor General for public respondent.
PARAS, J.:
The petitioner, Modesto Mahinay, was employed as
Cashier I of the Butuan General Hospital from July 1,
1973 to October 31, 1977 (Decision, Criminal Case No.
2628, p. 3; Rollo, p. 27).
On October 13, 1977, Antonio T. Martirez, Resident
Auditor of the Butuan General Hospital examined in the
presence of Modesto Mahinay, the cash and accounts
of Modesto Mahinay covering the period from July 1,
1973 to October 31, 1977. Antonio Martirez found
Modesto Mahinay to have incurred a shortage of P
20,619.40. Consequently, Antonio Martirez prepared
his report of examination which was signed by the
petitioner (Decision, Criminal Case No. 2628, pp. 3 and
9; Rollo, pp. 27 & 33).
Subsequently, a letter of demand was sent by Antonio
Martirez to the petitioner requiring the latter to produce
the missing funds and to submit an explanation on how
the shortages had been incurred. The petitioner
submitted his reply letter dated January 25, 1979 (Ibid,
p. 3, Rollo, p. 27).
The petitioner was charged with the crime of
Malversation of Public Funds before the
Sandiganbayan. The information states:
That on or about and during the period
comprised between July 1, 1973 to
October 13, 1977, in the City of Butuan,
Philippines, and within the jurisdiction
of this Honorable Court the above
named accused, being an employee of
the Butuan General Hospital, Butuan
City as Cashier and as such is
responsible and accountable for the
public finds collected and received by
him in trust by reason of his position did
then and there wilfully, unlawfully and
feloniously and fraudulently and with
grave abuse of confidence,
misappropriate, misapply, embezzle,
malverse and take away from said
funds the sum of TWENTY
THOUSAND SIX HUNRED
NINETEEN PESOS AND FORTY
CENTAVOS (P20,619.40.) Philippine
Currency which he appropriated and
converted to his own personal use and
benefit and inspite of repeated
demands to restitute said amount he
failed and refused and still fails and
refuses to do so to the great damage
and detriment of the Philippine
Government and the public interest.
CONTRARY TO LAW. (Rollo, p. 1-34)
When arraigned, the accused duly assisted by counsel
de parte pleaded "not guilty". (Decision, Criminal Case
No. 2628, p. 2, Rollo, p. 26).
After trial on the merits, the Court found Modesto
Mahinay guilty as charged.
The dispositive portion of the decision reads:
IN THE LIGHT OF THE FOREGOING
CIRCUMSTANCES, the Court finds
accused Modesto Mahinay y Azura,
GUILTY, beyond reasonable doubt as
Principal of the crime of Malversation of
Public Funds, defined and penalized
under Art. 217, paragraph 4 of the
Revised Penal Code. In the absence of
 any modifying circumstance, since
none was appreciated, the Court
hereby sentences the said I accused to
suffer an indeterminate penalty ranging
from TEN (10) YEARS, and ONE (1)
DAY of Prision Mayor as minimum, to
SIXTEEN (16) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS
of ReclusionTemporal as maximum, to
suffer the penalty of Special Perpetual
Disqualification, to pay a fine of
P20,619.40, to indemnify the
Government of the Republic of the
Philippines in the said amount of
P20,619.40 and to pay the costs.
SO ORDERED. (Rollo, p. 42).
A motion for reconsideration of the decision filed by the
petitioner was denied. Hence, this petition with the
following assignments of error:
I guilty of the misappropriation or malversation of such
THE SANDIGANBAYAN ERRED IN LEANING
HEAVILY ON THE LAST PARAGRAPH OF ARTICLE
217 OF THE REVISED PENAL CODE IN ORDER TO
CONVICT PETITIONER.
II
THE SANDIGANBAYAN ERRED IN RELYING TO
SUPPORT ITS DECISION OF CONVICTION, ON
CASES WHICH ARE NOT ON ALL FOURS WITH,
AND THEREFORE NOT APPLICABLE TO, THE
CASE AT BAR. (Rollo, pp. 12-13)
In the resolution of September 14, 1982, the Court
required the Solicitor General to comment on the
petition within ten (10) days from notice (Rollo, p. 68)
which was complied with on October 25,1982 (Rollo, p.
73).
In the resolution of November 4, 1982, the Court
required the petitioner to file a reply to the Solicitor
General's comment (Rollo, p. 83). On December 10,
1982, the petitioner filed his reply to the comment of
the Solicitor General (Rollo, p. 86).
In the resolution of March 12, 1985, the petition was
given due course (Rollo, p. 98). The brief for the
petitioner was filed on May 14, 1985 (Rollo, p. 111)
while the brief for the respondents was filed on
September 23, 1985 (Rollo, p. 169).
The sole issue in this case is whether or not the
petitioner has committed malversation of public finds
under Article 217 of the Revised Penal Code.
The petitioner contends that the presumption
established by Article 217 of the Revised Penal Code
that a public officer has put missing funds or property
to personal use in the event of his failure to have duly
forthcoming any such public funds or property, with
which he is chargeable, upon demand by any duly
authorized officer, is merely prima facie and may be
rebutted or overcome by proof to the contrary. Since he
presented at the trial "vale" slips signed by Audit Aide
Pacifica Alcordo thereby showing that he has not put
said funds or property to personal use, and the cash
advances in question extended by him in good faith
and in the honest belief that it was his duty to do so,
the prima facie presumption is destroyed and the mere
absence of funds is not sufficient proof of conversion.
It is further argued by the petitioner that the mode of
extending cash advances by mere "vale" slips was one
of long standing, in existence well ahead of the time he
became the cashier of the Butuan General Hospital
and never heretofore questioned by the Commission
on Audit.
The contention of the petitioner is without merit.
Article 217 of the Revised Penal Code provides that
any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or
negligence, shall permit any other person to take such
public funds or property, wholly or partially, shall be
funds or property. (Emphasis supplied).
There is no dispute that the presumption of
malversation under Article 217 of the Revised Penal
Code is merely prima facie and rebuttable, so that if the
accountable officer has satisfactorily proven that not a
single centavo of the missing funds was used by him
for his own personal interest but extended as cash
advances to co-employees in good faith, with no intent
to gain and borne out of goodwill considering that it was
a practice tolerated in the office, the presumption of
guilt is overthrown (Quizo v. Sandiganbayan, 149
SCRA 108). However, the circumstances obtaining in
the Quizo case are not obtaining in the case at bar.
Among others, in the Quizo case, there was full
restitution made within a reasonable time, while in the
instant case there was none.
But more importantly, in the instant case, the petitioner
admitted that the total shortage of P20,619.40
represents the "vales" of Mr. Alcordo for travels,
telegrams, mails, for entertainment of his superiors,
newspapers and salary differentials from 1971 to 1976,
and Alcordo did not give him reimbursement receipts
representing the "vales" (Decision, Criminal Case No.
2628, p. 5, Rollo, p. 29).
Moreover, the respondent court found: (a) that the
petitioner continued to disburse funds from his
collection to issue "vales" to Alcordo despite the latter's
transfer to another place of assignment and inability to
submit the required vouchers that could have
established the legality of the disbursements or "vales"
(Decision, Criminal Case No. 2628, pp. 10-11; Rollo,
pp. 34-35); and (b) that per findings of the Resident
Auditor, the petitioner juggled or manipulated the cash
book entries and made it appear that he made deposits
to conceal the "vales" or amounts loaned which were
never redeemed by Alcordo and/or other employees
concerned, and which deposits in turn, were verified by
the Auditing Examiner to be fictitious since the said
deposits were not supported by any slips nor could said
deposits be traced to the bank statements (Decision,
Criminal Case No. 2628; p. 13; Rollo, p. 37).
It is therefore, apparent that the petitioner, in violation
of Article 217 of the Revised Penal Code, negligently
consented or permitted Alcordo to take public funds for The Amended Information filed against petitioner reads
which he is accountable. as follows:

The petitioner's claim of good faith in extending the That during the period from May to
cash advances in question is belied by his admission June, 1988 in Legaspi City, Philippines
that he was aware of existing COA regulations and within the jurisdiction of this
prohibiting the extension of cash advances by way of Honorable Court, the above- named
"vales" to government employees (Decision, Criminal accused, a public officer, having (sic)
Case No. 2628, p. 5; Rollo, p. 29). duly appointed and qualified as Cashier
of the Treasurer's Office of the
In addition, per findings of the Resident Auditor, the Province of Albay and as such is
petitioner never remitted his collections to the National accountable and responsible for public
Treasury regularly, thus, enabling him to accumulate funds entrusted to her by reason of her
collections as much as P20,000.00 or more. The position, with grave abuse of
petitioner also withheld part of the collections confidence and taking advantage of her
amounting to as much as P15,000.00 or more position as such, did then and there
everytime a deposit is made in contravention of the willfully and unlawfully misappropriate,
provisions of General Circular Nos. 82 and 82-A which embezzle and take away from said
require that collections of National Funds as a general public funds the total amount of TWO
rule should be remitted to the National Treasury at MILLION FIVE HUNDRED TWO
anytime it reaches P500.00 or more, at least once a THOUSAND ONE PESO and THIRTY
month regardless of the amount (Decision, Criminal THREE CENTAVOS (P2,502,001.33),
Case No. 2628, p. 12; Rollo, p. 36). Philippine Currency, which she
misappropriated and converted to her
Under the foregoing circumstances, it is evident that personal use, to the damage and
the defense has not successfully rebutted the prima prejudice of the government in the
faciepresumption of malversation. aforestated amount (Rollo, p. 25).

PREMISES CONSIDERED, the petition for review is Upon arraignment, petitioner entered a plea of not
DENIED and the decision of the respondent guilty.
Sandiganbayan is AFFIRMED.
On June 17, 1991, the Sandiganbayan rendered a
SO ORDERED. decision, finding petitioner guilty of the offense
charged. The dispositive portion of the decision reads
as follows:
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez,
Jr., Cruz, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino, Medialdea and Regalado, JJ., concur. WHEREFORE, judgment is hereby
rendered finding accused Emilia
Meneses y Molod GUILTY beyond
Feliciano, J., in the result.
reasonable doubt as principal in the
offense of Malversation of Public
Funds, as defined and penalized under
Article 217, paragraph 4, of the
(5) G.R. No. 100625 May 20, 1994 Revised Penal Code and favorably
appreciating the mitigating
EMILIA M. MENESES, petitioner, circumstance of voluntary surrender,
vs. without any aggravating circumstance
SANDIGANBAYAN and PEOPLE OF THE in offset and after applying the
PHILIPPINES, respondents. Indeterminate Sentence Law, she is
hereby sentenced to suffer the
Gutierrez & Alo Law Offices for petitioner. indeterminate penalty ranging from
TEN (10) YEARS and ONE (1) DAY
The Solicitor General for the People of the Philippines. of prison mayor as the minimum to
SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY
OF reclusion temporal as the
maximum; to further suffer perpetual
QUIASON, J.:
special disqualification, to pay a fine of
P2,502,001.33 equal to the amount
This is a petition for review on certiorari under Rule 45 malversed; to indemnify the
of the Revised Rules of Court to reverse and set aside Government of the Republic of the
the decision of the Sandiganbayan (Second Division) Philippines in the amount of
in Criminal Case No. 14254, finding petitioner guilty of P2,442,809.33 representing the
Malversation of Public Funds. amount malversed and unrestituted
and to pay the costs of this action
We deny the petition. (Rollo, pp. 47-48).

I Hence this petition.

II
Petitioner does not dispute, as a matter of fact, she
adopted, (Rollo,
p. 95) the findings of facts of the Sandiganbayan, which
are reproduced as follows:
There being no dispute as to the
accused's public position, said fact
having been established by her
appointment as Cashier VI of the
Provincial Treasurer's Office of Albay,
then all that remain (sic) to be resolved
is whether the shortage
P2,502,001.33 in her accountabilities
found after the audit examination
conducted by State Auditor Ernesto Ala
had been duly proven by the
prosecution's evidence and,
contrariwise, whether the accused's
explanation thereon is satisfactory
enough to absolve her from any
criminal liability therefor.
From the prosecution's evidence, the
Court finds the following facts to have
been clearly and indubitably
established:
1. Under Office Orders dated June 7,
1988 and August 5, 1988, issued by
Provincial Auditor Virgilio T.
Verdadero, an audit team, composed
of Auditor Ernesto Ala, Norman
Devora, Alex Amoranto and Adenda
Buan, was directed to conduct the audit
examination of the cash and accounts
of the accused.
2. Audit examination revealed that, as
of June 22, 1988, the accused had a
shortage of P2,517,250.60, as
determined from her cash book.
However, said shortage was increased
by P5,411.33 which was found to be
due to a double entry of disbursement
(Voucher NM. 211-8805-190), dated
May 31, 1988, hence, total shortage
reached P2,522,661.93.
3. During the audit examination, no
cash and valid cash items were
produced by the accused to effect the
shortage found in her accountabilities.
4. On June 28, 1988, Auditor Ala sent
a letter of demand to the accused,
which the latter received on July 4,
1988, per certification of Asst.
Provincial Treasurer Astrid G.
Natividad.
5. In her reply, dated October 14, 1988,
accused made the following
explanation:
"This refers to your
letter of June 28, 1988
as reiterated by the
Officer-in-Charge,
Provincial Treasurer's
Office, in his letter of
September 27, 1988.
The amount demanded
consists of various
chits of several
employees of the
province. However, the
process of recovering
from them the amount
involve needs patience,
of time, humanitarian
consideration. I have
approached each of
them and they were
willing to pay their
accounts in installment
and by doing so, I was
not able to submit my
explanation as required
due to the time
consumed. As a matter
of fact, the amount of
P12,860.00 was
remitted this month and
it is hoped we will be
able to recuperate (sic)
a substantial amount in
the days ahead. This
will show our sincere
intention and desire to
settle the account. It is
hoped we will be given
time and a responsive
chord of consideration
and understanding in
your heart to help and
save us from this
predicament.
It is also informed that
undersigned has no
intention to refuse and
disobey reasonable
office regulations. It is
only by force of
circumstances that she
could not comply with
them immediately."
6. On November 28, 1988, the audit
team submitted their Memorandum to
the COA Regional Director, containing
a narration of the steps taken in the
course of their audit examination and
the results thereof, with the
recommendation to institute criminal
and administrative charges against the
accused for failure to account for the
shortage of P2,502,006.33.
7. Pursuant to said recommendations,
the corresponding complaint for
Malversation of Public Funds was filed
by Provincial Auditor Verdadero with
the Tanodbayan on January 26, 1989,
supported by the Joint Affidavit of
Auditors Ala, Devora, Amoranto and
Buan, with annexes.
 8. On separate occasions,
commencing from June 6, 1988 up to
November 28, 1988, the accused made
partial restitutions amounting to
P20,660.60 (Rollo, pp. 38-41).
Petitioner's defense, relying on Quizo v.
Sandiganbayan, 149 SCRA 108 (1987) is that she had
not benefitted a single centavo from the missing funds;
rather, said funds were disbursed as cash advances to
her co-employees in good faith and in continuance of a
practice tolerated in her office.
Petitioner's theory need not detain us. The practice of
disbursing public funds, under the "vale" system as a
defense in malversation cases, was advanced, briefed
and argued in Cabello v. Sandiganbayan, 197 SCRA
94 (1971), and found not meritorious.
In Cabello, we held that the giving of "vales" by public
officers out of their accountable funds is prohibited by
P.D. No. 1145, otherwise known as the Government
Auditing Code of the Philippines and Memorandum
Circular No. 570, dated June 24, 1968 of the General
Auditing Office.
Article 217 of the Revised Penal Code provides that
any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or
negligence, shall permit any other person to take such
public funds or property, wholly or partially, shall be
guilty of the misappropriation or malversation of such
funds or property (Underlining supplied).
Section 105 of the Government Auditing Code of the
Philippines provides:
(1) Every officer accountable for
government property shall be liable for
its money value in cases of improper
or unauthorized use or
misappropriation thereof, by himself or
any person for whose acts he may be
responsible. He shall likewise be liable
for all losses, damages, or deterioration
occasioned by negligence in the
keeping or use of the property whether
or not it be at the time in his actual
custody.
(2) Such Officer accountable for
government funds shall be liable for all
losses resulting from the unlawful
deposit, use or application thereof and
for all losses attributable to negligence
in the keeping of the funds (Emphasis
supplied).
The grant of loans through the "vale" system is a clear
case of an accountable officer consenting to the
improper or unauthorized use of public funds by other
persons, which is punishable by the law. To tolerate a
such practice is to give a license to every disbursing
officer to conduct a lending operation with the use of
public funds.
There is no law or regulation allowing accountable
officers to extend loans to anyone against "vales" or
chits given in exchange by the borrowers. On the other
hand, the General Auditing Office (now the
Commission on Audit) time and again, through
repeated office memoranda and rulings had warned
against the acceptance of "vales" or chits by any
disbursing officer because such transactions are really
forms of loans (Memorandum Circular No. 570, June
24, 1968, General Auditing Office).
To put an end to the unauthorized practice of the "vale"
system, the General Auditing Office laid down the
following rules for the observance of all concerned:
1. A vale, IOU, chit or other form of
promissory note, is not acceptable
credit to the cash account of any
accountable officer, and is at once
excluded during the cash examination
from among the cash items.
2. The yellow reimbursement receipt
properly used only as receipt or proof
of petty expenses in the field, should
not be used to replace the general
voucher for drawing amounts which
need the approval of several officials
before payment, and require adequate
description of the goods or services
being paid for.
3. Cash advance asked by any auditing
personnel requires the prior approval of
the Auditor General, Deputy Auditor
General, or the proper department
manager (Memorandum Circular No.
570, June 24, 1968; General Auditing
Officer).
Assuming that we accept petitioner's claim of good
faith in giving loans to her co-employees, the amount
of said loans totalled only P1,099,073.34 by her own
admission and this amount already included the loans
allegedly covered by "vales" or chits that had been lost
during the flood brought about by the typhoon that
visited Legaspi City. Petitioner claims that she was able
to trace the loans and the amounts given as advances
by referring to her notebook with her handwritten
entries (Exhs. "4" to "4-K"; Rollo, pp. 15-16). According
to the audit report of petitioner's cash accountability,
the cash shortage as of June 22, 1988 totalled
P2,522,661.93, consisting of the General Fund,
Infrastructure Fund, Special Education Fund and Trust
Fund (Exh. "C").
So even if petitioner would be credited with the amount
of P1,099,073.34 disbursed in exchange of the "vales,"
she still has to account for the amount of
P1,423,588.59.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Feliciano, Padilla, Bidin, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug and Kapunan,
JJ., concur.
Narvasa, C.J. and Cruz, JJ., are on leave.

(6) G.R. No. 77120 April 6, 1987
ARTURO QUIZO, petitioner,
vs.
The HON. SANDIGANBAYAN, represented by HON.
FRANCIS E. GARCHITORENA, LUCIANO A.
JOSON, RAMON V. JABSON, respondents.
Mamerto P. Galledo for petitioner.
RESOLUTION
FERNAN, J.:
In this petition for certiorari, petitioner Arturo Quizo
assails the resolution of the respondent
Sandiganbayan in Criminal Case No. 9777
promulgated on September 23, 1986 which denied the
motion to dismiss filed by the Tanodbayan as well as
the resolution of October 22, 1986 which denied the
motion for reconsideration thereto. Petitioner contends
that said resolutions were rendered without or in
excess of jurisdiction and/or with grave abuse of
discretion.
It appears that after an audit conducted by the
Commission on Audit on September 13, 1983,
petitioner, the Money Order Teller of Cagayan de Oro
Post Office, was found to have incurred a shortage in
his cash and other accounts of P17,421.74, as follows:
Vales granted to various
employees but P16,720.00
disallowed
Accommodated private 700.00
checks
Actual cash shortage 1.74
P17,421.74
On the same day, petitioner reimbursed the amount of
P406.18; three days thereafter, P10,515.56; and on
September 19, 1983, the balance of P6,500.00.
Notwithstanding full restitution, an information for
malversation of public funds against petitioner was filed
by the Tanodbayan before the Sandiganbayan. On a
motion for reinvestigation and/or reconsideration, the
Tanodbayan filed a motion to dismiss on the following
grounds:
1. No damage was inflicted on the
government as there was full restitution
of the malversed funds within a
reasonable time;
2. The accused never pocketed the
money, the shortages, it is admitted,
being 'vales' of his co-employees.
(Annex A, p. 14, Rollo).
On September 23, 1986, the Sandiganbayan denied
the prosecutor's motion to dismiss. It ruled that damage
to the government is not an essential element of the
crime of malversation and that restitution of the
malversed funds before the filing of a complaint is
neither a defense that would exempt the offender from
criminal liability nor a valid ground for dismissal. A
motion for reconsideration was filed but it was denied
on October 22, 1986. Hence this petition.
Petitioner questions the propriety and advisability of the
Sandiganbayan's actuation in seeming to substitute its
judgment on matters within the discretion of the
prosecution. Petitioner further argues that there are
sufficient and compelling reasons for the dismissal of
the criminal case, namely:
1. There was no criminal intent, no
malice or any animus lucrandi;
2. If there was negligence,the same
was noti nexcusable;
3. There was full restitution made within
a reasonable time; and
4. Similar cases were dismissed at the
Sandiganbayan and Tanodbayan level
on the ground of restitution.
The petition is impressed with merit.
In the case of People vs. Pineda, 20 SCRA 748, the
Court ruled:
A prosecuting attorney, by the nature of
his office, is under no compulsion to file
a particular criminal information where
he is not convinced that he has
evidence to prop up the averments
thereof, or that the evidence at hand
points to a different conclusion. This is
not to discount the possibility of the
commission of abuses on the part of
the prosecutor. But we must have to
recognize that a prosecuting attorney
should not be unduly compelled to work
against his conviction. In case of doubt,
we should give him the benefit thereof.
A contrary rule may result in our courts
being unnecessarily swamped with
unmeritorious case. Worse stilt a
criminal suspect's right to due process
— the sporting idea of fair play — may
be transgressed.
... The question of instituting a criminal
charge is one addressed to the sound
discretion of the investigating
Fiscal. The information he lodges in
court must have to be supported by
facts brought about by an inquiry made
by him It stands to reason then to say
that in a clash of views between the
judge who did not investigate and the
fiscal who did or between the fiscal and
the offended party or the
defendant, those of the Fiscal's should
normally prevail ... (Emphasis
supplied.)
In Alberto vs. de la Cruz, 98 SCRA 406, reiterated
in Bautista vs. City Fiscal of Dagupan 131 SCRA 132,
the Court further held:
It is the rule that a fiscal by the nature
of his office, is under no compulsion to
file a particular criminal information
where he is not convinced that he has
evidence to support the allegrations
thereof. Although this power and
prerogative of the FiscaL to determine
whether or not the evidence at hand is
sufficient to form a reasonable belief
that a person committed an offense, is
not absolute and subject to judicial
review, it would be embarrassing for
the prosecuting attorney to be
compelled to prosecute a case when
he is in no position to do so, because in
his opinion he does not have the
necessary evidence to secure a
conviction, or he is not convinced of the
merits of the case.
Against the foregoing and considering that after a
reinvestigation conducted by a prosecutor, no less than
the Tanodbayan himself directed the dismissal of the
case based on findings that "it is clear that the accused
never pocketed the money" and that "the shortage
were vales of co-employees" (Annex "D," p. 39, Rollo),
the Court is inclined to sustain petitioner's contention
that the Sandiganbayan gravely abused its discretion
when it refused to grant the motion to dismiss. It is not
fair to compel the prosecutor to secure the conviction
of an accused on evidence which in his opinion, is
insufficient and weak to establish even a prima
facie case.
Besides, the Court is convinced that there is no
sufficient evidence to show a prima facie case against
petitioner.
Article 217 of the Revised Penal Code provides that the
failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing
funds or property to personal uses. Hence, an
accountable public officer may be convicted of
malversation even if there is no direct evidence of
misappropriation and the only evidence is that there is
a shortage in his accounts which he has not been able
to explain satisfactorily (De Guzman vs. People, 119
SCRA 337). This is because the law establishes a
presumption that mere failure of an accountable officer
to produce public funds which have come into his
hands on demand by an officer duly authorized to
examine his accounts is prima facie evidence of
conversion. However, the presumption is merely prima
facie and a rebuttable one. The accountable officer
may overcome the presumption by proof to the
contrary. If he adduces evidence showing that, in fact,
he has not put said funds or property to personal use,
then that presumption is at an end and the prima
facie case destroyed (US vs. Catolico, 18 Phil. 504).
In the case at bar, petitioner successfully overthrew the
presumption of guilt. He satisfactorily proved that not a
single centavo of the missing funds was used by him
for his own personal interest, a fact conceded by the
Tanodbayan 'the bulk of the reported shortage actually
referred to the items disallowed by the Audit Team
representing cash advances extended to co-
employees. In fact, evidence disclosed that the
itemized list of the cash advances (Annex "B " of Motion
for Re-Investigation and/or Reconsideration, p. 31,
Rollo) was verified and found to be correct by an
Auditing Examiner, Petitioner explained that the
granting of the cash advances was done in good faith,
with no intent to gain and borne out of goodwill
considering that it was a practice tolerated in the office.
Such being the case, negligence evidentiary of malice
or intent to defraud the government cannot be imputed
to him. Also to be considered is the circumstance that
the actual cash shortage was only P1.74 which,
together with the disallowed items, was fully restituted
within a reasonable time from date of audit,
Significantly, in the recent case of Villacorta vs.
People, G.R. No. 68268, November 12, 1986, the
Court acquitted the accused. the municipal treasurer of
Pandan, Catanduanes. of the crime of malversation of
public funds on grounds that he did not put the missing
funds to personal uses, that his having "allowed others
to freely participate of the chits/vouchers" was a
practice which seemed to have been tolerated even
during the time of his predecessor and that there was
no negligence approximating malice or fraud because
the wrong payments were made in good faith.
WHEREFORE, the writ of certiorari is granted and the
resolutions of the respondent Sandiganbayan dated
September 23, 1986 and October 22, 1986 are SET
ASIDE. Criminal Case No. 9777, entitled "People of the
Philippines vs. Arturo C. Quizo" is hereby DISMISSED.
No costs.
SO ORDERED.
Teehankee, C.J., Yap, Narvasa, Gutierrez, Jr., Cruz,
Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento
and Cortes, JJ., concur.
Melencio-Herrera, J., is on leave.
(7) G.R. Nos. 103501-03 February 17, 1997
LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE
PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE
PEOPLE OF THE PHILIPPINES, represented by the
OFFICE OF THE SPECIAL
PROSECUTOR, respondents.
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A.
Tabuena and Adolfo M. Peralta (Tabuena and Peralta,
for short) appeal the Sandiganbayan decision dated
October 12, 1990,2 as well as the Resolution dated
December 20. 19913denying reconsideration,
convicting them of malversation under Article 217 of
the Revised Penal Code. Tabuena and Peralta were
found guilty beyond reasonable doubt Of having
malversed the total amount of P55 Million of the Manila
International Airport Authority (MIAA) funds during their
incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were
thus meted the following sentence:
(1) In Criminal Case No. 11758,
accused Luis A. Tabuena is sentenced
to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day
of reclusion temporal as minimum to
twenty (20) years of reclusion
temporal as maximum, and to pay a
fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the
Manila International Airport Authority
the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty
of perpetual special disqualification
from public office,
(2) In Criminal Case No. 11759,
accused Luis A. Tabuena is sentenced
to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day
of reclusion temporal as minimum, and
twenty (20) years of reclusion
temporal as maximum, and to pay a
fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the
Manila International Airport Authority
the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty
of perpetual special disqualification
from public office.
(3) In Criminal Case No. 11760,
accused Luis A. Tabuena and Adolfo
M. Peralta are each sentenced to suffer
the penalty of imprisonment of
seventeen (17) years and one (1) day
of reclusion temporal as minimum and
twenty (20) years of reclusion
temporal as maximum and for each of
them to pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00) the
amount malversed. They shall also
reimburse jointly and severally the
Manila International Airport Authority
the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the
penalty of perpetual special
disqualification from public office.
A co-accused of Tabuena and Peralta was
Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758,
11759 and 11760) since the total amount of P55 Million
was taken on three (3) separate dates of January,
1986. Tabuena appears as the principal accused — he
being charged in all three (3) cases. The amended
informations in criminal case nos. 11758, 11759 and
11760 respectively read:
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay, Philippines, and within the
jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo
G. Dabao, both public officers, being
then the General Manager and
Assistant General Manager,
respectively, of the Manila International
Airport Authority (MIAA), and
accountable for public funds belonging
to the MIAA, they being the only ones
authorized to make withdrawals
against the cash accounts of MIAA
pursuant to its board resolutions,
conspiring, confederating and
confabulating with each other, did then
and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of
TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by
applying for the issuance of a
manager's check for said amount in the
name of accused Luis A. Tabuena
chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB
Extension Office at the Manila
International Airport in Pasay City,
purportedly as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics of
which said accused Tabuena would
personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the
above-mentioned manager's check,
accused Luis A. Tabuena encashed
the same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay. Philippines and within the
jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo
G. Dabao, both public officers, being
then the General Manager and
Assistant General Manager,
respectively, of the Manila International
Airport Authority (MIAA), and
accountable for public funds belonging
to the MIAA, they being the only ones
authorized to make withdrawals
against the cash accounts of MIAA
pursuant to its board resolutions,
conspiring, confederating and
confabulating with each other, did then
and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of
TWENTY FIVE MILLION PESOS
(P25,000,000.00) from MIAA funds by
applying for the issuance of a
manager.s check for said amount in the
name of accused Luis A. Tabuena
chargeable against MIAA's Savings
Account No. 274-500-354-3 in the PNB
Extension Office at the Manila
International Airport in Pasay City,
purportedly as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics of
which said accused Tabuena would
personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the
above-mentioned manager's check,
accused Luis A. Tabuena encashed
the same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of
January, 1986, and for sometime
subsequent thereto, in the City of
Pasay, Philippines, and within the
jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Adolfo
M. Peralta, both public officers, being
then the General Manager and Acting
Manager, Financial Services
Department, respectively, of the Manila
International Airport Authority (MIAA),
and accountable for public funds
belonging to the MIAA, they being the
only ones authorized to make
withdrawals against the cash accounts
of MIAA pursuant to its board
resolutions, conspiring, confederating
and confabulating with each other, did
then and there wilfully, unlawfully,
feloniously, and with intent to defraud
the government, take and
misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00)
from MIAA funds by applying for the
issuance of a manager's check for said
amount in the name of accused Luis A.
Tabuena chargeable against MIAA's
Savings Account No. 274-500- 354-3 in
the PNB Extension Office at the Manila
International Airport in Pasay City,
purportedly as partial payment to the
Philippine National Construction
Corporation (PNCC), the mechanics of
which said accused Tabuena would
personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the
above-mentioned manager's check,
accused Luis A. Tabuena encashed
the same and thereafter both accused
misappropriated and converted the
proceeds thereof to their personal use
and benefit, to the damage and
prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial
evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the
phone to pay directly to the president's office and in
cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena
replied, "Yes, sir, I will do it." About a week later,
Tabuena received from Mrs. Fe Roa-Gimenez, then
private secretary of Marcos, a Presidential
Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in
black and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay
immediately the Philippine National
Construction Corporation, thru this
Office, the sum of FIFTY FIVE
MILLION (P55,000,000.00) PESOS in
cash as partial payment of MIAA's
account with said Company mentioned
in a Memorandum of Minister Roberto
Ongpin to this Office dated January 7,
1985 and duly approved by this Office
on February 4, 1985.
 Your immediate compliance is between the Bureau of Air Transport
appreciated. (BAT) and Philippine National
Construction Corporation (PNCC),
formerly
( CDCP, as follows:
S
g 1.
d Supplemental
. Contract No. 12
) Package
F Contract No. 2
E P11,106,600.9
R 5
D
I 2.
N Supplemental
A Contract No. 13
N 5,758,961.52
D
M 3.
A Supplemental
R Contract No. 14
C Package
O Contract No. 2
S 4,586,610.80
.
4

4.
Supplemental
The January 7, 1985 memorandum of then Contract No. 15
Minister of Trade and Industry Roberto Ongpin 1,699,862.69
referred to in the MARCOS Memorandum,
reads in full: 5.
Supplemental
MEMORANDUM Contract No. 16
Package
Contract No. 2
For: The President
233,561.22
From: Minister Roberto V. Ongpin
6.
Supplemental
Date: 7 January 1985 Contract No. 17
Package
Subject Contract No. 2
: 8,821,731.08
Approv
al of 7.
Supple Supplemental
mental Contract No. 18
Contra Package
cts and Contract No. 2
Reques 6,110,115.75
t for
Partial
8.
Deferm
Supplemental
ent of
Contract No. 3
Repay
Package
ment of
Contract No. II
PNCC'
16,617,655.49
s
Advanc
es for (xerox copies only;
MIA original memo was
Develo submitted to the Office
pment of the President on May
Project 28, 1984)

May I request your approval of the In this connection, please be informed

attached recommendations of Minister that Philippine National Construction
Jesus S. Hipolito for eight (8) Corporation (PNCC), formerly CDCP,
supplemental contracts pertaining to has accomplishment billings on the
the MIA Development Project (MIADP) MIA Development Project aggregating
P98.4 million, inclusive of and yet residual amounts due to PNCC
accomplishments for the aforecited have not been paid, resulting in undue
contracts. In accordance with contract burden to PNCC due to additional cost
provisions, outstanding advances of money to service its obligations for
totalling P93.9 million are to be this contract.
deducted from said billings which will
leave a net amount due to PNCC of To allow PNCC to collect partially its
only P4.5 million. billings, and in consideration of its
pending escalation billings, may we
At the same time, PNCC has potential request for His Excellency's approval
escalation claims amounting to P99 for a deferment of the repayment of
million in the following stages of PNCC's advances to the extent of P30
approval/evaluation: million corresponding to about 30% of
P99.1 million in escalation claims of
— PNCC, of which P32.5 million has been
Approv officially recognized by MIADP
ed by consultants but could not be paid due
Price to lack of funding.
Escalat
ion Our proposal will allow BAT to pay
Commit PNCC the amount of P34.5 million out
tee of existing MIA Project funds. This
(PEC) amount represents the excess of the
but gross billings of PNCC of P98.4 million
pended over the undeferred portion of the
for lack repayment of advances of P63.9
of million.
funds
P1.9
million

—
Endors
ed by
project
consult
ants
and
currentl
y being
evaluat
ed by
PEC
30.7
million

—
Submitt
ed by
PNCC
directly
to PEC
and
currentl
y under
evaluati
on 66.5
million
———
———
Total In obedience to President Marcos' verbal instruction
P99.1 and memorandum, Tabuena, with the help of Dabao
million and Peralta, caused the release of P55 Million of MIAA
funds by means of three (3) withdrawals.
There has been no funding allocation
for any of the above escalation claims The first withdrawal was made on January 10, 1986 for
due to budgetary constraints. P25 Million, following a letter of even date signed by
Tabuena and Dabao requesting the PNB extension
office at the MIAA — the depository branch of MIAA
The MIA Project has been completed
funds, to issue a manager's check for said amount
and operational as far back as 1982
payable to Tabuena. The check was encashed,
however, at the PNB Villamor Branch. Dabao and the
cashier of the PNB Villamor branch counted the money
after which, Tabuena took delivery thereof. The P25
Million in cash were then placed in peerless boxes and
duffle bags, loaded on a PNB armored car and
delivered on the same day to the office of Mrs.
Gimenez located at Aguado Street fronting
Malacanang. Mrs. Gimenez did not issue any receipt
for the money received
Similar circumstances surrounded the second
withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.
The third and last withdrawal was made on January 31,
1986 for P5 Million. Peralta was Tabuena's co-
signatory to the letter- request for a manager's check
for this amount. Peralta accompanied Tabuena to the
PNB Villamor branch as Tabuena requested him to do
the counting of the P5 Million. After the counting, the
money was placed in two (2) peerless boxes which
were loaded in the trunk of Tabuena's car. Peralta did
not go with Tabuena to deliver the money to Mrs.
Gimenez' office at Aguado Street. It was only upon
delivery of the P5 Million that Mrs. Gimenez issued a
receipt for all the amounts she received from Tabuena.
The receipt, dated January 30, 1986, reads:
Malacanang
Manila
RECEIVED FROM LOUIE TABUENA
THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as
of the following dates:
Jan. 10
— P
25,000,
000.00
Jan. 16
—
25,000,
000.00
Jan. 30
— and with intent to defraud the
5,000,0
00.00
The disbursement of the P55 Million was, as described
by Tabuena and Peralta themselves, "out of the
ordinary" and "not based on the normal procedure". Not
only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash.
Also, no PNCC receipt for the P55 Million was
presented. Defense witness Francis Monera, then
Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there
were no payments made to PNCC by MIAA for the
months of January to June of 1986.
The position of the prosecution was that there were no
outstanding obligations in favor of PNCC at the time of
the disbursement of the P55 Million. On the other hand,
the defense of Tabuena and Peralta, in short, was that
they acted in good faith. Tabuena claimed that he was
merely complying with the MARCOS Memorandum
which ordered him to forward immediately to the Office
of the President P55 Million in cash as partial payment
of MIAA's obligations to PNCC, and that he (Tabuena)
was of the belief that MIAA indeed had liabilities to
PNCC. Peralta for his part shared the same belief and
so he heeded the request of Tabuena, his superior, for
him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim
of good faith which ultimately led to their conviction,
Tabuena and Peralta now set forth a total of ten (10)
errors6 committed by the Sandiganbayan for this
Court's consideration. It appears, however, that at the
core of their plea that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not
charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress
that they were being charged with intentional
malversation, as the amended informations commonly
allege that:
. . . accused . . . conspiring,
confederating and other, then and
there wilfully, unlawfully, feloniously,
government, take and misappropriated
the amount of . . . .
(
But it would appear that they were convicted of
S
malversation by negligence. In this connection,
g of the
the Court's attention is directed to p. 17
December 20, 1991 Resolution (denying d
Tabuena's and Peralta's .
motion for
)
 reconsideration) wherein the Sandiganbayan
said:
xxx xxx xxx
On the contrary, what the evidence
shows is that accused Tabuena
delivered the P55 Million to people who
were not entitled thereto, either as
representatives of MIAA or of the
PNCC.
It proves that Tabuena had deliberately
consented or permitted
through negligence or abandonment,
some other person to take such public
funds. Having done so, Tabuena, by
his own narration, has categorically
demonstrated that he is guilty of the
misappropriation or malversation of
P55 Million of public funds. (Emphasis
supplied.)
To support their theory that such variance is a
reversible flaw, Tabuena and Peralta argue
that:
1) While malversation may be committed intentionally
or by negligence, both modes cannot be committed at
the same time.
2) The Sandiganbayan was without jurisdiction to
convict them of malversation of negligence where the
amended informations charged them with intentional
malversation.7
3) Their conviction of a crime different from that
charged violated their constitutional right to be
informed of the accusation.8
We do not agree with Tabuena and Peralta on this
point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9where the Court passed upon similar
protestations raised by therein accused-petitioner
Cabello whose conviction for the same crime of
malversation was affirmed, in this wise:
. . . even on the putative assumption
that the evidence against petitioner
yielded a case of malversation by
negligence but the information was for
intentional malversation, under the
circumstances of this case his
conviction under the first mode of
misappropriation would still be in order.
Malversation is committed either
intentionally or by negligence.
The dolo or the culpa present in the
offense is only a modality in the
perpetration of the felony. Even if the
mode charged differs from the mode
proved, the same offense of
malversation is involved and conviction
thereof is proper. . . .
In Samson vs. Court of Appeals, et. al.,
we held that an accused charged with
willful or intentional falsification can
validly be convicted of falsification
through negligence, thus:
While a criminal negligent act is not a
simple modality of a willful crime, as we
held in Quizon vs. Justice of the Peace
of Bacolor. G.R. No. L-6641, July 28,
1995, but a distinct crime in our Penal
Code, designated as a quasi offense in
our Penal Code, it may however be
said that a conviction for the former can
be had under an information
exclusively charging the commission of
a willful offense, upon the theory that
the greater includes the lesser offense.
This is the situation that obtains in the
present case. Appellant was charged
with willful falsification but from the
evidence submitted by the parties, the
Court of Appeals found that in effecting
the falsification which made possible
the cashing of the checks in question,
appellant did not act with criminal intent
but merely failed to take proper and
adequate means to assure himself of
the identity of the real claimants as an
ordinary prudent man would do. In
other words, the information alleges
acts which charge willful falsification
but which turned out to be not willful but
negligent. This is a case covered by the
rule when there is a variance between
the allegation and proof, and is similar
to some of the cases decided by this
Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the
Rules of Court does not require that all
the essential elements of the offense
charged in the information be proved, it
being sufficient that some of said
essential elements or ingredients
thereof be established to constitute the
crime proved. . . .
The fact that the information does not
allege that the falsification was
committed with imprudence is of no
moment for here this deficiency
appears supplied by the evidence
submitted by appellant himself and the
result has proven beneficial to him.
Certainly, having alleged that the
falsification has been willful, it would be
incongruous to allege at the same time
that it was committed with imprudence
for a charge of criminal intent is
incompatible with the concept of
negligence.
Subsequently, we ruled in People
vs. Consigna, et. al., that the
aforestated rationale and arguments
also apply to the felony of malversation,
that is, that an accused charged with
willful malversation, in an information
containing allegations similar to those
involved in the present case, can be
 validly convicted of the same offense of
malversation through negligence
where the evidence sustains the latter
mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that
this is a valid defense in a prosecution for malversation
for it would negate criminal intent on the part of the
accused. Thus, in the two (2) vintage, but
significantmalversation cases of "US v. Catolico" 10 and
"US v. Elvina," 11 the Court stressed that:
To constitute a crime, the act must,
except in certain crimes made such by
statute, be accompanied by a criminal
intent, or by such negligence or
indifference to duty or to consequences
as, in law, is equivalent to criminal
intent. The maxim is actus non facit
reum, nisi mens sit rea — a crime is not
committed if the mind of the person
performing the act complained of is
innocent.
recipient of such kind of a directive coming from the
highest official of the land no less, good faith should be
read on Tabuena's compliance, without hesitation nor
any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to
an order issued by a superior for some lawful
purpose."16 The subordinate-superior relationship
between Tabuena and Marcos is clear. And so too, is
the lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment
of the liability of one government agency (MIAA) to
another (PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued, on the
observation, for instance, that the Ongpin Memo
referred to in the presidential directive reveals a liability
of only about P34.5 Million. The Sandiganbayan in this
connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of
the memorandum of Min. Ongpin to the
President dated January 7, 1985) were
mainly:

The rule was reiterated in "People v. a.) for the approval of eight
Pacana," 12 although this case involved Supplemental Contracts; and
falsification of public documents and estafa:
b.) a request for partial deferment of
Ordinarily, evil intent must unite with an payment by PNCC for advances made
unlawful act for there to be a for the MIAA Development Project,
crime. Actus non facit reum, nisi mens while at the same time recognizing
sit rea. There can be no crime when the some of the PNCC's escalation billings
criminal mind is wanting. which would result in making payable
to PNCC the amount of P34.5 million
American jurisprudence echoes the same out of existing MIAA Project funds.
principle. It adheres to the view that criminal
intent in embezzlement is not based on Thus:
technical mistakes as to the legal effect of a
transaction honestly entered into, and there "xxx xxx xxx
can be no embezzlement if the mind of the
person doing the act is innocent or if there is no To allow PNCC to
wrongful purpose.13 The accused may thus collect partially its
always introduce evidence to show he acted in billings, and in
good faith and that he had no intention to consideration of ifs
convert.14 And this, to our mind, Tabuena and pending escalation
Peralta had meritoriously shown. billings, may we
request for His
In so far as Tabuena is concerned, with the due Excellency's approval
presentation in evidence of the MARCOS for a deferment of
Memorandum we are swayed to give credit to his claim repayment of PNCC's
of having caused the disbursement of the P55 Million advances to the extent
solely by reason of such memorandum. From this of P30 million
premise flows the following reasons and/or corresponding to about
considerations that would buttress his innocence of the 30% of P99.1 million in
crime of malversation. escalation claims of
PNCC, of which P32.6
First. Tabuena had no other choice but to make the million has been
withdrawals, for that was what the MARCOS officially recognized by
Memorandum required him to do. He could not be MIADP consultants but
faulted if he had to obey and strictly comply with the could not be paid due
presidential directive, and to argue otherwise is to lack of funding.
something easier said than done. Marcos was
undeniably Tabuena's superior — the former being Our proposal will allow
then the President of the Republic who unquestionably BAT to pay PNCC the
exercised control over government agencies such as amount of P34.5 million
the MIAA and PNCC.15 In other words, Marcos had a out of existing MIA
say in matters involving inter-government agency Project funds. This
affairs and transactions, such as for instance, directing amount represents the
payment of liability of one entity to another and the excess of the gross
manner in which it should be carried out. And as a billings of PNCC of
 P98.4 million over the ATTY ANDRES
undeferred portion of
the repayment of Q Can you please
advances of P63.9 show us in this Exhibit
million." "7" and "7-a" where it is
indicated the
While Min. Ongpin may have, therefore receivables from MIA
recognized the escalation claims of the as of December 31,
PNCC to MIAA to the extent of P99.1 1985?
million (Exhibit 2a), a substantial
portion thereof was still in the stages of A As of December 31,
evaluation and approval, with only 1985, the receivables
P32.6 million having been officially from MIA is shown on
recognized by the MIADP consultants. page 2, marked as
Exhibit "7-a",
If any payments were, therefore, due sir, P102,475.392.35
under this memo for Min. Ongpin (upon
which President Marcos' Memo was xxx xxx xxx 19
based) they would only be for a sum of
up to P34.5 million. 17 ATTY. ANDRES

xxx xxx xxx Q Can you tell us, Mr.

Witness, what these
V. Pres. Marcos' order to Tabuena obligations represent?
dated January 8, 1986 baseless.
WITNESS
Not only was Pres.
Marcos' Memo (Exhibit A These obligations
"1") for Tabuena to pay represent receivables
P55 million irrelevant, on the basis of our
but it was actually billings to MIA as
baseless. contract-owner of the
project that the
This is easy to see. Philippine National
Construction
Exhibit "1" purports to Corporation
refer itself to the constructed. These are
Ongpin Memorandum billings for escalation
(Exhibit "2", "2-a"); mostly, sir.
Exhibit "1", however,
speaks of P55 million to Q What do you mean
be paid to the PNCC by escalation?
while Exhibit "2"
authorized only P34.5 A Escalation is the
million. The order to component of our
withdraw the amount of revenue billings to the
P55 million exceeded contract-owner that are
the approved payment supposed to take care
of P34.5 million by of price increases, sir.
P20.5 million. Min.
Ongpin's Memo of
xxx xxx xxx 20
January 7, 1985 could
not therefore serve as a
basis for the ATTY ANDRES
President's order to
withdraw P55 million. 18 Q When you said these
are accounts
Granting this to be true, it will not nevertheless receivable, do I
affect Tabuena's goad faith so as to make him understand from you
criminally liable. What is more significant to that these are due and
consider is that the MARCOS Memorandum is demandable?
patently legal (for on its face it directs payment
of an outstanding liability) and that Tabuena A Yes, sir. 21
acted under the honest belief that the P55
million was a due and demandable debt and Thus, even if the order is illegal if it is patently
that it was just a portion of a bigger liability to legal and the subordinate is not aware of its
PNCC. This belief is supported by defense illegality, the subordinate is not liable, for then
witness Francis Monera who, on direct there would only be a mistake of fact committed
examination, testified that: in good faith.22 Such is the ruling in "Nassif v.
 People"23 the facts of which, in brief, are as
follows:
Accused was charged with falsification
of commercial document. A mere
employee of R.J. Campos, he inserted
in the commercial document alleged to
have been falsified the word "sold" by
order of his principal. Had he known or
suspected that his principal was
committing an improper act of
falsification, he would be liable either
as a co-principal or as an accomplice.
However, there being no malice on his
part, he was exempted from criminal
liability as he was a mere employee
following the orders of his principal. 24
Second. There is no denying that the disbursement,
which Tabuena admitted as "out of the ordinary", did
not comply with certain auditing rules and regulations
such as those pointed out by the Sandiganbayan, to
wit:
a) [except for salaries and wages and for commutation
of leaves] all disbursements above P1,000.00 should
be made by check (Basic Guidelines for Internal
Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to
be supported with complete documentation (Sec. 4,
P.D. 1445, "State Auditing Code of the Philippines). In
this connection, the Sandiganbayan observed that:
There were no vouchers to authorize
the disbursements in question. There
were no bills to support the
disbursement. There were no
certifications as to the availability of
funds for an unquestionably staggering
sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the
circumstances Tabuena was in. He did not
have the luxury of time to observe all auditing
procedures of disbursement considering the
fact that the MARCOS Memorandum enjoined
his "immediate compliance" with the directive
that he forward to the President's Office the
P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such
omission. But since he was acting in good faith,
his liability should only be administrative or civil
in nature, and not criminal. This follows the
decision in "Villacorta v. People" 26 where the
Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of
malversation after finding that he incurred a
shortage in his cash accountability by reason
of his payment in good faith to certain
government personnel of their legitimate
wages leave allowances, etc., held that:
Nor can negligence approximating
malice or fraud be attributed to
petitioner. If he made wrong payments,
they were in Good faith mainly to
government personnel, some of them
working at the provincial auditor's and
the provincial treasurer's offices And if
those payments ran counter to auditing
rules and regulations, they did not
amount to a criminal offense and he
should only be held administratively or
civilly liable.
Likewise controlling is "US v. Elvina" 27 where it
was held that payments in good faith do not
amount to criminal appropriation, although they
were made with insufficient vouchers or
improper evidence. In fact, the Dissenting
Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement
and Balances — apparently made to
underscore Tabuena's personal accountability,
as agency head, for MIAA funds — would all
the more support the view that Tabuena is
vulnerable to civil sanctions only Sections 29.2
and 295 expressly and solely speak of "civilly
liable," describe the kind of sanction imposable
on a superior officer who performs his duties
with "bad faith, malice or gross negligence"'
and on a subordinate officer or employee who
commits "willful or negligent acts . . . which are
contrary to law, morals, public policy and good
customs even if he acted under order or
instructions of his superiors."
Third. The Sandiganbayan made the finding that
Tabuena had already converted and misappropriated
the P55 Million when he delivered the same to Mrs.
Gimenez and not to the PNCC, proceeding from the
following definitions/concepts of "conversion":
"Conversion", as necessary element of
offense of embezzlement, being the
fraudulent "appropriation to one's own
use' of another's property which does
not necessarily mean to one's personal
advantage but every attempt by one
person to dispose of the goods of
another without right as if they were his
own is conversion to his own use."
(Terry v. Water Improvement Dist. No.
5 of Tulsa County, 64 p, 2d 904, 906,
179 Okl. 106)
 s
e
s
,
P
e
r
m
a
n
e
n
t
E
d
i
t
i
o
n
9
A
.

Conversion is any interference

subversive of the right of the owner of
personal property to enjoy and control
it. The gist of conversion is the
usurpation of the owner 's right of
property, and not the actual damages By placing them at the disposal of
inflicted. Honesty of purpose is not a private persons without due
defense. (Ferrera v. Parks, 23 p. 883, authorization or legal justification, he
885 19 Or. 141) became as guilty of malversation as if
he had personally taken them and
converted them— to his own use.
A
t
p
a
g
e
1
6
8
,

i
d
.

xxx xxx xxx

The words "convert" and

"misappropriate" connote an act of
using or disposing of another's property
as if it were one's own. They
presuppose that the thing has been
devoted to a purpose or use different
from that agreed upon. To appropriate
to one's own use includes not only
conversion to one's personal
advantage but every attempt to dispose
of the property of another without right.

—
P
e
o
p
l

We do not agree. It must be stressed that the
MARCOS Memorandum directed Tabuena "to
pay immediately the Philippine National
Construction Corporation, thru this office the
sum of FIFTY FIVE MILLION. . .", and that was
what Tabuena precisely did when he delivered
the money to Mrs. Gimenez. Such delivery, no
doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was
Marcos' secretary then. Furthermore, Tabuena
had reasonable ground to believe that the
President was entitled to receive the P55
Million since he was certainly aware that
Marcos, as Chief Executive, exercised
supervision and control over government
agencies. And the good faith of Tabuena in
having delivered the money to the President's
office (thru Mrs. Gimenez), in strict compliance
with the MARCOS Memorandum, was not at all
affected even if it later turned out that PNCC
never received the money. Thus, it has been
said that:
Good faith in the payment of public
funds relieves a public officer from the
crime of malversation.
xxx xxx xxx
Not every unauthorized payment of
public funds is malversation. There is
malversation only if the public officer
who has custody of public funds should
appropriate the same, or shall take or
misappropriate or shall consent, or
through abandonment or negligence
shall permit any other person to take
such public funds. Where the payment
of public funds has been made in good
faith, and there is reasonable ground to
believe that the public officer to whom
the fund had been paid was entitled
thereto, he is deemed to have acted in
good faith, there is no criminal intent,
and the payment, if it turns out that it is
unauthorized, renders him only civilly
but not criminally liable.29
Fourth. Even assuming that the real and sole purpose
behind the MARCOS Memorandum was to siphon-out
public money for the personal benefit of those then in
power, still, no criminal liability can be imputed to
Tabuena. There is no showing that Tabuena had
anything to do whatsoever with the execution of the
MARCOS Memorandum. Nor is there proof that he
profited from the felonious scheme. In short, no
conspiracy was established between Tabuena and the
real embezzler/s of the P5 Million. In the cases of "US
v. Acebedo"30 and "Ang v. Sandiganbayan",31 both also
involving the crime of malversation, the accused
therein were acquitted after the Court arrived at a
similar finding of non-proof of conspiracy. In
"Acebedo", therein accused, as municipal president of
Palo, Leyte, was prosecuted for and found guilty by the
lower court of malversation after being unable to turn
over certain amounts to the then justice of the peace.
It appeared, however, that said amounts were actually
collected by his28 secretary Crisanto Urbina. The Court
reversed Acebedo's conviction after finding that the
sums were converted by his secretary Urbina without
the knowledge and participation of Acebedo. The Court
said, which we herein adopt:
No conspiracy between the appellant
and his secretary has been shown in
this case, nor did such conspiracy
appear in the case against Urbina. No
guilty knowledge of the theft committed
by the secretary was shown on the part
of the appellant in this case, nor does it
appear that he in any way participated
in the fruits of the crime. If the secretary
stole the money in question without the
knowledge or consent of the appellant
and without negligence on his part,
then certainly the latter can not be
convicted of embezzling the same
money or any part thereof.32
In "Ang", accused-petitioner, as MWSS bill
collector, allowed part of his collection to be
converted into checks drawn in the name of
one Marshall Lu, a non-customer of MWSS, but
the checks were subsequently dishonored.
Ang was acquitted by this Court after giving
credence to his assertion that the conversion of
his collections into checks were thru the
machinations of one Lazaro Guinto, another
MWSS collector more senior to him. And we
also adopt the Court's observation therein, that:
The petitioner's alleged negligence in
allowing the senior collector to convert
cash collections into checks may be
proof of poor judgment or too trusting a
nature insofar as a superior officer is
concerned but there must be stronger
evidence to show fraud, malice, or
other indicia of deliberateness in the
conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the
petitioner was privy to the
conspirational scheme. Much less is
there any proof that he profited from the
questioned acts. Any suspicions of
conspiracy, no matter how sincerely
and strongly felt by the MWSS, must be
converted into evidence before
conviction beyond reasonable doubt
may be imposed. 33
The principles underlying all that has been said
above in exculpation of Tabuena equally apply
to Peralta in relation to the P5 Million for which
he is being held accountable, i.e., he acted in
good faith when he, upon the directive of
Tabuena, helped facilitate the withdrawal of P5
Million of the P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided
obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful
order is rectitude far better than contumacious
disobedience. In the case at bench, the order
emanated from the Office of the President and bears
the signature of the President himself, the highest
official of the land. It carries with it the presumption that
it was regularly issued. And on its face, the
memorandum is patently lawful for no law makes the
payment of an obligation illegal. This fact, coupled with
the urgent tenor for its execution constrains one to act
swiftly without question. Obedientia est legis essentia.
Besides, the case could not be detached from the
realities then prevailing As aptly observed by Mr
Justice Cruz in his dissenting opinion:
exemplified in one question addressed to Peralta,
which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness
Monera, Tabuena and Peralta. (Questions from the
Court are marked with asterisks and italicized for
emphasis.)
(MONERA)

We reject history in arbitrarily assuming
that the people were free during the era
and that the Judiciary was independent
and fearless. We know it was not: even
the Supreme Court at that time was not
free. This is an undeniable fact that we
can not just blink away. Insisting on the
contrary would only make our sincerity
suspect and even provoke scorn for
what can only be described as our
incredible credulity. 34
(As a background, what was elicited from his direct
examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such
receivables were largely billings for escalation, they
were nonetheless all due and demandable. What
follows are the cross-examination of Prosecutor
Viernes and the court questions).
CROSS-
EXAMINATION BY
PROS. VIERNES

But what appears to be a more compelling reason for Q You admit that as
their acquittal is the violation of the accused's basic shown by these
constitutional right to due process. "Respect for the Exhibits "7" and "7- a",
Constitution", to borrow once again Mr. Justice Cruz's the items here
words, "is more important than securing a conviction represent mostly
based on a violation of the rights of the escalation billings.
accused."35 While going over the records, we were Were those escalation
struck by the way the Sandiganbayan actively took part billings properly
in the questioning of a defense witness and of the transmitted to MIA
accused themselves. Tabuena and Peralta may not authorities?
have raised this as an error, there is nevertheless no
impediment for us to consider such matter as additional
A I don't have the
basis for a reversal since the settled doctrine is that an
documents right now to
appeal throws the whole case open to review, and it
show that they were
becomes the duty of the appellate court to correct such
transmitted, but I have
errors as may be found in the judgment appealed from
a letter by our
whether they are made the subject of assignments of
President, Mr. Olaguer,
error or not. 36
dated July 6, 1988,
following up for
Simply consider the volume of questions hurled by the payment of the balance
Sandiganbayan. At the taking of the testimony of of our receivables from
Francis Monera. then Senior Assistant Vice President MIA, sir.
and Corporate Comptroller of PNCC, Atty. Andres
asked sixteen (16) questions on direct examination.
*AJ AMORES
Prosecutor Viernes only asked six (6) questions on
cross-examination in the course of which the court
interjected a total of twenty-seven (27) questions *Q This matter of
(more than four times Prosecutor Viernes' questions escalation costs, is it
and even more than the combined total of direct and not a matter for a
cross-examination questions asked by the counsels) conference between
After the defense opted not to conduct any re-direct the MIA and the PNCC
examination, the court further asked a total of ten (10) for the determination as
questions.37 The trend intensified during Tabuena's turn to the correct amount?
on the witness stand. Questions from the court after
Tabuena's cross-examination totalled sixty-seven A I agree, your Honor.
(67). 38 This is more than five times Prosecutor Viernes' As far as we are
questions on cross-examination (14), and more than concerned, our billings
double the total of direct examination and cross- are what we deemed
examination questions which is thirty-one (31) [17 are valid receivables
direct examination questions by Atty. Andres plus 14 And, in fact, we have
cross-examination questions by Prosecutor Viernes]. been following up for
In Peralta's case, the Justices, after his cross- payment.
examination, propounded a total of forty-one (41)
questions. 39 *Q This determination
of the escalation costs
But more importantly, we note that the questions of the was it accepted as the
court were in the nature of cross examinations correct figure by MIA ?
characteristic of confrontation, probing and
insinuation. 40 (The insinuating type was best
A I don't have any *PJ GARCHITORENA
document as to the
acceptance by MIA *Q Were the payments
your Honor, but our made before or after
company was able to February 1986, since
get a document or a Mr. Olaguer is a new
letter by Minister entrant to your
Ongpin to President company?
Marcos, dated January
7, 1985, with a WITNESS
marginal note or
approval by former
A The payments were
President Marcos.
made after December
31, 1985 but I think the
*PJ GARCHITORENA payments were made
before the entry of our
*Q Basically, the letter President, your Honor.
of Mr. Ongpin is to what Actually, the payment
effect? was in the form of:
assignments to State
A The subject matter is Investment of about
approval of the P23 million; and then
supplementary there was P17.8 million
contract and request application against
for partial deferment of advances made or
payment for MIA formerly given; and
Development Project, there were payments to
your Honor. PNCC of about P2.6
million and there was a
*Q It has nothing to do payment for application
with the on withholding and
implementation of the contractual stock of
escalation costs? about P1 million; that
summed up to P44.4
A The details show that million all in all. And
most of the accounts you deduct that from
refer to our escalations, the P102 million, the
your Honor. remaining balance
would be about P57
million.
*Q Does that indicate
the computation for
escalations were *PJ GARCHITORENA
already billed or you do
not have any proof of *Q What you are saying
that is that, for all the
payments made on this
A Our subsidiary ledger P102 million, only P2
was based on billings million had been
to MIA and this letter of payments in cash ?
Minister Ongpin
appears to have A Yes, your Honor.
confirmed our billings
to MIA, your Honor. *Q The rest had been
adjustments of
*AJ AMORES accounts, assignments
of accounts, or
*Q Were there partial offsetting of accounts?
payments made by MIA
an these escalation A Yes, your Honor.
billings?
*Q This is as of
A Based on records December 31, 1985?
available as of today,
the P102 million was A The P102 million was
reduced to about P56.7 as of December 31,
million, if my 1985, your Honor, but
recollection is correct, the balances is as of
your Honor. August 1987.
*Q We are talking now collections shown by
about the P44 million, credits indicated on the
more or less, by which credit side of the
the basic account has ledger.
been reduced. These
reductions, whether by *AJ AMORES
adjustment or
assignment or actual *Q Your ledger does
delivery of cash, were not indicate the manner
made after December of giving credit to the
31, 1985? MIA with respect to the
escalation billings. Was
WITNESS the payment in cash or
just credit of some sort
A Yes, your Honor. before December 31,
1985?
*Q And your records
indicate when these A Before December 31,
adjustments and 1985, the reference of
payments were made? the ledger are official
receipts and I suppose
A Yes, your Honor. these were payments
in cash, your Honor.
*AJ AMORES
*Q Do you know how
*Q You said there were the manner of this
partial payments before payment in cash was
of these escalation made by MIA?
billings. Do we get it
from you that there was A I do not know, your
an admission of these Honor.
escalation costs as
computed by you by *PJ GARCHITORENA
MIA, since there was
already partial *Q But your records will
payments? indicate that?

A Yes, your Honor. A The records will

indicate that, your
*Q How were these Honor.
payments made before
February 1986, in case *Q Except that you
or check, if there were were not asked to bring
payments made? them?

A The P44 million A Yes, your Honor.

payments was in the
form of assignments, *Q At all events, we are
your Honor. talking of settlement or
partial liquidation prior
*PJ GARCHITORENA to December 31, 1985?

*Q The question of the A Yes, your Honor.

Court is, before
December 31, 1985, *PJ GARCHITORENA
were there any
liquidations made by
*Q Subsequent thereto,
MIA against these
we are talking merely of
escalation billings?
about P44 million?
A I have not reviewed
A Yes, your Honor, as
the details of the
subsequent
record, your Honor. But
settlements.
the ledger card
indicates that there
were collections on *Q After December 31,
page 2 of the Exhibit 1985?
earlier presented. It will
indicate that there were A Yes, your Honor.
 *Q And they have escalation billings as
liquidated that, as you appearing in Exhibit "7"
described it, by way of are dated June 30,
assignments, 1985, would you still
adjustments, by offsets insist that the letter of
and by P2 million of January 1985 confirms
cash payment? the escalation billings
as of June 1985?
A Yes, your Honor.
A The entries started
*AJ AMORES June 30 in the ledger
card. And as of
*Q Your standard December 31, 1985, it
operating procedure stood at P102 million
before December 31, after payments were
1985 in connection with made as shown on the
or in case of cash credit side of the
payment, was the ledger. I suppose hat
payment in cash or the earlier amount,
check? before the payment
was made, was bigger
and therefore I would
A I would venture to
venture to say that the
say it was by check,
letter of January 7,
your Honor.
1985 contains an
amount that is part of
*Q Which is the safest the original contract
way to do it? account. What are
indicated in the ledger
A Yes, your Honor. are escalation billings.

"PJ GARCHITORENA *PJ GARCHITORENA

*Q And the business *Q We are talking

way? about the letter of
Minister Ongpin?
A Yes, your Honor.
A The letter of Minister
PJ GARCHITORENA Ongpin refers to
escalation billings, sir.
Continue.
*Q As of what date?
PROS VIERNES
A The letter is dated
Q You mentioned January 7, 1985, your
earlier about the letter Honor.
of former Minister
Ongpin to the former PJ GARCHITORENA
President Marcos, did
you say that letter Continue.
concurs with the
escalation billings PROS. VIERNES
reflected in Exhibits "7"
and "7-a"?
Q In accordance with
this letter marked
WITNESS Exhibit "7" and "7-a",
there were credits
A The Company or the made in favor of MIA in
management is of the July and November
opinion that this letter, until December 1985.
a copy of which we These were properly
were able to get, is a credited to the account
confirmation of the of MIA?
acceptance of our
billings, sir. WITNESS

Q This letter of Minister A Yes, sir.

Ongpin is dated
January 7, 1985,
whereas the entries of
Q In 1986. from your A Per record there is
records as appearing in none appearing, your
Exhibit "7-a", there Honor.
were no payments
made to PNCC by MIA *PJ GARCHITORENA
for the months of
January to June 1986? *Q The earliest
payment, whether by
A Yes, sir. delivery of cash
equivalent or of
Q And neither was the adjustment of account, or by
amount of P22 million assignment, or by offsets, when
did these payments begin?
remitted to PNCC by
MIA?
A Per ledger card,
there were payments in
A Yes, sir. 1985, prior to
December 31, 1985,
PROS VIERNES your Honor.

That will be all, your *Q After December 31,

Honor. 1985?

PJ GARCHITORENA A There appears also

P23 million as credit,
Redirect? that is a form of
settlement, your Honor.
ATTY ANDRES
*Q This is as of
No redirect, your September 25?
Honor.
A Yes, your Honor.
*PJ GARCHITORENA There were
subsequent
Questions from the settlements P23 million
Court. is just part of the P44
million.
*AJ AMORES
*Q And what you are
*Q From your records, saying is that, PNCC
for the month of passed the account to
January 1986, there State Investment. In
was no payment of this other words, State
escalation account by Investment bought the
MIA? credit of MIA?

WITNESS A Yes, your Honor.

A Yes, your Honor. But *Q And the amount of

on page 2 of Exhibit "7" credit or receivables
there appears an sold by PNCC to State
assignment of P23 Investment is P23
million, that was on million?
September 25, 1986.
A Yes, your Honor.
*Q But that is already
under the present *Q Is there a payback
administration? agreement?

A After February 1986, A I have a copy of the

your Honor. assignment to State
Investment but I have
*Q But before not yet reviewed the
February, in January same, your Honor.
1986, there was no
payment whatsoever *AJ AMORES
by MIA to PNCC?
 *Q As of now, is this A Yes, sir.
obligation of MIA, now
NAIA, paid to PNCC? Q It was only on
January 30, 1986 that
A There is still a this receipt Exhibit "3"
balance of receivables was issued by Mrs.
from MIA as evidenced Gimenez?
by a collection letter by
our President dated A Yes, sir.
July 6, 1988, your
Honor. The amount *PJ GARCHITORENA
indicated in the letter is
P55 million.
*Q So January 30 is the
date of the last
PJ GARCHITORENA delivery?

Any clarifications you A I remember it was on

would like to make Mr. the 31st of January,
Estebal? your Honor What
happened is that, I did
ATTY ESTEBAL not notice the date
placed by Mrs.
None, your Honor. Gimenez.

PJ GARCHITORENA Q Are you telling us

that this Exhibit "3" was
Mr. Viernes? incorrectly dated

PROS VIERNES A Yes, your Honor.

No more, your Honor. *Q Because the third

delivery was on
PJ GARCHITORENA January 31st and yet
the receipt was dated
January 30?
The witness is
excused. Thank you
very much Mr. Monera. A Yes, your Honor.
. . .41
*Q When was Exhibit
(TABUENA) "3" delivered actually
by Mrs. Gimenez?
(In his direct examination, he testified that he caused
the preparation of the checks totalling P55 Million A January 31st, your
pursuant to the MARCOS Memorandum and that he Honor.
thereafter delivered said amount in cash on the three
(3) dates as alleged in the information to Marcos' PJ GARCHITORENA
private secretary Mrs. Jimenez at her office at Aguado
Street, who thereafter issued a receipt. Tabuena also Continue.
denied having used the money for his own personal
use.) PROS VIERNES

CROSS- Q You did not go to

EXAMINATION BY Malacañang on
PROS. VIERNES January 30, 1986?

Q The amount of P55 A Yes, sir, I did not.

million as covered by
the three (3) checks Mr. Q Do you know at
Tabuena, were whose instance this
delivered on how many Exhibit "3" was
occasions? prepared?

A Three times, sir. A I asked for it, sir.

Q And so, on the first Q You asked for it on

two deliveries, you did January 31, 1986 when
not ask for a receipt you made the last
from Mrs. Gimenez? delivery?
A Yes, sir. Q Did you actually see
Mrs. Gimenez signing
Q Did you see this this receipt Exhibit "3"?
Exhibit "3" prepared in
the Office of Mrs. A No, sir, I did not. She
Gimenez? was inside her room.

A Yes, sir. Q So, she was in her

room and when she
Q This receipt was came out of the room,
typewritten in she handed this receipt
Malacañang stationery. to you already typed
Did you see who typed and signed?
this receipt?
A Yes, sir.
A No, sir. What
happened is that, she *AJ HERMOSISIMA
went to her room and
when she came out she *Q So, how did you
gave me that receipt. know this was the
signature of Mrs.
*PJ GARCHITORENA Gimenez?

Q What you are saying WITNESS

is, you do not know
who typed that receipt? A Because I know her
signature, your Honor. I
WITNESS have been receiving
letters from her also
A Yes, your Honor. and when she requests
for something from me.
*Q Are you making an Her writing is familiar to
assumption that she me.
typed that receipt?
So, when the Presiding
A Yes, your Honor, Justice asked you as to
because she knows how you knew that this
how to type. was the signature of
Mrs. Gimenez and you
answered that you saw
*Q Your assumption is
Mrs. Gimenez signed it,
that she typed it
you were not exactly
herself?
truthful?
A Yes, your Honor.
A What I mean is, I did
not see her sign
PJ GARCHITORENA because she went to
her room and when she
Proceed. came out, she gave me
that receipt, your
PROS. VIERNES Honor.

Q This receipt was PJ GARCHITORENA

prepared on January
31, although it is dated That is why you have to
January 30? wait for the question to
be finished and listen to
A Yes, sir, because I it carefully. Because
was there on January when I asked you, you
31st. said you saw her
signed it. Be careful Mr.
Q In what particular Tabuena.
place did Mrs. Gimenez
sign this Exhibit "3"? WITNESS

A In her office at Yes, your Honor.

Aguado, sir.
PJ GARCHITORENA
Continue. Response by Mr.
Peralta to the testimony
PROS VIERNES of Mr. Tabuena.

Was there another ATTY. ESTEBAL

person inside the office
of Mrs. Gimenez when We are adopting the
she gave you this testimony of Mr.
receipt Exhibit "3"? Tabuena and we will
also present the
A Nobody, sir. accused, your Honor.

Q I noticed in this *AJ DEL ROSARIO

receipt that the last
delivery of the sum of "Q From whom did you
P55 million was made receive the President's
on January 30. Do we memorandum marked
understand from you Exhibit "1"? Or more
that this date January precisely, who handed
30 is erroneous? you this memorandum?

A Yes, sir, that January A Mrs. Fe Roa

30 is erroneous. I Gimenez, your Honor.
noticed it only
afterwards. This should Q Did you ask Mrs, Fe
be January 31st, sir. Gimenez for what
purpose the money
PROS VIERNES was being asked?

That will be all, your A The money was in

Honor. payment for the debt of
the MIA Authority to
PJ GARCHITORENA PNCC, your Honor.

Redirect? *Q If it was for the

payment of such
ATTY. ANDRES obligation why was
there no voucher
prepared to cover such
No redirect, your
payment? In other
Honor.
words, why was the
delivery of the money
*PJ GARCHITORENA not covered by any
voucher?
Questions from the
Court. A The instruction to me
was to give it to the
*AJ HERMOSISIMA Office of the President,
your Honor.
*Q Why did you not ask
for a receipt on the first *PJ GARCHITORENA
and second deliveries?
*Q Be that as it may,
A Because I know that why was there no
the delivery was not voucher to cover this
complete yet, your particular
Honor. disbursement?

*PJ GARCHITORENA A I was just told to bring

it to the Office of the
*Q So you know that President, your Honor.
the total amount to be
delivered was P55 *AJ DEL ROSARIO
million')
*Q Was that normal
A Yes, your Honor. procedure for you to
pay in cash to the
PJ GARCHITORENA Office of the President
for obligations of the
MIAA in payment of its A I just said, "Yes, sir, I
obligation to another will do it/"
entity?
*Q Were you the one
WITNESS who asked for a
memorandum to be
A No, your Honor, I was signed by him?
just following the Order
to me of the President. A No, your Honor.

*PJ GARCHITORENA *Q After receiving that

verbal instruction for
*Q So the Order was you to pay MIAA's
out of the ordinary? obligation with PNCC,
did you not on your own
A Yes, your Honor. accord already prepare
the necessary papers
and documents for the
*AJ DEL ROSARIO
payment of that
obligation?
Did you file any written
protest with the manner
A He told me verbally in
with which such
the telephone that the
payment was being
Order for the payment
ordered?
of that obligation is
forthcoming, your
A No, your Honor. Honor. I will receive it.

*Q Why not? *Q Is this the first time

you received such a
A Because with that memorandum from the
instruction of the President?
President to me, I
followed, your Honor. A Yes, your Honor.

*Q Before receiving this *Q And was that the

memorandum Exhibit last time also that you
"1", did the former received such a
President Marcos memorandum?
discuss this maitter
with you?
A Yes, your Honor.
A Yes, your Honor.
*Q Did you not inquire,
if not from the
*Q When was that? President, at least from
Mrs. Gimenez why this
A He called me up procedure has to be
earlier, a week before followed instead of the
that, that he wants to regular procedure?
me pay what I owe the
PNCC directly to his A No, sir.
office in cash, your
Honor.
*AJ DEL ROSARIO
*PJ GARCHITORENA
*Q Why did you not
ask?
*Q By "I OWE ", you
mean the MIAA?
A I was just ordered to
do this thing, your
WITNESS Honor.

A Yes, your Honor. *AJ HERMOSISIMA

*AJ DEL ROSARIO *Q You said there was

an "I OWE YOU"?
*Q And what did you
say in this discussion A Yes, your Honor.
you had with him?
*Q Where is that "I *Q Do you know the
OWE YOU" now? President or Chairman
of the Board of PNCC?
A All I know is that we
owe PNCC the amount A Yes, your Honor.
of P99.1 million, your
Honor. MIAA owes "Q How was the
PNCC that amount. obligation of MIAA to
PNCC incurred. Was it
*Q Was this payment through the President
covered by receipt from or Chairman of the
the PNCC? Board?

A It was not covered, A PNCC was the one

your Honor. that constructed the
MIA, your Honor.
*Q So the obligation of
MIAA to PNCC was *Q Was the obligation
not, for the record, incurred through the
cancelled by virtue of President or Chairman
that payment? of the Board or
President of the
A Based on the order to PNCC? In other words,
me by the former who signed the
President Marcos contract between
ordering me to pay that PNCC and MIAA?
amount to his office
and then the A Actually, we inherited
mechanics will come this obligation, your
after, your Honor. Honor. The one who
signed for this was the
*Q Is the PNCC a former Director of BAT
private corporation or which is General
government entity? Singzon. Then when
the MIA Authority was
A I think it is partly formed, all the
government, your obligations of BAT
Honor. were transferred to
MIAA. So the
accountabilities of BAT
*PJ GARCHITORENA
were transferred to
MIAA and we are the
*Q That is the former ones that are going to
CDCP? pay, your Honor.

A Yes, your Honor. *Q Why did you agree

to pay to Malacañang
*AJ HERMOSISIMA when your obligation
was with the PNCC?
*Q Why were you not
made to pay directly, to A I was ordered by the
the PNCC considering President to do that,
that you are the your Honor.
Manager of MIA at that
time and the PNCC is a *Q You agreed to the
separate corporation, order of the President
not an adjunct of notwithstanding the
Malacañang? fact that this was not
the regular course or
WITNESS Malacañang was not
the creditor?
A I was just basing it
from the Order of A I saw nothing wrong
Malacanang to pay with that because that
PNCC through the is coming, from the
Office of the President, President, your Honor.
your Honor.
*Q The amount was not
a joke, amounting to
P55 million, and you positions in the
agreed to deliver government also?
money in this amount
through a mere receipt A I was also the
from the private Chairman of the
secretary? Games and
Amusement Board,
A I was ordered by the your Honor.
President, your Honor.
*Q But you were not the
*PJ GARCHITORENA executive or operating
officer of the Games
*Q There is no question and Amusement
and it can be a matter Board?
of judicial knowledge
that you have been with A I was, your Honor.
the MIA for sometime?
*Q As Chairman you
A Yes, your Honor. were running the
Games and
*Q Prior to 1986? Amusement Board?

A Yes, your Honor. A Yes, your Honor.

*Q Can you tell us *Q What else, what

when you became the other government
Manager of MIA? positions did you
occupy that time?
A I became Manager of
MIA way back, late A I was also
1968, your Honor. Commissioner of the
Game Fowl
*Q Long before the MIA Commission, your
was constituted as an Honor.
independent authority?
*PJ GARCHITORENA
A Yes, your Honor.
*Q That is the
*PJ GARCHITORENA cockfighting?

*Q And by 1986, you WITNESS

have been running the
MIA for 18 years? A Yes, your Honor.

WITNESS *Q Here, you were just

a member of the
A Yes, your Honor. Board?

*Q And prior to your A Yes, your Honor.

Joining the MIA, did
you ever work for the *Q So you were not
government? running the
commission?
A No, your Honor.
A Yes, your Honor.
*Q So, is it correct for
us to say that your *Q Any other entity?
joining the MIA in 1968
as its Manager was A No more, your Honor.
your first employment
,with the government? *Q As far as you can
recall, besides being
A Yes, your Honor. the Manager of the MIA
and later the MIAA for
*Q While you were approximately 18
Manager of MIA, did years, you also ran the
you have other Games and
subsequent concurrent
Amusement Board as A Yes, your Honor.
its executive officer?
*Q Now, you have P55
A Yes, your Honor. million which you were
ordered to deliver in
*Q And you were a cash, not to the creditor
commissioner only of of the particular credit,
the Came Fowl and to be delivered in
Commission? armored cars to be
acknowledged only by
A Yes, your Honor. a receipt of a personal
secretary. After almost
18 years in the
*Q Who was running
government service
the commission at that
and having had that
time?
much time in dealing
with COA people, did it
A I forgot his name, but not occur to you to call
he retired already, your a COA representative
Honor. and say, "What will I do
here?"
*Q All of us who joined
the government, A I did not, your Honor.
sooner or later, meet
with our Resident COA
*PJ GARCHITORENA
representative?
*Q Did you not think
A Yes, your Honor.
that at least out of
prudence, you should
*PJ GARCHITORENA have asked the COA
for some guidance on
*Q And one of our this matter so that you
unfortunate experience will do it properly?
(sic) is when the COA
Representative comes WITNESS
to us and says:
"Chairman or Manager,
A What I was going to
this cannot be". And we
do is, after those things
learn later on that COA
I was going to tell that
has reasons for its
delivery ordered by the
procedure and we learn
President to the COA,
to adopt to them?
your Honor.
WITNESS
*Q That is true, but
what happened here is
A Yes, your Honor. that you and Mr. Dabao
or you and Mr. Peralta
*Q As a matter of fact, signed requests for
sometimes we consider issuance of Manager's
it inefficient, sometimes checks and you were
we consider it foolish, accommodated by the
but we know there is PNB Office at Nichols
reason in this apparent without any internal
madness of the COA documentation to
and so we comply? justify your request for
Manager's checks?
A Yes, your Honor.
A Yes, your Honor.
*Q And more than
anything else the COA *Q Of course we had
is ever anxious for no intimation at that
proper documentation time that Mr. Marcos
and proper supporting will win the elections
papers? but even then, the Daily
Express, which was
A Yes, your Honor. considered to be a
newspaper friendly to
*Q Sometimes, the Marcoses at that
regardless of the time, would
amount? occasionally come with
so-called expose, is your official car and
that not so? then you had a back-up
truck following your
A Yes, your Honor. car?

*Q And worst, you had A Yes, your Honor.

the so-called mosquito
press that would *Q Is that not quite a
always come out with fearful experience to
the real or imagined you ?
scandal in the
government and place A I did not think of that
it in the headline, do at that time, your
you recall that? Honor.

A Yes, your Honor. *PJ GARCHITORENA

*PJ GARCHITORENA "Q You did not think it

fearful to be driving
Under these along Roxas Boulevard
circumstances, did you with P25 million in the
not entertain some trunk of your car?
apprehension that
some disloyal WITNESS
employees might leak
you out and banner A We have security at
headline it in some that time your Honor.
mosquito publications
like the Malaya at that
ATTY. ANDRES
time?
Your Honor, the P25
WITNESS
million was in the
armored car; only P5
A No, your Honor. million was in the trunk
of his car.
*PJ GARCHITORENA
*PJ GARCHITORENA
I bring this up because
we are trying to find out Thank you for the
different areas of fear. correction. Even P1
We are in the million only. How much
government and we in more with P5 million
the government fear inside the trunk of your
the COA and we also car, was that not a
fear the press. We nervous experience?
might get dragged into
press releases on the
A As I have said, your
most innocent thing.
Honor, I never thought
You believe that?
of that.
A Yes, your Honor.
PJ GARCHITORENA
*Q And usually our best
Thank you very much,
defense is that these
Mr. Tabuena. You are
activities are properly
excused. . . . 42
documented?
(PERALTA)
A Yes, your Honor.
(He testified on direct examination that he co-signed
*Q In this particular
with Tabuena a memorandum request for the issuance
instance, your
of the Manager's Check for P5 Million upon order of
witnesses have told us
Tabuena and that he [Peralta] was aware that MIAA
about three (3) different
had an existing obligation with PNCC in the amount of
trips from Nichols to
around P27 Million. He affirmed having accompanied
Aguado usually late in
Tabuena at the PNB Villamor Branch to withdraw the
the day almost in movie
P5 Million, but denied having misappropriated for his
style fashion. I mean,
own benefit said amount or any portion thereof.)
the money being
loaded in the trunk of
CROSS- Yes, your Honor.
EXAMINATION BY
PROS VIERNES *PJ GARCHITORENA

Q Will you please tell What exhibit?

the Honorable Court
why was it necessary WITNESS
for you to co-sign with
Mr. Tabuena the
I have here a copy,
request for issuance of
your Honor. This was
Manager's check in the
the order and it was
amount of P5 million?
marked as exhibit "N".
A At that time I was the
PROS VIERNES
Acting Financial
Services Manager of
MIAA, sir, and all It was marked as
withdrawals of funds Exhibit "M", your
should have my Honor.
signature because I
was one of the Q How did you know
signatories at that time. there was an existing
liability of MIAA in favor
Q As Acting Financial of PNCC at that time?
Services Manager of
MIAA, you always co- A Because prior to this
sign with Mr. Tabuena memorandum of Mr.
in similar requests for Tabuena, we prepared
the issuance of the financial statement
Manager's checks by of MIAA as of
the PNB? December 31, 1985
and it came to my
A That is the only attention that there was
occasion I signed, sir. an existing liability of
around
P27,999,000.00, your
Q Did you say you were
Honor.
ordered by Mr.
Tabuena to sign the
request? Q When was that
Financial Statement
prepared?
A Yes, sir, and I think
the order is part of the
exhibits and based on A I prepared it around
that order, I co-signed January 22 or 24,
in the request for the something like that, of
issuance of Manager's 1986, sir.
check in favor of Mr.
Luis Tabuena. Q Is it your usual
practice to prepare the
PROS VIERNES Financial Statement
after the end of the year
within three (3) weeks
Q Was there a
after the end of the
separate written order
year?
for you to co-sign with
Mr. Tabuena?
A Yes, sir, it was a
normal procedure for
WITNESS
the MIAA to prepare
the Financial
A Yes, sir, an order was Statement on or before
given to me by Mr. the 4th Friday of the
Tabuena. month because there
will be a Board of
*PJ GARCHITORENA Directors Meeting and
the Financial
Was that marked in Statement of the prior
evidence? month will be
presented and
WITNESS discussed during the
meeting.
*PJ GARCHITORENA Q Why was it
necessary for you to go
*Q This matter of with him on that
preparing Financial occasion?
Statement was not an
annual activity but a A Mr. Tabuena
monthly activity? requested me to do the
counting by million, sir.
A Yes, your Honor. So what I did was to
bundle count the P5
*Q This Financial million and it was
Statement you placed in two (2)
prepared in January of peerless boxes.
1986 recapitulated the
financial condition as of Q Did you actually
the end of the year? participate in the
counting of the money
A Yes, your Honor. by bundles?

PJ GARCHITORENA A Yes, sir.

Continue. Q Bundles of how

much per bundle?
PROS VIERNES
A If I remember right,
the bundles consisted
Q You made mention of
of P100s and P50s, sir.
a request for Escalation
Clause by former
Minister Ongpin. Did Q No P20s and P10s?
you personally see that
request? A Yes, sir, I think it was
only P100s and P50s.
A When this order
coming from Mr. *PJ GARCHITORENA
Tabuena was shown to
me, I was shown a *Q If there were other
copy, sir. I have no file denominations, you
because I just read it. can not recall?

Q It was Mr. Tabuena A Yes, your Honor.

who showed you the
letter of Minister PROS VIERNES
Ongpin?
Q In how many boxes
A Yes, sir. were those bills
placed?
*PJ GARCHITORENA
A The P5 million were
And that will be placed in two (2)
Exhibit? peerless boxes,

ATTY. ANDRES Q And you also went

with Mr. Tabuena to
Exhibit "2" and "2-A", Aguado?
your Honor.
A No, sir, I was left
PROS VIERNES behind at Nichols. After
it was placed at the
Q You also stated that trunk of the car of Mr.
you were with Mr. Tabuena, I was left
Tabuena when you behind and I went back
withdrew the amount of to my office at MIA.
P5 million from the
PNB Extension Office Q But the fact is that,
at Villamor? this P5 million was
withdrawn at passed
A Yes, sir. 5:00 o'clock in the
afternoon?
A I started counting it I *PJ GARCHITORENA
think at around 4:30,
sir. It was after office Questions from the
hours. But then I was Court.
there at around 4:00
o'clock and we started *AJ DEL ROSARIO
counting at around 4:30
p.m. because they
*Q Did you not consider
have to place it in a
it as odd that your
room, which is the
obligation with the
office of the Manager at
PNCC had to be paid in
that time.
cash?
Q And Mr. Tabuena left
WITNESS
for Malacañang after
5:00 o'clock in the
afternoon of that date? A Based on the order of
President Marcos that
we should pay in cash,
A Yes, sir. After we
it was not based on the
have counted the
normal procedure, your
money, it was placed in
Honor.
the peerless boxes and
Mr. Tabuena left for
Malacanang. *Q And, as Acting
Financial Services
Manager, you were
PROS VIERNES
aware that all
disbursements should
Q And you yourself, be covered by
returned to your office vouchers?
at MIA?
A Yes, your Honor, the
WITNESS payments should be
covered by vouchers.
A Yes, sir. But then, inasmuch as
what we did was to
Q Until what time do prepare a request to
you hold office at the the PNB, then this can
MIA? be covered by Journal
Voucher also.
A Usually I over-stayed
for one (1) or two (2) *Q Was such payment
hours just to finish the of P5 million covered
paper works in the by a Journal Voucher?
office, sir.
A Yes, your Honor.
Q So, even if it was
already after 5:00 *Q Did you present that
o'clock in the Journal Voucher here
afternoon, you still went in Court?
back to your office at
MIA? A We have a copy, your
Honor.
A Yes, sir.
*Q Do you have a copy
PROS VIERNES or an excerpt of that
Journal Voucher
That will be all, your presented in Court to
Honor. show that payment?

PJ GARCHITORENA A We have a copy of

the Journal Voucher,
Redirect? your Honor.

ATTY. ESTEBAL *Q Was this payment of

P5 million ever
No redirect, your recorded in a cashbook
Honor. or other accounting
books of MIAA ?
A The payment of P5 *Q Since the payment
million was recorded in was made on January
a Journal Voucher, 31, I986, and that was
your Honor. very close to the
election held in that
*PJ GARCHITORENA year, did you not
entertain any doubt that
*Q In other words, the the amounts were
recording was made being used for some
directly to the Journal? other purpose?

WITNESS ATTY. ESTEBAL

A Yes, your Honor. With due respect to the

Honorable Justice, we
are objecting to the
*Q There are no other
question on the ground
separate documents as
that it is improper.
part of the application
for Manager's Check?
*AJ DEL ROSARIO
A Yes, your Honor,
there was none. I will withdraw the
question.
*AJ DEL ROSARIO
*PJ GARCHITORENA
*Q After the payment
was made, did your What is the ground for
office receive any impropriety?
receipt from PNCC?
ATTY. ESTEBAL
A I was shown a receipt
by Mr. Tabuena, the This is not covered in
receipt given by Mrs. the direct examination,
Fe Roa Gimenez, your and secondly, I don't
Honor. Inasmuch as think there was any
the payment should be basis, your Honor.
made through the
Office of the president, *PJ GARCHITORENA
I accepted the receipt
given by Mrs. Fe Considering the
Gimenez to Mr. withdrawal of the
Tabuena. question, just make the
objection on record.
*Q After receiving that
receipt, did you prepare *AJ HERMOSISIMA
the necessary
supporting documents, *Q As a Certified Public
vouchers, and use that Accountant and
receipt as a supporting Financial Manager of
document to the the MIAA, did you not
voucher? consider it proper that a
check be issued only
A Your Honor, a after it is covered by a
Journal Voucher was disbursement voucher
prepared for that. duly approved by the
proper authorities ?
*Q How about a
disbursement A Your Honor, what we
voucher? did was to send a
request for a
A Inasmuch as this was Manager's check to the
a request for PNB based on the
Manager's check, no request of Mr. Tabuena
disbursement voucher and the order of Mr.
was prepared, your Tabuena was based on
Honor. the Order of President
Marcos.
*AJ DEL ROSARIO
*PJ GARCHITORENA
*Q In your capacity as amount of P5 million
Financial Services through the Office of
Manager of the MIAA, the President and it
did you not think it should be paid in cash,
proper to have this your Honor. And at that
transaction covered by time, I know for a fact
a disbursement also that there was an
voucher? existing P.D. wherein
the President of the
WITNESS Republic of the
Philippines can transfer
A Based on my funds from one office to
experience, payments another and the PNCC
out of cash can be is a quasi government
made through cash entity at that time.
vouchers, or even
though Journal *AJ HERMOSISIMA
Vouchers, or even
through credit memo, *Q Are you saying that
your Honor. this transaction was
made on the basis of
*AJ HERMOSISIMA that P.D. which you
referred to?
*Q This was an
obligation of the MIAA A I am not aware of the
to the PNCC. Why did motive of the President,
you allow a but then since he is the
disbursement by President of the
means of check in favor Philippines, his order
of Mr. Luis Tabuena, was to pay the PNCC
your own manager? through the Office of
the President, your
A We based the Honor.
payment on the order
of Mr. Tabuena *Q As Financial
because that was the Manager, why did you
order of President allow a payment in
Marcos to pay PNCC cash when ordinarily
through the Office of payment of an
the President and it obligation of MIAA is
should be paid in cash, supposed to be paid in
your Honor. check?

*Q You are supposed A I caused the payment

to pay only on legal through the name of
orders. Did you Mr. Tabuena because
consider that legal? that was the order of
Mr. Tabuena and also
ATTY. ESTEBAL he received an order
coming from the
President of the
With due respect to the
Philippines at that time,
Honorable Justice, the
your Honor.
question calls for a
conclusion of the
witness. *PJ GARCHITORENA

*PJ GARCHITORENA *Q Mr. Peralta, are not

Journal Vouchers
merely entries in the
Considering that tire
Journals to correct
witness is an expert,
certain statements of
witness may answer.
accounts earlier made
in the same journal?
WITNESS
In other words, really
A The order of what you are telling us
president Marcos was is that, a Journal
legal at that time Voucher is to explain a
because the order was transaction was
to pay PNCC the otherwise not recorded.
WITNESS WITNESS

A Yes, your Honor. A The transaction was

fully documented since
*Q Therefore, when we have the order of
you said that a Journal the General Manager
Voucher here is proper, at that time and the
you are saying it is order of President
proper only because of Marcos, your Honor.
the exceptional nature
of the transactions? *Q Are you saying the
Order of the General
A Yes, your Honor. Manager is an
adequate basis for the
*Q In other words, as movement of money?
an Accountant, you
would not normally A Yes, your Honor,
authorize such a because at that time we
movement of money have also a recorded
unless it is properly liability of P27 million.
documented?
*Q we are not talking of
ATTY. ESTEBAL whether or not there
was a liability. What we
With due respect to the are saying is, is the
Honorable Presiding order of the General
Justice, I think the Manager by itself
question is misleading adequate with no other
because what the supporting papers, to
witness stated is. . . justify the movement of
funds?
*PJ GARCHITORENA
A Yes, your Honor. The
order of Mr. Luis
Be careful in your
Tabuena was based on
objection because the
our existing liability of
witness understands
P27,931,000.00,
the language you are
inasmuch as we have
speaking, and
that liability and I was
therefore, you might be
shown the order of
coaching him.
President Marcos to
pay P5 million through
ATTY. ESTEBAL the Office of the
President, I considered
No, your Honor. I am the order of Mr. Luis
also an accountant that Tabuena, the order of
is why I could say that. President Marcos and
.. also the existing liability
of P27 million sufficient
*PJ GARCHITORENA to pay the amount of P5
million. Inasmuch as
Please be simple in there is also an
your objection. escalation clause of
P99.1 million, the
ATTY. ESTEBAL payment of P5 million is
fully covered by those
The question is existing documents.
misleading on the
ground that what the *PJ GARCHITORENA
witness stated earlier is
that the Journal You keep flooding us
Voucher in this with details we are not
particular case was asking for. We are not
supported, your Honor. asking you whether or
not there was valid
*PJ GARCHITORENA obligation. We are not
asking you about the
Overruled, may escalation clause. We
answer. are asking you whether
or not this particular
order of Mr. Tabuena is WITNESS
an adequate basis to
justify the movement of A Because at that time,
funds? your Honor, I have
knowledge that the
WITNESS President is authorized
through a Presidential
When we pay, your Decree to transfer
Honor, we always look government funds from
for the necessary one office to another.
documents and at that
time I know for a fact *PJ GARCHITORENA
that there was this
existing liability. *Q Under the
Appropriation Act. Are
*PJ GARCHITORENA payments of debts of
the MIAA covered by
When we ask the Appropriation Act?
questions and when we
answer them, we must A I think the liability was
listen to the question duly recorded and
being asked and not to appropriations to pay
whatever you wanted the amount is. . . .
to say. I know you are (interrupted)
trying to protect
yourself. We are aware *PJ GARCHITORENA
of your statement that
there are all of these *Q Tell me honestly, is
memoranda. your answer
responsive to the
*Q By your question or are you just
disbursement of such throwing words at us in
amount, you are saying the hope that we will
that the order of Mr. forget what the
Tabuena by itself is question is?
adequate?
A No, your Honor.
WITNESS
*Q Are you telling us
A As far as I am that the debts incurred
concerned, your Honor, by MIAA ate covered
inasmuch as we have a by the Appropriations
liability and I was Act so that the payment
shown the Order of of this debt would be in
President Marcos to the same level as the
pay PNCC through his realignment of funds
office, I feel that the authorized the
order of the General President? Or are you
Manager, the order of telling as you did not
President Marcos, and read the Decree?
also the memorandum
of Minister Ongpin are A I was aware of that
sufficient to cause the Decree, your Honor.
payment of P5 million.
*PJ GARCHITORENA
*PJ GARCHITORENA
Mr. Estebal, will you
*Q This Presidential include in your
Decree which memorandum what are
authorizes the the Decrees
President to transfer authorizing this
funds from one movement of funds?
department to another,
is this not the one that
ATTY. ESTEBAL
refers to the
realignment of funds
insofar as the Yes, your Honor.
Appropriation Act is
concerned? *PJ GARCHITORENA
*Q It is true that Financial Services
President Marcos was Manager and as
the President, but he counter signatory are in
was not an officer of the a position to tell Mr.
MIAA, was he? Tabuena, "I am sorry,
you are my superior but
A No, your Honor. this disbursement is not
proper and, therefore, I
*Q In fact, for purposes will not sign it"., if in
of internal control, you your opinion the
have different officers disbursement is not
and different officials in proper?
any company either
government or private, A Yes, your Honor.
which are supposed to
check and balance *Q Therefore, as a co-
each other, is it not? signatory, you
expected to exercise
A Yes, your Honor. your judgment as to the
propriety of a particular
*Q So that when transactions?
disbursements of funds
are made, they are A Yes, your Honor.
made by authority of
not only one person *Q And this is
alone so that nobody something you know by
will restrain him? the nature of your
position and because
A Yes, your Honor. you are a Certified
Public Accountant?
*Q These checks and
balances exist in an A Yes, your Honor.
entity so that no one
person can dispose of *AJ DEL ROSARIO
funds in any way he
likes? *Q You admit that the
payment of P5 million
A Yes, your Honor. and P50 million were
unusual in the manner
*Q And in fact, the with which they were
purpose for having two disposed?
(2) signatories to
documents and A Yes, your Honor.
negotiable documents
is for the same *Q Did you submit a
purpose? written protest to the
manner in which such
A Yes, your Honor. amount was being
disposed of?
*PJ GARCHITORENA
A A written protest was
*Q In other words, the not made, your Honor,
co-signatories counter but I called the
check each other? attention of Mr.
Tabuena that since this
WITNESS payment was upon the
order of President
Marcos, then I think as
A Yes, your Honor.
President he can do
things which are not
*Q In your case, you ordinary.
would be the counter
check for Mr.
*Q If you did not
Tabuena?
prepare a written
protest, did you at least
A Yes, your Honor. prepare a
memorandum for the
*Q In the other words, record that this was an
even if Mr. Tabuena is
the Manager, you as
 extra-ordinary in its zeal for arriving at the facts the
transaction? court here conveyed to the jury too
strong an impression of the court's
A I called the attention belief in the defendant's probable guilt
of Mr. Tabuena that this to permit the jury freely to perform its
was an extra-ordinary own function of independent
transaction and no determination of the facts. . . .
written note, your
Honor. The majority believes that the interference by
the Sandiganbayan Justices was just too
PJ GARCHITORENA excessive that it cannot be justified under the
norm applied to a jury trial, or even under the
Thank you very much standard employed in a non-jury trial where the
Mr. Peralta, you are judge is admittedly given more leeway in
excused. . . . 43 propounding questions to clarify points and to
elicit additional relevant evidence. At the risk of
being repetitious, we will amplify on this via
This Court has acknowledged the right of a trial judge
some specific examples. Based on the
to question witnesses with a view to satisfying his mind
evidence on record, and on the admission of
upon any material point which presents itself during the
Tabuena himself, the P55 million was delivered
trial of a case over which he presides. 44 But not only
to the President's Office thru Mrs. Gimenez, in
should his examination be limited to asking
obedience to the Presidential directive. One
"clarificatory" questions, 45 the right should be sparingly
Sandiganbayan Justice, however, hurled the
and judiciously used; for the rule is that the court should
following questions to Peralta:
stay out of it as much as possible, neither interfering
nor intervening in the conduct of the trial.46 Here, these
limitations were not observed. Hardly in fact can one AJ DEL ROSARIO
avoid the impression that the Sandiganbayan had
allied itself with, or to be more precise, had taken the Q: Since the payment
cudgels for the prosecution in proving the case against was made on January
Tabuena and Peralta when the Justices cross- 31, 1986, and that was
examined the witnesses, their cross- examinations very close to the
supplementing those made by Prosecutor Viernes and election held in that
far exceeding the latter's questions in length. The "cold year, did you not
neutrality of an impartial judge" requirement of due entertain any doubt that
process was certainly denied Tabuena and Peralta the amounts were
when the court, with its overzealousness, assumed the being used for some
dual role of magistrate and advocate. In this other purposes?
connection, the observation made in the Dissenting
Opinion to the effect that the majority of this Court was ATTY. ESTEBAL
"unduly disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of the With due respect to the
TSN was incorporated in the majority opinion not to Honorable Justice, We
focus on "numbers" alone, but more importantly to are objecting to the
show that the court questions were in the interest of the question on the ground
prosecution and which thus depart from that common that it is improper.
standard of fairness and impartiality. In fact, it is very
difficult to be, upon review of the records, confronted AJ DEL ROSARIO
with "numbers" without necessarily realizing the
partiality of the Court. In "US v. De Sisto" (2 Cir., 1961,
I will withdraw the
289 F 2d 833), for example, a new trial was required
question.
because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses,
and the reviewing court also had to amplify on PJ GARCHITORENA
"numbers" to bolster this. It was pointed out in the "De
Sisto" case that the judge asked 3,115 questions of all What is the ground for
witnesses, the prosecutor asked but 1,381, defense impropriety?
counsel 3,330. The judge's questions to the defendant
De Sisto totalled 306, the prosecutor's 347, and the ATTY. ESTEBAL
defense counsel's, 201. After referring to these figures,
the court stated: This is not covered in
the direct examination,
. . . It is indeed an impressive and secondly, I don't
proportion, but no such mathematical think there was any
computation is of itself determinative. basis, Your Honor.
However, taking all this in conjunction
with the long and vigorous examination PJ GARCHITORENA
of the defendant himself by the judge,
and the repeated belittling by the judge Considering the
of defendant's efforts to establish the withdrawal of the
time that Fine left the pier, we fear that
 question, just make the therefore, you might be
objection on record. coaching him.

Nothing from the preceding questions of ATTY. ESTEBAL

counsels or of the court would serve as basis
for this question. How then, can this be No, your Honor. I am
considered even relevant? What is the also an accountant that
connection between the payment made to the is why I could say that .
President's office and the then forthcoming ..
presidential "snap election"? In another
instance, consider the following questions of *PJ GARCHITORENA
Presiding Justice Garchitorena:
Please be simple in
*PJ GARCHITORENA your objection.

*Q Mr. Peralta, are not ATTY. ESTEBAL

Journal Vouchers
merely entries in the
The question is
Journals to correct
misleading on the
certain statements of
ground that what the
accounts earlier made
witness stated earlier is
in the same journal?
that the Journal
Voucher in this
xxx xxx xxx particular case was
supported, your Honor.
*Q In other words,
really what you are *PJ GARCHITORENA
telling us is that, a
Journal Voucher is to
Overruled may answer.
explain a transaction
was otherwise not
recorded. WITNESS

xxx xxx xxx A The transaction was

fully documented since
we have the order of
*Q Therefore, when
the General Manager
you said that a Journal
at that time and the
Voucher here is proper,
order of President
you are saying it is
Marcos, your Honor.
proper only because of
the exceptional nature
of the transactions? *Q Are you saying the
Order of the General
Manager is an
xxx xxx xxx
adequate basis for the
movement of money?
*Q In other words, as
an Accountant, you
*Q We are not talking of
would not normally
whether or not there
authorize such a
was a liability. What we
movement of money
are saying is, is the
unless it is properly
order of the General
documented?
Manager by itself
adequate with no other
ATTY. ESTEBAL supporting papers, to
justify the movement of
With due respect to the funds?
Honorable Presiding
Justice, I think the *PJ GARCHITORENA
question is misleading
because what the
You keep flooding us
witness stated is . . .
with details we are not
asking for. We are not
*PJ GARCHITORENA asking you whether or
not there was valid
Be careful in your obligation. We are not
objection because the asking you about the
witness understands escalation clause. We
the language you are are asking you whether
speaking, and or not this particular
order of Mr. Tabuena is the same level as the
an adequate basis to realignment of funds
justify the movement of authorized the
funds? President? Or are you
telling as you did not
*PJ GARCHITORENA read the Decree?

When we ask *PJ GARCHITORENA

questions and when we
answer them, we must Mr. Estebal, will you
listen to the question include in your
being asked and not to memorandum what are
whatever you wanted the Decrees
to say. I know you are authorizing this
trying to protect movement of funds?
yourself. We are aware
of your statement that ATTY. ESTEBAL
there are all of these
memoranda. Yes, your Honor.

*Q By your *PJ GARCHITORENA

disbursement of such
amount, you are saying
*Q It is true that
that the order of Mr.
President Marcos was
Tabuena by itself is
the President, but he
adequate?
was not an officer of the
MIAA, was he?
*PJ GARCHITORENA
*Q In fact, for purposes
*Q This Presidential of internal control, you
Decree which have different in
authorizes the officers and different
President to transfer officials in any
funds from one company either
department to another, government or private,
is this not the one that which are supposed to
refers to the check and balance
realignment of funds each other, is it not?
insofar as the
Appropriation Act is
*Q So that when
concerned?
disbursements of funds
are made, they are
*PJ GARCHITORENA made by authority of
not only one person
*Q Under the alone so that nobody
Appropriation Act. Are will restrain him?
payments of debts of
the MIAA covered by *Q These checks and
the Appropriation Act? balances exist in an
entity so that no one
*PJ GARCHITORENA person can dispose of
funds in any way he
*Q Tell me honestly, is likes?
your answer
responsive to the *Q And in fact, the
question or are you just purpose for having two
throwing words at us in (2) signatories to
the hope that we will documents and
forget what the negotiable documents
question is? is for the same
purpose?
xxx xxx xxx
*PJ GARCHITORENA
*Q Are you telling us
that the debts incurred *Q In other words, the
by MIAA are covered co-signatories counter
by the Appropriations check each other?
Act so that the payment
of this debt would be in
 *Q In your case, you . . . This court, however, has more than
would be the counter once said that the examination of
check for Mr. witnesses is the more appropriate
Tabuena? function of counsel, and the instances
are rare and the conditions exceptional
*Q In other words, even which will justify the presiding judge in
if Mr. Tabuena is the conducting an extensive examination.
Manager, you as It is always embarrassing for counsel to
Financial Services object to what he may deem improper
Manager and as questions by the court. Then, in
counter signatory are in conducting a lengthy examination, it
a position to tell Mr. would be almost impossible for the
Tabuena, "I am sorry, judge to preserve a judicial attitude.
you are my superior but While he is not a mere figurehead or
this disbursement is not umpire in a trial, and it is his duty to see
proper and, therefore, I that justice is done, he will usually not
will not sign it.", if in find it necessary to conduct such
your opinion the examinations. The extent to which this
disbursement is not shall be done must largely be a matter
proper? of discretion, to be determined by the
circumstances of each particular case,
*Q Therefore, as co- but in so doing he must not forget the
signatory, you are function of the judge and assume that
expected to exercise of an advocate. . . 50
your judgment as to the
propriety of a particular While it is true that the manner in which
transaction ? a witness shall be examined is largely
in the discretion of the trial judge, it
*Q And this is must be understood that we have not
something you know by adopted in this country the practice of
the nature of your making the presiding judge the chief
position and because inquisitor. It is better to observe our
you are a Certified time-honored custom of orderly judicial
Public Accountant? 47 procedure, even at the expense of
occasional delays. . . . The judge is an
important figure in the trial of a cause,
How can these questions be considered
and while he has the right, and it is
clarificatory when they clearly border more on
often his duty, to question witnesses to
cross-examination questions? Thus, the
the end that justice shall prevail, we
Dissenting Opinion's focus on the distinction
can conceive of no other reason, for
between the two kinds of trial to justify the
him to take the trial of the cause out of
Sandiganbayan's active participation in the
the hands of counsel. 51
examination of petitioners Tabuena and
Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, The examination of witnesses is the
therefore, be emphasized anew that: more appropriate function of counsel,
and it is believed the instances are rare
and the conditions exceptional in a high
A trial judge should not participate in
degree which will justify the presiding
the examination of witnesses as to
judge in entering upon and conducting
create the impression that he is allied
an extended examination of a witness,
with the prosecution.48
and that the exercise of a sound
discretion will seldom deem such
We doubt not that the sole motive of the action necessary or advisable. 52
learned judge was to ascertain the truth
of the transaction, but it is never proper
He [the judge] may properly intervene
for a judge to discharge the duties of a
in a trial of a case to promote
prosecuting attorney. However anxious
expedition, and prevent unnecessary
a judge may be for the enforcement of
waste of time, or to clear up some
the law, he should always remember
obscurity, but he should bear in mind
that he is as much judge in behalf of the
that his undue interference,
defendant accused of crime, and
impatience, or participation in, the
whose liberty is in jeopardy, as he is
examination of witnesses, or a severe
judge in behalf of the state, for the
attitude on his part toward witnesses,
purpose of safeguarding the interests
especially those who are excited or
of society. 49
terrified by the unusual circumstances
of a trial, may tend to prevent the
Ordinarily it is not good practice for the proper presentation of the cause, or the
presiding judge himself to examine ascertainment of the truth in respect
witnesses at length. The thereto. 53
circumstances may be such in a given
case as to justify the court in so doing.
 The impartiality of the judge — his
avoidance of the appearance of
becoming the advocate of either one
side or the other of the pending
controversy is a fundamental and
essential rule of special importance in
criminal cases. . . 54
Our courts, while never unmindful of
their primary duty to administer justice,
without fear or favor, and to dispose of
these cases speedily and in as
inexpensive a manner as is possible for
the court and the parties, should refrain
from showing any semblance of one-
sided or more or less partial attitude in
order not to create any false impression
in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to
strive for the preservation of the
people's faith in our courts.55
Time and again this Court has declared
that due process requires no less than
the cold neutrality of an impartial judge.
Bolstering this requirement, we have
added that the judge must not only be
impartial but must also appear to be
impartial, to give added assurance to
the parties that his decision will be just.
The parties are entitled to no less than
this, as a minimum guaranty of due
process. 56
We are well aware of the fear entertained by some that
this decision may set a dangerous precedent in that
those guilty of enriching themselves at the expense of
the public would be able to escape criminal liability by
the mere expedient of invoking "good faith". It must
never be forgotten, however, that we render justice on
a case to case basis, always in consideration of the
evidence that is presented. Thus, where the evidence
warrants an acquittal, as in this case, we are mandated
not only by the dictates of law but likewise of
conscience to grant the same. On the other hand, it
does not follow that all those similarly accused will
necessarily be acquitted upon reliance on this case as
a precedent. For the decision in this case to be a
precedent, the peculiar circumstances and the
evidence that led to the petitioner's acquittal must also
be present in subsequent cases.
Furthermore, as between a mere apprehension of a
"dangerous precedent" and an actual violation of
constitutionally enshrined rights, it is definitely the latter
that merits our immediate attention. For the most
dangerous precedent arises when we allow ourselves
to be carried away by such fears so that it becomes
lawful to sacrifice the rights of an accused to calm the
fearful. In our eagerness to bring to justice the
malefactors of the Marcos regime, we must not
succumb to the temptation to commit the greatest
injustice of visiting the sins of the wrongdoers upon an
innocent.
WHEREFORE, in view of the foregoing, herein
petitioners Luis A. Tabuena and Adolfo M. Peralta are
hereby ACQUITTED of the crime of malversation as
defined and penalized under Article 217 of the Revised
Penal Code. The Sandiganbayan Decision of October
12, 1990 and the Resolution dated December 20, 1991
are REVERSED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ.,
cocnur.
Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.
Hermosisima, Jr,., J., took no part.
(8) G.R. No. 132926 July 20, 2001
ELVIRA AGULLO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
BUENA, J.:
Charged with, tried and convicted in Criminal Case No.
13579 for malversation of public funds, herein
petitioner Elvira Agullo, erstwhile Disbursing Officer of
the then Ministry of Public Works and Highways
(MPWH), Regional Office No. VIII, Candahug, Palo,
Leyte, now comes before the High Court to assail the
Decision1 of the Sandiganbayan promulgated on 16
March 1992, and its Resolution dated 11 March 1998,
denying petitioner’s motion for reconsideration2 but
reducing the penalty imposed on petitioner as follows:
"WHEREFORE, the Court finds the accused
Elvira S. Agullo guilty beyond reasonable doubt
of the crime of Malversation of Public Funds,
defined and penalized under Article 217,
paragraph 4 of the Revised Penal Code. [There
being neither mitigating nor aggravating
circumstances, no evidence having been
adduced respecting partial or full restitution of
the amount malversed,] Considering the
absence of any aggravating circumstances
and her full restitution by salary
deduction, the accused Elvira S. Agullo
should be, as she is, hereby sentenced to the
indeterminate penalty of, from TEN (10)
YEARS and ONE (1) DAY of PRISION
MAYOR, as MINIMUM; to [EIGHTEEN (18)
YEARS, EIGHT (8) MONTHS AND ONE (1)
DAY OF RECLUSION
TEMPORAL] SEVENTEEN (17) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of
RECLUSION TEMPORAL, AS
MAXIMUM, with the accessory penalties of the
law; to pay a fine in the sum of P26,404.26
without subsidiary imprisonment in case of
insolvency; to suffer the penalty of Perpetual
Special Disqualification and to pay the costs."
(Emphasis ours)
In an information3 dated 30 September 1988, herein
petitioner was charged with the crime of malversation
of public funds, committed as follows:
"That on or about the period October 22, 1985
to July 14, 1986, inclusive or within said dates
in the Municipality of Palo, Province of Leyte,
 Philippines, and within the jurisdiction of the
Honorable Court, the above-named accused,
being then the disbursing officer of then
Ministry of Public Works and Highways,
Regional Office No. VIII, Candahug, Palo,
Leyte, charged with the official custody of
public funds thus paid, collected and received
by her in her official capacity, and by reason of
which duties she is accountable thereof, taking
advantage of her official position, did then and
there wilfully, unlawfully and feloniously take,
convert and misappropriate for her own
personal use and benefit the public funds she
had in her possession in the amount of Twenty
Six Thousand Four Hundred Four Pesos and
26/100 (P26,404.26), belonging to the
government of the Republic of the Philippines,
to the damage and prejudice of the latter in the
aforestated amount.
"Contrary to law."
Upon arraignment, herein petitioner Agullo, assisted
by counsel de officio Antonio Manzano, pleaded not
guilty4 to the charge, after which the Sandiganbayan
conducted a pre-trial on 11 February 1990 and issued
the following Pre-Trial Order:5
"When this case was called for pre-trial, the
accused personally and through her counsel
Atty. Antonio Manzano of the CLAO readily
entered into stipulations insofar as
her official position in government as well
as the fact of audit of her accounts are
concerned, including therewith the admission
that, in all respects the Cash Production Notice
and the Examination of her Cash and Accounts
which the government marked as Exhibit ‘A’
was faithful reproduction of the original, and
insofar as the contents thereof are concerned,
are correct. The accused likewise admitted that
she had received a letter of demand, said
letter dated July 14, 1986 marked as exhibit ‘B’.
With this the accused stated that her defense
was premised on her having suffered a
stroke on October 22, 1985 as a result of
which the amount subject of the shortage
found in her audit had been lost.
"The accused also indicated that not only had
she immediately replied to the letter by various
communications by her or in her behalf
protesting the withholding of various amounts
due her by way of salaries on the premise that
the loss of the amount subject matter of the
Information was not chargeable to her as a
personal liability. The accused has likewise
informed the Court that prior to the incident on
October 22, 1985, she had been audited on
May 27, 1985 and, after the incident, on
December 23, 1985 although she concedes
she was also audited on July 14, 1986.
"Considering that all the documents necessary
for the defense of the accused are still to be
organized, Atty. Manzano is given ten (10)
days from today within which to prepare a
proposal for stipulations of facts and, if that is
not possible, at least a complete outline of his
case together with the marking of the
documents he wishes to present which the
prosecution might not admit as to the
substance thereof though the genuineness of
the documents presented might be conceded.
"With the above, the prosecution may now rest
its case and the presentation of the evidence
for the defense may take place on April 5 and
6, and May 17 and 18, 1990, at 8:00 o’ clock in
the morning and 2:00 o’ clock in the afternoon.
"The setting for tomorrow is cancelled.
"SO ORDERED." (Emphasis ours)
As borne by the records, the charge of malversation
against petitioner germinated from an audit conducted
on 14 July 1986 by Ignacio Gerez, Auditing Examiner
III, as a result of which a P26,404.26 cash shortage
was discovered on petitioner’s accountability. On the
same date, Gerez informed petitioner of said finding of
cash shortage and required the latter, through a letter
of demand,6 to "produce immediately the missing
funds." Further, petitioner was required to submit within
72 hours from receipt a written explanation of the cash
shortage.
In a letter7 dated 25 August 1986, addressed to the
Resident Auditor of the MPWH, petitioner complied
with the directive by explaining that the cash shortage
was, in effect, due to a "fortuitous event" where the
amount could have been stolen/taken by somebody on
the day she suffered a stroke on 22 October 1985, near
the corner of Juan Luna Street and Imelda Avenue,
Tacloban City.
In the course of the pre-trial, petitioner Agullo conceded
the fact of audit and admitted8 the findings in the Report
of Cash Examination and the facts set forth in the Letter
of Demand. In effect, she admitted the fact of shortage
in the amount stated in the Information.
Notwithstanding, petitioner Agullo, at all stages of the
criminal indictment, persistently professed her
innocence of the charge and categorically denied
having malversed or converted the public funds in
question for her own personal use or benefit.9
With petitioner’s admission of the fact of cash shortage,
the prosecution then rested its case.10 For its part, the
defense, in its bid to overturn the presumption of
malversation and shatter the prima facie evidence of
conversion, offered the testimony of the following
witnesses: petitioner Elvira Agullo; Rene Briones
Austero, Cashier III of the Department of Public Works
and Highways (DPWH), Region VIII; and Engracia
Camposano-Camaoy, Barangay Captain of
Hinabuyan, Dagame, Leyte.
During trial, the defense offered to present the
testimony of witness Austero for the purpose of proving
that an amount equal to P26,722.0511 was withheld
from the salary and other compensation of petitioner
Agullo. Further, the defense offered the testimony of
witness Barangay Captain Camaoy for the purpose of
establishing that "the accused suffered a heart attack
(stroke) on October 22, 1985; that on June 30, 1986,
the accused informed her that the accused lost the
money for which she (was being) subjected to criminal
prosecution x x x; and that between October 22, 1985
and June 30, 1986, there had been no demand upon
the accused to produce the money for which she was
declared short."12
Additionally, the defense presented the following
documentary evidence,13 all of which were admitted by
the Sandiganbayan:
"Exhibit ‘1’ – Letter dated 25 August 1986 by
accused to the Resident Auditor MPWH,
Regional Office No. 8, Candahug, Palo, Leyte;
"Exhibit ‘2’ – Letter dated 22 August 1987 by
accused to Engr. Alfredo P. Torres, Regional
Director;
"Exhibit ‘3’ – Medical Certificate dated 05
August 1986, issued by Dr. Juan T. Abando,
M.D., St. Paul’s Hospital, Tacloban City;
"Exhibit ‘3-A’ – Verified Medical Certificate
dated 19 January 1986, issued by Dr. Juan
Abando, notarized on page 02;
"Exhibit ‘4’ – Letter dated 26 December 1986
by accused to the Regional Director;
"Exhibit ‘5’ – Letter dated 19 February 1987 to
the Regional Director by Atty. Eric T. De Veyra;
"Exhibit ‘6’ – Letter dated 15 April 1987 by
accused to the Regional Director;
"Exhibit ‘7’ – Letter dated 01 September 1987
of Director Alfredo Torres of DPWH to the
Regional Director COA;
"Exhibit ‘8’ – Letter of Accused dated 26
November 1987;
"Exhibit ‘9’ – Affidavit of accused Elvira Agullo;
"Exhibit ‘10’ – Affidavit of witness Engracia
Camaoy;
"Exhibit ‘11’ – Letter-Request dated 04 May
1988 of accused to the Regional Director;
"Exhibit ‘12’ – Certification by Mauricio
Pacatang;
"Exhibit ‘13’ – Protest of accused against the
appointment of Sylvia de la Rosa;
"Exhibit ‘14’ – Letter dated 25 February 1987
to the Manager, Employees Compensation
Department, GSIS, Metro Manila;
"Exhibit ‘15’ – Initial Approval of the
Employees Compensation Department, GSIS;
"Exhibit ‘16’ – Hospitalization Claim for
payment of accused;
"Exhibit ‘17’ – Report of Injury signed and
approved by Pablo P. Burgos, Regional
Engineering Coordinator and Head of Office;
"Exhibit ‘18’ – Certification issued by PNB
Tacloban, thru its Asst. Manager B.L. Telmo;
"Exhibit ‘19’ – Memorandum to accused dated
02 April 1984;
"Exhibit ‘20’ – Memorandum dated 05 May
1990."
At the witness stand, petitioner Agullo unrelentingly
maintained her innocence and vehemently denied the
accusation against her. Thus, according to petitioner,
in the morning of 21 October 1985, she reported for
work and prepared an inventory of her cash
accountability14 as Disbursing Officer15 of the MPWH
Regional Office, Candahug, Palo, Leyte. On the same
day, petitioner received around thirteen (13) checks in
the form of cash advances in her name
totaling P26,076.87,16 which amount represented
salaries of MPWH officials and employees.
Around 1:30 PM, petitioner, together with Benjamin
Veridiano, driver of MPWH Finance and Management
Division, proceeded to the Philippine National Bank
(PNB) Tacloban City Branch, on board the MPWH
official vehicle, to encash the aforesaid checks. Upon
encashment of the checks, petitioner then put the
money inside a PNB envelope which she further placed
in her bag. From the PNB, petitioner-- who boarded the
official vehicle driven by Veridiano for the purpose of
proceeding further to the MPWH Regional Office—felt
dizziness, chest pain and nausea. As a result of her
condition, petitioner Agullo requested driver Veridiano
to drop her off at petitioner’s residence located at 109
Juan Luna Street-- about half a kilometer away from
the PNB.17
In the morning of the following day, 22 October 1985,
petitioner – upon realizing that it was then the third-
week payday of the month, and burdened with the
thought that she failed to give the salary of the
permanent employees – strove to report for work
despite her weak physical condition. Petitioner Agullo
testified that she left her residence alone and brought
with her the bag containing the money which she
encashed the previous day from the PNB.18
Upon leaving the house with the money inside her bag,
she walked the stretch of Juan Luna Street and was
able to reach almost the corner of Juan Luna and
Imelda Avenue19 a distance of around 50 meters away
from her residence20 when she was stricken with deep
chest pain21 and experienced dizziness; her vision
blurred and "the right part of (her) body (became)
heavy" to the point that she "could not move anymore."
At this point, she collapsed and lost consciousness.22
In the afternoon of the same day, she found herself in
a hospital bed of St. Paul’s Hospital located about a
block away from petitioner’s residence. Upon inquiry,
she was informed that a certain Metro Tacloban Aide
by the name of Teresa Lorenzo came to her rescue
when she fainted, assisted in rushing her to the
hospital, and informed her family about Agullo’s dire
condition and the unfortunate event that befell
her.23 Petitioner was confined in St. Paul’s Hospital for
over a week – from 22 October 1985 to 01 November
198524 - under the care of her attending physician, Dr.
Juan Abando, who issued the corresponding Medical
Certificate pregnant with the following findings:
 "X X X Hypertension complicated with Cerebro
Vascular Accident (CVA), Rt. Hemiparesis and
Urinary Infection.
"Condition started apparently 20 hrs. before
admission as moderate headache and
dizziness, associated with blurring of vision and
nausea. Fifteen hrs. prior to admission, she felt
weakness of her right half of her body and
slurring of speech. Had history of high blood
pressure taken last April 1985. B/P= 190/120.
On admission B/P= was 230/120; PR= 83/min.;
RR= 20/min.
"Pertinent findings: conscious, coherent,
slurred speech, rt. Hemiplegia.
"Diagnosis: = Malignant hypertension.
= CVA with Right Hemiplegia.
= Urinary Tract Infection."
As to petitioner’s medical history and physical condition
after her stroke, the Sandiganbayan, in its decision,
observed from the records:
"X X X In the past, the accused had likewise
suffered a stroke and had undergone medical
treatment. A medical certificate, marked as
Exhibits "3" and "3-A", attest(s) to the fact that
she had a history of high blood pressure and
had been undergoing treatment for the said
malady. Since her sudden breakdown on
October 22, 1985, the right part of her body
became paralyzed and her speech has been
impaired. She was advised by her doctor to
undergo physical therapy and to take medicine
regularly. She was advised not to report for
work during such time that she was under
recuperation. Only on February 2, 1986 did she
start to report for work, although at irregular
intervals, until the date of the audit, July 14,
1986."
Striking down the defense as "incredible and without
basis," the Sandiganbayan rendered its assailed
decision, convicting petitioner Agullo of the crime of
malversation of public funds, ratiocinating principally
that "no evidence has been presented linking the
loss of the government funds with the alleged
sudden heart attack of the accused (herein
petitioner)."
We do not agree.
By and large, the pieces of evidence presented against
petitioner in this case do not fulfill the test of moral
certainty and may not be deemed sufficient to support
a conviction.25 Records reveal that evidence for the
prosecution consisted solely of the Report of Cash
Examination,26 dated 14 July 1986, which was
presented by the prosecution to prove the cash
shortage in the amount of P26,404.26, on petitioner
Agullo’s accountability as Disbursing Officer of the then
MPWH. Likewise, the prosecution presented
the Letter of Demand27 dated 14 July 1986 signed by
Auditing Examiner III Ignacio Gerez.
Aside from the aforementioned documents,
the prosecution opted not to present a single
witness to buttress its bid for conviction and relied
merely on the prima facie evidence of
conversion or presumption of malversationunder
Article 217, paragraph (4) of the Revised Penal Code,
to wit:
"ART. 217. Malversation of public funds or
property—Presumption of malversation—
X X X "The failure of a public officer to have
duly forthcoming any public funds or property
with which he is chargeable, upon demand by
any duly authorized officer, shall be prima
facie evidence that he has put such missing
funds or property to personal uses."
Stated otherwise, the evidence for the prosecution,
upon which the Sandiganbayan riveted its judgment of
conviction, was limited to documents to wit, the Report
of Cash Examination and Letter of Demand. As could
be readily gleaned from the assailed decision, the
verdict adjudging herein petitioner guilty of the crime of
malversation was anchored solely on the presumption
provided under Article 217, paragraph 4 of the Revised
Penal Code, which prima facie evidence, in turn, was
rooted loosely on the documentary evidence presented
by the prosecution, to wit; the Report of Cash
Examination and Letter of Demand—pieces of
evidence which the defense concededly admitted, but
which, to our mind, do not suffice to convict the
petitioner beyond reasonable doubt of the crime
charged.
Thus, in a string of categorical pronouncements, this
Court has consistently and emphatically ruled that
the presumption of conversion incarnated in Article
217, paragraph (4) of the Revised Penal Code is — by
its very nature — rebuttable. To put it differently, the
presumption under the law is not conclusive
but disputable by satisfactory evidence to the effect
that the accused did not utilize the public funds or
property for his personal use, gain or benefit.
Accordingly, if the accused is able to present adequate
evidence that can nullify any likelihood that he had
put the funds or property to personal use, then that
presumption would be at an end and the prima
facie case is effectively negated. This Court has
repeatedly said that when the absence of funds is not
due to the personal use thereof by the accused, the
presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all.28
Applying the foregoing principle, the prosecution in the
instant case upon whose burden, as in Diaz vs.
Sandiganbayan,29 was laden the task of establishing
by proof beyond reasonable doubt that petitioner had
committed the offense charged, mainly relied on the
statutory presumption aforesaid and failed to present
any substantial piece of evidence to indicate that
petitioner had used the funds for personal gain.
Worth noting is that the Sandiganbayan, in its
impugned decision, admitted that "conversion or the
placing of malversed government funds to
personal uses has, indeed, not been proven in the
case at bar.30" Perhapsrealizing such gaping hole, the
Sandiganbayan nonetheless leaped into the
conclusion, albeit erroneous, that herein petitioner was
just the same guilty of malversation invoking the prima
facie evidence stated in Article 217, paragraph (4) of
the Revised Penal Code.
On this score, the rule of general application is that the
factual findings of the Sandiganbayan are conclusive
on this court. However, such rule admits of settled
exceptions, among others: (1) the conclusion is a
finding grounded entirely on speculation, surmise and
conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; and
(5) the findings of fact of the Sandiganbayan are
premised on a want of evidence and are contradicted
by evidence on record.31
On this matter, the Sandiganbayan’s conclusion that
"there is no evidence to show that the accused was
then carrying the sum of P26,404.26 in her person
when she allegedly collapsed at Juan Luna Street,
Tacloban City," is to say the least, without factual basis
and not duly supported by evidence. On the stark
contrary, the records are extant, as petitioner Agullo, in
fact, testified on the witness stand that she had the
money with her when she suffered a stroke and
collapsed on the streets of Tacloban City on 22
October 1985. Records likewise reveal that the amount
of P327.39, which is the difference between
P26,404.2632 and P26,076.87,33 represents the salary
of Mr. Alcober, Jr., Administrative Officer of the DPWH
in Candahug, who made a telephone call to petitioner
for the latter to bring the sum of P327.39, together with
the payroll.
In the case before us, the Sandiganbayan undoubtedly
disregarded or overlooked certain evidence of
substance which, to a large extent, bear considerable
weight in the adjudication of petitioner’s guilt or the
affirmation of her constitutional right to be presumed
innocent until proven otherwise.
Upon thorough scrutiny of the evidence adduced by
both prosecution and defense, we hold that petitioner
Agullo has satisfactorily overcome and rebutted by
competent proof, the prima facie evidence of
conversion so as to exonerate her from the charge of
malversation. To this end, petitioner presented
evidence that satisfactorily prove that not a single
centavo of the missing funds was used for her own
personal benefit or gain.
True enough, the evidence adduced by the defense
reveals sufficient circumstances to establish the
strongest degree of probability that the public funds
subject of the criminal indictment for malversation was
lost during that fateful day of 22 October 1985, where
petitioner Agullo suffered a stroke on the streets of
Tacloban City as she was then on her way to the
MPWH Regional Office.
In fact, the records though insensate, clearly reveal that
the prosecution admitted that petitioner suffered a
stroke on the streets of Tacloban on 22 October 1985.
As to the prosecution’s allegation that no evidence
exists regarding loss of the public funds, this
postulation is belied by the records as petitioner herself
testified on the stand that she had the money subject
of inquiry when she collapsed and lost consciousness
as a result of the stroke.
To us, this circumstance – coupled with the other
peculiarities attendant in the instant case and further
considering the palpable failure of the prosecution to
adduce other evidence to clearly
establish conversion – "suffice to make the mind
uneasy as to Agullo’s guilt, notwithstanding the prima
facie evidence established by law against herein
petitioner, which by no means dispenses with the need
of proving guilt beyond reasonable doubt." 34 After all,
mere absence of funds is not sufficient proof of
conversion. Neither is the mere failure of the accused
to turn over the funds at any given time sufficient to
make even a prima facie case. Conversion must be
affirmatively proved, either by direct evidence or by the
production of facts from which conversion necessarily
follows.35
Truly, these serve as strong considerations that
seriously impair the basis upon which is founded the
legal presumption of personal misappropriation of
money or property of accountable officers who fail to
have forthcoming, such money or property when so
demanded by a duly authorized official. 36 Verily, a
finding of prima facie evidence of accountability does
not shatter the presumptive innocence the accused
enjoys because, before prima facieevidence arises,
"certain facts [have still to be] proved"; the trial court
cannot depend alone on such an evidence, because
precisely, it is merely prima facie. It must still satisfy
that the accused is guilty—beyond reasonable doubt—
of the offense charged. Neither can it rely on the weak
defense the latter may adduce.37
Notably, the Sandiganbayan, in convicting petitioner,
obviously relied more on the flaws and deficiencies in
the evidence presented by the defense, not on the
strength and merit of the prosecution’s evidence.38 This
course of action is impermissible for the evidence of the
prosecution clearly cannot sustain a conviction "in an
unprejudiced mind."39
All told, this Court, through the scholarly ponencia of
Mr. Justice Isagani Cruz in People vs. De
Guzman,40 inked in vivid prose the premium accorded
to the right of an accused to be presumed innocent until
the contrary is proved, to wit:
"The constitutional presumption of innocence is
not an empty platitude meant only to embellish
the Bill of Rights. Its purpose is to balance the
scales in what would otherwise be an uneven
contest between the lone individual pitted
against the People of the Philippines and all the
resources at their command. Its inexorable
mandate is that, for all the authority and
influence of the prosecution, the accused must
be acquitted and set free if his guilt cannot be
proved beyond the whisper of doubt."
Hence, in light of the satisfactory explanation proffered
by the defense and in view of the impotency of the
prosecution’s evidence, petitioner’s constitutional right
to be presumed innocent necessarily thrives.
Corollarily, the prima facie evidence of conversion in
the instant case, withers, so to speak, like a petrified
twig wilted in the scorching heat of the noonday sun.
WHEREFORE, premises considered, the instant
petition is granted. ACCORDINGLY, the decision of
respondent Sandiganbayan dated 16 March 1992 and
its Resolution dated 18 March 1998, are
hereby REVERSED and SETASIDE. Petitioner Elvira
Agullo is hereby ACQUITTED on grounds of
reasonable doubt.
MOREOVER, the DPWH is hereby directed to refund
petitioner the sum of Three Hundred Seventeen Pesos
and Seventy Nine Centavos (P317.79) representing
the amount overdeducted from petitioner’s salary, cost
of living allowance and other emoluments. 1âwphi1. nêt
SO ORDERED.
Bellosillo, Mendoza, De Leon, JJ., concur.
Quisumbing, J., on official business.
Footnotes
39
Section 2, Rule 133, Rules of
Court provides, "Proof beyond reasonable
doubt. – In a criminal case, the accused is
entitled to an acquittal, unless his guilt is shown
beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a
degree of proof as, excluding possibility of
error, produces absolute certainty. Moral
certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind."
(9) G.R. No. 121099 February 17, 1999
FIDEL T. SALAMERA, petitioner,
vs.
SANDIGANBAYAN, FIRST DIVISION, respondent.
PARDO, J.:
The case is an appeal via certiorari taken by petitioner
from a decision of the Sandiganbayan and its
resolution convicting him of malversation of public
property defined and penalized in Article 217 in relation
to Article 217 of the Revised Penal Code, and
appreciating the mitigating circumstance of full
restitution, imposing upon him the indeterminate
sentence of two (2) years four (4) months and one (1)
day of prision correccional, as maximum; to six (6)
years and one (1) day of prision mayor, as maximum;
the penalty of perpetual special disqualification, and a
fine of P5,000.00, the value of the .38 Cal. Smith &
Wesson revolver, with Serial No. 879886.
We reverse.
The facts may be related as follows:
On February 2, 1988, petitioner was elected to and
assumed the position of mayor of the municipality of
Casiguran, province of Aurora.
Later that month, he received from Casiguran
Barangay Captain 1 Antonio Benavidez one .38 Caliber
Smith & Wesson Revolver, with Serial No. 879886. The
gun was owned by and licensed to Ponciano
Benavidez, an uncle of Antonio, who mortgaged it to
him. Petitioner placed the gun in an attache case.
After about a week, petitioner together with his security
men, went to Manila, and brought with them the attache
case with the gun in it. On their return to the province,
their car was stopped at a spot checkpoint in Quezon
City, where Pat. Alfredo B. Villanueva of the Quezon
City Police saw the revolver. On petitioner's instruction,
his security men surrendered the gun to police officer
Villanueva.
Back in the municipality of Casiguran, Ponciano
Benavidez, the licensed owner of the gun claimed it
from petitioner. The latter informed Ponciano that the
gun was confiscated by the Quezon City Police.
On September 30, 1988, Ponciano Benavidez filed
with the office of the Provincial Prosecutor of Aurora a
complaint for theft against petitioner and Antonio
Benavidez.
On December 13, 1988, Ponciano Benavidez filed with
the Department of Local Government, an
administrative complaint against petitioner for abuse of
authority, ignorance of the law and conduct
unbecoming of a public servant.
On January 20, 1989, the Provincial Prosecutor of
Aurora dismissed the case for theft.
On April 6, 1989, complainant Ponciano Benavidez
filed a complaint for theft against petitioner with the
Office of the Ombudsman in Manila.
On August 21, 1990, during the investigation of the
administrative case by the Sangguniang Panlalawigan
of Aurora, complainant Ponciano Benavidez executed
an affidavit of desistance acknowledging that petitioner
had paid the value of the gun, and withdrawing the
administrative case and the criminal case he filed
against petitioner with the Ombudsman.
On August 22, 1990, the Sangguniang Panlalawigan
approved a resolution dismissing the administrative
case against petitioner.
On March 9, 1992, the Ombudsman approved the filing
by Special Prosecution Officer Prospero G. Pelayo of
an information against petitioner for malversation of
public funds, which was duly filed on March 12, 1992,
with the Sandiganbayan, Manila.
On March 30, 1992, the Sandiganbayan issued a
warrant of arrest. On March 30, 1992, petitioner posted
a cash bail of P20,000.00, which he deposited with the
provincial treasurer of Aurora, duly approved by
Regional Trial Court Judge Filemon N. Tan of Baler,
Aurora. 2
Upon arraignment on June 1, 1992, before the
Sandiganbayan, First Division, petitioner entered a
plea of not guilty, and accordingly, the court scheduled
the case for pre-trial conference.
Meantime, on or about August 14, 1992, petitioner was Poncia
able to contact Pat. Villanueva in Camp Karingal, no
Quezon City. The latter said that he returned the gun Benavi
to Patrolman Orgas, one of petitioner's security men on dez,
the very next day after he had confiscated it. the
Unfortunately, Pat. Orgas did not inform petitioner value of
about the recovery of the gun, and, at the time which
Villanueva so informed petitioner, Pat. Orgas had died. the
parties
At the pre-trial conference held on August 28, 1992, the have
prosecution and the accused (petitioner herein) not
assisted by counsel de parte, entered into a stipulation agreed
of facts signed by them, as follows: upon;

1. At all 4. That
times the
relevan accuse
t to this d
case, confisc
the ated
accuse this
d was weapo
the n in the
Mayor perform
of the ance of
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ality of official
Casigur functio
an, ns and
Aurora; was,
therefor
2. That e, in
in the custody
exercis thereof
e of his in his
functio capacit
ns as y as
Mayor, such;
the
accuse 5. That
d had deman
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n to from
confisc the
ate one accuse
.38 d by
caliber Poncia
Smith & no
Wesso Benavi
n dez
revolve someti
r with me in
Serial June of
No. 1988 to
879886 produc
from e the
Barang above-
ay mentio
Captain ned
Antonio firearm
Benavi but the
dez; accuse
d failed
3. This to do
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n was
actually 6. That
owned at a
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time, l
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Poncia i
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went to i
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of the e
Quezo s
n City s
Police P
Depart o
ment in n
search c
of this i
weapo a
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7. That B
there e
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been a
restituti v
on of i
the d
value of e
the z
firearm i
by the n
accuse d
d to the i
complai c
ning a
witness t
Poncia i
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Benavi g
dez h
althoug i
h there s
is d
disagre e
ement s
as to i
the s
amount t
of the a
restituti n
on; c
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8. That f
the r
followin o
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affidavit f
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 e Exhibit "1" — The Order of the Fiscal
d dated January 20, 1989, dismissing the
l charge of Theft, which is Annex "1" to
y the Supplemental Affidavit;
c
o Exhibit "2" — The administrative
n complaint filed by the complaining
f witness dated December 13, 1988,
i which is Annex "2" to the Supplemental
s Affidavit;
c
a Exhibit "3" — The Complaint for the
t filing of the case before the
e Ombudsman on April 6, 1989, which is
d Annex "3" to the Supplemental
t Affidavit;
h
e
Exhibit "4" — The investigation before
w
the Sangguniang Panlalawigan dated
e
August 21, 1990 at Baler, Aurora,
a
wherein the owner of the gun submitted
p
his affidavit of desistance and admitting
o
therein that he was paid for the loss of
n
the gun, which is Annex "4" to the
i
Supplemental Affidavit;
n
q
u Exhibit "5" — the Affidavit of
e Desistance executed by the owner of
s the gun dated August 21, 1990, marked
t as Annex "5" to the Supplemental
i Affidavit, wherein the owner of the gun
o admitted that he verified the loss of the
n gun to be true and also admitted that
f the equivalent amount in cash and in
r kind for the .38 caliber revolver was
o paid to him, for which he promised to
m dismiss the criminal case and the
t administrative case.
h
e Exhibit "6" — the Minutes of the
a Sanggunian Panlalawigan of Aurora
c dated August 22, 1990, which decided
c to dismiss the administrative case,
u which is marked as Annex "6" to the
s Supplemental Affidavit;
e
d Exhibit "7" — the Resolution of the
M Investigating Fiscal for the
a Ombudsman dated February 24, 1992,
y which is marked as Annex "7" to the
o Supplemental Affidavit;
r
. Exhibit "8" — the Resolution of the
Ombudsman, which is marked as
Further to the above stipulations, the Government now Annex "8" to the Supplemental
marks the following exhibit which is admitted by the Affidavit;
accused:
Exhibit "9" — a copy of the Order of
Exhibit "A" — a xerox copy of the Arrest issued by the Sandiganbayan,
License to Carry Firearm No. 0188490, marked as Annex "9" to the
issued by Necesitas Katigbak of the Supplemental Affidavit;
Firearm and Explosives Unit, to
Ponciano Benavidez involving .38 Exhibit "10" — the payment of the Bond
caliber Smith & Wesson revolver with for the provisional release of the
SN 879886. accused, marked as Annex "10" to the
Supplemental Affidavit;
The accused for his part has marked
the following exhibits: Exhibit "11" — the Joint Affidavit of the
Chairman of the Sangguniang
 Panlalawigan and a certain Angelito
Salamera stating that they were
present when payment was made for
the gun to the owner, which is marked
as Annex "11" to the Supplemental
Affidavit;
Exhibit "12" — the Affidavit executed by
Alfonso Villanueva dated August 14,
1992, wherein he admitted that he had
confiscated the gun at a checkpoint in
Quezon City, which is marked as
Annex "12" to the Supplemental
Affidavit;
Exhibit "13" — the Affidavit executed by
Antonio Benavidez dated July 30,
1989, which is marked as Annex "13"
to the Supplemental Affidavit.
On June 30, 1993, the prosecution formally presented
as its evidence Exhibit "A" 3 and upon the admission
thereof, rested its case.
On the other hand, the defense presented two (2)
witnesses including petitioner.
After the testimony of the witnesses on July 21, 1993,
the court gave the defense counsel ten (10) days to
formally offer his evidence in writing. In time, the
defense formally offered its exhibits, and on Septepber
6, 1993, the court admitted all exhibits except Exhibits
11 and 13, which were rejected for being hearsay.
On February 17, 1995, more than a year after the case
was submitted for decision, the Sandiganbayan
promulgated its decision, the decretal portion of which
narrated in the opening paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for
reconsideration of the decision; However, on July 5,
1995, the Sandiganbayan denied the motion.
Hence, this appeal.
On October 4, 1995, the Court required respondent to
file its comment on the petition. On January 4, 1996,
the Office of the Special Prosecutor filed its comment
on the petition for review. On January 30, 1996, the
Solicitor General also filed his comment.
We give due course to the petition.
To begin with, petitioner is charged with malversation
under Article 217 in relation to Article 222 of the
Revised Penal Code, providing as follows:
Art. 217. Malversation of public funds or property —
Presumption of malversation. — Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or
through abandonment or negligence, shall permit any
other person to take such public funds or property,
wholly or partially, or shall otherwise be guilty of the
misappropriation of malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in
its medium and maximum periods, if
the amount involved in the
misappropriation or malversation does
not exceed two hundred pesos.
2. The penalty of prision mayor in its
minimum and medium periods, if the
amount involved is more than 200
pesos but does not exceed 6,000
pesos.
3. The penalty of prision mayor in its
maximum period to reclusion
temporal in its minimum period, if the
amount involved is more than 6,000
pesos but is less than 12,000 pesos.
4. The penalty of reclusion temporal in
its medium and maximum periods, if
the amount involved is more than
12,000 pesos but is less than 22,000
pesos. If the amount exceeds the latter,
the penalty shall be reclusion
temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of
malversation shall also suffer the
penalty of perpetual special
disqualification and a fine equal to the
amount of the funds malversed or
equal to the total value of the property
embezzled.
The failure of a public officer to duly
forthcoming any public funds or
property with which he is chargeable,
upon demand by any duly authorized
officer, shall be prima facie evidence
that he has put such missing funds or
property to personal uses. (As
amended by Rep. Act No. 1060,
approved June 12, 1954).
Art. 222. Officers included in the
preceding provisions. — The
provisions of this chapter shall apply to
private individuals who, in any capacity
whatever, have charge of any insular,
provincial or municipal funds,
revenues, or property and to any
administrator or depository of funds or
property attached, seized or deposited
by public authority, even if such
property belongs to a private
individuals.
One essential element of the crime of malversation is
that a public officer must take public funds, money or
property, and misappropriate it to his own private use
or benefit. There must be asportation of public funds
money or property, akin to the taking of another's
property in theft. The funds money or property taken
must be public funds or private funds impressed with
public attributes or character for which the public officer
is accountable.
In this case, Antonio Benavidez voluntarily turned over
the gun, a .38 caliber Smith & Wesson revolver, to
petitioner mayor of the town of Casiguran, Aurora. permitt
Antonio surrendered the gun to the mayor. The gun ed, the
was duly licensed. It was not seized or confiscated. taking
Antonio obtained possession of the gun from Ponciano by
Benavidez, an uncle of his, who was the owner and another
licensee of the gun. Ponciano mortgaged it to Antonio. person
of, such
The elements of malversation, essential for the funds
conviction of an accused, under the above penal or
provisions are that — propert
y. 4
(a) the
offende The question may be asked: Did Antonio's surrender of
r is a the gun to petitioner mayor invest the gun with public
public character sufficient to consider the gun as public
officer; property for which the mayor is accountable? There
was no reason to surrender or confiscate the gun. It
(b) he was duly licensed to Ponciano Benavidez. The license
has the is not transferable. Antonio could not validly possess
custody the gun. He should have returned the gun to Ponciano,
or the licenced owner or surrendered it to the local police
control or to the Constabulary Provincial Commander. By
of turning over the gun to petitioner mayor, the gun did
funds not become public property because it was not
or intended for public use or purpose nor was it lawfully
propert sized. The gun continued to be private property, that is
y by why the gun owner rightfully asked for its return to him,
reason not to be turned over to the public coffer or treasury.
of the Petitioner's failure to return the gun after demand by
duties the private owner did not constitute a prima
of his facie evidence of malversation. The property was
office; private and the one who demanded its return was a
private person, not a person in authority. The
presumption of conversion will not apply.
(c) the
funds
or A respected author in Criminal Law wrote
propert "Malversation can only be committed by a public official
y who has charge of public funds or property by virtue of
involve his official position. A public official not responsible for
d are public funds or property and without authority to
public safeguard the same can not be convicted of
funds malversation." 5
or
propert What is more, the gun was confiscated by a police
y for officer at a checkpoint in Quezon City. The policeman
which should have turned over the confiscated gun to the
he is Constabulary Firearm and Explosive Unit, in Camp
accoun Crame, Quezon City. Instead, he returned the gun to a
table; security aide of petitioner mayor, as a "favor" to the
and mayor. The security aide died in the meantime, and,
apparently, the gun got lost. Assuming that the loss
(d) he was due to petitioner's fault or negligence, he is not
has criminally liable for malversation through negligence
appropr because there was no evidence of public funds or
iated, property to the use or benefit of the accused. The legal
taken presumption of malversation created by a demand for
or restitution of public funds or property is not applicable
misapp because the gun was private property and a public
ropriate officer entitled to its possession did not make the
d, or demand for its return.
has
consen The presumption takes the place of affirmative proofs
ted to, showing the actual conversation. It obviates the
or necessity of proving acts of conversation; a thing most
through extremely difficult to do. If in a particular case a
abando demand was made upon an accountable public official
nment to produce the funds in his custody and he failed to do
or so, the presumption thereby arising would render
neglige unnecessary further proof of conversation. The
nce disappearance of public funds in the hands of the
accountable public officer is prima facie evidence of its
conversation. Here, there is no presumption of
conversion nor evidence of actual conversion.
Nevertheless, petitioner made restitution of the value
of the value of the gun to the private owner, Ponciano
Benavidez. Obviously, petitioner did not malverse the
gun by dolo or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence
submitted to the court of the value of the gun to enable
the court to fix the penalty to be imposed on the
accused. Assuming that petitioner malversed the gun,
in malversation, the penalty for the offense is defendent
on the value of the public funds, money or property
malversed. In this case, the Sandiganbayan did not
base the penalty on the minimum value of the gun in
the absence of evidence of its true worth. It took judicial
notice of its market value and estimated its "reasonable
value" at P5,000.00. This is a grievous error.
The Sandiganbayan could not take judicial notice of the
value of the gun. It must be duly proved in evidence as
a fact. The court can not take judicial notice of a
disputed fact. The court may take judicial notice of
matters of public knowledge, or which are capable of
unquestionable demonstration, or ought to be known to
judges because of of their judicial functions. Otherwise,
the court must receive evidence of disputeds facts with
notice to the parties. This is an innovation introduced in
the Revised Rules of Evidence the Supreme Court
adopted on July 1, 1989, which should not be unknown
to the lower
courts. 9 The new rule of evidence governs this case,
since it was decided in 1995, six years after its
effectivity.
WHEREFORE, the Court hereby REVERSES the
appealed decision and resolution of the
Sandiganbayan in its Criminal Case No. 17563, and
ACQUITS the accused Fidel Salamera y Torres, with
costs de oficio.
The Court orders the Sandiganbayan to forthwith
cancel the cash bail of the accused, and immediately
reimburse the amount to him.
SO ORDERED.
Davide, Jr., C.J., Melo and Kapunan. JJ., concur.
(10) G.R. No. 129064 November 29, 2000
JUAN A. RUEDA, JR., petitioner,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
PARDO, J.:
The Case
The case is an appeal via certiorari from the decision
of the Sandiganbayan1 finding petitioner Juan A.
Rueda, Jr. guilty of malversation of public funds, and
sentencing him to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum,
to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal,as maximum, to pay a fine of
P107,299.02 with subsidiary imprisonment in case
of insolvency,2 and to suffer perpetual disqualification
from holding any public office, and to pay the costs, and
resolution3 denying reconsideration.
The Charge
On April 19, 1991, Special Prosecution Officer I
Gregorio G. Pimentel, Jr., Office of the Ombudsman
filed with the Sandiganbayan an information charging
petitioner Juan A. Rueda, Jr., with malversation of
public funds, defined and penalized under Article 217
of the Revised Penal Code, to wit:
"That on or about the period of February 8, 1989 to
September 20, 1989, in Tigaon, Camarines Sur,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer,
being then the Municipal Treasurer of Tigaon,
Camarines Sur, and as such was accountable for all
public funds collected and received by him by reason
of the duties of his office, taking advantage of his
official position and with grave abuse of confidence, did
then and there, willfully, unlawfully and feloniously
misappropriate, embezzle and convert to his own
personal use and benefit the total sum of P107,299.02,
Philippine Currency, to the damage and prejudice of
the Philippine government in the amount aforesaid." 4
Upon arraignment on November 29, 1991, petitioner
entered a plea of not guilty.5 Trial ensued.
The facts, as found by the Sandiganbayan, 6 are as
follows:
At times material hereto, petitioner Rueda was the
municipal treasurer of Tigaon, Camarines Sur. On
September 20, 1989, a team of state auditors, headed
by Amparo O. Albeus, conducted an audit examination
of the accountabilities of petitioner Rueda as municipal
treasurer of Tigaon, Camarines Sur, covering the
period February 8, 1989 to September 20, 1989. As a
result of the audit, it was assumed that petitioner had a
"cash shortage" of P107,299.02 (Exh. "A-2"). The
corresponding report of cash examination was
thereafter accomplished. When confronted therewith,
petitioner affixed his signature (Exh. "A-1") on the
certification on the dorsal portion of the report to the
effect that his accountability for the funds of the
municipal government of Tigaon, Camarines Sur was
correctly stated.
On October 3, 1989, the auditors sent a formal written
demand to petitioner Rueda, requiring him to
immediately produce the sum of P107,299.02,
representing the "shortage" on his accountabilities as
municipal treasurer of Tigaon, Camarines, Sur, and to
explain in writing within seventy-two (72) hours why the
shortage occurred (Exh. "B"). Notwithstanding receipt
of the letter (Exh. "B-1"), petitioner failed to have the
said amount forthcoming or to tender his written
explanation why the shortage occurred.
In his defense, petitioner Rueda disclaimed any
criminal liability on the ground that the assumed
"shortage" was the result of unliquidated cash
advances made by several municipal officials and the amount of P12,384.06 were all liquidated. The in-
employees of Tigaon, Camarines Sur, spanning the charge-of office of the municipal treasurer of Tigaon,
period covered by the audit as evidenced by various Camarines Sur issued eight official receipts, for various
"chits" or "vales" (Exhs. 11-15), and expenses of the amounts received from petitioner Rueda, to wit:
municipal government of Tigaon as evidenced by
several disbursement vouchers (Exhs. 16, 17, 18, 20,
1. Official Receipt No.
21, 25, 26, 27,28, 29 and 30). P65,000.00
0382089 dated 12/14/89 for
Petitioner Rueda declared that the municipal officials 2. Official Receipt No.
and employees took the cash advances from the cash 0129158 (O) dated 12/29/89 P618.56
collections of the municipal collectors before the cash for
collections, in the total amount of P41,234.71, were 3. Official Receipt No.
turned over to him as municipal treasurer. What they P6,000.00
0382090 (N) dated 1/08/90 for
turned over to him were the "chits" and "vales"
evidencing such cash advances. Although he never 4. Official Receipt No.
P12,000.00
tolerated the practice and had verbally warned the 0382091 (N) dated 1/08/90 for
municipal officials and employees from making those
5. Official Receipt No.
cash advances, they continued to do so.7 P15,000.00
0382095 (N) dated 4/02/90 for
Petitioner Rueda stressed that the cash advances were 6. Official Receipt No.
P3,000.00
made with the consent of the municipal mayor, and had 0382100 (N) dated 5/31/90 for
been the practice in the municipality of Tigaon long 7. Official Receipt No.
before he assumed office as municipal treasurer. He P666.40
4846890 (P) dated 7/09/90 for
would later on deduct the cash advances made from
their respective salaries in installment, and after they 8. Official Receipt No.
P5,014.06
were paid, he would turn over the amount to the office 4833595 (P) dated 7/11/90 for
of the municipal treasurer. With respect to the subject
"chits" and "vales", petitioner Rueda declared that after
Total P107,299.02
the same were paid, he turned over the amount to the
office of the municipal treasurer who then credited
those payments as "restitution" of the shortage on his
total cash accountability.8 Thus, the "debtors" A certification dated July 11, 1990, signed by Mr.
themselves liquidated the cash advances and Francisco N. Briguera, in-charge-of office of the
petitioner’s accountabilities had been fully restituted municipal treasurer of Tigaon, Camarines Sur, and
before the start of the preliminary investigation in the verified and found correct by Melanio C. Alarcon, state
office of the Ombudsman. auditing examiner (Exh. "9"), showed that petitioner
Rueda had fully restituted the cash shortage
A day before the state auditors from the Commission discovered during the cash examination. As such,
on Audit conducted an audit examination of his cash petitioner claimed innocence and therefore must be
accountabilities, the internal auditors from the acquitted.9
provincial treasurer’s office conducted a similar
examination. This group of internal auditors advised On March 19, 1996, the Sandiganbayan (Third
him not to bring the matter about "vales" or cash Division) promulgated its decision finding petitioner
advances to the COA audit team because they would Rueda guilty beyond reasonable doubt of malversation
only disallow them for lack of supporting documents. of public funds, defined and penalized under Article
This is the reason why he did not present the 217 (4) of the Revised Penal Code, the dispositive
disbursement vouchers in the course of the audit portion of which reads as follows:
conducted by the State Auditors on September 20,
1989. "WHEREFORE, judgment is hereby rendered, finding
the accused GUILTY beyond reasonable doubt, of the
After the audit of September 20, 1989, petitioner Rueda crime of Malversation of Public Funds, under
began completing the supporting documents of those paragraph 4 of Article 217 of the Revised Penal Code
disbursement vouchers. Upon completion of those and considering the mitigating circumstance of full
"vales" and "chits" as supporting documents, he restitution of the amount malversed, and applying the
submitted the same together with the disbursement Indeterminate Sentence Law, this Court hereby
vouchers to the in-charge-of office of the municipal sentences the accused to suffer an indeterminate
treasurer, who credited the amounts reflected on those penalty of imprisonment for a period of TEN (10)
disbursement vouchers as "restitution" of the shortage YEARS and ONE (1) DAY of prision mayor, as
on his total accountability. minimum, to SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY reclusion temporal, as
Consequently, petitioner Rueda stated that as of July maximum; to pay a fine of P107,299.02 with subsidiary
11, 1990, before the start of the preliminary imprisonment in case of insolvency, and to suffer
investigation in the Office of the Ombudsman, all his perpetual special disqualification from holding any
financial accountabilities had been fully restituted. The public office; and to pay the costs.
cash advances, in the form of "chits" and "vales"
amounting to P41,234.71, had been wholly paid or "SO ORDERED.
redeemed by their respective debtors. The
disbursement vouchers of P53,700.00 representing "Manila, Philippines, January 25, 1996." 10
various legitimate expenses of the municipality of
Tigaon, Camarines Sur and the collection deposits in
On March 29, 1996, petitioner filed with the
Sandiganbayan a motion for reconsideration of the
decision.11
However, on May 07, 1997, the Sandiganbayan found
the motion not meritorious and denied the same.12
The Appeal
Hence, this appeal.13
Issues
(1) Is petitioner liable for malversation of public
funds due to a "shortage" of P107,299.02
which consisted of "chits" and "vales"
evidencing cash advances from cash
collections of the municipal collectors before
these were turned over to petitioner municipal
treasurer as part of his accountability?
(2) Is he presumed to have put the "missing"
public funds to his personal use or allowed
others to take such funds when it is an admitted
fact that the cash advances were given by the
municipal collectors from their cash collections,
not from funds in the custody of petitioner?
Petitioner submits that the Sandiganbayan erred:
(1) In finding that the rulings in Villacorta v.
People, 145 SCRA 425 [1986] and Quizo v.
Sandiganbayan, 149 SCRA 108 [1987] do no
apply to the case at bar as they have been
reversed by the pronouncement in Meneses v.
Sandiganbayan, 232 SCRA 441 [1994] which
relied on the ruling in Cabello v.
Sandiganbayan, 197 SCRA 94 [1991];
(2) In rejecting petitioner’s submission that the
evidence must be appreciated under the
rulings in Villacorta and Quizo, as the events
occurred when the prevailing doctrines were
the rulings in Villacorta and Quizo;
(3) In not finding that he succeeded to
overthrow the prima facie evidence of
conversion/misappropriation under Article 217
of the Revised Penal Code;
(4) In rejecting petitioner’s explanation as
regards the disbursement vouchers and
collection deposits such that they do not make
out a criminal offense.14
Actually, the issues really boil down to whether or not
petitioner has incurred a "shortage" in his cash
accountability as municipal treasurer of the
municipality of Tigaon, Camarines Sur.
The Court’s Ruling
We sustain petitioner’s submissions primarily because
he did not take or misappropriate or through
abandonment or negligence, permit any other person
to take or malverse public funds or property in his
custody for which he is accountable. He did not put
public funds to his "personal use". He was able to
properly explain and account fully for his cash
accountability of public funds upon demand by the
auditors. The assumed "shortage" does not exist and
in any event has been restituted in full.
Generally, the factual findings of the Sandiganbayan
are conclusive on the Court. However, there are
established exceptions to that rule, such as, sans
preclusion, when (1) the conclusion is a finding
grounded entirely on speculation, surmise and
conjecture; (2) the inference made is manifestly an
error or founded on a mistake; (3) there is grave abuse
of discretion; (4) the judgment is based on
misapprehension of facts; and (5) the findings of fact
are premised on the absence of evidence and are
contradicted by evidence on record.15 In these
instances, this Court is bound to review the facts in
order to avoid a miscarriage of justice.16 The instant
case falls within such exceptions.
Considering the evidence on record, we find that the
Sandiganbayan convicted petitioner on probabilities
and conjecture, not on hard facts duly established.17 We
are thus justified to re-examine, as we do, the
evidence.
After an assiduous scrutiny, we find petitioner not guilty
of malversation of public finds. The Sandiganbayan
found that petitioner admitted his accountability and
failed to have duly forthcoming his cash shortage in the
amount of P107,299.02 with which he is chargeable,
and that he did not tender the required written
explanation as to why the shortage was incurred. His
failure to do so instantly created a prima
facie evidence pursuant to the last paragraph of Article
217 of the Revised Penal Code that he had put such
missing funds to personal use.
We disagree. Petitioner did not admit any shortage.
The mere fact that he signed the dorsal side of the
report of cash examination is not an admission of
"shortage". His signature was only evidence that
he received a copy of the report. Thus, it is incorrect
to say that petitioner admitted his shortage when he
signed the audit report prepared by the audit team.18 For
one thing, he was made to sign it right away; for
another, his signature only meant an acknowledgment
that a demand from him to produce all his cash, money
and paid vouchers had been made. It did not mean that
he admitted any shortage. In fact, subsequent events
showed that he had fully explained his accountability.
Thus, he satisfactorily explained the shortage.19 In other
words, there was no direct evidence or proof that he
put public funds to personal use.20 When absence of
funds was not due to personal use, the presumption is
completely destroyed.21 The taking or conversion of
public funds for personal use must be affirmatively
proved.22When there is no shortage, taking,
appropriation, conversion or loss, there is no
malversation.23
The crime of malversation of public funds is defined
and penalized as follows:
ART. 217. Malversation of public funds or property -
Presumption of malversation.- Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or
through abandonment or negligence, shall permit any
other person to take such public funds or property,
wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or
property, xxx."
xxx xxx xxx
"The failure of the public officer to have duly
forthcoming such public funds or property, upon
demand by a duly authorized officer, "shall be prima
facie evidence that he has put such missing funds or
property to personal use."24
The elements of malversation, essential for the
conviction of an accused, under the above penal
provision are that:
(a) the offender is a public officer;
(b) he has the custody or control of funds or
property by reason of the duties of his office;
(c) the funds or property involved are public
funds or property for which he is accountable;
and
(d) he has appropriated, taken or
misappropriated, or has consented to, or
through abandonment or negligence permitted,
the taking by another person of, such funds or
property.25
"The felony involves breach of public trust, and whether
it is committed through dolo or culpa the law makes it
punishable and prescribes a uniform penalty therefor.
Even when the information charges willful
malversation, conviction for malversation through
negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the
offense."26
"Concededly, the first three elements are present in
this case. It is the last element, i.e., whether or not
petitioner really has misappropriated public funds,
where the instant petition focuses itself. In convicting
petitioner, the Sandiganbayan cites the presumption in
Article 217 of the Revised Penal Code that the "failure
of a public officer to have duly forthcoming any public
funds with which he is chargeable, upon demand by
any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or
property to personal uses." The presumption is, of
course, rebuttable. Accordingly, if the accused is able
to present adequate evidence that can nullify any
likelihood that he had put the funds or property to
personal use, then that presumption would be at an
end and the prima facie case is effectively negated.
This Court has repeatedly said that when the absence
of funds is not due to the personal use thereof by the
accused, the presumption is completely destroyed; in
fact, the presumption is deemed never to have existed
at all."27
"The prosecution, upon whose burden was laden the
task of establishing by proof beyond reasonable doubt
that petitioner had committed the offense charged,
mainly relied on the statutory presumption aforesaid
and failed to present any substantial piece of evidence
to indicate that petitioner had used the funds for
personal gain. The evidence submitted, just to the
contrary, would point out that not a centavo of the so-
called "missing funds" was spent for personal use x x
x."28
In Salamera v. Sandiganbayan,29 we emphatically
declared that the 4th element requires "that a public
officer must take public funds, money or property, and
misappropriate it to his own private use or benefit.
There must be asportation of public funds or property,
akin to the taking of another’s property in theft. The
funds, money or property taken must be public funds
or private funds impressed with public attributes or
character for which the public officer is accountable."
We are convinced that the evidence in this case has
not proved beyond reasonable doubt that petitioner is
guilty of malversation of public funds.
We explain why. To begin with, there was no evidence
of cash "shortage." The letter of demand dated October
3, 1989 (Exh. "B-1") to petitioner for him to produce
immediately the "missing" funds in the total amount of
P107,299.02 and to submit within seventy-two hours
why the shortage occurred, states:
"x x x It was found that your cash was short of
P107,229.02.
"This shortage was arrived at as follows:
"Accountability:
Balance per audit as of Sept. 20, 1989
Certified correct by you.
General Fund P165,078.78
Infrastructure Fund 39,904.77
Special Education
Fund 28,398.29
Trust Fund 10,983.84
Balgu Fund 33,128.60 P277,494.28
Credit to accountability:
Cash and valid cash items produced
by you and counted by us P170,195.26
Shortage P107,229.02"30
The auditor’s finding of a "cash shortage" is definitely
wrong. In fact and under accounting principles, there is
no cash shortage. The cash and other valid cash items
were produced by petitioner and counted by the
auditors in the total amount of P170,195.26. The
amount is intact in cash. The assumed shortage of
P107,229.02 represented "vales", "chits" and
"disbursement vouchers" considered as part of the
general fund. This is an auditing error. It is a generally
accepted auditing principle that cash means "cash on
hand or in bank." Standard text in accounting defines
"Cash" as consisting of those items that serve as a
medium of exchange and provide a basis for
accounting measurement. To be reported as "cash," an
item must be readily available and not restricted for use
in the payment of current obligations. A general
guideline is whether an item is acceptable for deposit
at face value by a bank or other financial institution.
"Items that are classified as cash include coin and
currency on hand, and unrestricted funds available on
deposit in a bank, which are often called demand
deposits since they can be withdrawn upon demand.
Petty cash funds or change funds and negotiable
instruments, such as personal checks, travelers’
checks, cashiers’ checks, bank drafts, and money
orders are also items commonly reported as cash. The
total of these items plus undeposited coin and currency
is sometimes called cash on hand. Interest-bearing
accounts, or time deposits, also are usually classified
as cash, even though a bank legally can demand prior
notification before a withdrawal can be made. In
practice, banks generally do not exercise this legal
right.
"Deposits that are not immediately available due to
withdrawal or other restrictions require separate
classification as ‘restricted cash’ or ‘temporary
investments.’ They are not ‘cash’."31
In short, there was no shortage on petitioner’s cash
accountability. "Evidence of shortage is necessary
before there could be any taking, appropriation,
conversion, or loss of public funds that would
amount to malversation."32 The law requires that the
shortage must be clearly established as a fact that over
and above the funds found by the auditors in the actual
possession of the accountable officers, there is an
additional amount which could not be produced or
accounted for at the time of audit.
In this case, there was absolutely no shortage as to
petitioner’s cash accountability. The auditors
mistakenly included as cash items collectibles in the
form of "vales" and "chits" and "disbursement
vouchers" for legitimate expenses of the municipality.
An accountable officer under Article 217 of the
Revised Penal Code must receive money or property
of the government which he is bound to account
for. It is the nature of the duties of, not the
nomenclature used for, or the relative significance of
the title to, the position, which controls in that
determination.33
Based on this definition, to be held accountable the
public officer must receive the money or property,
and later fails to account for it. When a public officer
is asked to account for the cash in his accountability,
this necessarily means that he has to produce the cash
in bills and coins and other cash items that he received.
It does not include collectibles and receivables or even
promissory notes.
Petitioner Rueda did not receive the money (cash),
which he was supposed to produce or account for at
the time of the audit.34 In fact, the audit team found that
sum of P170,195.26 intact in bills and notes.
Nonetheless, the auditors declared a "shortage"
because petitioner Rueda could not produce as cash
items the collectibles and receivables in the form of
"chits and vales" and disbursement vouchers for
legitimate expenses of the municipality. This is an
auditing error because the collectibles and receivables
are not cash items. The money did not reach the hands
of petitioner. Therefore, it is not part of his cash
accountability.
The amount of P107,299.02, was divided as follows:
(1) P41,234.71 representing the "chits and vales" taken
by the municipal officials and employees from the
municipal collections prior to the remittance of these
cash collections to petitioner; (2) P53,700.00
representing the legitimate expenses of the
municipality subject to liquidation; and (3) P12,384.06
unsettled cash collections.
With regard to the P41,234.71 cash advances,
petitioner did not receive the cash nor gave the cash
advances for they were taken from the cash collections
of the municipal collectors before the cash collections
were turned over to him.
"Q: The cash collections of the municipal collectors
from which the chits and vales, from which the amount
represented by the chits and vales are made by the
municipal employees and officials, from the amount
covered by those chits and vales were already turned
over to you or not yet, when the chits and vales were
made?
"A: They were not yet turned over to me, sir. The
employees have their cash advances from the
municipal collectors before their cash collections were
turned over to me. So, I got only the chits or vales; the
cash was not yet turned over to me."35
Clearly, petitioner Rueda did not receive the above-
mentioned amount at the time of the audit. 36 In fact, no
cash was ever given or turned over to petitioner. At any
rate, the respective debtors, not the petitioner, wholly
redeemed the cash advances and "vales" amounting
to P41,234.71, to wit:37
"Q: Where are now those chits and/or vales covering
those cash advances?
A: Those chits and vales were redeemed by the
employees and then, some of them were redeemed by
the employees and then, as I accumulated the amount,
I turned it over, the cash, I turned it over to the In-
Charge of Office and then, issued an official receipt for
the amount and credited against my shortage as
restitution.38
As heretofore stated, in Salamera vs.
Sandiganbayan,39 we ruled that one essential element
of malversation is that a public officer must take public
funds, money or property, and misappropriate it to his
own private use or benefit. There must be asportation
of public funds or property, akin to the taking of
another’s property in theft. Hence, how can there be
taking or misappropriation when the funds did not even
reach the hands or custody of petitioner Rueda?
As regards the amount of P P53,700.00, these referred
to legitimate expenses of the municipality. At the time
1âwphi 1
of the audit, petitioner failed to present the vouchers for
these legitimate expenses because they lacked
documents in support of the vouchers, to wit:
"Q: You mentioned about these vouchers. What are
these vouchers that you mentioned?
A: May I refer to my list, Your Honor.
AJ DEL ROSARIO:
The witness may refresh his memory.
"WITNESS: These vouchers, there are 11 of them,
from the Will Print, one voucher from the printing realty
taxes, tax declaration, I mean; and, another two
vouchers from the same Will Print, for printing also the
Real Tax Declaration; third voucher is from Angel
Bongulto, cash advance for Manila to get the law books
and references from the Supreme Court for the RTC,
Branch 30, at Tigaon, Cam. Sur; one voucher is for
Kagawad Redito Clariño, cash advance for seminar
workshop for the municipal kagawad at Los Baños,
Laguna; another voucher is for Orlando Asiado, cash
advance for supporting the athletic uniform of the
municipal team for the Summer Basketball
Tournament; next voucher is for Hector Bongat, cash
advance for constructing 50 pieces market stalls, and,
next is Leo Cea, a cash advance for the summer
basketball tournament referees; next voucher is for
Mayor Eleonor Lelis, cash advance in going to Manila,
with the INP Station Commander and 3 Patrolmen to
get our Fire truck for the municipality; next voucher is
for Leonida Peñaflor, a cash advance for the terminal
leave of her deceased husband, my assistant
municipal treasurer, Domingo Peñaflor; next voucher is
for Arturo Pascua, cash advance for delivering sand
and gravel for the cementing of a municipal street and
the last is for Iñigo Zape, cash advance for COLA.
These were the unsubmitted vouchers, sir.
Q: You said, you did not present these vouchers during
the audit by the COA team because these lack
supporting documents and you were advised by the
internal audit team not to present them anymore
because there will be, for sure, is lacking. [sic] Can you
still recall what supporting documents were lacking to
these vouchers, for which reason you did not present
them, if you can still recall the supporting documents
lacking?
A: Some of them lacks the canvass paper; some of
them were partially paid but also lacking supporting
papers, sir."40
After the audit, petitioner prepared the supporting
documents that these vouchers lacked and turned
them over to the in-charge-of office who replaced him,
Mr. Francisco Briguera.41
Petitioner satisfactorily explained the unsettled cash
collection deposits in the amount of P12,384.06. This
amount represented the cash collections of the market
collectors, which had been turned over to the invoicing
officer of the treasury, Mrs. Delicias Galvante. During
the audit examination, this amount had been reflected
as unaccounted because it lacked some requirements,
such as the labor payroll. It was only after the audit
examination that the invoicing officer turned over the
labor payroll corresponding to the amount of
P6,000.00. The remainder of the P12,384.06 was
given as cash advances in the form of "chits and vales,"
which had been taken from the collections, again, prior
to its remittance to petitioner.
Hence, petitioner satisfactorily explained the cash
"shortages" found in his accountability at the time of the
audit examination. No portion of his cash accountability
has been malversed by him or put to his personal use. 42
In Meneses vs. Sandiganbayan,43 the Court reiterated
an earlier ruling in Cabello v. Sandiganbayan,44 that the
practice of disbursing public funds under the "vale"
system is not a meritorious defense in malversation
cases. The grant of loans through the "vale" system is
a clear case of an accountable officer consenting to the
improper or unauthorized use of public funds by other
persons, which is punishable by law. To tolerate such
a practice is to give a license to every disbursing officer
to conduct a lending operation with the use of public
funds.
However, the ruling in Cabello and Meneses cannot be
applied to the case at bar. The circumstances obtaining
in those cases are not present in the case at bar. An
important moiety in the instant case is that petitioner
did not grant the cash advances or "vales" to the
municipal officials. They took the cash advances from
the collections of the municipal collectors. However,
they restored or "liquidated" the amounts prior to the
conduct of preliminary investigation before the office of
the Ombudsman. The liquidation was done, not by
petitioner, but by the respective debtors. "Liquidation
simply means the settling of indebtedness." 45
"Liquidation does not necessarily signify payment, and
to liquidate an account, can mean to ascertain the
balance due, to whom it is due, and to whom it is
payable; hence, an account that has been liquidated
can also mean that the item has been made certain as
to what, and how much, is deemed to be owing."46
Neither can petitioner Rueda be considered guilty of
passive malversation. He did not tolerate the practice
of making cash advances by the municipal officials and
employees. He warned them about the illegality of such
practice. However, he was helpless about the situation
because it was done with the consent of the municipal
mayor. They were not indicted for malversation. Why?
The prosecution did not explain. The Sandiganbayan
did not even inquire. Instead of the cash collections
being remitted to petitioner, pieces of paper called
"chits or "vales" were given as evidence of the cash
advances. He never had the opportunity to disburse
public funds under the "vale" system, for in the first
place, the public funds were not turned over to him.
Consequently, the prima facie evidence that public
funds have been put to the personal use of petitioner
has been obliterated by the fact that he did not receive
the money as municipal treasurer.
In Zambrano v. Sandiganbayan,47we said that if the
accused did not receive the public funds, there was no
malversation. In Diaz vs. Sandiganbayan,48 we held
that when the absence of funds is not due to the
personal use thereof by the accused, the presumption
is completely destroyed; in fact, the presumption is
deemed never to have existed at all.
In malversation, it is necessary to prove that the
accused received public funds, and that he could not
account for them and did not have them in his
possession and that he could not give a reasonable
excuse for the disappearance of the same.49 In this
case, the prosecution failed to establish this important
element of malversation. In fact, it did not really exist.
Petitioner gave a reasonable and satisfactory
explanation of his cash accountability of public funds
that were duly liquidated. The Court must not reject
arbitrarily an explanation consistent with the
presumption of innocence.50
In Narciso v. Sandiganbayan,51 we said that where
"there is no evidence whatever that over and above the
funds found by the auditors in his actual possession,
Narciso had received the additional amount of
P14,500.00, which he could no longer produce or
account for at the time of the audit, there being no
shortage, there has been no taking, appropriation,
conversion, or loss of public funds; there is no
malversation." We could very well be speaking of the
case of petitioner Rueda.
In our criminal justice system, the overriding
consideration is not whether the court doubts the
innocence of the accused but whether it entertains a
reasonable doubt as to his guilt. This determinant, with
the constitutional presumption of innocence which can
be overthrown only by the strength of the prosecution’s
own evidence proving guilt beyond reasonable doubt,
irresistibly dictate an exoneration in this case.52
The evidence against petitioner is not enough to
engender moral certainty of his guilt. This moral
certainly is that which convinces and satisfies the
conscience of those who are to act upon it.53
Accordingly, the presumption of innocence which the
Constitution guarantees the petitioner has remained
untarnished in this case for want of proof to the
contrary. It is safely entrenched in our jurisprudence
that unless the prosecution discharges its burden to
prove the guilt of an accused beyond reasonable
doubt, the latter need not even offer evidence in his
behalf.54
The prosecution must overthrow the presumption of
innocence with proof of guilt of the accused beyond
reasonable doubt. The proof against him must survive
the test of reason; the strongest suspicion must not be
permitted to sway judgment.55 Even if the defense is
weak, the case against the accused must fail if the
prosecution is even weaker, for the conviction of the
accused must rest not on the weakness of the defense
but on the strength of the prosecution.56
In order to convict an accused, the circumstances of
the case must exclude all and each and every
hypothesis consistent with his innocence.57
In conclusion, we find that the guilt of the petitioner has
not been proved beyond reasonable doubt. The
petitioner must be acquitted. "Every accused is
presumed innocent until the contrary is proved; that
presumption is solemnly guaranteed by the Bill of
Rights. The contrary requires proof beyond reasonable
doubt, or that degree of proof, which produces
conviction in an unprejudiced mind. Short of this, it is
not only the right of the accused to be freed; it is even
the constitutional duty of the court to acquit him.58
The Fallo
WHEREFORE, the petition is GRANTED and the
decision of respondent SANDIGANBAYAN
promulgated on March 19, 1996 and the resolution
adopted on May 7, 1997 are REVERSED and SET
ASIDE. Petitioner JUAN A. RUEDA, JR. is hereby
ACQUITTED on reasonable doubt of the charge of
malversation of public funds, defined and penalized
under Article 217 (4) of the Revised Penal Code. His
bail bond is ordered cancelled.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Panganiban, Quisumbing, Buena,
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
De Leon, Jr., No part. Ponente of Sandiganbayan
decision.
Art. 220- Illegal Use of Public Funds
(1) G.R. No. 96025 May 15, 1991
OSCAR P. PARUNGAO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
Herminio Z. Canlas for petitioner.
GUTIERREZ, JR., J.:
May the Sandiganbayan, after finding that a municipal
treasurer charged with malversation of public funds is
not guilty thereof, nevertheless convict him, in the
same criminal case, for illegal use of public funds?
The petitioner, a former municipal treasurer of Porac,
Pampanga, was charged with malversation of public
funds allegedly committed as follows:
That on or about the month of September,
1980, or sometime subsequent thereto, in the
Municipality of Porac, Province of Pampanga,
Philippines, and within the jurisdiction of this
Honorable Court, OSCAR PARUNGAO,
Municipal Treasurer of Porac, Pampanga,
hence a public officer having been appointed
and qualified as such, having custody or control
of and accountable for the public funds
collected and received by him by reason of the
duties of his office, did then and there wilfully,
unlawfully, feloniously and with abuse of
confidence, take, appropriate and convert to
his own personal use and benefit the amount
of ONE HUNDRED EIGHTY-FIVE
THOUSAND TWO HUNDRED FIFTY PESOS
(P185,250.00), Philippine Currency, to the
damage and prejudice of the government in the
said amount. (Rollo, p. 26)
The petitioner entered a plea of not guilty. During the
pretrial conference, he admitted that on September 29,
1980, as municipal treasurer of Porac, Pampanga, he
received from the Ministry of Public Works and
Highways the amount of P185,250 known as the fund
for construction, rehabilitation, betterment and
improvement (CRBI) for the concreting of Barangay
Jalung Road located in Porac, Pampanga.
The prosecution presented six witnesses and tried to
establish that the petitioner misappropriated the fund
for his personal use because while the fund was
already completely exhausted, the concreting of
Barangay Jalung Road remained unfinished.
In his defense, the petitioner accounted for the
P185,250 fund as follows:
1. P126,095.59 was disbursed for materials delivered
by the contractor under Voucher Numbers 41-80-12-
440 and 41-80-12-441 for P86,582.50 and P39,513.09
respectively.
2. P59,154.41 was used to pay, upon the insistence of
the then Porac Mayor Ceferino Lumanlan, the labor
payrolls of the different barangays in the municipality.
After hearing, the respondent Sandiganbayan
rendered a decision acquitting the petitioner of the
crime of malversation of public funds but convicting him
of the crime of illegal use of public funds. The relevant
parts of the decision are set forth below:
The Certificate of Settlement (Exh. 5) issued to
the accused certified that his money, property
and accountable forms as Municipal Treasurer
of Porac, Pampanga for the period from
February 6,1980 to December 31, 1980, have
been audited and found correct. It was signed
by Auditor 1 Rolando A. Quibote and approved
by Provincial Auditor Jose C. de Guzman.
Being public officers with official duties to
perform in the exercise of the functions of their
office, the presumption is in favor of the lawful
exercise of their functions and the regular
performance of their duties. (Sec. 5, par. m,
Rule 131, Rules of Court). And quite apart from
that presumption of regularity in the
performance of official duty which necessarily
extends to the correctness of the said
certificate issued in the course of the discharge
of such duty, there exists no serious ground to
impugn the aforesaid document in the context
of the admission of prosecution witnesses
Homer Mercado and District Engineer
Lacsamana regarding the delivery of materials
and the grading thereof on the project site by
the contractor, the findings of investigating NBI
Agent Azares, that accused Parungao had
submitted disbursement vouchers and
supporting documents from the CRBI barangay
Jalung fund to the Provincial Auditor's Office
which were audited and found in order by
Auditor Quibote, and the acknowledgments of
Emerenciana Tiongco and auditing examiner
Jose Valencia that the disbursements of
P86,582.50 and P39,513.09 under vouchers
4180-12-440 and 4180-12-441 were duly
entered in accused Parungao's Treasurer's
Journal of Cash Disbursements and
Cashbook. The foregoing considerations, and
the presumption of innocence accorded to
every accused in a criminal prosecution, would
not allow a finding that the accused
appropriated the P185,250.00 fund for his
personal use and benefit.
But while the accused could be deemed to
have fully accounted for the amount in
question, the fact sticks out from the evidence
like a sore thumb that he allowed the use of part
of the funds for a purpose other than what it
was intended. The said amount of P185,250.00
was specifically allotted for the concreting of
the barangay Jalung road in Porac, Pampanga.
Instead of applying it fully to that particular
project, he gave P59,154.41 of it to the
municipal mayor of Porac to pay the labor
payrolls of the different barangays of the
municipality, resulting in the non-completion of
the project. He thereby violated the following
provision of Article 220 of the Revised Penal
Code. (Rollo, pp. 48-49)
The petitioner filed a motion for reconsideration which
was denied by the Sandiganbayan, hence this petition
for review. The petitioner raises the following issues:
I. RESPONDENT SANDIGANBAYAN
GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION
AND/OR IN EXCESS OF JURISDICTION IN
DENYING PETITIONER'S MOTION FOR
RECONSIDERATION AND IN AFFIRMING
ITS DECISION FINDING PETITIONER
GUILTY OF TECHNICAL MALVERSATION.
II. RESPONDENT SANDIGANBAYAN
GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION
AND/OR IN EXCESS OF JURISDICTION IN
NOT CONSIDERING IN FAVOR OF THE
PETITIONER DOCUMENTS WHICH ARE
MUTE BUT ELOQUENT PROOF OF HIS
INNOCENCE. (Rollo, p. 14)
The petitioner argues that he cannot be convicted of a
crime different and distinct from that charged in the
information.
The petitioner is correct. As recommended by the
Solicitor General in his manifestation, the Court grants
the petition.
The 1987 Constitution mandates that the accused, in
all criminal prosecutions, shall enjoy the right to be
informed of the nature and cause of accusation against
him. (Article III, Section 14 [21) From this fundamental
precept proceeds the rule that the accused may be
convicted only of the crime with which he is charged.
An exception to this rule, albeit constitutionally
permissible, is the rule on variance in Section 4, Rule
120 of the Rules on Criminal Procedure which
provides:
Sec. 4. Judgment in case of variance between
allegation and proof.— When there is variance
between the offense charged in the complaint
or information, and that proved or established
by the evidence, and the offense as charged is
included in or necessarily includes the offense
proved, the accused shall be convicted of the
 offense proved included in that which is
charged, or of the offense charged included in
that which is proved. (4a)
Section 5 of the same Rule indicates when an offense
includes or is included in another:
Sec. 5. When an offense includes or is included
in another.—An offense charged necessarily
includes that which is proved, when some of
the essential elements or ingredients of the
former, as this is alleged in the complaint or
information, constitute the latter. And an
offense charged is necessarily included in the
offense proved, when the essential ingredients
of the former constitute or form a part of those
constituting the latter. (5)
Is the decision of the Sandiganbayan convicting the
petitioner of the crime of illegal use of public funds
justified by the rule on variance? Does the crime of
malversation of public funds include the crime of illegal
use of public funds, or is the former included in the
latter?
To both questions, the Court answers in the negative.
As gleaned from the information, the petitioner, a public
officer, was accused of wilfully, unlawfully, feloniously
and with abuse of confidence, taking, appropriating or
converting to his own personal use, public funds for
which he was accountable. The alleged acts constitute
malversation of public funds punishable under Article
217 of the Revised Penal Code, which reads:
Art. 217. Malversation of public funds or
property.— Presumption of malversation.—
Any public officer who, by reason of the duties
of his office, is accountable for public funds or
property, shall appropriate the same, or shall
take or misappropriate or shall consent, or
through abandonment or negligence, shall
permit any other person to take such public
funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or
malversation of such funds or property, shall
suffer: . . .
The essential elements of this crime are:
(a) the offender is a public officer; (b) by reason of his
duties he is accountable for public funds and property;
and (c) he appropriates, takes, or misappropriates, or
permits other persons to take such public funds or
property, or otherwise is guilty of misappropriation or
malversation of such funds or property.
On the other hand, Article 220 of the Revised Penal
Code, for which the petitioner was convicted, reads:
Art. 220. Illegal use of public funds or property.
— Any public officer who shall apply any public
fund or property under his administration to any
public use other than that for which such fund
or property were appropriated by law or
ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine
ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication,
any damage or embarrassment shall have
resulted to the public service. In either case,
the offender shall also suffer the penalty of
temporary special disqualification.
The essential elements of this crime, more commonly
known as technical malversation, are:
(a) the offender is an accountable public officer; (b) he
applies public funds or property under his
administration to some public use; and (c) the public
use for which the public funds or property were applied
is different from the purpose for which they were
originally appropriated by law ordinance.
A comparison of the two articles reveals that their
elements are entirely distinct and different from the
other. In malversation of public funds, the offender
misappropriates public funds for his own personal use
or allows any other person to take such public funds for
the latter's personal use. In technical malversation, the
public officer applies public funds under his
administration not for his or another's personal use, but
to a public use other than that for which the fund was
appropriated by law or ordinance.
Technical malversation is, therefore, not included in nor
does it necessarily include the crime of malversation of
public funds charged in the information.
Since the acts constituting the crime of technical
malversation were not alleged in the information, and
since technical malversation does not include, or is not
included in the crime of malversation of public funds,
he cannot resultantly be convicted of technical
malversation.
The Sandiganbayan found that the petitioner had not
taken, appropriated nor converted the CRBI fund for his
personal use and benefit. It, however, was of the belief
that based on the evidence given during trial, the
petitioner was guilty of technical malversation. What
the respondent court should have done was to follow
the procedure laid down in Section 11, Rule 119 of the
Rules on Criminal Procedure.
Sec. 11. When mistake has been made in
charging the proper offense — When it
becomes manifest at any time before
judgment, that a mistake has been made in
charging the proper offense, and the accused
cannot be convicted of the offense charged, or
of any other offense necessarily included
therein, the accused shall not be discharged, if
there appears to be good cause to detain him.
In such case, the court shall commit the
accused to answer for the proper offense and
dismiss the original case upon the filing of the
proper information.(12a)
The Sandiganbayan therefore erred in not ordering the
filing of the proper information against the petitioner,
and in convicting him of technical malversation in the
original case for malversation of public funds.
Ordinarily, the Court's recourse would be to acquit the
petitioner of the crime of illegal use of public funds
without prejudice, but subject to the laws on
prescription, to the filing of a new information for such
offense.
Considering however that all the evidence given during
the trial in the malversation case is the same evidence
that will be presented and evaluated to determine his
guilt or innocence in the technical malversation case in
the event that one is filed and in order to spare the
petitioner from the rigors and harshness compounded
by another trial, not to mention the unnecessary burden
on our overloaded judicial system, the Court deems it
best to pass upon the issue of whether or not the
petitioner indeed is guilty of illegal use of public funds.
The petitioner alleged that the amount of P59,154.41,
which was actually intended for the concreting of the
Barangay Jalung Road, was used to defray the labor
payrolls of the different barangays of the municipality
of Porac and presented documents fully supporting the
disbursement. This allegation was not rebutted by the
prosecution.
The Sandiganbayan found him guilty of technical
malversation.
However, Article 220 of the Revised Penal Code
provides that for technical malversation to exist it is
necessary that public funds or properties had been
diverted to any public use other than that provided for
by law or ordinance.(Emphasis supplied. See Palma
Gil v. People of the Philippines, 177 SCRA 229 [1989])
The testimony of the prosecution witness Armando
Lacsamana, as summarized by the Sandiganbayan, is
as follows:
. . . The Province of Pampanga receives an
annual CRBI (Construction, Rehabilitation,
Betterment and Improvement) fund. In 1980,
Barangay Jalung, Porac, was one of the
recipients of the fund in the amount of
P185,250.00. CRBI funds are released to the
provincial treasurer and withdrawn by the
municipal treasurer of the municipality where a
project is to be implemented. With regard to the
CRBI fund for Barangay Jalung, their office,
through Engr. Anselmo Fajardo, conferred with
the barangay captain on what project the
barangay wanted to undertake. It was agreed
that the fund be utilizied for concreting the
barangay Jalung road. (TSN May 9, 1989, pp.
3-5). The project to be implemented having
been determined, their office prepared a
program of work (Exh. 1-10) which included the
following supporting documents:
1. Chart for an item of work (Exh. I-11);
2. Schedule of equipment (Exh. I-12)
3. Schedule of equipment and labor (Exhs. I-
13, I-14, I-15);
4. Working schedule for laborers and technical
men (Exh. I-16);
5. Schedule of materials (Exh. I-17);
6. Schedule of equipment (I-18);
7. Summary of the project (Exh. I-1 9). (TSN
May 9, 1989, pp. 6-7). (Rollo, pp. 38-39)
Lacsamana's testimony shows that the CRBI fund is a
general fund, and the utilization of this fund specifically
for the concreting of the Barangay Jalung Road was
merely an internal arrangement between the
Department of Public Works and Highways and the
barangay captain and was not particularly provided for
by law or ordinance. There is no dispute that the money
was spent for a public purpose—payment of the wages
of laborers working on various projects in the
municipality. It is pertinent to note the high priority
which laborers' wages enjoy as claims against the
employers' funds and resources. In the absence of a
law or ordinance appropriating the CRBI fund for the
concreting of the Barangay Jalung Road, the petitioner
cannot be declared guilty of the crime of illegal use of
public funds.
WHEREFORE, the petition is hereby GRANTED. The
decision of the Sandiganbayan is REVERSED. The
petitioner is ACQUITTED of the crime of illegal use of
public funds.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras,
Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino,
Medialdea, Regalado and Davide, Jr., JJ., concur.
Separate Opinions
FELICIANO, J., concurring and dissenting:
I concur in the result reached in this case, to the extent
that the Court is setting aside the decision of the public
respondent Sandiganbayan. I agree that the
Sandiganbayan cannot legally convict petitioner
Parungao for violation of Article 220 of the Revised
Penal Code, considering that the information filed in
this case was for violation of Article 217 of the Revised
Penal Code. It appears from an examination of the
elements of the offenses penalized respectively by
Articles 217 and 220 of the Revised Penal Code, that
malversation of public funds under Article 217 is not
necessarily included in, and does not necessarily
include, the illegal use of public funds under Article 220
of the same Code, and vice versa.
At the same time, I have great difficulty with the position
taken by Mr. Justice Gutierrez who, instead of setting
aside the Sandiganbayan decision without prejudice to
the filing of an information under Article 220 of the
Revised Penal Code, undertook to determine the
merits of the case as if such an information had in fact
been filed. As I understand it, the decision of the Court
acquits petitioner Parungao of the crime of illegal use
of public funds for the reason that there appears no law
or ordinance which dedicates the funds involved in this
case to "the concreting of the Barangay Jalung Road:"
Lacsamana's testimony shows that the CRBI
fund is a general fund, and the utilization of this
fund specifically for the concreting of the
Barangay Jalung Road is merely an internal
arrangement between the Department of
Public Works and highways and the Barangay
Captain and was not particularly provided for
 by law or ordinance. . . . In the absence of a law
or ordinance appropriating the CRBI fund for
the concreting of the Barangay Jalung Road,
the petitioner cannot be declared guilty of the
crime of illegal use of public fund.
If there was indeed no law or ordinance appropriating
the CRBI fund for the concreting of Barangay Jalung
Road, then it appears to me that there was here a
violation of the constitutional provision that "[n]o money
shall be paid out of the Treasury except in pursuance
of an appropriation made by law," (Article VI [29] [1],
1987 Constitution). If there were no appropriation by
law or ordinance stating (however generally) that
P185,250.00 of the CRBI funds shall or may be
devoted to the concreting of the Barangay Jalung
Road, then legally no part of the CRBI fund (and not
just P59,154.41 [out of the P185,250.00] which was
used to defray labor payrolls of different barangays for
different projects) could be disbursed for that particular
purpose.
I would suggest that the People of the Philippines be
given an opportunity, in a new prosecution under an
appropriate information for violation of Article 220 of the
Revised Penal Code, to prove that there was in fact
statutory authority for the disbursement of the CRBI
funds indicating, in terms which may be more or less
general in character, that such funds may be devoted
to the concreting of the Barangay Jalung Road. That
possibility appears to be foreclosed by the decision
here being reached by the Court.
Examination of our statute books shows that, prima
facie, there was a law appropriating the CRBI
funds (including the P185,250.00 here involved) for the
construction or improvement or repair of barangay
roads including the Barangay Jalung Road here
involved.
P.D. No. 702, promulgated on 16 May 1975, created
the Bureau of Barangay Roads under the Department
of Public Highways. The Bureau of Barangay Roads
1âwp hi1
includes—
the Construction, Rehabilitation, Betterment
and Improvement CRBI Division which was
given the responsibility for exercising technical
supervision over all the activities relating to
construction, rehabilitation, betterment and
improvement of feeder roads and bridges,
establish[ing] policy guidelines; extend[ing]
consultative services and set[ting] standards
and procedures for construction, rehabilitation,
betterment and improvement works. (Section 4
[3], P.D. No. 702)
Section 5 of this statute provides as follows:
Sec. 5. Appropriations.— All national funds
appropriated and programmed by the
Department of Public Highways for the
construction, rehabilitation, betterment,
improvement and maintenance of barangay
roads and bridges including the shares of
provinces, cities, municipalities and the
allocation for the maintenance of farm-to-
market or feeder roads and bridges within a
barangay area, from the Highway Special
Fund, shall be released to the Department of
Public Highways which shall then sub-allot
them to the barangays but construction and
maintenance shall be under the supervision of
the Department of Public Highways through the
Bureau of Barangay Roads. (Emphasis
supplied)
It appears that the CRBI fund referred to in the decision
of the Court formed part of the "Highway Special Fund"
which in turn formed part of the legislative
appropriations pertaining to the Department of Public
Highways "for the construction, etc. of barangay roads
and bridges."
In Batas Pambansa Blg. 40, the General
Appropriations Act, January 1-December 31, 1980,
there were included in the appropriations for the then
Ministry of Public Highways the following items:
Current Operating Expenditures
xxx xxx xxx
3.0. Maintenance and Repair. For maintenance
and repair of national roads and bridges, toll
roads, operation of quarries, asphalt and
batching plants, aid to provincial, city, and
municipal roads and bridges, and barangay
roads and bridges P1,250,156,000
xxx xxx xxx
3.6. Barangay Roads P397,232,000
xxx xxx xxx
Capital Outlays
5.0. Construction, Rehabilitation and
Improvement. For construction, rehabilitation
and improvement of national roads and
bridges, aid to provincial, city and municipal
roads and bridges, barangay roads and
bridges P810,467,000
xxx xxx xxx
5.4. Barangay Roads and Bridges
P239,288,000
xxx xxx xxx
(Emphasis supplied)
The lump-sum of P397,232,000 for maintenance and
repair of barangay roads is broken down into sub-sums
for each of the several Regions: for Region I (which
includes Pampanga), the amount of P55,442,000 was
appropriated (General Appropriations Act, CY 1980, p.
366). The lump-sum of P239,288,000 for construction,
rehabilitation and improvement of barangay roads and
bridges was similarly broken down on a region-to-
region basis, Region I being allocated the sum of
P1,889,040 (Ibid., p. 368-369).
It appears to me that the CRBI fund for barangay roads
referred to in the decision of the Court formed part of
the above items of appropriation.
I am aware that the Solicitor General has
recommended acquittal of accused Parungao in this
case. However, the Solicitor General
did not distinguish between setting aside the decision
of the Sandiganbayan as insupportable under the
information actually filed in this case, on the one hand,
and, on the other hand, treating this case as if an
information for violation of Article 220 of the Revised
Penal Code had in fact been filed and acquitting
Parungao thereunder on the merits.
I, therefore, dissent from the majority opinion to the
extent that it acquits petitioner Parungao on the merits
of an information for violation of Article 220 of the
Revised Penal Code, which information has not yet in
fact been filed.
In sum, I believe the decision of the Sandiganbayan
should be set aside without prejudice to the right of the
Government to file another information this time for
violation of Article 220 of the Revised Penal Code. As
shown above, that there was a violation of Article 220
is clear, at least prima facie, from the record, even
though there was no evil intent (Understood as
conversion of public funds to personal uses) on the
part of petitioner Parungao. Such an evil intent
is not an element of the offense of illegal use of public
funds defined and penalized in Article 220 of the
Revised Penal Code.
(2) G.R. No. 156427 January 20, 2006
AMANDO TETANGCO, Petitioner
vs.
THE HON. OMBUDSMAN and MAYOR JOSE L.
ATIENZA, JR., Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari seeks to annul and set aside
the Order,1 dated April 16, 2002, of public respondent
Ombudsman in OMB-CC-02-0151-C which dismissed
the Complaint of petitioner Amando Tetangco against
private respondent Mayor Jose L. Atienza, Jr., for
violation of Article 2202 of the Revised Penal Code
(RPC). Also assailed is the Order,3 dated August 1,
2002, denying the motion for reconsideration.
On March 8, 2002, petitioner filed his Complaint before
the Ombudsman alleging that on January 26, 2001,
private respondent Mayor Atienza gave P3,000 cash
financial assistance to the chairman and P1,000 to
each tanod ofBarangay 105, Zone 8, District I.
Allegedly, on March 5, 2001, Mayor Atienza
refunded P20,000 or the total amount of the financial
assistance from the City of Manila when such
disbursement was not justified as a lawful expense.
In his Counter-Affidavit, Mayor Atienza denied the
allegations and sought the dismissal of the Complaint
for lack of jurisdiction and for forum-shopping. He
asserted that it was the Commission on Elections
(COMELEC), not the Ombudsman that has jurisdiction
over the case and the same case had previously been
filed before the COMELEC. Furthermore, the
Complaint had no verification and certificate of non-
forum shopping. The mayor maintained that the
expenses were legal and justified, the same being
supported by disbursement vouchers, and these had
passed prior audit and accounting.
The Investigating Officer recommended the dismissal
of the Complaint for lack of evidence and merit. The
Ombudsman adopted his recommendation.
The Office of the Ombudsman, through its Over-all
Deputy Ombudsman, likewise denied petitioner’s
motion for reconsideration.
Before us, petitioner assigns for resolution a single
issue:
WHETHER OR NOT THE RESPONDENT
OMBUDSMAN COMMITTED GRAVE ABUSE OF
DISCRETION WHEN IT DISMISSED THE CRIMINAL
CHARGE AGAINST RESPONDENT MAYOR
ATIENZA FOR VIOLATION OF ART. 220 OF THE
RPC DESPITE THE EXISTENCE OF A PRIMA
FACIE CASE AND PROBABLE CAUSE TO INDICT
HIM FOR THE CRIME CHARGED OR, AT THE VERY
LEAST, FOR VIOLATION OF SEC. 3(e) OF R.A. NO.
3019 (ANTI-GRAFT AND CORRUPT PRACTICES
ACT).4
The sole issue is, did the Ombudsman commit grave
abuse of discretion in dismissing the Complaint?
Petitioner insists that Mayor Atienza illegally disbursed
public funds when he gave the aforementioned
financial assistance to the chairman
and tanods of Barangay 105 since the disbursement
was not authorized by law or ordinance, which the
Ombudsman did not consider when it dismissed the
Complaint of petitioner. According to petitioner, the
dismissal by the Ombudsman was capricious since the
evidence on record was clear that the mayor was guilty
of graft and corruption.5
The Ombudsman, through the Solicitor General,
contends that it did not abuse its discretion and there
was also no probable cause against private respondent
for violation of Art. 220 of the RPC.6
For his part, Mayor Atienza avers that there was no
grave abuse of discretion on the part of the
Ombudsman when it dismissed the Complaint.7
After considering the submissions of the parties, we
find that the petition lacks merit. No grave abuse of
discretion is attributable to the Ombudsman.
It is well-settled that the Court will not ordinarily
interfere with the Ombudsman’s determination of
whether or not probable cause exists except when it
commits grave abuse of discretion.8 Grave abuse of
discretion exists where a power is exercised in an
arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility so patent and
gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in
contemplation of law.9 Thus, we held in Roxas v.
Vasquez,10
… this Court’s consistent policy has been to maintain
non-interference in the determination of the
Ombudsman of the existence of probable cause,
provided there is no grave abuse in the exercise of
such discretion. This observed policy is based not only
on respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise,
the functions of the Court will be seriously hampered
by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before
it, in much the same way that the courts would be
extremely swamped with cases if they could be
compelled to review the exercise of discretion on the
part of the fiscals or prosecuting attorneys each time
they decide to file an information in court or dismiss a
complaint by a private complainant.
In this case, the action taken by the Ombudsman
cannot be characterized as arbitrary, capricious,
whimsical or despotic. The Ombudsman found no
evidence to prove probable cause. Probable cause
signifies a reasonable ground of suspicion supported
by circumstances sufficiently strong in themselves to
warrant a cautious man’s belief that the person
accused is guilty of the offense with which he is
charged.11 Here, the Complaint merely alleged that the
disbursement for financial assistance was neither
authorized by law nor justified as a lawful expense.
Complainant did not cite any law or ordinance that
provided for an original appropriation of the amount
used for the financial assistance cited and that it was
diverted from the appropriation it was intended for.
The Complaint charges Mayor Atienza with illegal use
of public funds. On this matter, Art. 220 of the Revised
Penal Code provides:
Art. 220. Illegal use of public funds or property. – Any
public officer who shall apply any public fund or
property under his administration to any public use
other than that for which such fund or property were
appropriated by law or ordinance shall suffer the
penalty of prision correccional in its minimum period or
a fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any
damages or embarrassment shall have resulted to the
public service. In either case, the offender shall also
suffer the penalty of temporary special disqualification.
If no damage or embarrassment to the public service
has resulted, the penalty shall be a fine from 5 to 50
percent of the sum misapplied.
The elements of the offense, also known as technical
malversation, are: (1) the offender is an accountable
public officer; (2) he applies public funds or property
under his administration to some public use; and (3) the
public use for which the public funds or property were
applied is different from the purpose for which they
were originally appropriated by law or ordinance. It is
clear that for technical malversation to exist, it is
necessary that public funds or properties had been
diverted to any public use other than that provided for
by law or ordinance.12 To constitute the crime, there
must be a diversion of the funds from the purpose for
which they had been originally appropriated by law or
ordinance.13 Patently, the third element is not present
in this case.
Conformably then with Section 2, Rule II of the Rules
of Procedure of the Office of the Ombudsman,14 the
Investigating Officer may recommend the outright
dismissal of a complaint if he finds the same devoid of
merit.15That is exactly what happened in this case.
Thus, no abuse of discretion, much less grave abuse,
may be attributed to the respondent Ombudsman.
WHEREFORE, the instant petition is DISMISSED for
lack of merit. No pronouncement as to costs.
SO ORDERED.
(3) G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a municipal mayor charged with
illegal diversion of food intended for those suffering
from malnutrition to the beneficiaries of reconsideration
projects affecting the homes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused
Arnold James M. Ysidoro before the Sandiganbayan in
Criminal Case 28228 of violation of illegal use of public
propertry (technical malversation) under Article 220 of
the Revised Penal Code.1
The facts show that the Municipal Social Welfare and
Development Office (MSWDO) of Leyte, Leyte,
operated a Core Shelter Assistance Program (CSAP)
that provided construction materials to indigent
calamity victims with which to rebuild their homes. The
beneficiaries provided the labor needed for
construction.
On June 15, 2001 when construction for calamity
victims in Sitio Luy-a, Barangay Tinugtogan, was 70%
done, the beneficiaries stopped reporting for work for
the reason that they had to find food for their families.
This worried Lolita Garcia (Garcia), the CSAP Officer-
in-Charge, for such construction stoppage could result
in the loss of construction materials particularly the
cement. Thus, she sought the help of Cristina Polinio
(Polinio), an officer of the MSWDO in charge of the
municipality’s Supplemental Feeding Program (SFP)
that rationed food to malnourished children. Polinio told
Garcia that the SFP still had sacks of rice and boxes of
sardines in its storeroom. And since she had already
distributed food to the mother volunteers, what
remained could be given to the CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M.
Ysidoro, the Leyte Municipal Mayor, to seek his
approval. After explaining the situation to him, Ysidoro
approved the release and signed the withdrawal slip for
four sacks of rice and two boxes of sardines worth
P3,396.00 to CSAP.2 Mayor Ysidoro instructed Garcia
and Polinio, however, to consult the accounting
department regarding the matter. On being consulted,
Eldelissa Elises, the supervising clerk of the Municipal
Accountant’s Office, signed the withdrawal slip based
on her view that it was an emergency situation
justifying the release of the goods. Subsequently,
CSAP delivered those goods to its beneficiaries.
Afterwards, Garcia reported the matter to the MSWDO
and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of
the Sangguniang Bayan of Leyte, filed the present
complaint against Ysidoro. Nierna Doller, Alfredo's wife
and former MSWDO head, testified that the subject
SFP goods were intended for its target beneficiaries,
Leyte’s malnourished children. She also pointed out
that the Supplemental Feeding Implementation
Guidelines for Local Government Units governed the
distribution of SFP goods.3 Thus, Ysidoro committed
technical malversation when he approved the
distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the
subject goods to a project also meant for the poor of
the municipality was valid since they came from the
savings of the SFP and the Calamity Fund. Ysidoro
also claims good faith, believing that the municipality’s
poor CSAP beneficiaries were also in urgent need of
food. Furthermore, Ysidoro pointed out that the COA
Municipal Auditor conducted a comprehensive audit of
their municipality in 2001 and found nothing irregular in
its transactions.
On February 8, 2010 the Sandiganbayan found
Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage
or embarrassment to public service, it only fined him
P1,698.00 or 50% of the sum misapplied. The
Sandiganbayan held that Ysidoro applied public
property to a pubic purpose other than that for which it
has been appropriated by law or ordinance. On May
12, 2010 the Sandiganbayan denied Ysidoro’s motion
for reconsideration. On June 8, 2010 Ysidoro appealed
the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s
finding that he committed technical malversation. He
particularly raises the following questions:
1. Whether or not he approved the diversion of
the subject goods to a public purpose different
from their originally intended purpose;
2. Whether or not the goods he approved for
diversion were in the nature of savings that
could be used to augment the other authorized
expenditures of the municipality;
3. Whether or not his failure to present the
municipal auditor can be taken against him;
and
4. Whether or not good faith is a valid defense
for technical malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized
under Article 220 of the Revised Penal Code4 has three
elements: a) that the offender is an accountable public
officer; b) that he applies public funds or property under
his administration to some public use; and c) that the
public use for which such funds or property were
applied is different from the purpose for which they
were originally appropriated by law or
ordinance.5 Ysidoro claims that he could not be held
liable for the offense under its third element because
the four sacks of rice and two boxes of sardines he
gave the CSAP beneficiaries were not appropriated by
law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the
Sangguniang Bayan of Leyte enacted Resolution 00-
133 appropriating the annual general fund for
2001.6 This appropriation was based on the executive
budget7 which allocated P100,000.00 for the SFP and
P113,957.64 for the Comprehensive and Integrated
Delivery of Social Services8 which covers the CSAP
housing projects.9 The creation of the two items shows
the Sanggunian’s intention to appropriate separate
funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods using
SFP funds, then those goods should be used for SFP’s
needs, observing the rules prescribed for identifying
the qualified beneficiaries of its feeding programs. The
target clientele of the SFP according to its manual10 are:
1) the moderately and severely underweight pre-school
children aged 36 months to 72 months; and 2) the
families of six members whose total monthly income is
P3,675.00 and below.11 This rule provides assurance
that the SFP would cater only to the malnourished
among its people who are in urgent need of the
government’s limited resources.
Ysidoro disregarded the guidelines when he approved
the distribution of the goods to those providing free
labor for the rebuilding of their own homes. This is
technical malversation. If Ysidoro could not legally
distribute the construction materials appropriated for
the CSAP housing beneficiaries to the SFP
malnourished clients neither could he distribute the
food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already
constituted savings of the SFP and that, therefore, the
same could already be diverted to the CSAP
beneficiaries. He relies on Abdulla v. People12 which
states that funds classified as savings are not
considered appropriated by law or ordinance and can
be used for other public purposes. The Court cannot
accept Ysidoro’s argument.
The subject goods could not be regarded as savings.
The SFP is a continuing program that ran throughout
the year. Consequently, no one could say in mid-June
2001 that SFP had already finished its project, leaving
funds or goods that it no longer needed. The fact that
Polinio had already distributed the food items needed
by the SFP beneficiaries for the second quarter of 2001
does not mean that the remaining food items in its
storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to
the last sack of rice or can of sardines, the view that
the subject goods were no longer needed for the
remainder of the year was quite premature.
In any case, the Local Government Code provides that
an ordinance has to be enacted to validly apply funds,
already appropriated for a determined public purpose,
to some other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. –
Funds shall be available exclusively for the specific
purpose for which they have been appropriated. No
ordinance shall be passed authorizing any transfer of
appropriations from one item to another. However, the
local chief executive or the presiding officer of the
sanggunian concerned may, by ordinance, be
authorized to augment any item in the approved annual
budget for their respective offices from savings in other
items within the same expense class of their respective
appropriations.
The power of the purse is vested in the local legislative
body. By requiring an ordinance, the law gives the
Sanggunian the power to determine whether savings
have accrued and to authorize the augmentation of
other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor
found nothing irregular in the diversion of the subject
goods, such finding should be respected. The SB ruled,
however, that since Ysidoro failed to present the
municipal auditor at the trial, the presumption is that his
testimony would have been adverse if produced.
Ysidoro argues that this goes against the rule on the
presumption of innocence and the presumption of
regularity in the performance of official functions.
Ysidoro may be right in that there is no basis for
assuming that had the municipal auditor testified, his
testimony would have been adverse to the mayor. The
municipal auditor’s view regarding the transaction is
not conclusive to the case and will not necessarily
negate the mayor’s liability if it happened to be
favorable to him. The Court will not, therefore, be
drawn into speculations regarding what the municipal
auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since,
first, the idea of using the SFP goods for the CSAP
beneficiaries came, not from him, but from Garcia and
Polinio; and, second, he consulted the accounting
department if the goods could be distributed to those
beneficiaries. Having no criminal intent, he argues that
he cannot be convicted of the crime. 1âwphi1
But criminal intent is not an element of technical
malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a
particular public purpose to another public purpose.
The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes a
criminal offense because positive law forbids its
commission based on considerations of public policy,
order, and convenience.13 It is the commission of an act
as defined by the law, and not the character or effect
thereof, that determines whether or not the provision
has been violated. Hence, malice or criminal intent is
completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or
miniscule the amount diverted, constitutes the crime of
technical malversation. The law and this Court,
however, recognize that his offense is not grave,
warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the
assailed Decision of the Sandiganbayan in Criminal
Case 28228 dated February 8, 2010.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
Footnotes
4Art. 220. Illegal use of public funds or property.
— Any public officer who shall apply any public
fund or property under his administration to any
public use other than for which such fund or
property were appropriated by law or ordinance
shall suffer the penalty of prision correccional
in its minimum period or a fine ranging from
one-half to the total of the sum misapplied, if by
reason of such misapplication, any damages or
embarrassment shall have resulted to the
public service. In either case, the offender shall
also suffer the penalty of temporary special
disqualification.
If no damage or embarrassment to the
public service has resulted, the penalty
shall be a fine from 5 to 50 per cent of
the sum misapplied.
7SEC. 318. Preparation of the Budget by the
Local Chief Executive. – Upon receipt of the
statements of income and expenditures from
the treasurer, the budget proposals of the
heads of departments and offices, and the
estimates of income and budgetary ceilings
from the local finance committee, the local chief
executive shall prepare the executive budget
for the ensuing fiscal year in accordance with
the provisions of this Title. The local chief
executive shall submit the said executive
budget to the sanggunian concerned not later
than the sixteenth (16th) of October of the
current fiscal year. Failure to submit such
budget on the date prescribed herein shall
subject the local chief executive to such
criminal and administrative penalties as
provided for under this Code and other
applicable laws. (Emphasis supplied)
SEC. 319. Legislative Authorization of
the Budget. – On or before the end of
the current fiscal year, the sanggunian
concerned shall enact, through an
ordinance, the annual budget of the
local government unit for the ensuing
fiscal year on the basis of the estimates
of income and expenditures submitted
by the local chief executive.
(4) G.R. No.166680 July 7, 2014
ALOYSIUS DAIT LUMAUIG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
A prior notice or demand for liquidation of cash
advances is not a condition sine qua non before an
accountable public officer may be held liable under
Article 2181 of the Revised Penal Code.
Before us is a Petition for Review on Certiorari filed
under Rule 45 of the Rules of Court of the September
10, 2004 Decision2 of the Sandiganbayan in Criminal
Case No. 26528 and its January 11, 2005
Resolution3 denying reconsideration thereof.
The Information4 dated January 25, 2001 under which
petitioner Aloysius Dait Lumauig (petitioner) was tried
and convicted has this accusatory portion:
That in or about August 1994 or immediately prior or
subsequent thereto, in Alfonso Lista, Ifugao and within
the jurisdiction of this Honorable Court, the above-
named accused then Municipal Mayorof Alfonso Lista,
Ifugao, and as such accountable public officer, and
responsible for the amount of ₱101,736.00 which the
accused received by way of cashadvance for payment
of the insurance coverage of the twelve (12)
motorcycle[s] purchased by the Municipality, and,
hence with the corresponding duty under the law to
account for the same, did then and there, willfully and
feloniously fail to liquidate and account for the same to
the damage and prejudice of the Government.5
The facts are matters of recordor otherwise
undisputed.
Sometime in January 1998, Commission on Audit
(COA) Auditor Florence L. Paguirigan examined the
year-end reports involving the municipal officials of
Alfonso Lista, Ifugao. During the courseof her
examination of the records and related documents of
the municipality, she came across a disbursement
voucher6 for ₱101,736.00 prepared for petitioner, a
former mayor of the municipality, as cash advance for
the payment of freight and other cargo charges for 12
units of motorcycles supposed to be donated to the
municipality. The amount was covered by Land Bank
Check No. 118942007 dated August 29, 1994 wherein
the payee is petitioner. Her further investigation of the
accounting records revealed that no payment intended
for the charge was made to Royal Cargo Agencies for
the month of August 1994. Thus, she issued a
certification8 to this effect on November 29, 2001. She
likewise claimed that she prepared two letters to inform
the petitioner of his unliquidated cash advance but the
same were not sent to him because she could not get
his exact address despite efforts exerted. She averred
that on June 4, 2001, petitioner paid the subject cash
advance before the treasurer of the municipality, for
which reason, incumbent Mayor Glenn D. Prudenciano
executed an Affidavit of Desistance.9
Petitioner admitted having obtained the cash advance
of ₱101,736.00 during his incumbency as municipal
mayor of Alfonso Lista, Ifugao.10 This amount was
intended for the payment of freight and insurance
coverage of 12 units of motorcycles to bedonated to the
municipality by the City of Manila. However, instead of
motorcycles, he was able to secure two buses and five
patrol cars. He claimed that it never came to his mind
to settle or liquidate the amount advanced since the
vehicles were already turned over to the municipality.
He alleged that he was neither informed nor did he
receive any demand from COA to liquidate his cash
advances. It was only in 2001 while he was claiming for
separation pay when he came to know that he still has
an unliquidated cash advance. And so as not toprolong
the issue, he paidthe amount of ₱101,736.00 to the
municipal treasurer on June 4, 2001.
From the same facts stemmed an Information for
violation of Section 3 of Republic Act (RA) No.
301911 docketed as CriminalCase No. 26527 against
petitioner for having allegedly utilized the cash
advance for a purpose other than for which it was
obtained.
On September 10, 2004, after a joint trial, the
Sandiganbayanrendered a consolidated
Decision12 disposing thusly:
WHEREFORE, premises consideredthe Court rules as
follows:
1. In Criminal Case No. 26527, accused
ALOYSIUS DAIT LUMAUIG is hereby
ACQUITTED. No civil liability shall be imposed
there being no basis for its award. The cash
bondposted for his provisional liberty is ordered
returned to him, subject to the usual accounting
and auditing procedure; and
2. In Criminal Case No. 26528, accused
ALOYSIUS DAIT LUMAUIG is hereby
CONVICTED of the felony of Failure of
Accountable Officer to Render Accounts under
Article 218 of the Revised Penal Code. He is
hereby sentenced to a straight penalty of six
months and one (1) day and a fine of
Php1,000.00.
SO ORDERED.13
On January 11, 2005, the Sandiganbayanpromulgated
its Resolution14 denying petitioner’s UrgentMotion for
Reconsideration.15
Hence, this Petition.
After a thorough review of the records of the case and
a judicious consideration of the arguments of the
petitioner, the Court does not find sufficient basis to
reverse the judgment of conviction. From the prevailing
facts, we entertain no doubt on the guilt of petitioner.
The acquittal of petitioner in the anti-
graft case is not a bar to his conviction
for failure to render an account in the
present case.
Petitioner stakes the present Petition on the assertion
that since the cases for which he was indicted involve
the same subject cash advance in the amount of
₱101,736.00, his exoneration in the anti-graft case
should likewise exculpate him from further liability in
the present case.
We are not persuaded.
It is undisputed that the two charges stemmed from the
same incident. "However, [we have] consistently held
thatthe same act may give rise to two or more separate
and distinct charges."16 Further, because there is a
variance between the elements of the two offenses
charged, petitioner cannot safely assume that his
innocence in one case will extend to the other case
even if both cases hinge on the same set of evidence.
To hold a person criminally liable under Section 3(e)of
RA 3019, the following elements must be present:
(1) That the accused is a public officer or a
private person charged in conspiracy with the
former;
(2) That said public officer commitsthe
prohibited acts during the performance of his or
her official duties or in relation to his or her
public positions;
(3) That he or she causes undue injury toany
party, whether the government or a private
party;
(4) That such injury is caused by giving
unwarranted benefits, advantage or preference
to such parties; and
(5) That the public officer has acted
withmanifest partiality, evident bad faith or
gross inexcusable negligence.17
On the other hand, the elements of the felony
punishable under Article 218 of the Revised Penal
Code are:
(1) That the offender is a public officer whether
in the service or separated therefrom;
(2) That he must be an accountable officer for
public funds or property;
(3) That he is required by law or regulation to
render accounts to the COA or to a provincial
auditor; and,
(4) That he fails to do so for a period oftwo
months after such account should be
rendered.18
The glaring differences between the elements of these
two offenses necessarily imply that the requisite
evidence to establish the guilt or innocence of the
accused would certainly differ in each case. Hence,
petitioner’s acquittal in the anti-graft case provides no
refuge for him inthe present case given the differences
between the elements ofthe two offenses.
Prior demand to liquidate is not a of the crime. The law is very clear. Where none
requisite for conviction under Article
218 of the Revised Penal Code.
The central aspect of petitioner’s next argument is that
he was not reminded of his unliquidated cash
advances. The Office of the Special Prosecutor
countered that Article 218 does not require the COA
orthe provincial auditor to first make a demand before
the public officer should render an account. It is
sufficient that there is a law or regulation requiring him
to render an account. The question has been settled in
Manlangit v. Sandiganbayan19 where we ruled that prior
demand to liquidate is not necessary to hold an
accountable officer liable for violation of Article 218 of
the Revised Penal Code:
x x x [W]e are asked to resolve whether demand is
necessary for a conviction of a violation of Article 218
of the Revised Penal Code.
Citing United States v. Saberon, petitioner contends
that Article 218 punishes the refusal of a public
employee to render an account of funds in his charge
when duly required by a competent officer. He argues
that he cannot be convicted of the crime unless the
prosecution has proven that there was a demand for
him to render an account. Petitioner asserts that COA
Circular No. 90-331 provides that the public officer shall
be criminally liable for failure to settle his accounts after
demand had been made. Moreover, petitioner asserts
that the case had become moot and academic since he
already submitted his liquidation report.
For the People, the Office of the Special Prosecutor
(OSP) counters that demand is not an element of the
offense and that it is sufficient that there is a law or
regulation requiring the public officer to render an
account. The OSP insists that Executive Order No.
292, Presidential Decree No. 1445, the COA Laws and
Regulations, and even the Constitution mandate that
public officers render an account of funds in their
charge. It maintains that the instant case differs from
Saberonwhich involved a violation of Act No. 1740
where prior demand was required. In this case
involving a violation of Article 218, prior demand is not
required. Moreover, the OSP points out that petitioner
even admitted his failure to liquidate the funds within
the prescribed period, hence, he should be convicted
of the crime.
We shall now resolve the issue at hand.
Article 218 consists ofthe following elements:
1. that the offender is a public officer, whether
in the service or separated therefrom;
2. that he must be an accountable officer for
public funds or property;
3. that he is required by law or regulation to
render accounts to the Commission on Audit,
or to a provincial auditor; and
4. that he fails to do so for a period of two
months after such accounts should be
rendered. Nowhere in the provision does it
require that there first be a demand before an
accountable officer is held liable for a violation
is provided, the court may not introduce
exceptions or conditions, neither may it engraft
into the law qualifications not contemplated.
Where the law is clear and unambiguous, it
must be taken to mean exactly what it says and
the court has no choice but to see to it that its
mandate is obeyed. There is no room for
interpretation, but only application.
Petitioner’s reliance on Saberonis misplaced. As
correctly pointed out by the OSP, Saberoninvolved a
violation of Act No. 1740 whereas the present case
involves a violation of Article 218 of the Revised Penal
Code. Article 218 merely provides that the public officer
berequired by law and regulation to render account.
Statutory construction tells us that in the revision or
codification of laws, all parts and provisions of the old
laws that are omitted in the revised statute or code are
deemed repealed, unless the statute or code provides
otherwise.20
Petitioner is liable for violation of Article 218 of the
Revised Penal Code.
Section 5 of COA Circular No. 90-331, the circular in
force at the time petitioner availed of the subject cash
advance, pertinently provides:
5. LIQUIDATION OFCASH ADVANCES
5.1 The AO (Accountable Officer) shall liquidate his
cash advance as follows:
xxxx
5.1.2 Petty Operating Expenses and Field Operating
Expenses - within 20 days after the end of the year;
subject to replenishment during the year.
Since petitioner received the subject cash advance
sometime in 1994, he was, thus, required to liquidate
the same on or before January 20, 1995. Further, to
avoid liability under Article 218, he should have
liquidated the cash advance within two months from the
time it was due, or on or before March 20, 1995. In the
case at bar, petitioner liquidated the subject cash
advance only on June 4, 2001. Hence, as correctly
found by the Sandiganbayan,petitioner was liable for
violation of Article 218 because it took him over six
years before settling his accounts.
The penalty imposed on petitioner should be modified.
Petitioner argues that assuming that he is liable for
violation of Article 218, he should be meted a lesser
penalty considering that (1) he subsequently liquidated
the subject cash advance when he later discovered
and was confronted with his delinquency, and (2) the
COA did not immediately inform him of his unliquidated
cash advance.
On this point, we partially agree with petitioner.
In sentencing petitioner to a straight penalty of six
months and one day of prisión correccionaland a fine
of ₱1,000.00, the Sandiganbayan correctly considered
the mitigating circumstance of voluntary surrender, as
borne by the records,21 in favor of petitioner.However, it
failed toconsider the mitigating circumstance of return
or full restitution of the funds that were previously
unliquidated.
In malversation of public funds, the payment,
indemnification, or reimbursement of the funds
misappropriated may be considered a mitigating
circumstance being analogousto voluntary
surrender.22 Although this case does not involve
malversation ofpublic funds under Article 217 of the
Revised Penal Code but rather failure to render an
account under Article 218 (i.e., the succeeding Article
found in the same Chapter), the same reasoning may
be applied to the return or full restitution ofthe funds
that were previously unliquidated in considering the
same as a mitigating circumstance in favor of
petitioner.
The prescribed penalty for violation of Article 218 is
prisión correccionalin its minimum period or six months
and one day to two years and four months, or by a fine
ranging from 200to 6,000 pesos, orboth. Considering
that there are two mitigating circumstances and there
are no aggravating circumstances, under Article 64
(5)23 of the Revised Penal Code, the imposable penalty
is the penalty next lower to the prescribed penalty
which, in this case, is arresto mayorin its maximum
period or four months and one day to six months. 1âwphi1
The Indeterminate Sentence Law, under Section 2,24 is
not applicable to, among others, cases where the
maximum term of imprisonment does not exceed one
year. In determining "whether an indeterminate
sentence and not a straight penalty is proper, what is
considered is the penalty actually imposed by the trial
court, after considering the attendant circumstances,
and not the imposable penalty." 25 In the case at bar,
since the maximum of the imposable penalty is six
months, then the possible maximum term that can be
actually imposed is surely less than one year. Hence,
the Indeterminate Sentence Law is notapplicable to the
present case. As a result, and in view of the attendant
circumstances in this case, we deem it proper to
impose a straight penalty of four months and one day
of arresto mayorand delete the imposition of fine.
WHEREFORE, the Petition is GRANTED IN PART.
The Decision of the Sandiganbayanin Criminal Case
No. 26528 dated September 10, 2004 convicting
petitioner of the felony of Failure of Accountable Officer
to Render Accounts under Article 218 of the Revised
Penal Code is AFFIRMEDwith the following
MODIFICATIONS:
1. Petitioner is sentenced to a straight penalty of four
months and one day of arresto mayor, and 2. The
imposition of finein the amount of ₱1,000.00 is deleted.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
Footnotes
1ARTICLE 218. Failure of Accountable Officer
to Render Accounts. -Any public officer,
whether in the service or separated therefrom
by resignation or any other cause, who is
required by law or regulation to render account
to the Insular Auditor, or to a provincial auditor
and who fails to do so for a period of two
months after such accounts should be
rendered, shall be punished by prisi6n
correccional in its minimum period, or by a fine
ranging from 200 to 6,000 pesos, or both.
 23ARTICLE 64. Rules for the Application of
Penalties Which Contain Three Periods. — In
cases in which the penalties prescribed by law
contain three periods, whether it be a single
divisible penalty or composed of three different
penalties, each one of which forms a period in
accordance with the provisions of Articles 76
and 77, the courts shall observe for the
application of the penalty the following rules,
according to whether there are or are no
mitigating or aggravating circumstances:
xxxx
5. When there are two or more mitigating
circumstances and no aggravating
circumstances are present, the court shall
impose the penalty next lower to that
prescribed by law, in the period that it may
deem applicable, according to the number and
nature of such circumstances.
24Section 2 of the Indeterminate Sentence Law
provides in part:
Sec. 2. This Act shall not apply x x x to those
whose maximum term of imprisonment does
not exceed one year. x x x
R.A 3019, The Anti-Graft and Corrupt Practices Act
(1) G.R. Nos. 147026-27 September 11, 2009
CAROLINA R. JAVIER, Petitioner,
vs.
THE FIRST DIVISION OF THE SANDIGANBAYAN
and the PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
DEL CASTILLO, J.:
Before the Court is a petition for certiorari1 under Rule
65 of the Rules of Court filed by petitioner Carolina R.
Javier in Criminal Case Nos. 25867 and 25898, entitled
"People of the Philippines, Plaintiff versus Carolina R.
Javier, Accused," seeking to nullify respondent
Sandiganbayan's: (1) Order2 dated November 14,
2000 in Criminal Case No. 25867, which denied her
Motion to Quash Information; (2) Resolution3 dated
January 17, 2001 in Criminal Case No. 25898, which
denied her Motion for Reconsideration and Motion to
Quash Information; and (3) Order 4 dated February 12,
2001, declaring that a motion for reconsideration in
Criminal Case No. 25898 would be superfluous as the
issues are fairly simple and straightforward.
The factual antecedents follow.
On June 7, 1995, Republic Act (R.A.) No. 8047,5 or
otherwise known as the "Book Publishing Industry
Development Act", was enacted into law. Foremost in
its policy is the State's goal in promoting the continuing
development of the book publishing industry, through
the active participation of the private sector, to ensure
an adequate supply of affordable, quality-produced
books for the domestic and export market.
To achieve this purpose, the law provided for the
creation of the National Book Development Board
(NBDB or the Governing Board, for brevity), which shall
be under the administration and supervision of the
Office of the President. The Governing Board shall be
composed of eleven (11) members who shall be
appointed by the President of the Philippines, five (5)
of whom shall come from the government, while the
remaining six (6) shall be chosen from the nominees of
organizations of private book publishers, printers,
writers, book industry related activities, students and
the private education sector.
On February 26, 1996, petitioner was appointed to the
Governing Board as a private sector representative for
a term of one (1) year.6 During that time, she was also
the President of the Book Suppliers Association of the
Philippines (BSAP). She was on a hold-over capacity
in the following year. On September 14, 1998, she was
again appointed to the same position and for the same
period of one (1) year.7 Part of her functions as a
member of the Governing Board is to attend book fairs
to establish linkages with international book publishing
bodies. On September 29, 1997, she was issued by the
Office of the President a travel authority to attend the
Madrid International Book Fair in Spain on October 8-
12, 1997.8 Based on her itinerary of travel,9 she was
paid ₱139,199.0010 as her travelling expenses.
Unfortunately, petitioner was not able to attend the
scheduled international book fair.
On February 16, 1998, Resident Auditor Rosario T.
Martin advised petitioner to immediately return/refund
her cash advance considering that her trip was
canceled.11 Petitioner, however, failed to do so. On July
6, 1998, she was issued a Summary of
Disallowances12 from which the balance for settlement
amounted to ₱220,349.00. Despite said notice, no
action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then
the Executive Director of the NBDB, filed with the
Ombudsman a complaint against petitioner for
malversation of public funds and properties. She
averred that despite the cancellation of the foreign trip,
petitioner failed to liquidate or return to the NBDB her
cash advance within sixty (60) days from date of arrival,
or in this case from the date of cancellation of the trip,
in accordance with government accounting and
auditing rules and regulations. Dr. Apolonio further
charged petitioner with violation of Republic Act (R.A.)
No. 671313 for failure to file her Statement of Assets
and Liabilities.
The Ombudsman found probable cause to indict
petitioner for violation of Section 3(e) of R.A. No.
3019,14 as amended, and recommended the filing of
the corresponding information.15 It, however,
dismissed for insufficiency of evidence, the charge for
violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner
was charged with violation of Section 3(e) of R.A. No.
3019 before the Sandiganbayan, to wit:
That on or about October 8, 1997, or for sometime prior
or subsequent thereto, in the City of Quezon,
Philippines and within the jurisdiction of this Honorable
Court, the aforenamed accused, a public officer, being
then a member of the governing Board of the National
Book Development Board (NBDB), while in the
performance of her official and administrative
functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully,
unlawfully and criminally, without any justifiable cause,
and despite due demand by the Resident Auditor and
the Executive Director of NBDB, fail and refuse to
return and/or liquidate her cash advances intended for
official travel abroad which did not materialize, in the
total amount of ₱139,199.00 as of September 23,
1999, as required under EO No. 248 and Sec. 5 of COA
Circular No. 97-002 thereby causing damage and
undue injury to the Government.
CONTRARY TO LAW.16
The case was docketed as Criminal Case No. 25867
and raffled to the First Division.
Meanwhile, the Commission on Audit charged
petitioner with Malversation of Public Funds, as defined
and penalized under Article 217 of the Revised Penal
Code, for not liquidating the cash advance granted to
her in connection with her supposed trip to Spain.
During the conduct of the preliminary investigation,
petitioner was required to submit her counter-affidavit
but she failed to do so. The Ombudsman found
probable cause to indict petitioner for the crime
charged and recommended the filing of the
corresponding information against her. 17
Thus, an Information dated February 29, 2000 was filed
before the Sandiganbayan, which was docketed as
Criminal Case No. 25898, and raffled to the Third
Division, the accusatory portion of which reads:
That on or about and during the period from October 8,
1997 to February 16, 1999, or for sometime prior or
subsequent thereto, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book
Development Board and as such, is accountable for the
public funds she received as cash advance in
connection with her trip to Spain from October 8-12,
1997, per LBP Check No. 10188 in the amount of
₱139,199.00, which trip did not materialize, did then
and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her
own personal use and benefit the aforementioned
amount of ₱139,199.00, Philippine currency, to the
damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.18
During her arraignment in Criminal Case No. 25867,
petitioner pleaded not guilty. Thereafter, petitioner
delivered to the First Division the money subject of the
criminal cases, which amount was deposited in a
special trust account during the pendency of the
criminal cases.
Meanwhile, the Third Division set a clarificatory hearing
in Criminal Case No. 25898 on May 16, 2000 in order
to determine jurisdictional issues. On June 3, 2000,
petitioner filed with the same Division a Motion for
Consolidation19of Criminal Case No. 25898 with
Criminal Case No. 25867, pending before the First
Division. On July 6, 2000, the People filed an Urgent
Ex-Parte Motion to Admit Amended Information20 in
Criminal Case No. 25898, which was granted.
Accordingly, the Amended Information dated June 28,
2000 reads as follows:
That on or about and during the period from October 8,
1997 to February 16, 1999, or for sometime prior or
subsequent thereto, in Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book
Development Board equated to Board Member II with
a salary grade 28 and as such, is accountable for the
public funds she received as case advance in
connection with her trip to Spain from October 8-12,
1997, per LBP Check No. 10188 in the amount of
₱139,199.00, which trip did not materialize, did then
and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her
own personal use and benefit the aforementioned
amount of ₱139,199.00, Philippine currency, to the
damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.21
In its Resolution dated October 5, 2000, the Third
Division ordered the consolidation of Criminal Case No.
25898 with Criminal Case No. 25867. 22
On October 10, 2000, petitioner filed a Motion to Quash
Information,23 averring that the Sandiganbayan has no
jurisdiction to hear Criminal Case No. 25867 as the
information did not allege that she is a public official
who is classified as Grade "27" or higher. Neither did
the information charge her as a co-principal,
accomplice or accessory to a public officer committing
an offense under the Sandiganbayan's jurisdiction. She
also averred that she is not a public officer or employee
and that she belongs to the Governing Board only as a
private sector representative under R.A. No. 8047,
hence, she may not be charged under R.A. No. 3019
before the Sandiganbayan or under any statute which
covers public officials. Moreover, she claimed that she
does not perform public functions and is without any
administrative or political power to speak of – that she
is serving the private book publishing industry by
advancing their interest as participant in the
government's book development policy.
In an Order24 dated November 14, 2000, the First
Division25 denied the motion to quash with the following
disquisition:
The fact that the accused does not receive any
compensation in terms of salaries and allowances, if
that indeed be the case, is not the sole qualification for
being in the government service or a public official. The
National Book Development Board is a statutory
government agency and the persons who participated
therein even if they are from the private sector, are
public officers to the extent that they are performing
their duty therein as such.
Insofar as the accusation is concerned herein, it would
appear that monies were advanced to the accused in
her capacity as Director of the National Book
Development Board for purposes of official travel.
While indeed under ordinary circumstances a member
of the board remains a private individual, still when that
individual is performing her functions as a member of
the board or when that person receives benefits or
when the person is supposed to travel abroad and is
given government money to effect that travel, to that
extent the private sector representative is a public
official performing public functions; if only for that
reason, and not even considering situation of her being
in possession of public funds even as a private
individual for which she would also covered by
provisions of the Revised Penal Code, she is properly
charged before this Court.
On November 15, 2000, the First Division accepted the
consolidation of the criminal cases against petitioner
and scheduled her arraignment on November 17,
2000, for Criminal Case No. 25898. On said date,
petitioner manifested that she is not prepared to accept
the propriety of the accusation since it refers to the
same subject matter as that covered in Criminal Case
No. 25867 for which the Sandiganbayan gave her time
to file a motion to quash. On November 22, 2000,
petitioner filed a Motion to Quash the Information 26 in
Criminal Case No. 25898, by invoking her right against
double jeopardy. However, her motion was denied in
open court. She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a
Resolution27 denying petitioner’s motion with the
following disquisition:
The accused is under the jurisdiction of this Court
because Sec. 4 (g) of P.D. 1606 as amended so
provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
xxxx
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
xxxx
The offense is office-related because the money for her
travel abroad was given to her because of her
Directorship in the National Book Development Board.
Furthermore, there are also allegations to hold the
accused liable under Article 222 of the Revised Penal
Code which reads:
Art. 222. Officers included in the preceding provisions.
– The provisions of this chapter shall apply to private
individuals who, in any capacity whatever, have charge
of any insular, provincial or municipal funds, revenues,
or property and to any administrator or depository of
funds or property attached , seized or deposited by
public authority, even if such property belongs to a
private individual.
Likewise, the Motion to Quash the Information in
Criminal Case No. 25898 on the ground of litis
pendencia is denied since in this instance, these two
Informations speak of offenses under different statutes,
i.e., R.A. No. 3019 and the Revised Penal Code,
neither of which precludes prosecution of the other.
Petitioner hinges the present petition on the ground
that the Sandiganbayan has committed grave abuse of
discretion amounting to lack of jurisdiction for not
quashing the two informations charging her with
violation of the Anti-Graft Law and the Revised Penal
Code on malversation of public funds. She advanced
the following arguments in support of her petition, to
wit: first, she is not a public officer, and second, she
was being charged under two (2) informations, which
is in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which
an accused assails the validity of a criminal complaint
or Information filed against him for insufficiency on its
face in point of law, or for defects which are apparent
in the face of the Information.28
Well-established is the rule that when a motion to
quash in a criminal case is denied, the remedy is not a
petition for certiorari, but for petitioners to go to trial,
without prejudice to reiterating the special defenses
invoked in their motion to quash. Remedial measures
as regards interlocutory orders, such as a motion to
quash, are frowned upon and often dismissed. The
evident reason for this rule is to avoid multiplicity of
appeals in a single action.29
The above general rule, however admits of several
exceptions, one of which is when the court, in denying
the motion to dismiss or motion to quash, acts without
or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason
is that it would be unfair to require the defendant or
accused to undergo the ordeal and expense of a trial if
the court has no jurisdiction over the subject matter or
offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is
made with grave abuse of discretion or a whimsical and
capricious exercise of judgment. In such cases, the
ordinary remedy of appeal cannot be plain and
adequate.30
To substantiate her claim, petitioner maintained that
she is not a public officer and only a private sector
representative, stressing that her only function among
the eleven (11) basic purposes and objectives provided
for in Section 4, R.A. No. 8047, is to obtain priority
status for the book publishing industry. At the time
of her appointment to the NDBD Board, she was the
President of the BSAP, a book publishers association.
As such, she could not be held liable for the crimes
imputed against her, and in turn, she is outside the
jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to
develop and support the Philippine book publishing
industry. It is a statutory government agency created
by R.A. No. 8047, which was enacted into law to
ensure the full development of the book publishing
industry as well as for the creation of organization
structures to implement the said policy. To achieve this
end, the Governing Board of the NBDB was created to
supervise the implementation. The Governing Board
was vested with powers and functions, to wit:
a) assume responsibility for carrying out and
implementing the policies, purposes and
objectives provided for in this Act;
b) formulate plans and programs as well as
operational policies and guidelines for
undertaking activities relative to promoting
book development, production and distribution
as well as an incentive scheme for individual
authors and writers;
c) formulate policies, guidelines and
mechanisms to ensure that editors, compilers
and especially authors are paid justly and
promptly royalties due them for reproduction of
their works in any form and number and for
whatever purpose;
d) conduct or contract research on the book
publishing industry including monitoring,
compiling and providing data and information of
book production;
e) provide a forum for interaction among private
publishers, and, for the purpose, establish and
maintain liaison will all the segments of the
book publishing industry;
f) ask the appropriate government authority to
ensure effective implementation of the National
Book Development Plan;
g) promulgate rules and regulations for the
implementation of this Act in consultation with
other agencies concerned, except for Section 9
hereof on incentives for book development,
which shall be the concern of appropriate
agencies involved;
h) approve, with the concurrence of the
Department of Budget and Management
(DBM), the annual and supplemental budgets
submitted to it by the Executive director;
i) own, lease, mortgage, encumber or
otherwise real and personal property for the
attainment of its purposes and objectives;
j) enter into any obligation or contract essential
to the proper administration of its affairs, the
conduct of its operations or the
accomplishment of its purposes and
objectives;
k) receive donations, grants, legacies, devices
and similar acquisitions which shall form a trust
fund of the Board to accomplish its
development plans on book publishing;
l) import books or raw materials used in book
publishing which are exempt from all taxes,
customs duties and other charges in behalf of
persons and enterprises engaged in book
publishing and its related activities duly
registered with the board;
m) promulgate rules and regulations governing
the matter in which the general affairs of the
Board are to be exercised and amend, repeal,
and modify such rules and regulations
whenever necessary;
n) recommend to the President of the
Philippines nominees for the positions of the
Executive Officer and Deputy Executive Officer
of the Board;
o) adopt rules and procedures and fix the time
and place for holding meetings: Provided, That
at least one (1) regular meeting shall be held
monthly;
p) conduct studies, seminars, workshops,
lectures, conferences, exhibits, and other
related activities on book development such as
indigenous authorship, intellectual property
rights, use of alternative materials for printing,
distribution and others; and
q) exercise such other powers and perform
such other duties as may be required by the
law.31
A perusal of the above powers and functions leads us
to conclude that they partake of the nature of public
functions. A public office is the right, authority and
duty, created and conferred by law, by which, for a
given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is
invested with some portion of the sovereign
functions of the government, to be exercised by
him for the benefit of the public. The individual so
invested is a public officer.32
Notwithstanding that petitioner came from the private
sector to sit as a member of the NBDB, the law invested
her with some portion of the sovereign functions of the
government, so that the purpose of the government is
achieved. In this case, the government aimed to
enhance the book publishing industry as it has a
significant role in the national development. Hence, the
fact that she was appointed from the public sector and
not from the other branches or agencies of the
government does not take her position outside the
meaning of a public office. She was appointed to the
Governing Board in order to see to it that the purposes
for which the law was enacted are achieved. The
Governing Board acts collectively and carries out its
mandate as one body. The purpose of the law for
appointing members from the private sector is to
ensure that they are also properly represented in the
implementation of government objectives to cultivate
the book publishing industry.
Moreover, the Court is not unmindful of the definition of
a public officer pursuant to the Anti-Graft Law, which
provides that a public officer includes elective and
appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or
exempt service receiving compensation, even nominal,
from the government.33
Thus, pursuant to the Anti-Graft Law, one is a public
officer if one has been elected or appointed to a public
office. Petitioner was appointed by the President to the
Governing Board of the NDBD. Though her term is only
for a year that does not make her private person
exercising a public function. The fact that she is not
receiving a monthly salary is also of no moment.
Section 7, R.A. No. 8047 provides that members of the
Governing Board shall receive per diem and such
allowances as may be authorized for every meeting
actually attended and subject to pertinent laws, rules
and regulations. Also, under the Anti-Graft Law, the
nature of one's appointment, and whether the
compensation one receives from the government is
only nominal, is immaterial because the person so
elected or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a
public officer as any person who, by direct provision of
the law, popular election, popular election or
appointment by competent authority, shall take part in
the performance of public functions in the Government
of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as
an employee, agent, or subordinate official, of any rank
or classes, shall be deemed to be a public officer.34
Where, as in this case, petitioner performs public
functions in pursuance of the objectives of R.A. No.
8047, verily, she is a public officer who takes part in the
performance of public functions in the government
whether as an employee, agent, subordinate official, of
any rank or classes. In fact, during her tenure,
petitioner took part in the drafting and promulgation of
several rules and regulations implementing R.A. No.
8047. She was supposed to represent the country in
the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The
next question for the Court to resolve is whether, as a
public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over
the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
A. Violations of Republic Act No. 3019, as amended,
other known as the Anti-Graft and Corrupt Practices
Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one
or more of the accused are officials occupying the
following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying
the positions of regional director and higher,
otherwise classified as Grade "27" and higher,
of the Compensation and Position
Classification Act of 989 (Republic Act No.
6758), specifically including:
xxxx
(2) Members of Congress and officials thereof
classified as Grade "Grade '27'" and up under
the Compensation and Position Classification
Act of 1989;
(3) Members of the judiciary without prejudice
to the provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commission, without prejudice to the
provisions of the Constitution; and
(5) All other national and local officials
classified as Grade "Grade '27'" and higher
under the Compensation and Position
Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position
Classification and Compensation Bureau, of the
Department of Budget and management provided the
following information regarding the compensation and
position classification and/or rank equivalence of the
member of the Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the
Governing Board of NDBD is composed of one (1)
Chairman (ex-officio), one (1) Vice-Chairman (ex-
officio), and nine (9) Members, four (4) of whom are ex-
officio and the remaining five (5) members represent
the private sector. The said five members of the Board
do not receive any salary and as such their position are
not classified and are not assigned any salary grade.
For purposes however of determining the rank
equivalence of said positions, notwithstanding that they
do not have any salary grade assignment, the same
may be equated to Board Member II, SG-28.36
Thus, based on the Amended Information in Criminal
Case No. 25898, petitioner belongs to the employees
classified as SG-28, included in the phrase "all other
national and local officials classified as ‘Grade 27' and
higher under the Compensation and Position
Classification Act of 1989."
Anent the issue of double jeopardy, We can not
likewise give in to the contentions advanced by
petitioner. She argued that her right against double
jeopardy was violated when the Sandiganbayan
denied her motion to quash the two informations filed
against her.1avv phi1
We believe otherwise. Records show that the
Informations in Criminal Case Nos. 25867 and 25898
refer to offenses penalized by different statues, R.A.
No. 3019 and RPC, respectively. It is elementary that
for double jeopardy to attach, the case against the
accused must have been dismissed or otherwise
terminated without his express consent by a court of
competent jurisdiction, upon valid information sufficient
in form and substance and the accused pleaded to the
charge.37 In the instant case, petitioner pleaded not
guilty to the Information for violation of the Anti-Graft
Law. She was not yet arraigned in the criminal case for
malversation of public funds because she had filed a
motion to quash the latter information. Double jeopardy
could not, therefore, attach considering that the two
cases remain pending before the Sandiganbayan and
that herein petitioner had pleaded to only one in the
criminal cases against her.
It is well settled that for a claim of double jeopardy to
prosper, the following requisites must concur: (1) there
is a complaint or information or other formal charge
sufficient in form and substance to sustain a conviction;
(2) the same is filed before a court of competent
jurisdiction; (3) there is a valid arraignment or plea to
the charges; and (4) the accused is convicted or
acquitted or the case is otherwise dismissed or
terminated without his express consent.38The third and
fourth requisites are not present in the case at bar.
In view of the foregoing, We hold that the present
petition does not fall under the exceptions wherein the
remedy of certiorari may be resorted to after the denial
of one's motion to quash the information. And even
assuming that petitioner may avail of such remedy, We
still hold that the Sandiganbayan did not commit grave
abuse of discretion amounting to lack of or in excess of
jurisdiction.
WHEREFORE, the Petition
is DISMISSED. The questioned Resolutions and Order
of the Sandiganbayan are AFFIRMED. Costs against
petitioner.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
Footnotes
35
On June 11, 1978, then President Ferdinand
E. Marcos promulgated Presidential Decree
(P.D.) No. 1486 which created the
Sandiganbayan. The Whereas Clause of the
decree aimed to attain the highest norms of
official conduct required of public officers and
employees, based on the concept that public
officers and employees shall serve with the
highest degree of responsibility, integrity,
loyalty and efficiency and shall remain at all
times accountable to the People. On December
10, 1978, P.D. No. 1486 was amended by P.D.
No. 1606 which expanded the jurisdiction of the
Sandiganbayan. Thereafter, P.D. No. 1861
amended P.D. No. 1606 on March 23, 1983,
which decree further altered the
Sandiganbayan jurisdiction. On March 30,
1995, Republic Act (R.A.) No. 7975 was
approved, making succeeding amendments to
P.D. No. 1606, which was again amended on
February 5, 1997 by R.A. No. 8249. Section 4
of which further modified the jurisdiction of the
Sandiganbayan.
(2) G.R. Nos. 175045-46 March 3, 2010
ENGR. RICARDO L. SANTILLANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VELASCO, JR., J.:
This is an appeal from the October 13, 2006 Decision
of the Sandiganbayan entitled People of the
Philippines v. Ecleo, Jr., et al. (Criminal Case Nos.
24467-24468) and People of the Philippines v. Ecleo,
Jr. and Orejas (Criminal Case No. 24469), finding
petitioner Ricardo Santillano guilty of three counts of
violation of Section 3(e) of Republic Act No. (RA) 3019
or the Anti-Graft and Corrupt Practices Act.
Santillano was charged along with three others in the
following Informations:
Criminal Case No. 24467
That on or about the period September 23, 1991 to
March 4, 1993, or sometime prior or subsequent
thereto, in the municipality of San Jose, Surigao del
Norte, Philippines and within the jurisdiction of this
Honorable Court, accused Ruben B. Ecleo, Jr., Arsenia
N. Orejas and Anadelia N. Navarra, all public officers
being then the Municipal Mayor, Municipal Treasurer
and Municipal Planning and Development Coordinator
and designated Municipal Engineer, respectively, of
San Jose, Surigao del Norte, with salary grades below
27, except for accused Ecleo with salary grade 27 and
therefore a high ranking officer; while in the discharge
of their official duties and functions, in conspiracy with
accused Ricardo L, Santillano, proprietor of PBMA
Builders, San Jose, Surigao del Norte, through
manifest partiality, evident bad faith or gross
inexcusable negligence, did then and there, willfully,
unlawfully, and criminally, cause the approval and
release of funds in the total amount of P4,008,005.00
as payment to accused Ricardo L. Santillano for the
construction of a public market, despite the fact that the
project accomplishment was only equivalent to
P3,563,247.83 thereby giving unwarranted benefits,
advantage or preference to Ricardo L. Santillano and
causing undue injury to the government in the total
amount of P444,575.17.
CONTRARY TO LAW.1
Criminal Case No. 24468
That on or about the period June 21, 1993 to July 22,
1993, or sometime prior or subsequent thereto, in the
municipality of San Jose, Surigao del Norte, Philippines
and within the jurisdiction of this Honorable Court,
accused Ruben B. Ecleo, Jr., Arsenia N. Orejas, and
Anadelia N. Navarra, all public officers, being then the
Municipal Mayor, Municipal Treasurer, and Municipal
Planning and Development Coordinator and
designated Municipal Engineer, respectively, of San
Jose, Surigao del Norte, with salary grades below
grade 27, except for accused Ecleo with salary grade
27 and therefore a high ranking officer; while in the
discharge of their official duties and functions, in
conspiracy with accused Ricardo L. Santillano,
proprietor of PBMA Builders, San Jose, Surigao del
Norte, through manifest partiality, evident bad faith or
gross inexcusable negligence, did then and there,
willfully, unlawfully and criminally, cause the approval
and release of funds in the total amount of
P3,949,664.00 as payment to accused Ricardo L.
Santillano for the construction of a municipal building,
despite the fact that the contract price was only
P3,684,575.00, and despite the fact that the project
accomplishment was only 37.38% or equivalent to
P1,437,024.30, thereby giving unwarranted benefits,
advantage or preference to Ricardo L. Santillano and
causing undue injury to the government in the total
amount of P2,412,639.70.
CONTRARY TO LAW.2
Criminal Case No. 24469
That on or about the year 1994, or sometime prior or
subsequent thereto, in the municipality of San Jose,
Surigao del Norte, Philippines and within the
jurisdiction of this Honorable Court, accused Ruben B.
Ecleo, Jr., and Arsenia N. Orejas, all public officers,
being then the Municipal Mayor with salary grade
above grade 27, and Municipal Treasurer, with salary
grade below 27, respectively of San Jose, Surigao del
Norte; while in the discharge of their official duties and
functions, in conspiracy with one another, through
manifest partiality, evident bad faith or gross
inexcusable negligence, did then and there, willfully,
unlawfully and criminally, cause the approval and
release of funds in the total amount of P300,000.00 for
the repair and rehabilitation of a building owned by the
PBMA Women’s League, a private organization,
thereby giving unwarranted benefits, advantage or
preference to the PBMA Women’s League and causing
undue injury to the government in the total amount of
P300,000.00.
CONTRARY TO LAW.3
At the arraignment on August 16, 1998, only Ruben
Ecleo, Jr. and Anadelia Navarra appeared. They
pleaded not guilty to all the charges against them.
Santillano surrendered to the trial court while the
defense was presenting evidence at the ensuing trial.
He was arraigned on December 6, 1999 under the
Informations covering Criminal Case Nos. 24467 and
24468. He entered a plea of not guilty and the
proceedings against Ecleo, Jr. and Navarra were held
in abeyance.4 A joint trial was subsequently ordered by
the trial court.
1 avvphi 1
The prosecution had for its witnesses State Auditors
Carlo Miagao Galenzoga and Marcos Torralba of the
Commission on Audit (COA). Based on their
testimonies, it was established that in 1994, a request
for audit was addressed to the COA by a San Jose,
Surigao del Norte Sangguniang Bayan member by the
name of Leo Durano. A special audit team was formed
to investigate irregularities committed in violation of
COA rules. It was composed of State Auditors
Torralba, Galenzoga, and Victor Azote.5
An examination of the books, records, and related
documents of the municipality of San Jose, Surigao del
Norte was undertaken. At the time of the investigation,
the municipality was headed by Mayor Ecleo, Jr.
Arsenia Orejas was the municipal treasurer, while
Navarra was the municipal planning and development
coordinator. An ocular inspection of infrastructure
projects such as the public market, a municipal
building, and a guest house was likewise made. The
team reported its findings in an audit report submitted
to the COA Regional Office, as follows:
(1) Public market. The construction was undertaken by
a contractor, Philippine Benevolent Missionaries
Association (PBMA) Builders, represented by
Santillano under a negotiated contract involving three
phases (Phases II to IV). Phase I had earlier been
directly carried out by the municipality at a cost of PhP
346,639. The rates for the remaining phases were:
Phase II: PhP 1,469,500
Phase III: PhP 1,274,000
Phase IV: PhP 1,300,000
Total: PhP 4,043,500
Santillano submitted programs of work detailing the
project’s costs and expenses. He submitted billings
and included the progress of the construction. Navarra
certified that she inspected the implementation of the
project and that the progress of the work as certified by
Santillano was correct. Navarra and Ecleo, Jr. both
consequently recommended payment be made to
Santillano. Additionally, Ecleo, Jr. made requests for
obligation of allotment and ordered and approved
disbursements of funds for payment of billings from
Santillano. Orejas certified to the availability of funds,
and payment was made to Santillano amounting to
PhP 4,008,005, evidenced by PBMA Builders official
receipts.
According to State Auditor Galenzoga, an inspection of
the project site revealed discrepancies between what
was declared in project documents and the actual
status of the structures. There were items of work that
were included in the contract but not actually executed.
It was found out that some items constructed were not
part of the contract and would have needed a
supplemental contract to be valid. Santillano also
claimed payment for items under Phase II that were not
included in the contract. A comparative cost analysis
yielded an overpricing of PhP 444,757.17 of the project
cost.6
(2) Municipal building. The construction of the
municipal building was also awarded to PBMA Builders
per contract for two phases, negotiated as follows:
Phase I: PhP 1,119,575
Phase II: PhP 2,565,000
Total: PhP 3,684,575
Navarra, however, estimated the individual program of
work for Phase I at PhP 2,051,387.55. As with the
public market project, Ecleo, Jr. and Navarra approved
Santillano’s billing for the construction. Requests for
obligation of allotment were prepared by Ecleo, Jr.,
which was followed by Orejas’ certification of
availability of funds. The mayor then signed and
approved the disbursement vouchers for payments to
be made to Santillano via checks. Santillano
acknowledged payment through PBMA official
receipts. The total payment made amounted to PhP
3,849,664, of which the audit team noted an
overpayment of PhP 165,089.7
An ocular inspection of the municipal building made the
audit team conclude that contrary to the reported
accomplishment rate of 100%, only 37.33% of the
construction was actually finished. Payment had been
made on activities that had not yet been started. The
comparative cost analysis prepared by Galenzoga
showed that the cost of the project was PhP
1,437,024.30, which meant that there was an
overpayment of PhP 2,412,639.70.
(3) Municipal guest house. The special audit team also
discovered an allotment of PhP 300,000 from the
Countrywide Development Fund for the repair and
rehabilitation of the municipality’s guest house. A cash
advance for the said amount was approved by Ecleo,
Jr. given to Navarra for the expenses of the project.
State Auditor Torralba learned, however, that the funds
were not spent for the repair of the municipal guest
house but that of a private building owned by PBMA.
Records with Orejas as well as a ledger of fixed assets
disclosed that the municipality did not even have its
own guest house.
The defense proffered alibi and denial in claiming
innocence. Navarra testified that in Janury 1991, she
was a municipal project development assistant. Her
position, she reasoned, showed that she had no
responsibility to sign official documents. Her leave of
absence from July to November 1991 also foreclosed
any opportunity for her to sign the certificates of work
for Phases II to IV of the construction of the public
market. She claimed that her signatures on the
certificates had been forged. She did, however, admit
that she signed the programs of work, certificates of
work, and disbursement vouchers for the construction
of the municipal building.8
Ecleo, Jr. denied the charges against him by claiming
that he signed the pertinent documents in good faith as
he relied on Navarra’s certification. He admitted
indorsing Santillano’s request for a supplemental
contract and recommended its approval. He also
added that the vice-mayor was acting mayor for a time
and he signed collection requests and disbursement
vouchers also based on Navarra’s certification of the
necessity and lawfulness of the expenses incurred.
Ecleo, Jr. buttressed his claim of innocence by saying
that he recommended the immediate prosecution of
Santillano when the audit team finished its findings. He
stated that the San Jose Sangguniang Bayan passed
Resolution No. 30, Series of 1995 in order to file a civil
case against Santillano. He represented the municipal
government of San Jose, Surigao del Norte in its civil
case for breach of contract and damages against
Santillano. A compromise agreement was allegedly
reached, with Santillano acknowledging PhP
2,856,396.87. The Regional Trial Court of Surigao City
rendered judgment on the basis of the said
agreement.9
Santillano testified that when PBMA Builders started
work on Phase II of the public market, they had to
relocate the site as it was too close to the sea and could
get flooded in high tide. The relocation purportedly had
the approval of the municipal development and
planning coordinator. He asserted that the variance
between the audit’s valuation of both the public market
project and the municipal building and what he actually
received was justified because of the additional work
done on Phase I. He invoked Presidential Decree No.
(PD) 1594 in explaining the excess in expense, as the
said law allowed adjustments in billings by as much as
25%.10 He likewise justified collecting additional
amount of PhP 165,089 for the construction of the
municipal building by saying that it was approved by
the municipal planning and development coordinator. 11
On the matter of the compromise agreement between
him and the municipality of San Jose, Santillano denied
entering into one and said he never admitted to any
liability. He stated that he even filed a petition with the
Court of Appeals to nullify the judicially-approved
compromise agreement.
Deciding against Santillano, the Sandiganbayan found
that all the elements of the offense charged were
present in the three cases on appeal. In Criminal Case
No. 24467 (construction of public market), it found the
prosecution’s evidence sufficient to show that: (1)
Ecleo, Jr. entered into contracts with Santillano for
Phases II to IV of the project; (2) Ecleo, Jr. and Navarra
approved and released funds to Santillano worth PhP
4,008,005; and (3) there was an overpayment of PhP
444,575.17 to Santillano. 1 avvphi 1
In Criminal Case No. 24468 (construction of municipal
building), the evidence adduced showed that: (1)
Ecleo, Jr. entered into an agreement with Santillano for
the construction of a municipal building for PhP
3,684,575; (2) payments approved and released by
Ecleo, Jr. and Navarra amounted to PhP 3,849,664;
and (3) there was an overpayment of PhP
2,412,639.70.
In Criminal Case No. 24469 (repair and rehabilitation
of municipality guest house), it was adequately shown
that: (1) funds amounting to PhP 300,000 were
approved by Ecleo, Jr. and Orejas for the repair of the
municipality guest house; (2) the funds were actually
used for the guest house of a private building owned
by PBMA; and (3) in reality the municipality did not
have a guest house. The appellate court, however,
ruled that there was not enough evidence showing that
Orejas conspired with Ecleo, Jr. to use public funds for
the repair of a private building.
The Sandiganbayan rejected the argument of
Santillano that he was justified in collecting additional
payments because of additional work he undertook.
The law he invoked, PD 1594, requires the government
to direct the performance of additional works through
written orders and within limits set within the contract.
The Sandiganbayan noted that Santillano’s authority to
undertake additional work per his testimony was
merely verbal. On Santillano’s claim that the state
auditor was not qualified to estimate the projects’ cost
analysis, the Sandiganbayan held that the audit team’s
conclusions were based on substantial evidence;
therefore, it upheld the principle that factual findings of
administrative agencies are generally respected and
given finality.
On October 13, 2006, the Sandiganbayan made a
Decision, the dispositive portion of which reads:
WHEREFORE, judgment is rendered in the following:
(1) In Criminal Case No. 24467, the Court finds
the accused Ruben B. Ecleo, Jr., Anadelia
Naluan Navarra and Ricardo L. Santillano
GUILTY beyond reasonable doubt of violation
of Section 3(e) of Republic Act No. 3019 and
they are each sentenced to suffer the penalty
of imprisonment of six (6) years and one (1)
month to ten (10) years and six (6) months. In
addition, they shall each suffer the penalty of
perpetual disqualification from public office.
They are likewise ordered to return, jointly and
 solidarily, to the municipality of San Jose,
Surigao del Norte the amount of P444,575.17.
(2) In Criminal Case No. 24468, the Court finds
the accused Ruben B. Ecleo, Jr., Anadelia
Naluan Navarra and Ricardo L. Santillano
GUILTY beyond reasonable doubt of violation
of Section 3(e) of Republic Act No. 3019 and
they are each sentenced to suffer the penalty
of imprisonment of six (6) years and one (1)
month to ten (10) years and six (6) months. In
addition, they shall each suffer the penalty of
perpetual disqualification from public office.
They are likewise ordered to return, jointly and
solidarily, to the municipality of San Jose,
Surigao del Norte the amount of
P2,412,639.70.
(3) In Criminal Case No. 24469, the Court finds
the accused Ruben B. Ecleo, Jr., GUILTY
beyond reasonable doubt of violation of
Section 3(e) of Republic Act No. 3019 and he
is hereby sentenced to suffer the penalty of
imprisonment of six (6) years and one (1)
month to ten (10) years and six (6) months and
to suffer perpetual disqualification from public
office.
Considering that accused Arsenia Orejas, who is
charged in Criminal [Case Nos.] 24467-24469, has not
been brought to the jurisdiction of this Court to answer
the charges herein, let warrant of arrest issue against
her.
The cash bonds posted by accused Ruben Ecleo, Jr.
and Anadelia Naluan Navarra are hereby ordered
cancelled in view of their conviction.
SO ORDERED.12
Thus, on October 27, 2006, Santillano filed the instant
petition.
On December 4, 2006, this Court issued a
Resolution13 requiring Santillano to submit the
following: (1) a statement of material dates showing
when notice of the assailed judgment was received,
pursuant to Sections 4(b) and 5, Rule 45 in relation to
Sec. 5(d), Rule 56 of the Rules of Court; and (2) proof
of service of the petition on the lower court concerned
pursuant to Sec. 5(d), Rule 56 and Sec. 13, Rule 13 of
the Rules.
On February 5, 2007, the People, through the Office of
the Special Prosecutor, filed its Comment on the
Petition.
On February 28, 2007, this Court required Santillano to
file a reply to the People’s Comment. Santillano filed
his Reply on May 15, 2007.
Santillano raised the issue of:
WHETHER THE DECISION OF THE
SANDIGANBAYAN PROMULGATED ON OCTOBER
13, 2006 IS CONTRARY TO LAW BECAUSE
PETITIONER-ACCUSED ENGR. RICARDO L.
SANTILLANO IS A PRIVATE PERSON AND NOT A
PUBLIC OFFICER
Our ruling is to deny the appeal.
In the procedural aspect of the petition, Santillano
failed to complete the requirements of a petition under
Rule 45, despite our resolution requiring him to submit
a statement of material dates and proof of service of
the petition on the Sandiganbayan. The
aforementioned requirement on proof of service may
be found under Supreme Court Circular No. 19-91
dated August 13, 1991, which states:
2. Form and Service of Petition. —
A petition filed under Rule 45, or under Rule 65, or a
motion for extension may be denied outright if it is not
clearly legible, or there is no proof of service on the
lower court, tribunal, or office concerned and on the
adverse party in accordance with Sections 3, 5 and 10
of Rule 13, attached to the petition or motion for
extension when filed.
Effective September 15, 1991, henceforth, a petition or
motion for extension filed before this Court shall be
dismissed/denied outright if there is no such proof of
service in accordance with Sections 3 and 5 in relation
to Section 10 of Rule 13 of the Rules of Court attached
to the petition/motion when filed. (Emphasis supplied.)
The People, through the Office of the Special
Prosecutor, observed in its Comment14 on the Petition,
"Verily, Petitioner fatally failed to implead the Court a
quo (Sandiganbayan) and to serve a copy of his
Petition to the said court."
While the Rules of Court does not require that the lower
court be impleaded, proof of service of the petition on
the lower court is mandated. The People, thus,
correctly maintains that service of the petition upon the
Sandiganbayan should have been made.
There have been exceptional cases where we have set
aside procedural defects to correct a patent injustice.
To justify a relaxation of the Rules, however, there
should be an effort on the part of the party invoking
liberality to at least explain its failure to comply with the
Rules.15 Jurisprudence holds that the utter disregard of
the Rules cannot be justified by harking to substantial
justice and the policy of liberal construction of the
Rules. Technical rules of procedure are not meant to
frustrate the ends of justice. Rather, they serve to effect
the proper and orderly disposition of cases and, thus,
effectively prevent the clogging of court dockets.16
In the instant case, while Santillano filed a Reply to the
Comment of the Special Prosecutor, no explanation
whatsoever was made on why he failed to comply with
the requirements on material dates and proof of
service. The Reply tackled substantial matters, but did
not touch on why no compliance was made with regard
to proof of service. We, thus, find no reason to give due
course to the present petition.
But even if we entertain the petition, we must still affirm
the conviction of Santillano.
Santillano claims that the Sandiganbayan added an
element to the crime charged. The Sandiganbayan
allegedly added the phrase "or a private person
charged in conspiracy with the public officer" to the law
in order to have a legal basis in holding him liable. The
assertion completely lacks merit.
The relevant provision of RA 3019 states:
Section 3. Corrupt practices of public officers.––In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions. x x x
While the afore-quoted provision does not contain a
reference to private individuals, it must be read in
conjunction with the following sections also of RA 3019:
Section 4. Prohibition on private individuals.––
xxxx
(b) It shall be unlawful for any person knowingly to
induce or cause any public official to commit any of the
offenses defined in Section 3 hereof.
Section 9. Penalties for violations.––(a) Any public
officer or private person committing any of the unlawful
acts or omissions enumerated in Sections 3, 4, 5 and
6 of this Act shall be punished with imprisonment for
not less than one year nor more than ten years,
perpetual disqualification from public office, and
confiscation or forfeiture in favor of the Government of
any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other
lawful income. (Emphasis supplied.)
Clearly, the law punishes not only public officers who
commit prohibited acts enumerated under Sec. 3, but
also those who induce or cause the public official to
commit those offenses. This is supported by Sec. 9,
which includes private persons as liable for violations
under Secs. 3, 4, 5, and 6.
Santillano’s argument echoes the issue raised in Go v.
Fifth Division, Sandiganbayan,17 where the appellant
was also a private person. Affirming his conviction, we
held that appellant’s assertion was at odds with the
policy and spirit behind RA 3019, which was "to repress
certain acts of public officers and private persons alike
which constitute graft or corrupt practices or which may
lead thereto."18 Go went on to explain:
The fact that one of the elements of Section 3(g) of RA
3019 is "that the accused is a public officer" does not
necessarily preclude its application to private persons
who, like petitioner Go, are being charged with
conspiring with public officers in the commission of the
offense thereunder.
Go, citing Luciano v. Estrella,19 Singian, Jr. v.
Sandiganbayan,20 and Domingo v. Sandiganbayan,
laid to rest the debate on a private person’s culpability
in cases involving RA 3019 by unequivocally stating
that private persons found acting in conspiracy with
public officers may be held liable for the applicable
offenses found in Sec. 3 of the law.
Santillano argues too that there was no evidence that
he conspired with his co-accused. He cites as basis the
Sandiganbayan’s statement that there was no proof of
actual agreement among the accused to commit
violations of RA 3019.
Proof of conspiracy need not be direct or actual.
Indeed, prosecutors would be hard-pressed to secure
a conviction for those charged under RA 3019 if direct
evidence were required to be established. Rule 133 of
the Rules of Court on circumstantial evidence applies
to this case. It states:
SEC. 4. Circumstantial evidence, when sufficient.––
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are
derived are proven; and (c) The combination of
all the circumstances is such as to produce a
conviction beyond reasonable doubt.
A judgment of conviction based on circumstantial
evidence can be upheld only if the circumstances
proved constitute an unbroken chain that leads to one
fair and reasonable conclusion pointing to the accused,
to the exclusion of all others, as the guilty person, that
is, the circumstances proved must be consistent with
each other, consistent with the hypothesis that the
accused is guilty, and at the same time inconsistent
with any other hypothesis except that of guilty.21
In petitioner’s case, the finding of conspiracy is not
unfounded. In all three criminal cases, the prosecution
was able to establish that Ecleo, Jr. and Navarra
approved of overpayments made to Santillano. The
Sandiganbayan did not give much weight to their weak
defense of alibi. What is more, it correctly ruled that the
doctrine in Arias v. Sandiganbayan22 could not be used
by Ecleo, Jr. to escape liability, as the documents he
had to approve were not so voluminous so as to
preclude him from studying each one carefully. On the
contrary, if he had the best interest of his constituents
in mind, he should have examined all the project
documents, as a good deal of taxpayers’ money was
involved. Navarra’s alibi was also not enough to acquit
her. She was not precluded from signing the
documents relating to the subject projects while she
was on leave. She also did not establish any proof that
her signatures were forged. Worse, both Ecleo, Jr. and
Navarra were parties to an agreement that approved
disbursement of funds for a bogus municipal guest
house and they could not come up with a plausible
justification for such a gaffe.
Santillano, on the other hand, was indisputably on the
receiving end of the overpayments and even issued
receipts for them. He was unable to justify the
excessive payments by showing a written agreement
with the municipality pursuant to the Implementing
Rules and Regulations of PD 1594. All these
undeniable circumstances lead to the logical
conclusion that all three accused acted in a concerted
effort to, as the Sandiganbayan put it, deprive the
government of its much-needed funds.
Also worthy to note is the futile attempt of Ecleo, Jr. to
evade liability by initiating a suit against Santillano in
1995. The case was allegedly settled through a
compromise agreement covering PhP 2,856,396.87,
but Santillano denied being a party to it. It appears that
Ecleo, Jr. sought to cover up his role in the irregular
disbursement of government funds by trying to
belatedly have Santillano prosecuted. We agree with
the Sandiganbayan that this only proved that the audit
team correctly made a finding of overpayment, a
finding Ecleo, Jr. could not dispute.
The factual findings of the Sandiganbayan are
conclusive on this Court, subject to established
exceptions, among them: (1) the conclusion is a finding
grounded entirely on speculations, surmises, and
conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; and
(5) the findings of fact of the Sandiganbayan are
premised on the absence of evidence and are
contradicted by evidence on record.23 None of these
exceptions being present, we affirm the appealed
judgment.
On the penalty imposed, RA 3019 lays down the
penalty for a violation committed under its Secs. 3, 4,
5, and 6. To recapitulate:
Section 9. Penalties for violations.––(a) Any public
officer or private person committing any of the unlawful
acts or omissions enumerated in Sections 3, 4, 5 and
6 of this Act shall be punished with imprisonment for
not less than one year nor more than ten years,
perpetual disqualification from public office, and
confiscation or forfeiture in favor of the Government of
any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other
lawful income.
We find the penalty imposed in all three criminal cases
within that prescribed by law. The Sandiganbayan was
correct in applying Sec. 1 of the Indeterminate
Sentence Law. Said law provides that in offenses
punishable by a law, other than the Revised Penal
Code, the maximum term of the penalty should "not
exceed the maximum fixed by said law and the
minimum (should) not be less than the minimum term
prescribed by the same."24
WHEREFORE, the appeal is DENIED. The Decision of
the Sandiganbayan in Criminal Case Nos. 24467 to
24469 finding Ricardo L. Santillano guilty of three
counts of violation of Sec. 3(e), RA 3019 is AFFIRMED.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
(3) G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs.
HON. JUSTICE FRANCIS GARCHITORENA,
SANDIGANBAYAN (First Division) and PEOPLE OF
THE PHILIPPINES, respondents.
Amado M. Santiago, Jr. for petitioner.
The Solicitor General for the People of the Philippines.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the
Revised Rules of Court to set aside: (a) the Resolution
dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to
declare Presiding Justice Francis Garchitorena of the
Sandiganbayan, disqualified from acting in said
criminal case; and (b) the Resolution of said court
promulgated on
March 14, 1993, which deemed as "filed" the 32
Amended Informations against petitioner (Rollo, pp. 2-
35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal
Case No. 16698 of the Sandiganbayan with violation of
Section 3(e) of R.A. No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act,
allegedly committed by her favoring "unqualified"
aliens with the benefits of the Alien Legalization
Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition
for certiorari and prohibition, docketed as G.R. No.
99289-99290 (Santiago v. Vasquez, 205 SCRA 162
[1992]), to enjoin the Sandiganbayan from proceeding
with Criminal Case No. 16698 on the ground that said
case was intended solely to harass her as she was
then a presidential candidate. She alleged that this was
in violation of Section 10, Article IX-C of the
Constitution which provides that "(b)ona
fide candidates for any public office shall be free from
any form of harassment and discrimination." The
petition was dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for
inhibition of Presiding Justice Garchitorena, which
motion was set for hearing on November 13, 1992 at
8:00 A.M. (Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First
Division), of which Presiding Justice Garchitorena is a
member, set the criminal case for arraignment on
November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the
arraignment on the grounds that there was a pending
motion for inhibition, and that petitioner intended to file
a motion for a bill of particulars (Rollo, pp. 43-44).
On November 9, 1992, the Sandiganbayan (First
Division) denied the motion to defer the arraignment
(Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a
bill of particulars (Rollo, pp. 47-48). The motion stated
that while the information alleged that petitioner had
approved the application or legalization of "aliens" and
gave them indirect benefits and advantages it lacked a
list of the favored aliens. According to petitioner, unless
she was furnished with the names and identities of the
aliens, she could not properly plead and prepare for
trial.
On November 12, 1992 and upon motion of petitioner
in G.R.
No. 107598 (Miriam Defensor Santiago v.
Sandiganbayan, et al.), we directed the
Sandiganbayan (First Division) to reset the
arraignment to a later date and to dispose of the two
incidents pending before it (Re: disqualification of
Presiding Justice Garchitorena and the motion for the
bill of particulars).
At the hearing on November 13, 1992 on the motion for
a bill of particulars, the prosecution stated categorically
that they would file only one amended information
against petitioner.
However, on December 8, 1992, the prosecution filed
a motion to
admit the 32 Amended Informations (Criminal Cases
Nos. 18371 to 18402; Rollo, pp. 61-126).
On March 3, 1993, Presiding Justice Garchitorena
issued the questioned Resolution dated March 11,
1993, denying the motion for his disqualification (Rollo,
pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division)
promulgated a resolution, admitting the 32 Amended
Informations and ordering petitioner to post the
corresponding bail bonds within ten days from notice
(Rollo, pp. 165-185). Petitioner's arraignment on the 32
Amended Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining
order, we issued the Resolution dated March 25, 1993,
ordering Presiding Justice Garchitorena "to CEASE
and DESIST from sitting in the case until the question
of his disqualification is finally resolved by this Court
and from enforcing the resolution dated March 11,
1993, ordering petitioner to post bail bonds for the 32
Amended Informations and from proceeding with the
arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding
Justice
The petition for disqualification of Presiding Justice
Garchitorena is based on the publication of is letter in
the July 29, 1992 issue of the Philippine Star, which to
petitioner "prejudged" the validity of the information
filed
against her. Petitioner claims that Presiding Justice
Garchitorena "cannot be expected to change the
conclusions he has subconsciously drawn in his public
statements . . . when he sits in judgment on the merits
of the case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an
item in Teodoro Benigno's column in the July 22, 1992
issue of the Philippine Star, criticizing the
Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that
said order reflected a "perverse morality" of the
Sandiganbayan and the lack of "legal morality" of its
Presiding Justice, thus:
I cannot, for example accept the legal
morality of Sandiganbayan Justice
Francis Garchitorena who would stop
Miriam Defensor Santiago from going
abroad for a Harvard scholarship
because of graft charges against her.
Some of the most perfidious Filipinos I
know have come and gone, left and
returned to these shores without Mr.
Garchitorena kicking any kind of
rumpus. Compared to the peccadilloes
of this country's outstanding felons,
what Miriam is accused of is
kindergarten stuff. The Sandiganbayan
Supremo got a lot of headlines for
stopping Miriam but I contend this is the
kind of perverse morality we can do
without (Rollo, p. 156).
The portion of the letter of Presiding Justice
Garchitorena, which petitioner finds objectionable,
reads as follows:
(c) Mrs. Santiago has never informed
any court where her cases are pending
of her intention to travel, whether the
Regional Trial Court where she is
charged with soliciting donations from
people transacting with her office at
Immigration or before the
Sandiganbayan where she is charged
with having favored unqualified aliens
with the benefits of the Alien
Legalization Program nor even the
Supreme Court where her petition is
still pending (Rollo, p. 158).
In particular, petitioner considered as prejudgment the
statement of Presiding Justice Garchitorena that
petitioner had been charged before the
Sandiganbayan "with having favored unqualified aliens
with the benefits of the Alien Legalization Program."
The statement complained of was just a restatement of
the Information filed against petitioner in Criminal Case
No. 16698 in connection with which the hold-departure
order was issued. Said Information specified the act
constituting the offense charged, thus:
That on or about October 17, 1988, or
for sometime prior or subsequent
thereto, in Manila, Philippines, and
within the jurisdiction of this Honorable
Court, accused Miriam Defensor-
Santiago, being then the
Commissioner of the Commission on
Immigration and Deportation, with
evident bad faith and manifest
partiality, did then and there willfully,
unlawfully and criminally approve the
application for legalization of aliens
 who arrived in the Philippines after
January 1, 1984 in violation of
Executive Order No. 324 dated April
13, 1988 which does not allow the
legalization of the same, thereby
causing undue injury to the government
and giving unwarranted benefits and
advantages to said aliens in the
discharge of the official and
administrative functions of said
accused (Rollo, p. 36).
It appears that petitioner tried to leave the country
without first securing the permission of the
Sandiganbayan, prompting it to issue the hold-
departure order which Benigno viewed as uncalled for.
The letter of Presiding Justice Garchitorena, written in
defense of the dignity and integrity of the
Sandiganbayan, merely stated that all persons facing
criminal charges in court, with no exception, have to
secure permission to leave the country. Nowhere in the
letter is the merit of the charge against petitioner ever
touched. Certainly, there would have been no occasion
for the letter had Benigno not written his diatribe, unfair
at that, against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be
taken into consideration that the Sandiganbayan sits in
three divisions with three justices in each division.
Unanimity among the three members is mandatory for
arriving at any decision of a division (P.D. No. 1606,
Sec. 5). The collegiate character of the Sandiganbayan
thus renders baseless petitioner's fear of prejudice and
bias on the part of Presiding Justice Garchitorena
(Paredes v. Gopengco, 29 SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights
to due process were violated by reason of the delay in
the termination of the preliminary investigation.
According to her, while the offense was allegedly
committed "on or before October 17, 1988", the
information was filed only on May 9, 1991 and the
amended informations on December 8, 1992 (Rollo, p.
14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is
inapplicable to petitioner's case. In Tatad, there indeed
was an unexplained inaction on the part of the public
prosecutors inspite of the simplicity of the legal and
factual issues involved therein.
In the case at bench, there was a continuum of the
investigatory process but it got snarled because of the
complexity of the issues involved. The act complained
of in the original information came to the attention of
the Ombudsman only when it was first reported in the
January 10, 1989 issue of the Manila Standard.
Immediately thereafter, the investigatory process was
set in motion. The investigation was first assigned to
Special Prosecutor Gualberto dela Llana but on
request of petitioner herself the investigation was first
assigned to Special Prosecutor Gualberto dela Llana
but on request of petitioner herself the investigation
was re-assigned to the Office of the Deputy
Ombudsman for Luzon. The case was handled by a
panel of four prosecutors, who submitted a draft
resolution for the filing of the charges on March 29,
1990. The draft resolution had to undergo the hierarchy
of review, normal for a draft resolution with a dissenting
vote, until it reached the Ombudsman in March 1991.
We note that petitioner had previously filed two
petitions before us involving Criminal Case No. 16698
(G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she
failed to raise the issue of delay in the preliminary
investigation and the filing of the information against
her in those petitions. a piece-meal presentation of
issues, like the splitting of causes of action, is self-
defeating.
Petitioner next claims that the Amended Informations
did not charge any offense punishable under Section 3
(e) of R.A. No. 3019 because the official acts
complained of therein were authorized under Executive
Order No. 324 and that the Board of Commissioners of
the Bureau of Investigation adopted the policy of
approving applications for legalization of spouses and
unmarried, minor children of "qualified aliens" even
though they had arrived in the Philippines after
December 31, 1983. she concludes that the
Sandiganbayan erred in not granting her motion to
quash the informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically
the allegations of fact in the information (People v.
Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner
admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for
legalization of the stay of aliens, who
arrived in the Philippines after January
1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and
manifest partiality in the execution of
her official functions."
The foregoing allegations of fact constitute the
elements of the offense defined in Section 3 (e) of R.A.
No. 3019.
The claims that the acts complained of were indeed
authorized under Executive Order No. 324, that
petitioner merely followed in good faith the policy
adopted by the Board of Commissioners and that the
aliens were spouses or unmarried minor children of
persons qualified for legalization of stay, are matters of
defense which she can establish at the trial.
Anent petitioner's claim that the Amended Informations
did not allege that she had caused "undue injury to any
party, including the Government," there are two ways
of violating Section 3 (e) of R.A. No. 3019. These are:
(a) by causing undue injury to any party, including the
Government; and (b) by giving any private party any
unwarranted benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December
5, 1991, we held:
 The use of the distinctive term "or"
connotes that either act qualifies as a
violation of Section 3 (a). In other words
the act of giving any private party any
unwarranted benefit, advantage or
preference is not an indispensable
element of the offense of "causing any
undue injury to any party" as claimed
by petitioners although there may be
instances where both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the
allegation in the petition that the public prosecutors
filed 32 Amended Informations against petitioner, after
manifesting to the Sandiganbayan that they would only
file one amended information (Rollo, pp. 6-61). We also
noted that petitioner questioned in her opposition to the
motion to admit the 32 Amended Informations, the
splitting of the original information (Rollo, pp. 127-129).
In the furtherance of justice, we therefore proceed to
inquire deeper into the validity of said plant, which
petitioner failed to pursue with vigor in her petition.
We find that, technically, there was only one crime that
was committed in petitioner's case, and hence, there
should only be one information to be file against her.
The 32 Amended Informations charge what is known
as delito continuado or "continued crime" and
sometimes referred to as "continuous crime."
In fairness to the Ombudsman's Office of the Special
Prosecutor, it should be borne in mind that the concept
of delito continuado has been a vexing problem in
Criminal Law — difficult as it is to define and more
difficult to apply.
According to Cuello Calon, for delito continuado to
exist there should be a plurality of acts performed
during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which
means that two or more violations of the same penal
provisions are united in one and same instant or
resolution leading to the perpetration of the same
criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal
Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito
continuado consists of several crimes but in reality
there is only one crime in the mind of the perpetrator
(Commentaries on the Revised Penal Code, 1957 ed.,
p. 102; Penal Science and Philippine Criminal Law, p.
152).
Padilla views such offense as consisting of a series of
acts arising from one criminal intent or resolution
(Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated
as constituting only one offense the following cases:
(1) The theft of 13 cows belonging to
two different owners committed by the
accused at the same time and at the
same period of time (People v. Tumlos,
67 Phil. 320 [1939] ).
(2) The theft of six roosters belonging
to two different owners from the same
coop and at the same period of time
(People v. Jaranillo, 55 SCRA 563
[1974] ).
(3) The theft of two roosters in the
same place and on the same occasion
(People v. De Leon, 49 Phil. 437 [1926]
).
(4) The illegal charging of fees for
services rendered by a lawyer every
time he collects veteran's benefits on
behalf of a client, who agreed that the
attorney's fees shall be paid out of said
benefits (People v. Sabbun, 10 SCRA
156 [1964] ). The collection of the legal
fees were impelled by the same motive,
that of collecting fees for services
rendered, and all acts of collection
were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975
[1955] ).
On the other hand, we declined to apply the concept to
the following cases:
(1) Two estafa cases, one of which was
committed during the period from
January 19 to December 1955 and the
other from January 1956 to July 1956
(People v. Dichupa, 113 Phil. 306
[1961] ). The said acts were committed
on two different occasions.
(2) Several malversations committed in
May, June and July, 1936, and
falsifications to conceal said offenses
committed in August and October
1936. The malversations and
falsifications "were not the result of only
one purpose or of only one resolution
to embezzle and falsify . . ." (People v.
Cid, 66 Phil. 354 [1938] ).
(3) Two estafa cases, one committed in
December 1963 involving the failure of
the collector to turn over the
installments for a radio and the other in
June 1964 involving the pocketing of
the installments for a sewing machine
(People v. Ledesma, 73 SCRA 77
[1976] ).
(4) 75 estafa cases committed by the
conversion by the agent of collections
from customers of the employer made
on different dates (Gamboa v. Court of
Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of
the Spanish Penal Code, has been applied to crimes
penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of
fees for services rendered following up claims for war
veteran's benefits (People v. Sabbun, 10 SCRA 156
[1964] ).
Under Article 10 of the Revised Penal Code, the Code
shall be supplementary to special laws, unless the
latter provide the contrary. Hence, legal principles
developed from the Penal Code may be applied in a
supplementary capacity to crimes punished under
special laws.
The question of whether a series of criminal acts over
a period of time creates a single offense or separate
offenses has troubled also American Criminal Law and
perplexed American courts as shown by the several
theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single
larceny" doctrine, that is, the taking of several things,
whether belonging to the same or different owners, at
the same time and place constitutes but one larceny.
Many courts have abandoned the "separate larceny
doctrine," under which there is a distinct larceny as to
the property of each victim. Also abandoned was the
doctrine that the government has the discretion to
prosecute the accused or one offense or for as many
distinct offenses as there are victims (annotation, 37
ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule,
look at the commission of the different criminal acts as
but one continuous act involving the same "transaction"
or as done on the same "occasion" (State v. Sampson,
157 Iowa 257, 138 NW 473; People v. Johnson, 81
Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659,
52 NW 539).
An American court held that a contrary rule would
violate the constitutional guarantee against putting a
man in jeopardy twice for the same offense
(Annotation, 28 ALR 2d 1179). Another court observed
that the doctrine is a humane rule, since if a separate
charge could be filed for each act, the accused may be
sentenced to the penitentiary for the rest of his life
(Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged
petitioner with performing a single criminal act — that
of her approving the application for legalization of
aliens not qualified under the law to enjoy such
privilege.
The original information also averred that the criminal
act : (i) committed by petitioner was in violation of a law
— Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one
offended party, the Government, and (iii) was done on
a single day, i.e., on or about October 17, 1988.
The 32 Amended Informations reproduced verbatim
the allegation of the original information, except that
instead of the word "aliens" in the original information
each amended information states the name of the
individual whose stay was legalized.
At the hearing of the motion for a bill of particulars, the
public prosecutors manifested that they would file only
one amended information embodying the legalization
of stay of the 32 aliens. As stated in the Order dated
November 12, 1992 of the Sandiganbayan (First
Division):
On the matter of the Bill of Particulars,
the prosecution has conceded
categorically that the accusation
against Miriam Defensor Santiago
consists of one violation of the law
represented by the approval of the
applications of 32 foreign nationals for
availment (sic) of the Alien Legalization
Program. In this respect, and
responding directly to the concerns of
the accused through counsel, the
prosecution is categorical that there will
not be 32 accusations but only one . . .
(Rollo, p. 59).
The 32 Amended Informations aver that the offenses
were committed on the same period of time, i.e., on or
about October 17, 1988. The strong probability even
exists that the approval of the application or the
legalization of the stay of the 32 aliens was done by a
single stroke of the pen, as when the approval was
embodied in the same document.
Likewise, the public prosecutors manifested at the
hearing the motion for a bill of particulars that the
Government suffered a single harm or injury. The
Sandiganbayan in its Order dated November 13, 1992
stated as follows:
. . . Equally, the prosecution has stated
that insofar as the damage and
prejudice to the government is
concerned, the same is represented
not only by the very fact of the violation
of the law itself but because of the
adverse effect on the stability and
security of the country in granting
citizenship to those not qualified (Rollo,
p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in
Criminal Case No. 16698 of the Sandiganbayan (First
Division) is AFFIRMED and its Resolution dated March
11, 1993 in Criminal Case No. 16698 is MODIFIED in
the sense that the Office of the Special Prosecutor of
the Office of the Ombudsman is directed to consolidate
the 32 Amended Informations (Criminal Cases Nos.
18371 to 18402) into one information charging only one
offense under the original case number, i.e., No.
16698. The temporary restraining order issued by this
Court on March 25, 1993 is LIFTED insofar as to the
disqualification of Presiding Justice Francis
Garchitorena is concerned.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide,
Jr., Nocon, Bellosillo, Melo and Puno, JJ., concur.
Separate Opinions
VITUG, J., concurring and dissenting:
While I share the view expressed by Mr. Justice
Florentino P. Feliciano in his dissent from the majority
opinion in Miriam Defensor-Santiago vs. Conrado
Vasquez, et al. (205 SCRA 162), the decision in said
case, however, having become final, has, in my view,
the effect of foreclosing the issues there involved.
Accordingly, in this petition now at bench (G.R. No.
109266, I vote with the majority in simply directing, for
the reasons expressed for the Court by
Mr. Justice Camilo D. Quiason, the consolidation of the
thirty-two Amended Informations into a single
Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr.
Justice Quiason, to the extent that that opinion directed
the Office of the Special Prosecutor of the Office of the
Ombudsman to consolidate the thirty-two (32)
Amended Informations (Criminal Cases Nos. 18371
and 18402) into one Information under the original case
number, i.e., No. 16698.
I believe that the Court should order the
Sandiganbayan to dismiss the thirty-two (32) Amended
Informations, for that court seriously erred in not
granting petitioner's Motion to Quash those
Informations. The grounds for my submission in this
respect were spelled out in detail in my dissenting
opinion 1 in Miriam Defensor-Santiago v.Conrado
M. Vasquez, Ombudsman, et al. (205 SCRA 162 at
174-180 [1992] ), which I beg leave to reproduce here:
The information filed before
the Sandiganbayan in Criminal Case
No. 16698 charges the petitioner as
follows:
That on or about
October 17, 1988, or
for sometime prior or
subsequent thereto, in
Manila, Philippines,
and within the
jurisdiction of this
Honorable Court,
accused Miriam
Defensor-Santiago,
being the
Commissioner of the
Commission on
Immigration and
Deportation, with
evident bad faith and
manifest partiality, did
then and there, willfully,
unlawfully and
criminally approve the
application for
legalization of aliens
who arrived in the
Philippines after
January 1, 1984 in
violation of Executive
Order No. 324 dated
April 13, 1988 which
does not allow the
legalization of the
same, thereby causing
undue injury to the
government and giving
unwarranted benefits
and advantage to the
said aliens in the
discharge of the official
and administrative
functions of said
accused.
Contrary to law.
Essentially, the above information
charges that petitioner had, in violation
of the provisions of Executive Order
No. 324 approved applications for
legalization of the stay of aliens who
had arrived in the
Philippines after January 1, 1984. The
information takes the position that the
Executive Order "does not allow the
legalization of the same."
Executive Order No. 324 entitled
"Waiving Passport Requirements for
Immigrants under Certain Conditions,"
dated April 13, 1988, was promulgated
pursuant to section 47 (A)(3) of C.A.
No. 613, as amended, the Philippine
Immigration Act of 1940, which
provides that
Notwithstanding the
provisions of this Act,
the President is
authorized:
(a) when the public
interest to warrants:
xxx xxx xxx
(3) to waive the
passport requirements
for immigrants, under
such conditions as he
may prescribe.
Executive Order No. 324 provides that
an alien may apply with the
Commissioner of Immigration and
Deportation for waiver of passport
beginning on a date to be designated
by the Commissioner. The Order
provides, among other things, that the
alien "must establish that he entered
the Philippines before January 1, 1984
and that he has resided continuously in
the Philippines in an unlawful status
from such date to the filing of his
application."
Petitioner is charged with having
unlawfully waived the passport
requirements of certain aliens who
arrived after January 1, 1984. It is clear
from the record of this case, especially
of the preliminary investigation
conducted by the Office of the Special
Prosecutor, that petitioner herself
stated that she had allowed aliens who
had arrived in the Philippines after
January 1, 1984, but who were the
spouses or minor children of qualified
aliens — the latter being alien spouses
or parents who had entered the
Philippines before January 1, 1984
and who were themselves qualified for
waiver of passport requirements under
Executive Order No. 324 — to apply for
waiver of passport requirements and,
after compliance with requirements of
Executive Order No. 324, approved
such "legalization."
Executive Order No. 324 is not itself a
statute prescribing penal sanctions for
certain acts. Thus, disregard of
Executive Order No. 324 would not, by
itself, give rise to criminal liability. The
criminal information in this case in
effect links up Executive Order No. 324
with Section 3(e) of Republic Act No.
3019, known as the Anti-Graft and
Corrupt Practices Act. Section 3(e) of
the Anti-Graft Act reads as follows:
xxx xxx xxx
It must be noted, firstly, that petitioner,
as the then Commissioner of
Immigration and Deportation, was
expressly authorized and obliged by
Executive Order No. 324 to apply and
administer and enforce its provisions.
Indeed, petitioner was authorized to
issue rules and regulations to
implement that Executive Order
(paragraph 16). Secondly, the
application and administration of
Executive Order No. 324 involve, not
ministerial or mechanical acts, but
rather the exercise of judgment and
discretion, adjudicatory and hence
quasi-judicial in nature. Thirdly, and
perhaps most notably, paragraphs 11
and 12 of the Executive Order provide
as follows:
11. Except as provided
in Paragraph 12,
herein, the
Commissioner of
Immigration and
Deportation may waive
exclusion
grounds under the
Immigration Act in the
cases of individual
aliens for humanitarian
purposes to assure
family unity or for the
public interest.
12. The following
grounds for exclusion
may not be waived by
the Commissioner of
Immigration and
Deportation, namely,
(a) those relating to
criminals; (b) those
relating to aliens likely
to become public
charges; (c) those
relating to drug
offenses, except for so
much of those
provisions as relates to
a single offense of
simple possession of
marijuana; and (d)
those relating to
national security and
members of subversive
organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly
authorizes petitioner to waive grounds
for exclusion of aliens under the
Immigration Act in two (2) cases: (a)
"for humanitarian purposes to assure
family unity;" and (b) "for the public
interest." Under Section 29 (a) of the
Philippine Immigration Act of 1940, as
amended, the classes of aliens
excluded from entry into the Philippines
include:
(17) Persons not
properly documented
for admission as may
be required under the
provisions of this Act.2
Upon the other hand, paragraph 12
specifies the categories of persons in
whose cases no waiver of grounds of
exclusion may be granted.
It will be seen that the acts of petitioner,
which the information assumes to be
criminal in nature, constituted official
acts of petitioner done in the course of
applying, interpreting and construing
Executive Order No. 324. There is no
question that the applications for
waiver of passport requirements by the
spouses and minor children of qualified
aliens were admitted and approved by
petitioner "for humanitarian purposes
to assure family unity." It is also not
disputed that the said alien spouses
and minor children did not fall under
any of the (non-waivable) excluded
classes listed in paragraph 12 of
Executive Order No. 324. It is similarly
undisputed that no one has pretended
that petitioner
had anypersonal or corrupt interest in
any of the cases of alien spouses and
minor children of qualified aliens she
had acted upon. No one has
suggested, for instance that the
fees specified in paragraph 9 of
Executive Order No. 324 either were
not collected by petitioner and
converted to her own use. It may be
noted, incidentally, that paragraph 9
expressly authorizes the
Commissioner "in her discretion, [to]
charge a lower fee for the spouse and
minor children below 21 years old of
the applicant." The criminal
information, as noted above, included
an allegation of "evident bad faith and
manifest partiality." It is clear, however,
that the facts brought out in the
preliminary investigation offered
absolutely no basis for such an
allegation which actually a conclusion
offered by the Special Prosecutor,
much like the words "wilfully, unlawfully
and criminally" which are recited
redundantly in the criminal information
here. Again, the facts disclosed in the
preliminary investigation showed
no undue injury, "to the Government
and no unwarranted benefit or
advantage" to the aliens outside of the
simple acceptance and approval of the
applications for waiver of passport
requirements (so called "legalization")
by petitioner. In other words, if the
interpretation or construction given by
petitioner to Executive Order
No. 324 is correct — i.e., that
applications for waiver of passport
requirements by alien wives and minor
children, arriving after January 1, 1984,
of qualified aliens who had themselves
arrived in the
Philippines before January 1, 1984 and
who were otherwise eligible under the
terms and conditions of Executive
Order No. 324 may be granted for
humanitarian purposes in the interest
of allowing or restoring family unity —
there would be no "injury," let alone an
"undue injury," to the Government.
Neither can the benefit of waiver of
passport requirements in the cases of
such spouses and minor children of
qualified aliens be deemed to be an
"unwarranted" benefit to such aliens if
petitioner's interpretation of Executive
Order
No. 324 be held to be correct.
It is a rule too firmly established to
require documentation that
contemporaneous interpretations of a
statute or implementing regulation by
the executive or administrative officials
precisely charged with the
implementation of such a stature or
regulation, are entitled to great weight
and respect from the courts. This Court
itself has in many instances deferred to
such interpretations rendered by such
administrative officers. (See, e.g.,
Ramos v. Court of Industrial Relations,
21 SCRA 1282 [1967]; Salavaria v.
Buenviaje, 81 SCRA 722 [1978];
Asturias Sugar Central, Inc. v.
Commissioner of Customs, 29 SCRA
617 [1969]; University of the
Philippines v. Court of Appeals, 37
SCRA 54 [1971]; Lim Hao Ting v.
Central Bank, 104 Phil. 573 [1958] ).
But even if an administrative
interpretation be ultimately found to be
incorrect as a matter of law by this
Court, the official responsible for such
interpretation is not, for that reason
alone, to be held liable personally,
whether civilly or criminally or
administratively. It is just as firmly
settled that to impose liability upon the
public officer who has so acted,
something far graver that error of law or
error of judgment must be clearly
shown and that is corrupt personal
intentions, personal malice or bad faith.
(See generally Marcelo v.
Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such
allegations were made during the
preliminary investigation in Criminal
Case No. 16698.
My submission, with respect, is that
whether the acts admittedly done by
petitioner were criminal in nature, is a
legal question, on which petitioner in
effect asks us to rule in this Petition. I
believe, further, that there is nothing to
prevent this Court from addressing and
ruling on this legal issue. There is no
real need for proof of any additional
essential facts apart from those already
admitted by petitioner. It seems to me
that a public officer is entitled to have
legal questions like that before this
Court resolved at the earliest possible
opportunity, that a public officer should
not be compelled to go through the
aggravation, humiliation and expense
of the whole process of criminal trial, if
the legal characterization of the acts
charged as criminal is the very issue at
stake.
I respectfully submit, still further, that
the acts charged do not, as a matter of
law, constitute a crime.Indeed, if the
acts which petitioner admits having
done constitute a criminal offense, very
serious consequences would follow for
the administration of law and
government rules and regulations in
general. For the thrust of the criminal
information here would appear to be
that public officers interpret and apply
statutory and regulatory provisions at
their own peril and at the risk of criminal
liability, notwithstanding the absence of
any corrupt intent to profit personally by
any such interpretation and application.
(Emphasis in the penultimate and
ultimate paragraphs supplied)
The Information, quoted internally above, was filed in
Criminal Case
No. 16698 back in 1 May 1991. approximately two-and-
a-half (2-1/2) years later, the proceedings before the
Sandiganbayan are still going on, and indeed appear
to me to be back where the case was at the time the
original Information was filed. Had this Court ruled on
the legal question which petitioner in effect had asked
us to rule in Santiago v. Vasquez (supra), the case
should be terminated by now, one way or the other.
Once more, I respectfully submit that a public officer
should not be compelled to go through the aggravation,
humiliation and expense of the whole process of
criminal trial, if the legal nature of the acts charged as unlawfully and
criminal is the very issue at stake. criminally approve the
application for
I vote to grant the Petition for Certiorari and to require legalization of aliens
the Sandiganbayan to dismiss the thirty-two (32) who arrived in the
Amended Informations. Philippines after
January 1, 1984 in
Romero, J., concurs. violation of Executive
Order No. 324 dated
April 13, 1988 which
# Separate Opinions
does not allow the
legalization of the
VITUG, J., concurring and dissenting: same, thereby causing
undue injury to the
While I share the view expressed by Mr. Justice government and giving
Florentino P. Feliciano in his dissent from the majority unwarranted benefits
opinion in Miriam Defensor-Santiago vs. Conrado and advantage to the
Vasquez, et al. (205 SCRA 162), the decision in said said aliens in the
case, however, having become final, has, in my view, discharge of the official
the effect of foreclosing the issues there involved. and administrative
functions of said
Accordingly, in this petition now at bench (G.R. No. accused.
109266, I vote with the majority in simply directing, for
the reasons expressed for the Court by Mr. Justice Contrary to law.
Camilo D. Quiason, the consolidation of the thirty-two
Amended Informations into a single Information. Essentially, the above information
charges that petitioner had, in violation
FELICIANO, J., dissenting: of the provisions of Executive Order
No. 324 approved applications for
I dissent from the opinion written for the majority by Mr. legalization of the stay of aliens who
Justice Quiason, to the extent that that opinion directed had arrived in the
the Office of the Special Prosecutor of the Office of the Philippines after January 1, 1984. The
Ombudsman to consolidate the thirty-two (32) information takes the position that the
Amended Informations (Criminal Cases Nos. 18371 Executive Order "does not allow the
and 18402) into one Information under the original case legalization of the same."
number, i.e., No. 16698.
Executive Order No. 324 entitled
I believe that the Court should order the "Waiving Passport Requirements for
Sandiganbayan to dismiss the thirty-two (32) Amended Immigrants under Certain Conditions,"
Informations, for that court seriously erred in not dated April 13, 1988, was promulgated
granting petitioner's Motion to Quash those pursuant to section 47 (A)(3) of C.A.
Informations. The grounds for my submission in this No. 613, as amended, the Philippine
respect were spelled out in detail in my dissenting Immigration Act of 1940, which
opinion 1 in Miriam Defensor-Santiago v.Conrado provides that
M. Vasquez, Ombudsman, et al. (205 SCRA 162 at
174-180 [1992] ), which I beg leave to reproduce here: Notwithstanding the
provisions of this Act,
The information filed before the President is
the Sandiganbayan in Criminal Case authorized:
No. 16698 charges the petitioner as
follows: (a) when the public
interest to warrants:
That on or about
October 17, 1988, or xxx xxx xxx
for sometime prior or
subsequent thereto, in (3) to waive the
Manila, Philippines, passport requirements
and within the for immigrants, under
jurisdiction of this such conditions as he
Honorable Court, may prescribe.
accused Miriam
Defensor-Santiago,
Executive Order No. 324 provides that
being the
an alien may apply with the
Commissioner of the
Commissioner of Immigration and
Commission on
Deportation for waiver of passport
Immigration and
beginning on a date to be designated
Deportation, with
by the Commissioner. The Order
evident bad faith and
provides, among other things, that the
manifest partiality, did
alien "must establish that he entered
then and there, willfully,
the Philippines before January 1, 1984
and that he has resided continuously in
the Philippines in an unlawful status
from such date to the filing of his
application."
Petitioner is charged with having
unlawfully waived the passport
requirements of certain aliens who
arrived after January 1, 1984. It is clear
from the record of this case, especially
of the preliminary investigation
conducted by the Office of the Special
Prosecutor, that petitioner herself
stated that she had allowed aliens who
had arrived in the Philippines after
January 1, 1984, but who were the
spouses or minor children of qualified
aliens — the latter being alien spouses
or parents who had entered the
Philippines before January 1, 1984
and who were themselves qualified for
waiver of passport requirements under
Executive Order No. 324 — to apply for
waiver of passport requirements and,
after compliance with requirements of
Executive Order No. 324, approved
such "legalization."
Executive Order No. 324 is not itself a
statute prescribing penal sanctions for
certain acts. Thus, disregard of
Executive Order No. 324 would not, by
itself, give rise to criminal liability. The
criminal information in this case in
effect links up Executive Order No. 324
with Section 3(e) of Republic Act No.
3019, known as the Anti-Graft and
Corrupt Practices Act. Section 3(e) of
the Anti-Graft Act reads as follows:
xxx xxx xxx
It must be noted, firstly, that petitioner,
as the then Commissioner of
Immigration and Deportation, was
expressly authorized and obliged by
Executive Order No. 324 to apply and
administer and enforce its provisions.
Indeed, petitioner was authorized to
issue rules and regulations to
implement that Executive Order
(paragraph 16). Secondly,
application and administration of
Executive Order No. 324 involve, not
ministerial or mechanical acts, but
rather the exercise of judgment and
discretion, adjudicatory and hence
quasi-judicial in nature. Thirdly, and
perhaps most notably, paragraphs 11
and 12 of the Executive Order provide
as follows:
11. Except as provided
in Paragraph 12,
herein, the
Commissioner of
Immigration and
Deportation may waive
exclusion
grounds under the
Immigration Act in the
cases of individual
aliens for humanitarian
purposes to assure
family unity or for the
public interest.
12. The following
grounds for exclusion
may not be waived by
the Commissioner of
Immigration and
Deportation, namely,
(a) those relating to
criminals; (b) those
relating to aliens likely
to become public
charges; (c) those
relating to drug
offenses, except for so
much of those
provisions as relates to
a single offense of
simple possession of
marijuana; and (d)
those relating to
national security and
members of subversive
organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly
authorizes petitioner to waive grounds
for exclusion of aliens under the
Immigration Act in two (2) cases: (a)
"for humanitarian purposes to assure
family unity;" and (b) "for the public
interest." Under Section 29 (a) of the
Philippine Immigration Act of 1940, as
amended, the classes of aliens
excluded from entry into the Philippines
include:
(17) Persons not
properly documented
for admission as may
be required under the
provisions of this Act.2
the
Upon the other hand, paragraph 12
specifies the categories of persons in
whose cases no waiver of grounds of
exclusion may be granted.
It will be seen that the acts of petitioner,
which the information assumes to be
criminal in nature, constituted official
acts of petitioner done in the course of
applying, interpreting and construing
Executive Order No. 324. There is no
question that the applications for
waiver of passport requirements by the
spouses and minor children of qualified
aliens were admitted and approved by
petitioner "for humanitarian purposes
to assure family unity." It is also not
disputed that the said alien spouses
and minor children did not fall under
any of the (non-waivable) excluded
classes listed in paragraph 12 of
Executive Order No. 324. It is similarly
undisputed that no one has pretended
that petitioner
had anypersonal or corrupt interest in
any of the cases of alien spouses and
minor children of qualified aliens she
had acted upon. No one has
suggested, for instance that the
fees specified in paragraph 9 of
Executive Order No. 324 either were
not collected by petitioner and
converted to her own use. It may be
noted, incidentally, that paragraph 9
expressly authorizes the
Commissioner "in her discretion, [to]
charge a lower fee for the spouse and
minor children below 21 years old of
the applicant." The criminal
information, as noted above, included
an allegation of "evident bad faith and
manifest partiality." It is clear, however,
that the facts brought out in the
preliminary investigation offered
absolutely no basis for such an
allegation which actually a conclusion
offered by the Special Prosecutor,
much like the words "wilfully, unlawfully
and criminally" which are recited
redundantly in the criminal information
here. Again, the facts disclosed in the
preliminary investigation showed
no undue injury, "to the Government
and no unwarranted benefit or
advantage" to the aliens outside of the
simple acceptance and approval of the
applications for waiver of passport
requirements (so called "legalization")
by petitioner. In other words, if the
interpretation or construction given by
petitioner to Executive Order
No. 324 is correct — i.e., that
applications for waiver of passport
requirements by alien wives and minor
children, arriving after January 1, 1984,
of qualified aliens who had themselves
arrived in the
Philippines before January 1, 1984 and
who were otherwise eligible under the
terms and conditions of Executive
Order No. 324 may be granted for
humanitarian purposes in the interest
of allowing or restoring family unity —
there would be no "injury," let alone an
"undue injury," to the Government.
Neither can the benefit of waiver of
passport requirements in the cases of
such spouses and minor children of
qualified aliens be deemed to be an
"unwarranted" benefit to such aliens if
petitioner's interpretation of Executive
Order
No. 324 be held to be correct.
It is a rule too firmly established to
require documentation that
contemporaneous interpretations of a
statute or implementing regulation by
the executive or administrative officials
precisely charged with the
implementation of such a stature or
regulation, are entitled to great weight
and respect from the courts. This Court
itself has in many instances deferred to
such interpretations rendered by such
administrative officers. (See, e.g.,
Ramos v. Court of Industrial Relations,
21 SCRA 1282 [1967]; Salavaria v.
Buenviaje, 81 SCRA 722 [1978];
Asturias Sugar Central, Inc. v.
Commissioner of Customs, 29 SCRA
617 [1969]; University of the
Philippines v. Court of Appeals, 37
SCRA 54 [1971]; Lim Hao Ting v.
Central Bank, 104 Phil. 573 [1958] ).
But even if an administrative
interpretation be ultimately found to be
incorrect as a matter of law by this
Court, the official responsible for such
interpretation is not, for that reason
alone, to be held liable personally,
whether civilly or criminally or
administratively. It is just as firmly
settled that to impose liability upon the
public officer who has so acted,
something far graver that error of law or
error of judgment must be clearly
shown and that is corrupt personal
intentions, personal malice or bad faith.
(See generally Marcelo v.
Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such
allegations were made during the
preliminary investigation in Criminal
Case No. 16698.
My submission, with respect, is that
whether the acts admittedly done by
petitioner were criminal in nature, is a
legal question, on which petitioner in
effect asks us to rule in this Petition. I
believe, further, that there is nothing to
prevent this Court from addressing and
ruling on this legal issue. There is no
real need for proof of any additional
essential facts apart from those already
admitted by petitioner. It seems to me
that a public officer is entitled to have
legal questions like that before this
Court resolved at the earliest possible
opportunity, that a public officer should
not be compelled to go through the
aggravation, humiliation and expense
of the whole process of criminal trial, if
the legal characterization of the acts
charged as criminal is the very issue at
stake.
I respectfully submit, still further, that
the acts charged do not, as a matter of
law, constitute a crime.Indeed, if the
acts which petitioner admits having
done constitute a criminal offense, very
serious consequences would follow for
the administration of law and
government rules and regulations in
general. For the thrust of the criminal
information here would appear to be
that public officers interpret and apply
statutory and regulatory provisions at
 their own peril and at the risk of criminal
liability, notwithstanding the absence of
any corrupt intent to profit personally by
any such interpretation and application.
(Emphasis in the penultimate and
ultimate paragraphs supplied)
The Information, quoted internally above, was filed in
Criminal Case
No. 16698 back in 1 May 1991. approximately two-and-
a-half (2-1/2) years later, the proceedings before the
Sandiganbayan are still going on, and indeed appear
to me to be back where the case was at the time the
original Information was filed. Had this Court ruled on
the legal question which petitioner in effect had asked
us to rule in Santiago v. Vasquez (supra), the case
should be terminated by now, one way or the other.
Once more, I respectfully submit that a public officer
should not be compelled to go through the aggravation,
humiliation and expense of the whole process of
criminal trial, if the legal nature of the acts charged as
criminal is the very issue at stake.
I vote to grant the Petition for Certiorari and to require
the Sandiganbayan to dismiss the thirty-two (32)
Amended Informations.
Romero, J., concurs.
# Footnotes
FELICIANO, J., dissenting:
1 Gutierrez, Griño-Aquino and
Romero, JJ., joined in the dissent.
Melencio
Herrera, J. wrote a separate opinion,
but adopted the substantive points
made in my dissenting opinion.
2 It is also pertinent to note the
following classes of excluded aliens:
(10) Persons who are members of a
family accompanying an excluded
alien, unless in the opinion of the
Commissioner of Immigration no
hardship would result from their
admission;
(11) Persons accompanying an
excluded person who is helpless from
mental or physical disability or infancy,
when the protection or guardianship of
such accompanying person or persons
is required by the excluded persons, as
shall be determined by the
Commissioner of Immigration;
(12) Children under fifteen years of
age, unaccompanied by or not coming
to a parent, except that any such
children may be admitted in the
discretion of the Commissioner of
Immigration, if otherwise admissible;
xxx xxx xxx"
(Section 29 (a), C.A. No. 613, as
amended; emphasis supplied)
(4) G.R. No. 126995 October 6, 1998
IMELDA R. MARCOS, petitioner,
vs.
The Honorable SANDIGANBAYAN (First Division),
and THE PEOPLE OF THE
PHILIPINES, respondents.
RESOLUTION
PURISIMA, J.:
This scenic Philippine archipelago is a citadel of justice,
due process and rule of law. Succinst and clear is the
provision of the constitution of this great Republic that
every accused is presumed innocent until the contrary
is proved. [Art. 111, Sec. 14(2)]. As held in People of
the Philippines vs. Ellizabeth Ganguso y Decena (G.R.
No. 115430, November 23, 1995, 250 SCRA 268, 274-
275):
An accused has in his favor the
presumption of innocence which the
Bill of Rights guarantees. Unless his
guilt is shown beyond reasonable
doubt, he must be acquitted. This
reasonable doubt standard is
demanded by the due process clause
of the Constitution which protects the
accused from conviction except upon
proof beyond reasonable doubt of
every fact necessary to constitute the
crime with which he is charged. The
burden of proof is on the prosecution,
and unless it discharges that burden
the accused need not even offer
evidence in his behalf, and he would be
entitled to an acquittal. Proof beyond
reasonable doubt does not, of course,
mean such degree of proof as,
excluding the possibility of error,
produce absolute certainty. Moral
certainty only is required, or that
degree of proof which produces
conviction in an unprejudiced mind.
The conscience must be satisfied that
the accused is responsible for the
offense charged.
So also, well settled, to the point of being elementary,
is the doctrine that when inculpatory facts are
susceptible to two or more interpretations, one of which
is consistent with the innocence of the accused, the
evidence does not fulfill or hurdle the test of moral
certainty required for conviction. (People of the
Philippines vs. Eric F. Timtiman, G.R. No. 101663,
November 4, 1992, 215 SCRA 364, 373 citing People
vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs.
Raquel, 265 SCRA 248; People vs. Aranda, 226 SCRA
562; People vs. Maongco, 230 SCRA 562; People vs.
Salangga, 234 SCRA 407).
Mindful of and guided by the aforecited constitutional
and legal precepts, doctrines and principles prevailing
in this jurisdiction, should petitioner's Motion for
Reconsideration be granted?
Docketed as Criminal Case No. 17450 before the
Sandiganbayan, the Information indicting Imelda R.
Marcos and Jose P. Dans, Jr. for a violation of Section
3(9) of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act,
alleges:
That on or about June 8, 1984, and for
sometime prior or subsequent thereto,
in Makati, Metro-Manila, Philippines,
and within the jurisdiction of this
Honorable Court, the accused IMELDA
R. MARCOS and JOSE P. DANS, JR.,
public officers, being then Chairman
and Vice-Chairman, respectively, of
the Light Rail Transit Authority (LRTA),
a government corporate entity created
under Executive Order No. 603 of the
former President Ferdinand Marcos,
while in the performance of their official
functions, taking advantage of their
positions and committing the crime in
relation to their offices, did then and
there wilfully, unlawfully and criminally
conspiring with one another, enter on
behalf of the aforesaid government
corporation into a Lease Agreement
covering LRTA property located in
Pasay City, with the Philippines
General Hospital Foundation, Inc.
(PGHFI), a private enterprise, under
terms and conditions manifestly and
grossly disadvantageous to the
government.
CONTRARY TO LAW.
The case was raffled off to the First Division of the
Sandiganbayan, with Presiding Justice Francis E.
Garchitorena, as Chairman and Justices Jose S.
Balajadia and Narciso T. Atienza, as members. On
September 15, 1993, when the First Division failed to
comply with the legal requirement of unanimity of its
three members due to the dissent of Justice Narciso T.
Atienza, Presiding Justice Garchitorena issued
Administrative Order No. 288-93 constituting a Special
Division of five and designating Justices Augusto M.
Amores and Cipriano A. Del Rosario, as additional
members.
On September 21, 1993, Justice Amores wrote
Presiding Justice Garchitorena requesting that he be
given fifteen (15) days to send in his Manifestation.
However, on the same day, September 21, 1993, when
Justice Balajadia and Presiding Justice Garchitorena
agreed with the opinion of Justice Del Rosario,
Presiding Justice Garchitorena issued Administrative
Order No. 293-93, dissolving the Special Division of
Five, without waiting for Justice Amores' manifestation.
Justice Garchitorena considered the said request of
Justice Amores as "pointless because of the
agreement of Justice Balajadia and the undersigned to
the conclusion reached by Justice Atienza". Thus, on
September 24, 1993, the now assailed decision was
handed down by the First Division of the
Sandiganbayan.
Under the aforequoted Information charging accused
Imelda R. Marcos and Jose P. Dans, Jr. with a violation
of Section 3(g) of RA 3019, the following elements of
the offense charged must be proved beyond
reasonable doubt, to wit: 1] that the accused acted as
a public officer; 2] that subject Contract or transaction
entered into by the latter is manifestly and grossly
disadvantageous to the government.
There is no dispute that sometime in the year 1984, the
herein petitioner, Imelda R. Marcos, was Minister of
Human Settlement while Jose P. Dans, Jr. was the
Minister of Transportation and Communication. The
two served as ex oficio Chairman and Vice-Chairman,
respectively, of the Light Rail Transport Authority
(LRTA). Petitioner Marcos was also Chairman of the
Board of Trustees of the Philippine General Hospital
Foundation, Inc. (PGHFI).
On June 8, 1984, petitioner, in her capacity as
Chairman of PGHFI, and Jose P. Dans, Jr. as Vice
Chairman of LRTA, signed the Lease Agreement
(Exhibit "B") by virtue of which LRTA leased to PGHFI
subject lot with an area of 7.340 square meters, at a
monthly rental of P102,760.00 for a period of twenty-
five (25) years.
On June 27, 1984, the PGHFI, represented by its
Chairman Imelda R. Marcos, and Transnational
Construction Corporation, represented by its President
Ignacio B. Gimenez, signed the Sublease Agreement
(Exhibit "D"), wherein said lessee rented the same area
of 7.340 square meters for P734,000.00 a month, for a
period of twenty-five (25) years.
For executing the aforesaid Lease Agreement (Exhibit
"B"), petitioner and Jose P. Dans, Jr. were indicted in
the said Information, for conspiring and confederating
with each other in entering into subject Lease
Agreement alleged to be manifestly and grossly
disadvantageous to the government.
After trial, as earlier alluded to, the Sandiganbayan
convicted the petitioner and Jose P. Dans, Jr. of the
offense charged.
On June 29, 1998, the Third Division of this court came
out with its decision affirming the judgment, as against
petitioner Imelda R. Marcos in G.R. No. 126995, but
reversing the same judgment, as against Joe P. Dans,
Jr., in G.R. No. 127073.
In affirming the judgment of conviction against
petitioner, the Third Division found the rental price
stipulated in the Lease Agreement, (Exhibit "B") unfair
and unreasonably low, upon a comparison with the
rental rate in the Sub-lease Agreement (Exhibit "D"),
which contract petitioner subsequently signed on
behalf of PGHFI, with TNCC. Undaunted, the petitioner
interposed the present Motion for Reconsideration.
The pivot of inquiry here is whether all the elements of
the offense charged have been duly substantiated. As
regards the first element, did petitioner Imelda R.
Marcos enter into the Lease Agreement marked Exhibit
"B" as a public officer? As clearly stated on the face of
the subject contract under scrutiny, it petitioner signed
the same in her capacity as Chairman of PGHFI and
not as Human Settlement Minister nor as ex-
officio Chairman of LRTA. It was Jose P. Dans, Jr. who
signed said Contract, as ex-officio Vice Chairman of
LRTA. Although petitioner was the ex-officio Chairman
of LRTA, at the time, there is no evidence to show that
she was present when the Board of Directors of LRTA
authorized and approved the Lease Agreement sued
upon.
In light of the foregoing antecedent facts and
circumstances, the irresistible conclusion is that
petitioner did not sign subject Lease Agreement as a
public officer, within the contemplation of RA 3019 and,
therefore, the first element of the offense charged is
wanting.
It bears stressing, in this connection, that Jose P. Cans,
Jr., the public officer who signed the said Lease
Agreement (Exhibit "B") for LRTA, was acquitted.
As regards the second element of the offense — that
such Lease Agreement is grossly and manifestly
disadvantageous to the government, the respondent
court based its finding thereon against the petitioner
and Jose P. Dans, Jr., on a ratiocination that while the
rental price under the Lease Agreement is only
P102,760.00 a month, the monthly rental rate under the
Sub-lease Agreement is P734,000.00. After comparing
the two rental rates aforementioned, the respondent
court concluded that the rental price of P102,760.00 a
month is unfair, unreasonable and disadvantageous to
the government.
But Exhibit "B" does not prove that the said contract
entered into by petitioner is "manifestly and grossly
disadvantageous to the government." There is no
established standard by which Exhibit "B"'s rental
provisions could be adjudged prejudicial to LRTA or the
entire government. Exhibit "B" standing alone does not
prove any offense. Neither does Exhibit "B" together
with the Sub-lease Agreement (Exhibit "D") prove the
offense charged.
At most, it creates only a doubt in the mind of the
objective readers as to which (between the lease and
sub-lease rental rates) is the fair and reasonable one,
considering the different circumstances as well as
parties involved. It could happen that in both contracts,
neither the LRTA nor the Government suffered any
injury. There is, therefore, insufficient evidence to
prove petitioner's guilt beyond reasonable doubt.
Verily, it is too obvious to require an extended
disquisition that the only basis of the respondent court
for condemning the Lease Agreement (Exhibit "B") as
"manifestly and grossly disadvantageous to the
government" was a comparison of the rental rate in the
Lease Agreement, with the very much higher rental
price under the Sub-lease Agreement (Exhibit "D").
Certainly, such a comparison is purely speculative and
violative of due process. The mere fact that the Sub-
lease Agreement provides a monthly rental of
P734,000.00 does not necessarily mean that the rental
price of P102,760.00 per month under the Lease
Agreement (Exhibit "B") is very low, unreasonable and
manifestly and grossly disadvantageous to the
government. There are many factors to consider in the
determination of what is a reasonable rate of rental.
What is more, as stressed by Jose P. Dans Jr., when
subject Lease Agreement was inked, the rental rate
thereinprovided was based on a study conducted in
accordance with generally accepted rules of rental
computation. On this score, Mr. Ramon F. Cuervo, Jr.,
the real estate appraiser who testified in the case as an
expert witness and whose impartiality and competence
were never impugned, assured the court that the rental
price stipulated in the Lease Agreement under scrutiny
was fair and adequate. According to him, witness, the
reasonable rental for subject property at the time of
execution of Exhibit "B" was only P73,000.00 per
month.
That the Sub-lease Agreement (Exhibit "D") was for a
very much higher rental rate of P734,000.00 a month
is of no moment. This circumstance did not necessarily
render the monthly rental rate of P102,760.00
manifestly and grossly disadvantageous to the lessor.
Evidently, the prosecution failed to prove that the rental
rate of P102,760.00 per month was manifestly and
grossly disadvantageous to the government. Not even
a single lease contract covering a property within the
vicinity of the said leased premises was offered in
evidence The disparity between the rental price of the
Lease Agreement and that of the Sublease Agreement
is no evidence at all to buttress the theory of the
prosecution, "that the Lease Agreement in question is
manifestly and grossly disadvantageous to the
government". "Gross" is a comparative term. Before it
can be considered "gross", there must be a standard
by which the same is weighed and measured.
All things viewed in proper perspective, it is decisively
clear that there is a glaring absence of substantiation
that the Lease Agreement under controversy is grossly
and manifestly disadvantageous to the government, as
theorized upon by the prosecution.
Furthermore, that the lessee, PGHFI, succeeded in
obtaining a high rental rate of P734,000.00 a month,
did not result in any disadvantage to the government
because obviously, the rental income realized by
PGHFI from the Sub-lease Agreement (Exhibit "D"),
augmented the financial support for and improved the
management and operation of the Philippine General
Hospital, which is, after all, a government hospital of
the people and for the people.
Another sustainable ground for the granting of
petitioner's motion for reconsideration is the failure and
inability of the prosecution to prove that petitioner was
present when the Board of Directors of LRTA
authorized and approved the Lease Agreement
complained of. Albeit, petitioner was ex oficio chairman
of the Board of Directors of LRTA when the said Lease
Agreement was entered into, there is no evidence
whatsoever to show that she attended the board
meeting of LRTA which deliberated and acted upon
subject Lease Agreement (Exhibit "B"). It is thus
beyond cavil that petitioner signed the said Lease
Agreement as Chairman of the PGH Foundation, Inc.,
a private charitable foundation, and not as a public
officer.
Neither can petitioner be considered as in conspiracy
with Jose P. Dans, Jr., who has been found without any
criminal liability for signing the same Lease Agreement.
Absent any conspiracy of petitioner with Dans, the act
of the latter cannot be viewed as an act of the former.
Petitioner is only answerable for her own individual act.
Consequently, petitioner not having signed Exhibit "B"
as a Public officer, there is neither legal nor factual
basis for her conviction under Section 3(g) of Rep Act
3019.
It beers repeating that apart from the Lease Agreement
and Sub-lease Agreement marked Exhibits "B" and
"D", respectively, the prosecution offered no other
evidence to prove the accusation at bar.
What makes petitioner's stance the more meritorious
and impregnable is the patent violation of her right to
due process, substantive and procedural, by the
respondent court. Records disclose that: (a) the First
Division of the Sandiganbayan composed of Presiding
Justice Garchitorena and Associate Justices Balajadia
and Atienza could not agree on whether to convict or
acquit the petitioner in the five (5) criminal cases
pending against her. Justice Atienza was in favor of
exonerating petitioner in Criminal Case Nos. 17449,
17451 and 17452. Justices Garchitorena and Balajadia
wanted to convict her in Criminal Case Nos. 17450,
17451, 17452 and 17453. As there was no unanimity
of votes in Criminal Case Nos. 17451 and 17452; (b)
on September 15, 1993, in accordance with Sec. 5 of
P.D. No. 1606, Presiding Justice Garchitorena issued
Adm. Order No. 288-93 constituting a Special Division
of five (5) justices, and naming thereto, Justices
Augusto M. Amores and Cipriano A. del Rosario; (c) on
September 21, 1993, Justice Amores sent a written
request to Presiding Justice Garchitorena asking that
he be given fifteen (15) days to submit his
Manifestation; (d) on the same day, September 21,
1993, however, Presiding Justice Garchitorena and
Justices Balajadia and del Rosario, after attending a
hearing of the Committee of Justice of the House of
Representatives, lunched together in a Quezon City
restaurant where they discussed petitioner's cases in
the absence of Justices Atienza and Amores and in the
presence of a non-member of the Special Division.
Thereat, Presiding Justice Garchitorena, and Justices,
Balajadia and del Rosario agreed with the position of
Justice Atienza to acquit petitioner in Criminal Case
Nos. 17449, 17451 and 17452 and to convict her in the
other cases; and (e) when the Justices returned to the
official workplace of Sandiganbayan, Presiding Justice
Garchitorena issued Adm. Order No. 293-93 dissolving
the Special Division.
Such prodedural flaws committed by respondent
Sandiganbayan are fatal to the validity of its "decision"
convicting petitioner for the following reasons, viz:
First. Section 4, Rule VI categorically provides that
"sessions of the Sandiganbayan, whether en banc or
division, shall be held in its principal office in the
Metropolitan Manila where it shall try and determine all
cases filed with it . . .." This rule reiterates Sec. 2 of
P.D. No. 1606, as amended, creating the
Sandiganbayan.
Second. The rules of Sandiganbayan do not allow
unscheduled discussion of cases. We take judicial
notice of the procedure that cases in all courts are
carefully calendared and advance notices are given to
judges and justices to enable them to study and
prepare for deliberation. The calendaring cases cannot
be the subject of anybody's whims and caprices.
Third. The rules of Sandiganbayan do not also allow
informal discussion of cases. The deliberations in case
at bar did not appear on record. The informal
discussion of the three justices came to light only when
petitioner moved to inhibit Presiding Justice
Garchitorena after her conviction by the resuscitated
First Division. Presiding Justice Garchitorena, in a
paper entitled "Response," revealed for the first time
the informal discussion of petitioner's cases at an
unnamed restaurant in Quezon City. There is no way
to know how the discussion was conducted as it was
not minuted.
Fourth. The rules of the Sandiganbayan do not allow
the presence of a non-member in the deliberation of
cases. In the case at bar a certain justice was present
when Presiding Justice Garchitorena, Justice
Balajadia, and Justice del Rosario discussed
petitioner's cases while taking their lunch in a Quezon
City restaurant.
Fifth. The rules of the Sandiganbayan do not allow the
exclusion of a member of a Division, whether regular
or special, in the deliberation of cases. Justices Atienza
and Amores were members of the Special Division but
were not present when petitioner's cases were
discussed over lunch in a Quezon City restaurant. They
ware not notified of the informal, unscheduled meeting.
In fact, Justice Amores had a pending request for 15
days to study petitioner's cases. In effect, Atienza and
Amores were disenfranchised. They were denied their
right to vote for the conviction or acquittal of petitioner.
These irregularities violated the right of petitioner to be
tried by a collegial court. Under PD No. 1606, as
amended, and pursuant to the rules of Sandiganbayan,
petitioner cannot be convicted except upon the vote of
three justices, regardless of whether her cases are
before a regular division of three (3) justices or a
Special Division of five (5) justices. But more important
than the vote of three (3) justices is the process by
which they arrive at their vote. It is indispensable that
their vote be preceded by discussion and deliberation
by all the members of the division. Before the
deliberation by all, any opinion of a justice is but
tentative and could be changed. It is only after all the
justices have been heard should the justices reach a
judgment. No one opinion can be denigrated in
importance for experience shows that an opinion that
starts as a minority opinion could become the majority
opinion after the collision of views of the justices. The
right of the petitioner, therefore, is the right to be heard
by all the five justices of the Special Division. She is
entitled to be afforded the opinion of all its members.
In the case at bar, Presiding Justice Garchitorena had
already created the Special Division of five (5) justices
in view of the lack of unanimity of the three (3) justices
in the First Division. At that stage, petitioner had a
vested right to be heard by the five (5) justices,
especially the new justices in the persons of Justices
Amores and del Rosario who may have a different view
of the cases against her. At that point, Presiding Justice
Garchitorena and Justice Balajadia may change their
mind and agree with the original opinion of Justice
Atienza but the turnaround cannot deprive petitioner of
her vested right to the opinion of justices Amores and
del Rosario. It may be true that Justice del Rosario had
already expressed his opinion during an informal,
unscheduled meeting in the unnamed restaurant but as
aforestated, that opinion is not the opinion impartial judge. There
contemplated by law. But what is more, petitioner was are vital
denied the opinion of Justice Amores for before it could considerations,
be given, Presiding Justice Garchitorena dissolved the however, which in the
Special Division. opinion of this court
render this step
We reject the rationalization that the opinion of Justice unnecessary. In the
Amores was of de minimis importance as it cannot first place, the
overturn the votes of the three justices convicting the Constitution, Article III,
petitioner. This is a mere guesswork. The more section 1, paragraph
reasonable supposition is that said opinion could have 17, guarantees to every
changed the opinions of the other justices if it is based accused person the
on an unbiased appreciation of facts and an right to a speedy trial.
undistorted interpretation of pertinent laws. For we This criminal
cannot unreasonably suppose that Presiding Justice proceeding has been
Garchitorena and Justices Balajadia and Atienza are dragging on for almost
bigots who will never change their opinions about the five (5) years now. The
guilt of the petitioner despite a better opinion. accused have twice
appealed to this court
Yet, that is not all the value of the aborted opinion of for redress from the
Justice Amores. If it were an opinion for the acquittal of wrong that they have
the petitioner, that opinion will have an added value suffered at the hands of
when petitioner appeals her conviction to this Court. the trial court. At least
Again, depending on its scholarship, that minority one of them, namely,
opinion could sway the opinion of this Court towards Pedro Fernandez
the acquittal of petitioner. (alias Piro), had been
confined in prison from
July 20, 1932 to
Prescinding from those premises, it is indisputable that
November 27, 1934 for
the decision of the First Division of the respondent
inability to post the
Sandiganbayan convicting the petitioner is void for
required bond of
violating her right to substantive and procedural due
P3,000 which was
process of law.
finally reduced to P300.
The Government
It is opined, however, that this case should be should be the last to set
remanded to the respondent Sandiganbayan for re- an example of delay
decision by a Special Division of 5. As a general rule, and oppresson in the
a void decision will not result in the acquittal of an administration of justice
accused. The case ought to be remanded to the court and it is the moral and
of origin for further proceedings for a void judgment legal obligation of this
does not expose an accused to double jeopardy. But court to see that the
the present case deserves a different treatment criminal proceedings
considering the great length of time it has been pending against the accused to
with our courts. Records reveal that petitioner was first come to an end and
indicted in Criminal Case No. 17450 in January 1992. that they be
More than six (6) years passed but petitioner's immediately
prosecution is far from over. To remand the case to the discharged from the
Sandiganbayan will not sit well with her constitutional custody of the law.
right to its speedy disposition. Section 16, Article III of (Conde vs. Rivera and
the Constitution assures "all persons shall have the Unson, 45 Phil., 650).
right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies." This
We reiterated this rule in Acebedo vs. Sarmiento, viz: 2
right expands the right of an accused "to have a
speedy, impartial, and public trial . . ." in criminal case
guaranteed by Section 14(2) of Article III of the 2. More specifically,
Constitution. It has a broadening effect because this Court has
Section 16 covers the periods before, during and after consistently adhered to
trial whereas Section 14(2) covers only the trial the view thatb a
period.1 Heretofore, we have held that an accused dismissal based on the
should be acquitted when his right to speedy trial has denial of the right to a
been violated. Thus, in the early 1936 case of People speedy trial amounts to
vs. Castañeda, et al., 63 Phil 480, 485, 486, a ponencia an acquittal.
of Mr. Justice Laurel, we held: Necessarily, any
further attempt at
continuing the
A strict regard for the
prosecution or starting
constitutional rights of
a new one would fall
the accused would
within the prohibition
demand, therefore, that
against an accused
the case be remanded
being twice put in
to the court below for
jeopardy. The
new trial before an
extensive opinion of
Justice Castro in
People vs. Obsania
noted earlier made
reference to four
Philippine decisions.
People vs. Diaz,
People vs. Abaño,
People vs. Robles, and
People vs. Cloribel. In
all of the above case,
this Court left no doubt
that a dismissal of the
case, though at the
instance of the
defendant grounded on
the disregard of his
right to a speedy trial
was tantamount to an
acquittal. In People vs.
Diaz, it was shown that
the case was set for
hearing twice and the
prosecution without
asking for
postponement or giving
any explanation failed
to appear. In People vs.
Abaño, the facts
disclosed that there
were three
postponements.
Thereafter, at the time
the resumption of the
trial was scheduled, the
complaining witness as
in this case was
absent, this Court held
that respondent Judge
was justified in
dismissing the case
upon motion of the
defense and that the
annulment or setting
aside of the order of
dismissal would place
the accused twice in
jeopardy of punishment
for the same offense.
People vs. Robles
likewise presented a
picture of witnesses for
the prosecution not
being available, with
the lower court after
having transferred the
hearings on several
occasions denying the
last plea for
postponement and
dismissing the case.
Such order of
dismissal, accordirig to
this Court "is not
provisional in character
but one which is
tantamount to acquittal
that would bar further
prosecution of the
accused for the same
offense." This is a
summary of the
Cloribel case as set
forth in the above
opinion of Justice
Castro. "In Cloribel, the
case dragged for three
years and eleven
months, that is, from
September 27, 1958
when the information
was filed to August 15,
1962 when it was
called for trial, after
numerous
postponements, mostly
at the instance of the
prosecution. On the
latter date, the
prosecution failed to
appear for trial, and
upon motion of
defendants, the case
was dismissed. This
Court held, "that the
dismissal here
complained of was not
truly a "dismissal" but
an acquittal. For it was
entered upon the
defendants" insistence
on their constitutional
right to speedy trial and
by reason of the
prosecution's failure to
appear on the date of
trial." (Emphasis
supplied)" There is no
escaping the
conclusion then that
petitioner here has
clearly made out a case
of an acquittal arising
from the order of
dismissal given in open
court.
The rationale for both Section 14(2) and section 16 of
Article III of the Constitution is the same, "justice
delayed is justice denied." Violation of either section
should therefore result in the acquittal of the accused.
There are other reasons why the case should not be
remanded to the court a quo. Three justices of the
Special Division, namely Justice Atienza, Balajadia
and Amores have already retired. Presiding Justice
Garchitorena is still with the respondent court but his
impartiality has been vigorously assailed by the
petitioner. Mr. Justice Francisco of the Third Division of
this Court noted that Presiding Justice Garchitorena's
undue interference in the examination of witness
Cuervo relealed his bias and prejudice against
petitioner. 3 As Mr. Justice Francisco observed "the
court questions were so numerous which as per
petitioner Dans count totaled 179 compared to
prosecutor Querubin's questions which numbered
merely 73. More noteworthy, however, is that the court
propounded leading, misleading, and baseless
hypothetical questions rolled into one." 4 Mr. Justice
Francisco's opinion was concurred by Mr. Justice Melo.
Truly, even Mr. Chief Justice Narvasa, Madam Justice
Romero and Mr. Justice Panganiban who voted to
convict petitioner did not refute Mr. Justice Francisco's
observations on the lack of impartiality of Presiding bearing from evidence
Justice Garchitorena. They disregarded Mr. Ramon F. and universal precepts
Cuervo's testimony and based the conviction of of due process — lest
petitioner purely on the documentary evidence we sacrifice in mocking
submitted by the People. Moreover, all the evidence in shame once again the
the case at bar are now before this Court and to avoid very liberties we are
further delay, we can evaluate the evidence. In fact, the defending.
same evidence has been passed upon by the Third
Division of this Court in formulating its judgment of IN VIEW OF THE FOREGOING, the Motion for
affirmance sought to be reconsidered. Certainly, it will Reconsideration under consideration is hereby
be sheer rigmarole for this Court to still remand the GRANTED and petitioner Imelda R. Marcos is hereby
case for a Special Division of five of the ACQUITTED of the offense charged. Costs de oficio.
Sandiganbayan to render another decision in the case,
with respect to the herein petitioner. SO ORDERED.

I consider this opinion incomplete without quoting Martinez and Quisumbing, JJ., concur.
herein the following portion of the concurring and
dissenting opinion of former Associate Justice Ricardo
Narvasa, C.J., is on leave, I certify that Narvasa, C.J.,
J. Francisco dated January 29, 1998:
concurs in the dissenting opinions of Romero, J.
Thus, purely from the
Regalado, J., I concur in the dissenting opinion of
legal standpoint, with
Romero J.
the evident weakness
of the prosecution's
case and the Davide, Jr., J., I certify that Davide, Jr., J., concurs in
procedural aberrations the dissenting opinion of Romero, J.
that marred the trial, it
is simply unsound and Romero, J., Please see Dissenting Opinion.
impossible to treat
differently each Bellosillo, J., For insufficiency of evidence, I vote for
petitioner who found acquitted of petition. See Concuring Opinion.
themselves in one and
the same situation. Melo, J., I also concur in the separate opinion of Justice
Indeed, our regained Kapunan.
democracy, creditably,
is successfully bailing Puno, J., I vote for acquittal: (1) petitioner's trial was not
us out from the ruins of impartial, and (2) petitioner was convicted by a Division
the authoritarian of the Sandiganbayan without jurisdiction.
regime, and it expects
that government efforts Vitug, J., I vote for remanding the case in order to allow
in going after the the corrections of the perceived "irregularities" in the
plunderers of that dark proceeding below:
past remain unrelenting
and decisive. But let us
not, in our anxiety to Kapunan, J., See separate concurring opionion.
carry out this duty, for a
moment forget that our Mendoza, J., I concur on the ground of insufficiency of
criminal justice system evidence.
is not a popularity
contest where freedom Panganiban, J., Pls. see Dissenting Opinion.
and punishment are
determined merely by
the fame or infamy of
the litigants. "The Separate Opinions
scales of justice", it has
been aptly said,5 "must
hang equal and, in fact,
should even be tipped
in favor of the accused BELLOSILLO, J., concurring opinion;
because of the
constitutional I concur. In affirming the conviction of petitioner by the
presumption of Sandiganbayan, this Court in its Decision of 29 January
innocence. Needless to 1998 relied "mainly on the prosecution's documentary
stress, this right is evidence showing the chasmic disparity between the
available to every P102,760.00 monthly rental stipulated in Exh. "B" and
accused, whatever his the P734,000.00 monthly rental provided in Exh. "D.""
present circumstance
and no matter how dark At first blus, the presentation may appear sound; in a
and repellent his past." way, logical. But a critical and dispassionate review of
Culpability for crimes the facts impels me to hold that the evidence of the
Must always take its prosecution miserably fails to meet the requisite
quantum of proof to warrant the conviction of petitioner.
It is simply too insubstantial and inadequate to
establish her guilt beyond reasonable doubt.
The acquittal of petitioner may run against the current
of popular temper and inclination, and particularly
odious to those who may have already prejudged the
case without knowing the facts. But I can only do what
my conscience unerringly commands me to do.
Perhaps it can be said that this is the essence of a
strong and independent judicial system — that it
remains immune from arbitrary and personal politics. I
have pondered deeply on the issue; I have searched
my mind and soul for an avenue to affirm petitioner's
conviction; but I have failed to see my way to that
conclusion.
The apparent disparity may really be "chasmic," but
this by itself is too tenuous to prove that the Lease
Contract between the LRTA and the PGHFI is
"manifestly and grossly disadvantageous to the
Government." For, how can a mere disparity in the
amount of lease rental — chasmic or otherwise — be
the sole raison d' être for convicting an acused?
Should not the disparity, or the cause of it, be at the
very least sufficiently explained to uncover and be
connected with the criminal mind of the accused?
Should not other evidence be offered to clearly show
that the accused entered into a transaction which was
"manifestly and grossly disadvantageous to the
Government?"
To convict under Sec. 3, par. (g), RA No. 3019, as
amended, no less than proof beyond reasdnable doubt
is demanded for the contract or transaction entered into
by the public officer on behalf of the Government to be
considered "manifestly and grossly disadvantageous to
the Government." In the instant case, the prosecution
has utterly failed in the endeavor. Thus, the
constitutional presumption of innocence of petitioner
has become a matter of fact.
This Court, acquitting accused Jose P. Dans Jr. earlier,
held that the prosecution failed to prove his guilt
beyond reasonable doubt as his liability, if any, could
only stem from a knowledge of the terms of the
sublease agreement, of which he was not aware.
Consequently, it is reasonably inferred from the
decision acquitting Dans that as far as the Court was
concerned Exh. "B" (the Lease Contract between
LRTA and PGHFI) which he signed, was not per
se "manifestly and grossly disadvantageous to the
Government." Prescinding from this premise, it would
be illogical to conclude that a subsequent agreement
has transformed Exh. "B," found by this Court to be fair
and regular, into a contract "manifestly and grossly
disadvantageous to the Government" without changing
substantially the provisions of the same agreement.
If accused Dans was acquitted because he merely
signed Exh. "B," necessarily implying that it was not
tainted, with irregularity, how can petitioner be now
convicted for merely signing Exh. "D?" Would we not
be saying in effect that because of mere disparity, Exh.
"D" made Exh. "B" manifestly and grossly
disadvantageous to the Government? Perhaps it would
have been different if at the outset Exh. "B" were
considered excessively low or "manifestly and grossly
disadvantageous to the Government." I pause to warn
that if we are to pursue the theory that a mere
"chasmic" disparity is sufficient to prove that a contract
is "manifestly and grossly disadvantageous to the
Government," it may not be difficult for an ill-motivated
individual to incriminate a high ranking government
official, or any person of consequence for that matter,
by simply offering to pay and paying a much higher
sublease rental.
Consequently, it is serious error to rely mainly, if not
solely, on Exh. "D" stipulating a monthly rental of
P734,000.00 which shows the so-called "chasmic"
disparity. While the subject property was subsequently
subleased for a rental seven (7) times higher, which a
well-respected real estate broker and appraiser opined
to be "extraordinary high," we can at best only
speculate on the reason behind the "extraordinary
high" sublease rental. For sure, there is no showing
that the LRTA, on its own, could have commanded the
same sublease rental PGHFI commanded in its
sublease agreement. Could it be that the sublessee
only wished to be ingratiated to the former First Lady
or to the then powerful administration? Or, could it be
that the sublessee really wanted the property so much,
perhaps for reasons only known to him, or he saw a
great potential in the property which other parties did
not see nor wanted to risk on? But, the Court does not
engage in speculatory exercises; it goes by the hard
facts.
This Court has time and again declared that when the
inculpatory facts and circumstances are capable of two
or more interpretations, one of which being consistent
with innocence of the accused and the other or others
consistent with his guilt, then the evidence in view of
the constitutional presumption of innocence has not
fulfilled the test of moral certainty and is thus
insufficient to support a conviction. It need not be
overstressed that, in criminal cases, every
circumstance favoring the innocence of the accused
must be duly taken into account; and presumptions
unsupported by solid evidence do not have a place in
the dispensation of justice, especially as the law
requires proof beyond reasonable doubt.
The Solicitor General in his Memorandum submitted
after the 10 September 1998 Oral Arguments insists
that "[t]he lease agreement (Exhibit B) is grossly and
manifestly disadvantageous to the government" and
ventures to say that the lease was "not for the purpose
of earning additional income for the LRTA operations
but solely to extend financial assistance to the PGHF."
Thus, it is arued that "[b]eing a transaction purely
intended to benefit the PGHF, without any regard to the
interest of the government, the lease agreement by
itself is the most compelling evidence demonstrating
the gross and manifest disadvantage to the
government." Again, this is a dangerous presumption.
Is the Court now being asked to reverse itself and hold
that the lease agreement between the LRTA and
PGHFI (Exh. "B") is per se "manifestly and grossly
disadvantageous to the Government?" Is the Court
now going to recall the acquittal of accused Dans for
entering into a contract which was "manifestly and
grossly disadvantageous to the government?" This is
absurd and no longer an issue since res judicata and
doble jeopardy have already set in.
While the procedure followed in the leasing and
subleasing of subject property left mush to be desired,
more so after taking into consideration the official 603 of the former
positions and functions of the persons involved in the President Ferdinand E.
transactions at the time they were entered into, there Marcos, while in the
was likewise so much to be desired in the presentation performance of their
of the evidence to prove the guilt of the accused. But officiat functions, taking
the difference is that the accused here is not to bear advantage of their
the burden of proving her innocence. We may not even positions and
say that she is indeed innocent; simply stated, the committing the crime in
prosecution has utterly failed to prove that she is guilty relation to their offices,
beyond reasonable doubt, hence, must be acquitted. did then and there
For, the conviction of the accused does rest not on the wilfully, unlawfully and
weakness of the defense but on the strength of the criminally conspiring
prosecution. Unless the prosecution discharges its with one another, enter
burden, the accused need not even offer evidence in on behalf of the
his behalf. aforesaid government
corporation into an
It cannot be overemphasized that we can convict only agreement for the
when the evidence submitted shows a crime has been development of the
committed; we can convict only if we have ascertained areas adjacent to the
beyond reasonable doubt that the accused is indeed LRTA stations and the
guilty. Otherwise, we have no recourse but to acquit. It management and
is not the Court, nay, not the men who sit in judgment, operation of the
that loosen the prisoner at bar, but the State, by the concession areas
compelling majesty of its Constitution, that sets him therein, with the
free. Philippine General
Hospital Foundation,
By this precept, I vote to grant the motion for Inc. (PGHFI), a private
reconsideration and to reverse petitioner's conviction. enterprise, under terms
and conditions
manifestly and grossly
disadvantageous to the
government.
KAPUNAN, J., separate concurring opinion;
CONTRARY TO LAW.
For better understanding and appreciation of the
issues raised in the Motion for Reconsideration, I wish
Criminal Case No. 17450.
to restate briefly some basic facts.
The undersigned Special Prosecution
Petitioner Imelda R. Marcos, and Jose P. Dans, Jr.
Officer I, Officer of the Special
were charged on January 14, 1992 before the
Prosecutor, hereby accuses IMELDA
Sandiganbayan with violation of Republic Act No. 3019
R. MARCOS and JOSE P. DANS, JR.
(the Anti-Graft and Corrupt Practices Act), to wit:
of Violation of Section 3(g) of RA 3019,
as amended, committed as follows:
Criminal Case No. 17449
That on or about June
The undersigned Special Prosecution 8, 1984, and for
Officer I, Office of the Special sometime prior or
Prosecutor, hereby accuses IMELDA subsequent thereto, in
R. MARCOS and JOSE P. DANS, JR. Makati, Metro Manila,
of Violation of Section 3(g) of RA 3019, Philippines, and within
as amended, committed as follows: the jurisdiction of this
Honorable Court, the
That on or about accused IMELDA R.
September 8, 1982, MARCOS and JOSE P.
and for sometime prior DANS, JR., public
or subsequent thereto, officers, being then the
in Manila, Philippines, Chairman and Vice-
and within the Chairman,
jurisdiction of this respectively, of the
Honorable Court, the Light Rail Transit
accused IMELDA R. Authority (LRTA), a
MARCOS and JOSE P. government corporate
DANS, JR., public entity created under
officers, being then the Executive Order No.
Chairman and Vice- 603 of the former
Chairman respectively, President Ferdinand E.
of the Light Rail Transit Marcos, while in the
Authority (LRTA), a performance of their
government corporate official functions, taking
entity created under advantage of their
Executive Order No.
 positions and
committing the crime in
relation to their offices,
did then and there
wilfully, unlawfully and
criminally conspiring
with one another, enter
on behalf of the
aforesaid government
corporation into a
Lease Agreement
covering LRTA
property located in
Pasay City, with the
Philippine General
Hospital Foundation,
Inc. (PGHFI), a private
enterprise, under terms
and conditions
manifestly and grossly
disadvantageous to the
government.
CONTRARY TO LAW.
Criminal Case No. 17451.
The undersigned Special Prosecution
Officer I, Office of the Special
Prosecutor, hereby accuses IMELDA
R. MARCOS of Violation of Section
3(d) of RA 3019, as amended,
committed as follows:
That on or about June
8, 1984, and for
sometime prior or
subsequent thereto, in
Makati Metro Manila,
Philippines, and within
the jurisdiction of this
Honorable Court, the
accused IMELDA R.
MARCOS, a public
officer, being then the
Chairman of the Light
Rail Transit Authority
(LRTA), a government
corporate entity
created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of her
official functions, taking
advantage of her
position and
committing the offense
in relation to her office,
did then and there
wilfully, unlawfully and
criminally accepted
employment and/or
acted as chairman of
(the) Philippine
General Hospital
Foundation Inc.
(PGHFI), a private
corporation duly
organized under the
laws of the Philippines,
which private
enterprise had, at that
time(,) pending
business transactions
with the accused, in her
capacity as Chairman
of the LRTA.
CONTRARY TO LAW.
Criminal Case No. 17452.
The undersigned Special Prosecution
Officer I, Officer of the Special
Prosecutor, hereby accuses JOSE P.
DANS, JR. of Violation of Section 3(d)
of RA 3019, as amended, committed as
follows:
That on or about June
8, 1984, and for
sometime prior or
subsequent thereto, in
Makati, Metro Manila,
Philippines, and within
the jurisdiction of this
Honorable Court, the
accused JOSE P.
DANS, JR., a public
officer, being then the
Vice-Chairman of the
Light Rail Transit
Authority (LRTA), a
government corporate
entity created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of his
official functions, taking
advantage of his
position and
committing the offense
in relation to his office,
did then and there
wilfully, unlawfully and
criminally accepted
employment and/or
acted as Director of
(the) Philippine
General Hospital
Foundation, Inc.
(PGHFI), a private
corporation duly
organized under the
laws of the Philippines,
which private
enterprise had, at that
time(,) pending
business transactions
with the accused, in his
capacity as Vice-
Chairman of LRTA.
CONTRARY TO LAW.
Criminal Case No. 17453.
 The undersigned Special Prosecution
Officer, Office of the Special
Prosecutor, hereby accuses IMELDA
R. MARCOS and JOSE P. DANS, JR.
of Violation of Section 3(g) of RA 3019,
as amended, committed as follows:
Case Nos. 17450 and 17453 were reversed on
reasonable doubt.
On February 18, 1998, petitioner Marcos filed a motion
for reconsideration of the decision on the following
grounds:

That on or about June a. It was not petitioner, but accused

18, 1984, and for
sometime prior or
subsequent thereto, in
Makati, Metro Manila,
Philippines, and within
the jurisdiction of this
Honorable Court, the
accused IMELDA R.
MARCOS and JOSE P.
DANS, JR., public
officers, being then the
Chairman and Vice-
Chairman respectively,
of the Light Rail Transit
Authority (LRTA), a
government corporate
entity created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of their
official functions, taking
advantage of their
positions and
committing the crime in
relation to their offices,
did then and there
wilfully, unlawfully and
criminally conspiring
with one another, enter
on behalf of the
aforesaid government
corporation into a
Lease Agreement
covering LRTA
property located in Sta.
Cruz, Manila, with the
Philippine General
Hospital Foundation,
Inc. (PGHFI), a private
enterprise, under terms
and conditions
manifestly and grossly
disadvantageous to the The Information in Criminal Case No. 17450 (Violation
government. of Sec. 3[g] of R.A. 3019, as amended) under which
petitioner Marcos was convictedd reads:
CONTRARY TO LAW.
After trial, the Sandiganbayan acquitted petitioner
Marcos in Criminal Case Nos. 17449 and 17451 and
Dans in Criminal Case Nos. 17449 and 17452.
However, it convicted both petitioner Marcos and Dans
in Criminal Case Nos. 17450 and 17453.
Both appealed to this Court.
In the decision of the Third Division of this Court
promulgated on January 29, 1998, the conviction of
petitioner Marcos in Criminal Case No. 17450 was
affirmed with modification, while her conviction in
Criminal Case No. 17453 and that of Dans in Criminal
Jose P. Dans, Jr., who entered into the
"Lease Agreement" (Exhibit 'B') on
behalf of the Light Rail Transit Authority
(LRTA), subject matter of Crim. Case
No. 17450. And, since accused Jose P.
Dans, Jr. has been acquitted of the
offense charged in Crim. Case No.
17450, petitioner Imelda R. Marcos
may not be convicted of the offense as
his co-conspirator.
b. The evidence upon which the finding
of the Court that the terms and
conditions of the "Lease Agreement"
are "manifestly and grossly
disadvantageous to the Government"
does not constitute proof beyond
reasonable doubt, sufficient to
overcome the presumption of
innocence, to establish that the terms
and conditions of the "Lease
Agreement" (Exhibit "B") are manifestly
and grossly disadvantageous to the
Light Rail Transit Authority (LRTA).
c. The finding of the Court that rendition
of the decision by the First Division of
the Sandiganbayan and not by the
Special Division of Five constituted
under Administrative Order No. 288-93
was valid and regular, is based on
incorrect facts and erroneous
application of the law.
d. Likewise, the finding of the Court that
there was no denial of the right of
petitioner to counsel before the
Sandiganbayan is based on an
erroneous perception of the relevant
facts.
I
The undersigned Special Prosecution
Officer I, Office of the Special
Prosecutor, hereby accuses IMELDA
R. MARCOS and JOSE P. DANS, JR.,
public officers being then the Chairman
and Vice-Chairman, respectively, of
the Light Rail Transit Authority (LRTA),
a government corporate entity created
under Executive Order No. 603 of the
Former President Ferdinand E.
Marcos, while in the performance of
their official functions, taking
advantage of their positions and
committing the crime in relation to their
offices, did then and there wilfillly,
 unlawfully and criminally conspiring
with one another, enter on behalf of the
aforesaid government corporation into
a Lease Agreement covering LRTA
property located in Pasay City, with the
Philippine General Hospital
Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions
manifestly and grossly
disadvantageous to the government.
CONTRARY TO LAW.
Sec. 3(g) of R.A No. 3019 requires that the following be
established:
a. The accused public
officer entered, on
behalf of the
Government, into a
contract or transaction,
and
b. The contract or
transaction entered into
by the public officer, on
behalf of the
Government, is
manifestly and grossly
disadvantageous to the
Government.
Under the Infornation, petitioner Marcos is alleged to
have violated Sec. 3(g) of R.A. No. 3019 because while
in the performance of her official functions as Chairman
of the LRTA, she entered on behalf of said corporation
into a Lease Agreement covering the LRTA property
located in Pasay City with the PGHFI, under terms and
conditions manifestly and grossly disadvantageous to
the government and in conspiracy with Dans.
However, it is clear from the Lease Agreement that it
was Dans, not petitioner Marcos, who entered into the
said agreement, subject of the Information, in behalf of
the LRTA. Petitioner Marcos signed the agreement in
her capacity as Chairman of the PGHFI, a private
enterprise. Since it is conceded in the decision sought
to reconsidered that there was no conspiracy between
Dans and Marcos in entering into the contract, it is
utterly illogical to acquit Dans who entered into the
contract "on behalf of the Government" and convict
Marcos who signed the same in her capacity as
Chairman of the PGHFI, a private enterprise.
It is the argument of the Solicitor General, to which
some members of the Court agree, that since petitioner
Marcos was Chairman of the Board of Directors of the
LRTA, she must have directly and actively participated
in the authorization, approval and execution of the
Lease Agreement for and in behalf of the LRTA,
manifesting a conflict of interest.
In all due respect, the proposition has no factual
moorings; it rests on pure speculations.
First, petitioner Marcos and Dans were virtually
charged with conflict of interest in Criminal Case Nos.
17449, 17451 and 17453. But they were cleared by the
Sandiganbayan; their acquittal has laid to rest the
accusation that they acted in a double capacity.
Second, it is pure speculation and conjecture to allege
that petitioner Marcos acted for the LRTA or is
assumed to have given her approvel to the execution
of the Lease Agreement by the LRTA being Chairman
thereof. There is no iota of proof at all that petitioner
Marcos was present or had participated in any meeting
of the LRTA Board of Directors authorizing the
agreement. To convict, there should be proof of guilt
beyond reasonable doubt. Bare assumptions and
speculations cannot be bases for conviction.
Third, if petitioner Marcos had taken part in any action
of the Board, why were the other members of the Board
not included in the Information for violation of Sec. 3(g)
of R.A. No. 3019? The decision of the Third Division of
the Court itself has provided the answer when it stated
that "this Court's opinion that the alleged conspiracy
between the petitioners (Marcos and Dans) was not
sufficiently established by the State's evidence" (page
22). Verily, having found that the alleged conspiracy
between petitioner Marcos and Dans has not been
established, no act committed by Dans may be imputed
to Marcos, in the same way that it is purely guesswork
to insinuate that the act of the LRTA in authorizing the
Lease Agreement may be imputed to petitioner
Marcos, absent any semblance of proof.
II
The decision sought to be reconsidered opted to rely
solely on the documentary evidence of the prosecution,
namely, the Lease Agreement (Exh. "B") and the sub-
lease contract (Exh. "D") in rationalizing that the former
is "manifestly and grossly disadvantageous to the
government."
We should stress that in affirming the conviction of
petitioner Marcos, this Court relies mainly on the
prosecution's documentary evidence showing the
disparity between the P102,760.00 monthly rental
stipulated in Exhibit "B" and the P734,000.00 monthly
rental provided in Exhibit "D." 1
I feel quite uneasy with the method used by the
prosecution in determining that the government was
grossly disadvantaged in the Lease Agreement, this is,
by simply comparing the rental in the Lease Agreement
and that in the sub-lease contract. Just by considering
the disparity in the rentals, cannot it be argued as well
that the lease rental is fair and reasonable and the
sublease rental is too high? Supposing there was no
sublease contract at all, or the sublease rental was
equal or lower than that in the Lease Agreement, would
the conclusion of the Court be the same, considering
that there would then be nothing to compare the lease
rental with? The point I am trying to drive at is that proof
should have been adduced to determine the fair market
value of the Pasay lot based on the market data
approach which considers how much properties in that
particular area were sold or offered to be sold.
Curiously enough, when Sandiganbayan Chief
Prosecutor Leonardo P. Tamayo was asked during the
oral argument before the Court on September 10,
1998, why no such independent evidence was
presented by the prosecution, he answered that he was
not then involved in the case, but added that if he were
the prosecutor, he would have adduced such evidence.
This is an admission that the prosecution's evidence
against Marcos is sorely lacking.
One other point. An essential element of Section 3(g)
of R.A. No. 3019 is that the contract entered into by the
public officer concerned is manifestly and grossly
disadvantageous to the government. In the case at bar,
a close scrutiny, however, reveals that the main and
ultimate beneficiary of the subject transactions was the
government-owned hospital, the Philippine General
Hospital (PGH). The Philippine General Hospital
Foundation, Inc. (PGHFI) was established as a
charitable organization.2 The funds it raised eventually
went to the rehabilitation and support of the PGH as
evidenced by the list of various medical equipment,
drugs and supplies donated by the foundation to the
said hospital. 3 There is no allegation, much less proof,
that Marcos misappropriated a single centavo from the
transactions. Since the major recipient of the high
rentals negotiated by PGHFI (with private corporations)
was one of the state-run medical facilities, the
perceived disadvantage to the LRTA was negated by
the benefits reaped by PGH. In the end, therefore,
albeit indirectly, the ultimate gain still went to the
government.
III
I cannot abide with the manner by which the
Sandiganbayan rendered its decision in these cases,
aptly termed by Justice Francisco in his Concurring and
Dissenting Opinion as the "jurisdictional fiasco
between the First and Special Division" of the
Sandiganbayan. To my mind, it is not a mere "technical
impropriety" which can readily be dismissed, as the
majority did. The procedural infraction committed by
the Sandiganbayan (First Division), unfortunately, has
fatal consequences because it has decidedly placed
the whole proceedings in serious doubt. It must be
recalled that this is a criminal case. Thus, it is
indispensable that all proceedings to determine the
guilt or innocence of the accused must be undertaken
with nary a hint of irregularity, for what is at stake is
one's personal freedom.
To recap, at the initial voting of the First Division of the
Sandiganbayan (composed of Presiding Justice
Garchitorena, Justice Balajadia and Justice Atienza),
Justices Garchitorena and Balajadia voted to convict
petitioner Marcos in Criminal Case Nos. 17449, 17450
and 17451 and to acquit her in Criminal Case No.
17453, whereas Justice Atienza voted to convict her in
Criminal Case Nos. 17450 and 17453 and to acquit her
in Criminal Case Nos. 17449 and 17451. Due to the
failure of the First Division to reach a unanimous
agreement regarding the disposition of the criminal
cases, Presiding Justice Garchitorena on September
15, 1993 created a Special Division to resolve the
above cases pursuant to Sec. 5 of P.D. No. 1606, as
amended:
Sec. 5. Proceedings, how conducted;
votes required. — The unanimous vote
of the three justices in a division shall
be necessary for the pronouncement of
a judgment. In the event that the three
justices do not reach a unanimous
vote, the Presiding Justice shall
designate two other justices from
among the members of the Court to sit
temporarily with them, forming a
division of five justices, and the
concurrence of a majority of such
division shall be necessary for
rendering judgment.
The Special Division was composed of the aforenamed
three justices, with Justice Amores and Justice del
Rosario in addition.
On September 21, 1993 over a late lunch at a
restaurant in Quezon City, after attending a committee
hearing in Congress, Justice Garchitorena, Justice del
Rosario and Justice Balajadia, in the presence of
Justice Regino C. Hermosisima, who was not a
member of the First Division (Justices Atienza and
Amores were absent), discussed their respective
positions in the criminal cases. After learning that
Justice del Rosario concurred with the dissent of
Justice Atienza, Justices Garchitorena and Balajadia
capitulated and decided to adopt Justice Atienza's
position. On the rationale that "there had resulted a
unanimity among the regular members of the First
Division" and thus concluding that there was no longer
any need for the Special Division, Presiding Justice
Garchitorena upon arrival at his Sandiganbayan office
issued on the same day A.O. No. 293-93 dissolving
said Special Division. When informed that same day of
what transpired at the Quezon City restaurant, Justice
del Rosario manifested that he "did not mind" the
dissolution of the Special Division, while Justice
Amores submitted a written manifestation requesting a
fifteen-day extension to give his opinion. No action on
Justice Amores' request was made as of September
24, 1993 when the First Division rendered its judgment.
The procedure is highly anomalous, irregular and is not
sanctioned by practice. It is a blatant violation of the
law, specifically Sec. 5 of P.D. No. 1606 and Sec. 1(b),
Rule XVIII of the Revised Rules of the
Sandiganbayan. 4
On this point, the majority of the Third Division of this
Court opined:
While it is true that under Section 5 of
Presidential Decree No. 1606, as
amended, when a unanimous vote is
not reached by a division, two other
justices shall be designated by the
Presiding Justice to sit in a special
division, and their majority vote shall be
required to reach a valid verdict, this
provision does not totally rule out a
situation where all members of the 3-
justice division eventually come to a
common agreement to reach a
unanimous decision, thus, making
another division's participation in these
cases redundant. This is exactly what
transpired in this case. The change of
heart of Justices Garchitorena and
Balajadia, though reached unofficially,
may be perceived as a supervening
event which rendered the Special
Division's functions superfluous. . . . .
I beg to disagree for the following
reasons:
1. The informal meeting of the Justices at a Quezon
City restaurant where the criminal cases were
discussed or taken up (perhaps as part of the menu, a
Justice of the Court commented during the oral
argument) is not sanctioned by law and the rules.
The Sandiganbayan law provides that:
The Sandiganbayan shall have its
principal office in the Metro Manila area
and shall hold sessions thereat for the
trial and determination of all cases filed
with it irrespective of the place where
they may have arisen, . . . 5
The Sandiganbayan Rules of Procedure also requires
that:
sessions of the Sandiganbayan,
whether en banc or division, shall be
held in its principal officein the
Metropolitan Manila area where it shall
try and determine all cases filed with it
. . . 6(Emphasis supplied.)
Besides, it goes without saving, there are certain
formalities to be followed for meetings and
deliberations by a collegial body. There should be an
agenda, with advance notice of what cases are to be
deliberated upon or matters to be taken up. The reason
for these formalities is obvious. The members should
be notified of the session to assure their presence and
to enable them to prepare and discuss intelligently and
authoritatively the matters to be taken up. Justices
Amores and Atienza were not present because they
were not notified. Thus, Justice Amores' views were
not ventilated because he was not aware of the
meeting.
Hence, I agree with the dissenting opinion of Justice
Francisco that whatever discussion and agreement
was made among the Justices present in the restaurant
cannot be considered as "official business" and,
therefore, has no binding effect.
2. The moment the Special Division of five justices was
created, it assumed jurisdiction over the criminal cases
to the exclusion of the First Division. It is a fundamental
rule that once jurisdiction to try a criminal case is
acquired, it remains with the court until it is finally
decided. The mere fact that the original three members
of the First Division of the Sandiganbayan had arrived
at a unanimity over the issues on which they had been
previously divided did not authorize the Presiding
Justice to abolish the Special Division of five justices
and refer the cases back to the First Division. Besides,
if the majority of the Special Division had already
arrived at a consensus and was ready to vote, why did
it not Simply and promptly vote on the cases and
promulgate the judgment itself, instead of resorting to
the rigmarole of dissolving the body and returning the
cases to the First Division?
I am not persuaded by the contention that since the
Rules do not provide how and by whom a special
division may be dissolved, the Presiding Justice has
the authority to order the dissolution. As already
mentioned, once jurisdiction to try a criminal case is
acquired, the court retains jurisdiction to try it until
finally disposed of Moreover, a Sandiganbayan regular
division and a Special Division of five that may be
created in case of lack of unanimity by the former are
not one and the same body, albeit three members of
the special division are also members of the regular
division. When a justice participates in the deliberation
of the special division and votes, he does so as a
member of that special division, not as a member of the
regular division to which he belongs. Whatever opinion
or view he had entertained of the case while it was
being deliberated upon in the regular division does not
bind him as a member of the special division.
How then could three justices of the original division
have come to a unanimous decision, when in fact and
in law, said division no longer existed, having been
replaced by the Special Division? To repeat, under
P.D. No. 1606, if a unanimous vote is not reached, a
division of five justices shall be formed and it is the
majority decision of such division which is required to
render a judgment. Quite plainly, this means that the
case is removed from the jurisdiction of the regular
division and the final decision lies with the Special
Division. The law is clear and leaves no room for any
other interpretation. On this basis, I find it difficult to
accept the majority's sweeping assertion that Section 5
of P.D. No. 1606 "does not rule out a situation where
all members of the 3-justice division eventually come
to a common agreement to reach a unanimous
decision, thus, making another division's participation
in these cases redundant." If we follow the majority's,
logic, suppose another member of the three-man
division had changed his mind anew, would a special
division of five have been created again? And
supposing further, the original members of the three-
man division had come to an agreement, should the
special division be dissolved again, and so on ad
infinitum? The framers of the law, certainly, could not
have intended such resultant absurdity.
3. The arbitrary dissolution of the Special Division had
inappropriately, perhaps illegally, deprived Justice
Amores of the chance to present his own viewpoint and
to vote. Justice Garchitorena rationalized that Justice
Amores' vote would not change the result of the
decision anyway:
If Justice Amores were to have
disagreed with the conclusions
reached by Justices del Rosario and
Atienza (which were subsequently
adopted by Justices Balajadia and the
undersigned), he would have been
outvoted by the other four Justices. On
the other hand, if Justice Amores had
concurred with the position taken by
the four other Justices of the Special
Division, it would not have altered the
decision as promulgated. Such
concurrence would only bring about
unanimity in the decision — which
would.be a very odd situation since a
Special Division is constituted precisely
because of the existence of a divided
court. If the Special Division had
remained, the vote of Justice Amores
either way would not have resulted in
any change in the result of the decision
as promulgated. 7
Had Justice Amores been allowed to participate and
vote, it is not such a far-fetched idea that in the course
of the deliberations of the Special Division, the other
justices might have been persuaded by his arguments
and might have changed their minds and
consequently, their votes, just as what Justice
Garchitorena and Balajadia had done.
This case has drawn more than a passing attention,
some mixed feelings, because it involves one of the
most powerful personalities on the center stage during
the difficult years when the light of freedom had been
shut out across the land. When, finally, democracy was
restored by the EDSA revolution in February 1986, the
Filipino people, hurting from the wounds and iniquities
inflicted by the dictatorship, vowed never again to allow
democracy be taken away from them.
The martial law days may be far behind us but we have
certainly not forgotten. No matter the odds, the toil
continues to bring to justice all who have abused power
and betrayed the Filipino people. This pursuit,
however, is, or should be, tempered by the lessons
from our past. We must forever be true to our vow to
be faithful to the letter of the law and the dictates of due
process, and not be distracted by the personalities
involved. For the right to due process and the rule of
law are immutable principles in a democratic society
that should apply to all, even to those we hate. We
should take a page from the dissenting opinion of
Justice Abraham-Sarmiento in Marcos v.
Manglapus8 on the issue of whether or not the
Marcoses may be prohibited from returning to the
Philippines after the EDSA revolution. The majority
ruled against the Marcoses and opined that at that
particular time their return posed a serious threat to
national interest and welfare. Justice Sarmiento, who
lost a son to, and himself experienced, the cruelties of
the martial law regime disagreed and said:
. . . I am for Marcos's return not
because I have a score to settle with
him. Ditto's death or my arrest are
scores that can not be settled.
I feel the ex-President's death abroad
(presented in the dailies as "imminent")
would leave him "unpunished" for his
crimes to country and countrymen. If
punishment is due, let this leadership
inflict it. But let him stand trial and
accord him due process.
Modesty aside, I have staunchly and
consistently advocated the human right
of travel and movement and the liberty
of abode. We would have betrayed our
own ideals if we denied Marcos his
rights. It is his constitutional right, a
right that can not be abridged by
personal hatred, fear, founded or
unfounded, and by speculations of the
man's "capacity" "to stir trouble." Now
that the shoe is on the other foot, let no
more of human rights violations be
repeated against any one, friend or foe.
In a democratic framework, there is no
such thing as getting even.
Any quest no matter how noble will be in vain if pursued
for ends other than truth and justice.
WHEREFORE, I vote to grant the motion for
reconsideration and acquit petitioner Imelda R.
Marcos.
ROMERO, J., dissenting opinion;
I dissent.
The Court, in its decision promulgated on January 29,
1998, upheld the conviction of petitioner Marcos in
Criminal Case No. 17450 and ordered her to reimburse
the Light Rail Transit Authority (LRTA) the amount of
P189,372,000.00. On February 18, 1998, petitioner
filed a motion for reconsideration of said decision on
the grounds, inter alia, (a) that it was Dans, not
petitioner Marcos, who entered into the Lease
Agreement (Exh. "B"); (b) that the prosecution was not
able to establish beyond reasonable doubt that the
terms and conditions of said Lease Agreement were
manifestly and grossly disadvantageous to the
Govemment; and (c) that the promulgation of the
assailed decision by the Sandiganbayan's First
Division after the constitution of the Special Division
rendered said judgment null and void.
As can be readily observed, these grounds merely
reprise the issues already raised in the petition and
adequately tackled in the challenged decision.
Nevertheless, after the hearing of oral arguments
before the Court en banc held on September 10, 1998,
I feel the need to discuss further some of the points
raised thereat.
Petitioner insists that the acquittal of Jose P. Dans, Jr.,
her co-accused in Criminal Case. No. 17450, should
also have benefited her because the prosecution failed
to prove that she entered into the lease agreement
(Exhibit "B") in behalf of the LRTA. Since the LRTA was
represented by Dans, who was acquitted, and no
conspiracy was established between them, then
petitioner should also have been exonerated.
While there is no dispute that the alleged conspiracy
between petitioner and Dans in executing the lease
agreement (Exhibit "B") was never proven by the
prosecution, there is likewise no question, in fact, it is
only too obvious, that petitioner could not have signed
in behalf of the LRTA at the time even if she had
wanted to do so because she was already signing for
the other party, the PGH Foundation, Inc. This does not
detract from the admitted fact that petitioner was the
Chairman of the LRTA during the negotiations.
Expectedly, petitioner, despite extensively lifting
excerpts from the assailed decision, purposely omitted
the Court's discussion on how the lease transaction
was tainted by her conflict of interest, a glaring fact
which has been repeatedly glossed over by petitioner
and her counsel in the course of these proceedings.
Thus, we stated:
Indubitably, there was some kind of
conflict of interest in the premises.
Marcos and Dans, who were then
Cabinet members, occupied the
highest positions in the Boards of the
LRTA and the PGHFI in a concurrent
capacity at the time the questioned
deals were made. They were, as it
 were, playing both ends; but on paper,
one was acting for the lessor and the
other for the lessee. The fact that
petitioners were cleared of the charge
that they acted improperly in accepting
seats in the PGHFI Board of Trustees
at the time when it had pending
business transactions with the LRTA,
of which they were also officers is of no
moment. First, their acquittal in
Criminal Case No. 17451 and No.
17452 was simply due to the
insufficiency of the informations.
Second, the accusation in said
informations have no bearing
whatsoever on the subject matter of the
other cases filed against them as
signatories to the assailed lease
agreements. Even Justice Garhitorena
had occasion to advert to this conflict of
interest in his resolution of November
13, 1996. 1
There is no dispute that petitioner was the chair of the
LRTA at the time of execution of the lease agreement,
but she chose to "enter" it as chair of the PGHFI.
Moreover, it was conclusively demonstrated at the
hearing on September 10, 1998, that although Dans
was "duly authorized" to sign for the LRTA, it was the
entire LRTA through its policy-making body, which
approved the lease agreement. It is, therefore,
erroneous for petitioner to argue that she did not enter
into said agreement on behalf of the government
because, certainly, she did. She may not have signed
for the LRTA but she was one of those who approved
it and duly authorized Dans to sign for the LRTA.
Furthermore, it must be remembered that a lease
agreement is a bilateral contract which gives rise to
reciprocal rights and obligations on the part of the
lessor and the lessee. It is an agreement which
becomes a contract when the parties signify their
consent or assent thereto, thereby reflecting the
meeting of the minds between said parties. By himself,
the lessor cannot enter into a contract of lease; there
must be another party, the lessee, who will take
possession of the property subject of the lease during
its effectivity. Thus, when Dans "entered" into the lease
agreement, he did so as representative of the lessor;
petitioner did so in representation of the lessee. It is
erroneous to state, as petitioner maintains in her
motion for reconsideration, that she did not enter into
the lease contract simply because she did not sign it,
for certainly she did, as one of two indispensable
parties. The immediate beneficiary of the lease was the
government, represented by the LRTA. For all intents
and purposes, brushing aside semantics, the lease
agreement was entered into in behalf of the
Government by both petitioner and Dans.
Shifting now to the alleged procedural anomaly which
attended the promulgation of the assailed decision of
the Sandiganbayan's First Division on account of
Justice Garchitorena's unilateral dissolution of the
Special Division which he himself had formed to break
a voting impasse, I find petitioner's arguments in this
regard to be shallow and self-serving, as will be
presently elucidated.
The principle that a Special Division in the
Sandiganbayan cannot be stripped of jurisdiction once
it is vested with the same was originally a rule in Civil
Procedure first applied to trial courts, later to appellate
courts. It is applicable to single sala courts or entire
courts, but not to Divisions. Even the non-forum
shopping rule refers to the filing of cases involving the
same parties and causes of action from one court to
another, and not from one Division to another.
Secondly, there is no rule in the Sandiganbayan
authorizing or disauthorizing a Chairman of a Division
from dissolving a Special Division once it has
effectively become functus officio.
Third, by analogy, in appellate courts, such as the
Court of Appeals, rules are fixed and practices have
been established. In the Supreme Court, however,
there are no rules regarding the dissolution of Special
Divisions; hence, thereis nothing against which the
alleged procedural irregularities can be measured.
Finally, assuming arguendo that there was a lapse in
procedure in the Sandiganbayan, this will not render
the judgment null and void. If at all, it may indicate the
bias of the judge concerned which may be proved in an
administrative case, but certainly not to render the
judgment null and void.
For these reasons, I vote to dissent from the majority
opinion.
PANGANIBAN, J., dissenting opinion;
In its Decision promulgated on January 29, 1998, this
Court (through its Third Division), voting three1 to
two,2 AFFIRMED (1) the conviction of Petitioner Imelda
R. Marcos for violation of the Anti-Graft Law in Criminal
Case No. 17450, and (2) the penalty of imprisonment
of nine years and one day as minimum to twelve years
and ten days as maximum. It also ordered her to pay
the Light Rail Transit Authority (LRTA) P189,372,000,
the amount the government lost because of her
criminal acts.
In view of the appointment of two new members to the
Court, namely, Justices Leonardo A. Quisumbing and
Fidel P. Purisima, the three Divisions of the Court were
reorganized on February 1, 1998. The Chief Justice
transferred Justice Melo to the Second Division; and
Justice Panganiban, to the First. Justices Kapunan and
Purisima were, in turn, assigned to the Third Division in
addition to the three retained members, namely, Chief
Justice Narvasa and Justices Romero and Francisco.
However, on February 13, 1998, Justice Francisco
retired from the Court upon reaching the age of 70.
Hence, when petitioner filed her Motion for
Reconsideration (MR) on February 18, 1998, the Third
Division had only four members (Chief Justice Narvasa
and Justices Romero, Kapunan and Purisima). After
several attempts to deliberate and resolve the MR and
upon motion of petitioner, the Division finally decided
to elevate the matter to the Court en banc, which in turn
accepted it.3 Although as a member of the banc, I had
initial reservations on the propriety of elevating the MR
to the full court, as it is well-settled that the banc is not
an appellate body to which decisions of Divisions may
be brought, I finally supported the referral in view of the
unanimous request of all the four incumbent members
of the Third Division. In fact, the banc'sacceptance was
unanimous, too. Again upon motion of petitioner,
the banc heard oral argument on the MR on
September 10, 1998, and thereafter required the
parties to file their respective memoranda. Even if all
the arguments raised in the MR had already been
considered and passed upon in our January 29, 1998
Decision, I acceded (as all the Court members did) to
the oral argument to forestall any further charge of
denial of due process, which petitioner had repeatedly
leveled at the Sandiganbayan.
I write these preliminary matters to show that this Court
has bent backwards to accord, the former First Lady of
the land all the legal opportunities to defend herself —
a right that she vehemently claims was denied her by
the lower court.
I realize, and I am sure each member of this Court does
too, that this case involves not merely a judgment on
the acts of the former First Lady. By its Decision here,
this Court will be evaluated by the nation and by the
world. History will judge this Court — how it acted and
how each member participated and voted. What we
say and write here will still be remembered and
discussed by our countrymen and by the world fifty
years from now, when all of us are, in all likelihood,
already in the Great Beyond.
Having said that, I will now discuss the issues raised in
the MR.
The Issues
To support her plea of acquittal in her Motion for
Reconsideration, Petitioner Marcos alleges the
following:
1. She did not "enter, on behalf of the
government," (through the LRTA) into
the lease contract that was allegedly
"manifestly and grossly
disadvantageous to the government."
2. The prosecution failed to prove
beyond reasonable doubt that she
violated Section 3(g) of RA 3019, as
amended, specifically because there is
no evidence showing the fair and
reasonable rental of the subject
property.
3. The Decision of the Sandiganbayan
was rendered without jurisdiction.
4. Petitioner was denied her right to
counsel.
All these "grounds" were aleady raised in her Petition
and resolved in our January 29, 1998 Decision.
Normally then, the MR should have been denied with
the usual minute resolution, which abhors mere
repetition of arguments already passed upon. Since in
the said Decision of January 29, 1998, I did not write
any opinion on these matters but merely concurred in
Justice Romero's ponencia, I thought it now prudent to
refute each of petitioner's arguments seriatim.
First Ground:
Petitioner, as a Public Official. "Entered" into
the
Lease Agreement on Behalf of the Government
On the first ground, petitioner elucidates in her
Memorandum that as a public officer, she did
not sign the lease contract on behalf of the
government. She merely signed it as chairperson of the
Philippine General Hospital Foundation, Inc. (PGHFI).
Ergo, she cannot be held liable for violating Section
3(g) of RA 3019, the Anti-Graft Law, which reads:
(g) Entering, on behalf of the
Government, into any contract or
transaction manifestly and grossly
disadvantageous to the same, whether
or not the public officer profited or will
profit thereby. (Emphasis supplied)
It does not take too much imagination to see the
obvious flaw in this argument. Plainly, the law does not
use the word "signing." It employs the word "entering."
Definitely, signing is not the only way of entering into a
transaction. Those who authorized, approved or
assented to such contract must be held equally, if not
more, accountable for having entered into the
agreement. The campaign against graft and corruption
would be seriously undermined, if only the obedient
underlings are punished, while the bigwigs who
ordered, authorized, approved or assented to such
anomalous contract are freed of accountability. That is
simply unconscionable!
Furthermore, the fact that Petitioner Marcos was
chairman of the board of directors of the LRTA, in
which was vested the powers to carry out the functions
of the agency, proves her actual participation as a
public officer, albeit imdirectly, in the execution of the
lease contract on behalf of the LRTA. She had actually
entered into the anomalous contract in a double
capacity: as chair of the lessor, acting through an agent
(in the person of Jose Dans Jr.); and as head of the
lessee, signing the contract on behalf of the PGHFI.
Under its charter, 4 the powers and functions of the
LRTA were "vested in and exercised by the Board of
Directors." 5 This simply means that, as Solicitor
General Ricardo P. Galvez correctly construes, the
agency "can officially act only through its Board of
Directors." In fact, in the exercise of its general powers,
among which was the power to lease real property, the
LRTA was specifically mandated to act "through the
Board of Directors." 6
Consistent with the provisions of EO 603, the lease
agreement executed between LRTA and PGHFI stated
in unequivocal terms that Dans, the signatory on behalf
of LRTA, was "duly authorized for the purpose." This
qualification can only mean that Dans was priorly
mandated by the proper body — the LRTA board of
directors — to sign the said contract. There is no
evidence whasoever that the LRTA board did not
authorize the transaction. Hence, the presumption of
regularity operates and applies.
Being the chairman of the board at the time, Petitioner
Marcos is assumed to have given her approval to the
execution of the contract by the LRTA. She could or
should have known that, indeed, the board she chaired
gave such authority. She, however, insists that this fact
has not been proven beyond reasonable doubt.
I strongly disagree. What could her representation of
the PGHFI, the other party to the lease agreement,
manifest other than her full knowledge of and
unqualified consent to the contract? In other words,
Petitioner Marcos cannot deny her knowledge of and
consent to the contract which LRTA entered into. She
was the signing officer of the other party (the lessee) to
the same contract! There was no way she could not
have known with whom she was contracting (that is,
that she was contracting virtually with herself), as well
as the specific terms of the contract. She could not
have blindly bound PGHFI to the agreement with
LRTA, if she had disapproved of LRTA entering into the
same contract. Considering that at the time she was
not only LRTA chair, but also human settlements
minister, Metropolitan Manila governor and First Lady,
it is simply inconceivable that the LRTA board would
authorize the contract without her approval! To hold
otherwise is to be blind to the obvious. Verily, to all legal
intents and purposes, Petitioner Marcos authorized
and effectively "entered" into the lease agreement on
behalf of LRTA, a government agency.
Had she disapproved, even ex post facto, of LRTA's
participation, petitioner could have sought the
rescission of the LRTA-PGHFI agreement, when she
became aware of the terms of the sublease contract
and realized the manifest and gross disadvantage at
which LRTA had been placed. She could then have
sought to contract directly with the sublessee, the
Transnational Construction Corporation (TNCC). But
she made no such efforts. There is no showing that
petitioner ever denounced the original lease contract
as grossly disadvantageous to the government, even
after she had learned of the great disparity in the
rentals. No, she did not. The whole transaction was a
charade devised openly to benefit her private
foundation at the expense of the government.
She belatedly claims before the media that she simply
raised funds through "creative financing" in order to
extend assistance to a hospital. But such defense was
never presented in court. Other than her our-of-court
utterances, petitioner has submitted no evidence
whatsoever to indicate that the money gained by
PGHFI from TNCC (and lost by the LRTA) was actually
spent for a hospital or any other charitable purpose, for
that matter. Even if she has, such submission would be
beside the point.
Under the circumstances of the case, to claim that she,
as a public officer, did not approve of the lease by the
LRTA is pure sophistry. And for her to add that, even if
she knew of the transaction, she did not directly
represent and sign for the government and is thus
deserving of acquittal, is to render the Anti-Graft Law
toothless. Furthermore, to insist that her approval must
be independently proven "beyond reasonable doubt" is
a futile and unworthy argument in the face of the very
documents where, unquestionably, her signature
appears.
Petitioner also harps on Dans' acquittal, arguing that
she, as a mere conspirator, must also be acquitted.
True, in conspiracy, the act of one is the act of all. 7 But
the converse does not always follow; the absence of
conspiracy does not necessarily result in the acquittal
of all or both alleged conspirators. The innocence of
one is not absolute proof of the innocence of the other.
For one may have acted independently of the other;
and for one's own felonious acts, he or she alone is
liable. 8 Indeed, this Court found no evidence of
conspiracy. And petitioner was convicted not because
of conspiratorial acts, but because of her own act.
In the instant case, Dans' guilt was not proven beyond
reasonable doubt, because his participation in the
sublease agreement had not been duly established.
This cannot be said of Petitioner Marcos. There is no
equivocation in the earlier finding that she actively
participated in both the lease and the sublease.
Second Ground:
Manifest and Gross Disadvantage
Proven Beyond Reasonable Doubt
Petitioner avers that the prosecution failed to prove
beyond reasonable doubt that "manifest and gross
disadvantage to the government" was caused by the
LRTA-PGHFI-TNCC masquerade. While the terms
have not been explicitly defined by law or
jurisprudence, I agree with the common and accepted
meanings ofmanifest and gross, as culled by Solicitor
General Galvez from Black's Law Dictionary:9
"Manifest" means obvious to the
understanding, evident to the mind, not
obscure or hidden, and is synonymous
with open, clear, visible, unmistakable,
indubitable, evident and self-evident. In
evidence, that which is notorious. On
the other hand, "gross" means flagrant,
shameful, such conduct as is not to be
excused . . . .
The lease and sublease agreements, construed
together, speak for themselves. There can be no
stronger evidence of the blatant discrepancy in the
rental amounts and the resulting "gross and manifest
disadvantage" sustained by the lessor — the LRTA,
which is a government agency.
A simple mathematical computation will illustrate the
huge amount which the government lost thereby. LRTA
leased the property at P102,760 per month to the
PGHFI, which in turn subleased it to the TNCC for
seven times that amount, at P734,000, resulting in a
net loss to the government in the amount of P621,240
a month, or a grand total of P189,372,000 for the 25-
year term of the two agreements. In other words, the
PGHFI, the middleman, pocketed six times more than
the LRTA, the property owner.
Petitioner argues that the prosecution should have
presented expert opinion to show which of the two
rental amounts was the "fair and reasonable" price.
However, the law (RA 3019) does not speak of fair or
reasonable price. It speaks of "gross and manifest
disadvantage." And what better evidence is there of
such prejudice than the two contracts themselves,
which show the great loss incurred by the people and
the government. Opinion cannot prevail over hard fact!
In view of these actual, concrete and operative
contracts, which provided terms that were complete
and facts that were indelible, expert opinion, if not
entirely worthless, certainly cannot prevail. The expert
witness' testimony cannot rebut and overcome the
contents of the executed documents, specifically the
rental price that the property actually commanded.
Such utter uselessness of expert opinion is
demonstrated by Ramon F. Cuervo's testimony. His
opinion of the "fair and reasonable" rental value of the
property was based on "offers for sale, actual sales and
appraisal jobs . . . of comparable [bare] lots in the same
vicinity." 10 He did not consider the improvements and
commerce that would be brought about by the
operation of the adjacent LRT stations.
Be it remembered that the subject agreement and the
rentals stipulated would become demandable only
after the start of the LRT operations, or when the
PGHFI would commence its business. 11 Such being
the case, mere "expert" opinion based on the then
prevailing rentals would be totally immaterial and
irrelevant. Thus, Sandiganbayan Presiding Justice
Garchitorena had to elicit from the witness what would
be the fair and reasonable rental value, if these factors
were taken into account. In response, Cuervo
estimated that the amount would likely double. 12
Still, this was merely his estimate. The
indubitable fact remains, as shown by the sublease
contract executed between PGHFI and TNCC, that the
leased property commanded seven times more than
the amount for which LRTA.rented it out. TNCC, a
private commercial enterprise, would not have
unwittingly or moronically agreed to pay a ludicrously
high amount to PGHFI if it did not indeed value the
subject property at that amount.
Moreover, it is undisputed that, as pointed out by the
Republic's counsel, the LRTA-PGHFI agreements
themselves state in no uncertain terms that the
unabashed purpose of the lease was to extend finacial
advantage to the PGHFI, viz.:
. . . The AUTHORITY (LRTA), realizing
the charitable objectives of the
FOUNDATION (PGHF) is desirous of
extending financial support which can
be derived from the development of
such areas, for the pursuit of the
objectives of the FOUNDATION . . . . 13
. . . the LESSEE (PGHF), as a means
of generating funds to undertake its
projects (to establish, maintain or equip
medical institutions), has been granted
by the Light Rail Transit Authority the
right, authority, permit and license to
develop the areas adjacent to the Light
Rail Transit Stations, and manage and
operate the concessions in such areas
...
. . . the LESSOR, realizing that the
business of developing the specified
areas adjacent to the LRT stations and
of taking charge of the management
and operation of the concessions
therein, whose earnings will be used to
fund medical services and facilities,
charities and other benevolent projects
of the FOUNDATION in Metro Manila,
will be directly beneficial to the
residents therein, and realizing also
that the LESSEE finds it necessary to
use these parcels of land described in
the first paragraph, for the above
mentioned purposes, has agreed to
lease the above-described property to
the LESSEE . . . 14
In disregard of the law, the government, through
petitioner, accommodated a private institution that was
raising funds. The net effect of the juggling scheme,
however, was the plunder of government earnings.
Whether the funds raised were actually used for
charitable and benevolent purposes, a matter claimed
but not proven at all, will not erase the illegality of
petitioner's maneuverings.
Petitioner repeatedly carps at the charges that she had
authorized the anomalous transactions and that the
government wa placed at a gross and manifest
disadvantage. She terms such conclusions "mere
speculations or conjectures." They definitely are not.
They are logical inferences from known and proven
facts, or matters that the Court may take judicial notice
of. To require proof that petitioner directly admitted
authorizing the two contracts is to demand the
unreasonable. If she did that, there would have been
no need for trial. To require such proof is to require a
virtual confession of guilt! On the other hand, to ask for
expert opinion on fair and reasonable rental in the face
of hard evidence of actual rental value clearly
demonstrating manifest and gross disadvantage is to
require a superfluity, an exercise in legal inutility.
In sum, petitioner was well aware of the manifest and
gross disadvantage incurred by the government, when
the LRTA property was leased out for an almost token
amount through the execution of the subject contracts,
which she, as a public official, was deemed to have
entered into on behalf of the government.
Third Ground:
Decision of Sandiganbayan Valid
An error or irregularity in the rendition of a judgment
does not affect the court's jurisdiction; neither does it
affect the validity of the judgment. While error in
jurisdiction makes the judgment or order void or
voidable, 15 an error in the exercise of jurisdiction does
not. 16 The decision rendered in the latter is correctable
merely through an appeal. 17 This remedy of appeal has
already been availed of by petitioner's filing of the
present recourse before this Court.
Consistent with the above principles, I respectfully
submit that the assailed Decision of the
Sandiganbayan (First Division) cannot be rendered
void (or even voidable) simply because of an
irregularity, assuming arguendo that it existed, in its
rendition. Worth noting is the fact that petitioner took
the recourse of filing a petition for review under Rule
45, not a special civil action for certiorari under Rule
65, the proper remedy to annul judgments rendered
without jurisdiction or with grave abuse of discretion. 18
Years ago, the Court taught the difference between
"jurisdiction" and the "practice and method of
procedure of the court" in these very explicit terms: 19
. . . the word "jurisdiction" refers to
something which, if once possessed by
a court, does not vanish in the
vicissitudes of decision. After a cause
over which a division has undoubted
jurisdiction has been debated and
considered, the jurisdiction of the body
does not cease when it is discovered
that only three out of four or five of the
members of the division concur in the
prevailing view. This shows that the
matter of the requirement of a certain
number for the decision of a case is a
matter of practice and procedure rather
than of fundamental jurisdiction. Where
a body consisting of more than two
members is created, it must, by the
very law of its being, be allowed to
proceed upon a mere majority, in the
absence of specific provision for a
majority consisting of a precise
number. (Emphasis ours.)
In Faypon v. Quirino, 20 a Resolution of the Court en
banc, dated September 15, 1952, was invoked in order
to set aside a judgment of the Court of Appeals for
alleged want of jurisdiction. Said Resolution required
that when there was no unanimous concurrence in a
division of three, the presiding justice was to designate
two additional associate justices "by rotation in the
order of seniority." Such manner of choice was not
observed by the appellate court, but this Court said that
the "alleged violation of the resolution does not affect
the jurisdiction of the Court of Appeals to hear and
decide the case before it on appeal. If the alleged
irregular designation be a sufficient ground for setting
aside the judgment rendered by the Court of Appeals
and remanding the case to it for further proceeding; it
would unnecessarily delay the disposition of this case
to the detriment of public interest."
The jurisdiction of the Sandiganbayan is defined
principally in PD 1606, as amended, and additionally in
special laws, such as RA 7080 on plunder and EO 14
on ill-gotten wealth cases. 21 Specifically, Section 4 of
PD 1606, as amended by PD 1861, vests in the
Sandiganbayan jurisdiction, ver "all cases involving: (1)
violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act . . . ." There should therefore be no
question on said court's jurisdiction over the case at bar
— a proceeding for a violation by petitioner of the Anti-
Graft Law. Rather, the material issue involved is
theauthority of the Sandiganbayan's First Division to
issue its assailed September 24, 1993 Decision.
I submit that the First Division of the Sandiganbayan
not only had the jurisdiction to resolve the case at bar,
but the authority as well. The alleged flaw in the
rendition of its Decision was a procedural technicality
that did not oust it of jurisdiction. While the initial
absence of a unanimous concurrence of the three
members in the said Division necessitated the
designation of two additional justices to form a
temporary special division of five, it must be stressed
that the purpose of such designation was simply to
obtain the concurrence of at least three in the final
judgment, pursuant to the requirement of PD 1606. 22
But the subsequent change in disposition of the two
original members of the First Division, such that
a unanimity in conclusion among all three original
members was reached, practically aborted the purpose
of the special division. Because of this development,
the presiding justice forthwith revoked his previous
order appointing the two additional magistrates, in
effect dissolving the special division. Obviously, there
was no more need for additional members. I think it is
also worth noting that the unanimous concurrence of
the original division members had been arrived at, even
before the special division convened. In any event, the
more conclusive fact is the final and indubitable
vote appearing on the Decision itself of each of the
three justices in the Division.
Furthermore, the law and the rules of the
Sandiganbayan do not expressly provide under what
circumstances and in what manner a special division
may be dissolved. Such being the case, how can the
Court attribute error, irregularity or abuse of discretion
to Presiding Justice Garchitorena's actions? As
similarly provided in Section 5 of PD 1606, as
amended, the Sandiganbayan rules simply state: 23
Sec. 1. Votes Necessary to Decide. —
xxx xxx xxx
(b) In Division. — The unanimous vote
of three Justices in a Division shall be
necessary for the rendition of a
judgment or order. In the event that the
three Justices do not reach a
unanimous vote, the Presiding Justices
shall designate by raffle two Justices
from among the other members of the
Sandiganbayan to sit temporarily with
them forming a special Division of five
Justices, and the vote of a majority of
such special Division shall be
necessary for the rendition of a
judgment or order. (Emphasis
supplied)
Clearly, the presiding justice has the authority to
designate two additional justices if the need arises.
Since the said Rules do not provide who may dissolve
a special division and under what circumstances it may
be dissolved, it follows that the presiding justice
likewise possesses the power to revoke such
designation when the need therefor ceases. Note that
the Rules expressly state that the two additional
justices sit only temporarily — meaning as long as
there is a need for them. In the instant case, the
ensuing unanimity among the three original members
of the Division rendered such designation functus
oficio. Thus, the revocation by Presiding Justice
Garchitorena of his earlier order forming the special
Division was not irregular. There being no violation of
a law or rule, the Sandiganbayan could not have been
ousted of jurisdiction, and neither could petitioner have
been denied due process, under the circumstances.
While it is desirable to observe procedural rules
faithfully and even meticulously, courts should not be
overly strict with procedural lapses that do not really
impair the proper administration of justice. 24 Rules are
mere tools designed to facilitate the administration and
the attainment of justice. 25 Where no serious injustice
or grave abuse of discretion is committed, a
suspension of the operation of adjective rules is not
proscribed.
In the case at bar, no substantive right of petitioner was
traversed by the First Division of the Sandiganbayan.
She was given full opportunity to participate in the trial.
All the defenses she offered were addressed by the
court a quo, as well as by this Court. All the points —
factual, procedural and legal — that she raised in her
93-page Petition were thoroughly taken up in the earlier
Decision of this Court's Third Division. Through her
Motion for Reconsideration and by way of oral
argument and written memorandum, she was given
several opportunities to amplify the same defenses
before the Court en banc. I say, she has been more
than fully heard.
Moreover, petitioner's plea for acquittal due to the
alleged nullity of the Sandiganbayan judgment cannot
be granted. A void judgment of conviction may entitle
the accused only to a remand of the case to the trial
court for further proceedings conformably with law. 26 A
remand of her case to the graft court for another full-
length proceeding will not only be a waste of time and
effort, but a virtual approbation of trifling with the
judicial process, a mockery of it. It would be a cop-out.
Fouth Ground:
No Denial of Right to Counsel
Records clearly show that Petitioner Marcos was
represented by counsel during the entire trial
proceedings. The failure of her counsel to appear in a
couple of scheduled hearings 27 is not equivalent to a
deprivation by the Sandiganbayan of her right to
counsel. In her own words, "[n]otices of hearing were
being sent directly to her," and her councel "was
apparently notified." Aside from the written notices, she
was also informed by telephone. But, apparently, she
chose not to be present; neither did she ensure the
presence of her counsel in all the hearings. Well-settled
is the rule that the negligence of counsel binds the
party-litigant. It is also incumbent upon a party to take
an active role, thus:
Litigants represented by counsel,
should not expect that all they need to
do is sit back, relax and await the
outcome of their case. They should
give the necessary assistance to their
counsel for what is at stake is their
interest in the case. 28
Neither did the suspension of her initial counsel of
record (Atty. Antonio Coronel) from the practice of law
amount to a deprivation of her right to counsel. She
was continually represented by various lawyers. The
fact that some 29 were contemned by the
Sandiganbayan for effectively continuing the practice
of Atty. Coronel did nor altogether forfeit her
representation. It does not appear that the actual
participation of any of these contemned lawyers during
the proceedings or any of the pleadings they had filed
was stricken from the records or disregarded by the
court a quo.
In any event, as I have mentioned earlier, petitioner's
defenses, even those belatedly raised before this Court
only, have been thoroughly reviewed, evaluated and
duly considered. Whatever shortcomings, if any, she
may have perceived in the Sandiganbayan
proceedings must have been rectified by this Court,
even twice over — by the Third Division and by
the banc. Here, she is represented by one of the most
adroit legal minds in this country, Atty. Estelito P.
Mendoza. No longer can she whimper and whine about
counsel deprivation.
Epilogue
To say that Petitioner Marcos could not be held
criminally liable simply because she did not sign the
lease contract in her public capacity is either pure
naiveté or utter sophistry designed to create an
improvident loophole to circumvent what is glaring: that
this lease-and-sublease charade was a clever device
to illegally siphon into private hands money that should
properly go to the coffers of the government. Such
charade cannot and should not be allowed! This Court
has the duty to unmask and to condemn this raid
against the public treasury. No amount of verbal
juggling or legal nit-picking can alter the indelible fact
that petitioner, by this ingenious but illegal method, has
deprived the government of badly needed revenues.
Equally untenable is petitioner's contention that she
deserves acquittal, because the prosecution did not
present expert opinion showing the fair and reasonable
rental price for the disputed premises. Be it
remembered that the Anti-Graft Law requires proof, not
of "fair and reasonable" price, but of "manifest and
gross disadvantage" to the government. The glaring
disparity between the two rental amounts, totaling
P189 million which the lease-sublease
charade diverted to private hands, is more than
enough monument to graft. Certainly, such concrete
and actual fact cannot be overturned by mere opinion,
however expert it may be. Indubitably, in the presence
of the incontrovertible fact of government loss,
any opinion of what constitutes "fair price" is not only
superfluous but counter productive.
Petitioner's claim of irregularity or denial of due process
in the Sandiganbayan proceedings is plainly baseless.
In any event, such allegation is not enough to warrant
an invalidation of the judgment of conviction. Neither
can it justify a remand to the anti-graft court. Such
sidetrack, I repeat, is an obvious cop-out. If at all, the
alleged defects do not impair the lower court's
jurisdiction or the binding effect of its Decision. They
can, at best, only be grounds for possible
administrative sanctions.
Finally, the over-indulgent attention given by this Court
— initially by the Third Division and then the banc, with
full oral argument and written memorandum — is more
than sufficient proof that petitioner has been granted
due process. In fact, I believe she has, in more ways
than one, been the recipient of "over-due" process in
this Court.
WHEREFORE, I vote to DENY with finality the Motion
for Reconsideration and to AFFIRM the conviction of
petitioner for graft.
Separate Opinions
BELLOSILLO, J., concurring opinion;
I concur. In affirming the conviction of petitioner by the
Sandiganbayan, this Court in its Decision of 29 January
1998 relied "mainly on the prosecution's documentary
evidence showing the chasmic disparity between the
P102,760.00 monthly rental stipulated in Exh. "B" and
the P734,000.00 monthly rental provided in Exh. "D.""
At first blus, the presentation may appear sound; in a
way, logical. But a critical and dispassionate review of
the facts impels me to hold that the evidence of the
prosecution miserably fails to meet the requisite
quantum of proof to warrant the conviction of petitioner.
It is simply too insubstantial and inadequate to
establish her guilt beyond reasonable doubt.
The acquittal of petitioner may run against the current
of popular temper and inclination, and particularly
odious to those who may have already prejudged the
case without knowing the facts. But I can only do what
my conscience unerringly commands me to do.
Perhaps it can be said that this is the essence of a
strong and independent judicial system — that it
remains immune from arbitrary and personal politics. I
have pondered deeply on the issue; I have searched
my mind and soul for an avenue to affirm petitioner's
conviction; but I have failed to see my way to that
conclusion.
The apparent disparity may really be "chasmic," but
this by itself is too tenuous to prove that the Lease
Contract between the LRTA and the PGHFI is
"manifestly and grossly disadvantageous to the
Government." For, how can a mere disparity in the
amount of lease rental — chasmic or otherwise — be
the sole raison d' être for convicting an acused?
Should not the disparity, or the cause of it, be at the
very least sufficiently explained to uncover and be
connected with the criminal mind of the accused?
Should not other evidence be offered to clearly show
that the accused entered into a transaction which was
"manifestly and grossly disadvantageous to the
Government?"
To convict under Sec. 3, par. (g), RA No. 3019, as
amended, no less than proof beyond reasdnable doubt
is demanded for the contract or transaction entered into
by the public officer on behalf of the Government to be
considered "manifestly and grossly disadvantageous to
the Government." In the instant case, the prosecution
has utterly failed in the endeavor. Thus, the
constitutional presumption of innocence of petitioner
has become a matter of fact.
This Court, acquitting accused Jose P. Dans Jr. earlier,
held that the prosecution failed to prove his guilt
beyond reasonable doubt as his liability, if any, could
only stem from a knowledge of the terms of the
sublease agreement, of which he was not aware.
Consequently, it is reasonably inferred from the
decision acquitting Dans that as far as the Court was
concerned Exh. "B" (the Lease Contract between
LRTA and PGHFI) which he signed, was not per
se "manifestly and grossly disadvantageous to the
Government." Prescinding from this premise, it would
be illogical to conclude that a subsequent agreement
has transformed Exh. "B," found by this Court to be fair
and regular, into a contract "manifestly and grossly
disadvantageous to the Government" without changing
substantially the provisions of the same agreement.
If accused Dans was acquitted because he merely
signed Exh. "B," necessarily implying that it was not
tainted, with irregularity, how can petitioner be now
convicted for merely signing Exh. "D?" Would we not
be saying in effect that because of mere disparity, Exh.
"D" made Exh. "B" manifestly and grossly
disadvantageous to the Government? Perhaps it would
have been different if at the outset Exh. "B" were
considered excessively low or "manifestly and grossly
disadvantageous to the Government." I pause to warn
that if we are to pursue the theory that a mere
"chasmic" disparity is sufficient to prove that a contract
is "manifestly and grossly disadvantageous to the
Government," it may not be difficult for an ill-motivated
individual to incriminate a high ranking government
official, or any person of consequence for that matter,
by simply offering to pay and paying a much higher
sublease rental.
Consequently, it is serious error to rely mainly, if not
solely, on Exh. "D" stipulating a monthly rental of
P734,000.00 which shows the so-called "chasmic"
disparity. While the subject property was subsequently
subleased for a rental seven (7) times higher, which a
well-respected real estate broker and appraiser opined
to be "extraordinary high," we can at best only
speculate on the reason behind the "extraordinary
high" sublease rental. For sure, there is no showing
that the LRTA, on its own, could have commanded the
same sublease rental PGHFI commanded in its
sublease agreement. Could it be that the sublessee
only wished to be ingratiated to the former First Lady
or to the then powerful administration? Or, could it be
that the sublessee really wanted the property so much,
perhaps for reasons only known to him, or he saw a
great potential in the property which other parties did
not see nor wanted to risk on? But, the Court does not
engage in speculatory exercises; it goes by the hard
facts.
This Court has time and again declared that when the
inculpatory facts and circumstances are capable of two
or more interpretations, one of which being consistent
with innocence of the accused and the other or others
consistent with his guilt, then the evidence in view of
the constitutional presumption of innocence has not
fulfilled the test of moral certainty and is thus
insufficient to support a conviction. It need not be
overstressed that, in criminal cases, every
circumstance favoring the innocence of the accused
must be duly taken into account; and presumptions
unsupported by solid evidence do not have a place in
the dispensation of justice, especially as the law
requires proof beyond reasonable doubt.
The Solicitor General in his Memorandum submitted
after the 10 September 1998 Oral Arguments insists
that "[t]he lease agreement (Exhibit B) is grossly and
manifestly disadvantageous to the government" and
ventures to say that the lease was "not for the purpose
of earning additional income for the LRTA operations
but solely to extend financial assistance to the PGHF."
Thus, it is arued that "[b]eing a transaction purely That on or about
intended to benefit the PGHF, without any regard to the September 8, 1982,
interest of the government, the lease agreement by and for sometime prior
itself is the most compelling evidence demonstrating or subsequent thereto,
the gross and manifest disadvantage to the in Manila, Philippines,
government." Again, this is a dangerous presumption. and within the
jurisdiction of this
Is the Court now being asked to reverse itself and hold Honorable Court, the
that the lease agreement between the LRTA and accused IMELDA R.
PGHFI (Exh. "B") is per se "manifestly and grossly MARCOS and JOSE P.
disadvantageous to the Government?" Is the Court DANS, JR., public
now going to recall the acquittal of accused Dans for officers, being then the
entering into a contract which was "manifestly and Chairman and Vice-
grossly disadvantageous to the government?" This is Chairman respectively,
absurd and no longer an issue since res judicata and of the Light Rail Transit
doble jeopardy have already set in. Authority (LRTA), a
government corporate
While the procedure followed in the leasing and entity created under
subleasing of subject property left mush to be desired, Executive Order No.
more so after taking into consideration the official 603 of the former
positions and functions of the persons involved in the President Ferdinand E.
transactions at the time they were entered into, there Marcos, while in the
was likewise so much to be desired in the presentation performance of their
of the evidence to prove the guilt of the accused. But officiat functions, taking
the difference is that the accused here is not to bear advantage of their
the burden of proving her innocence. We may not even positions and
say that she is indeed innocent; simply stated, the committing the crime in
prosecution has utterly failed to prove that she is guilty relation to their offices,
beyond reasonable doubt, hence, must be acquitted. did then and there
For, the conviction of the accused does rest not on the wilfully, unlawfully and
weakness of the defense but on the strength of the criminally conspiring
prosecution. Unless the prosecution discharges its with one another, enter
burden, the accused need not even offer evidence in on behalf of the
his behalf. aforesaid government
corporation into an
agreement for the
It cannot be overemphasized that we can convict only
development of the
when the evidence submitted shows a crime has been
areas adjacent to the
committed; we can convict only if we have ascertained
LRTA stations and the
beyond reasonable doubt that the accused is indeed
management and
guilty. Otherwise, we have no recourse but to acquit. It
operation of the
is not the Court, nay, not the men who sit in judgment,
concession areas
that loosen the prisoner at bar, but the State, by the
therein, with the
compelling majesty of its Constitution, that sets him
Philippine General
free.
Hospital Foundation,
Inc. (PGHFI), a private
By this precept, I vote to grant the motion for enterprise, under terms
reconsideration and to reverse petitioner's conviction. and conditions
manifestly and grossly
disadvantageous to the
government.
KAPUNAN, J., separate concurring opinion;
CONTRARY TO LAW.
For better understanding and appreciation of the
issues raised in the Motion for Reconsideration, I wish Criminal Case No. 17450.
to restate briefly some basic facts.
The undersigned Special Prosecution
Petitioner Imelda R. Marcos, and Jose P. Dans, Jr. Officer I, Officer of the Special
were charged on January 14, 1992 before the Prosecutor, hereby accuses IMELDA
Sandiganbayan with violation of Republic Act No. 3019 R. MARCOS and JOSE P. DANS, JR.
(the Anti-Graft and Corrupt Practices Act), to wit: of Violation of Section 3(g) of RA 3019,
as amended, committed as follows:
Criminal Case No. 17449
That on or about June
The undersigned Special Prosecution 8, 1984, and for
Officer I, Office of the Special sometime prior or
Prosecutor, hereby accuses IMELDA subsequent thereto, in
R. MARCOS and JOSE P. DANS, JR. Makati, Metro Manila,
of Violation of Section 3(g) of RA 3019, Philippines, and within
as amended, committed as follows: the jurisdiction of this
 Honorable Court, the
accused IMELDA R.
MARCOS and JOSE P.
DANS, JR., public
officers, being then the
Chairman and Vice-
Chairman,
respectively, of the
Light Rail Transit
Authority (LRTA), a
government corporate
entity created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of their
official functions, taking
advantage of their
positions and
committing the crime in
relation to their offices,
did then and there
wilfully, unlawfully and
criminally conspiring
with one another, enter
on behalf of the
aforesaid government
corporation into a
Lease Agreement
covering LRTA
property located in
Pasay City, with the
Philippine General
Hospital Foundation,
Inc. (PGHFI), a private
enterprise, under terms
and conditions
manifestly and grossly
disadvantageous to the
government.
CONTRARY TO LAW.
Criminal Case No. 17451.
The undersigned Special Prosecution
Officer I, Office of the Special
Prosecutor, hereby accuses IMELDA
R. MARCOS of Violation of Section
3(d) of RA 3019, as amended,
committed as follows:
That on or about June
8, 1984, and for
sometime prior or
subsequent thereto, in
Makati Metro Manila,
Philippines, and within
the jurisdiction of this
Honorable Court, the
accused IMELDA R.
MARCOS, a public
officer, being then the
Chairman of the Light
Rail Transit Authority
(LRTA), a government
corporate entity
created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of her
official functions, taking
advantage of her
position and
committing the offense
in relation to her office,
did then and there
wilfully, unlawfully and
criminally accepted
employment and/or
acted as chairman of
(the) Philippine
General Hospital
Foundation Inc.
(PGHFI), a private
corporation duly
organized under the
laws of the Philippines,
which private
enterprise had, at that
time(,) pending
business transactions
with the accused, in her
capacity as Chairman
of the LRTA.
CONTRARY TO LAW.
Criminal Case No. 17452.
The undersigned Special Prosecution
Officer I, Officer of the Special
Prosecutor, hereby accuses JOSE P.
DANS, JR. of Violation of Section 3(d)
of RA 3019, as amended, committed as
follows:
That on or about June
8, 1984, and for
sometime prior or
subsequent thereto, in
Makati, Metro Manila,
Philippines, and within
the jurisdiction of this
Honorable Court, the
accused JOSE P.
DANS, JR., a public
officer, being then the
Vice-Chairman of the
Light Rail Transit
Authority (LRTA), a
government corporate
entity created under
Executive Order No.
603 of the former
President Ferdinand E.
Marcos, while in the
performance of his
official functions, taking
advantage of his
position and
committing the offense
in relation to his office,
did then and there
wilfully, unlawfully and
criminally accepted
employment and/or
 acted as Director of and conditions
(the) Philippine manifestly and grossly
General Hospital disadvantageous to the
Foundation, Inc. government.
(PGHFI), a private
corporation duly CONTRARY TO LAW.
organized under the
laws of the Philippines, After trial, the Sandiganbayan acquitted petitioner
which private Marcos in Criminal Case Nos. 17449 and 17451 and
enterprise had, at that Dans in Criminal Case Nos. 17449 and 17452.
time(,) pending However, it convicted both petitioner Marcos and Dans
business transactions in Criminal Case Nos. 17450 and 17453.
with the accused, in his
capacity as Vice-
Both appealed to this Court.
Chairman of LRTA.
In the decision of the Third Division of this Court
CONTRARY TO LAW.
promulgated on January 29, 1998, the conviction of
petitioner Marcos in Criminal Case No. 17450 was
Criminal Case No. 17453. affirmed with modification, while her conviction in
Criminal Case No. 17453 and that of Dans in Criminal
The undersigned Special Prosecution Case Nos. 17450 and 17453 were reversed on
Officer, Office of the Special reasonable doubt.
Prosecutor, hereby accuses IMELDA
R. MARCOS and JOSE P. DANS, JR. On February 18, 1998, petitioner Marcos filed a motion
of Violation of Section 3(g) of RA 3019, for reconsideration of the decision on the following
as amended, committed as follows: grounds:

That on or about June a. It was not petitioner, but accused

18, 1984, and for Jose P. Dans, Jr., who entered into the
sometime prior or "Lease Agreement" (Exhibit 'B') on
subsequent thereto, in behalf of the Light Rail Transit Authority
Makati, Metro Manila, (LRTA), subject matter of Crim. Case
Philippines, and within No. 17450. And, since accused Jose P.
the jurisdiction of this Dans, Jr. has been acquitted of the
Honorable Court, the offense charged in Crim. Case No.
accused IMELDA R. 17450, petitioner Imelda R. Marcos
MARCOS and JOSE P. may not be convicted of the offense as
DANS, JR., public his co-conspirator.
officers, being then the
Chairman and Vice-
b. The evidence upon which the finding
Chairman respectively,
of the Court that the terms and
of the Light Rail Transit
conditions of the "Lease Agreement"
Authority (LRTA), a
are "manifestly and grossly
government corporate
disadvantageous to the Government"
entity created under
does not constitute proof beyond
Executive Order No.
reasonable doubt, sufficient to
603 of the former
overcome the presumption of
President Ferdinand E.
innocence, to establish that the terms
Marcos, while in the
and conditions of the "Lease
performance of their
Agreement" (Exhibit "B") are manifestly
official functions, taking
and grossly disadvantageous to the
advantage of their
Light Rail Transit Authority (LRTA).
positions and
committing the crime in
relation to their offices, c. The finding of the Court that rendition
did then and there of the decision by the First Division of
wilfully, unlawfully and the Sandiganbayan and not by the
criminally conspiring Special Division of Five constituted
with one another, enter under Administrative Order No. 288-93
on behalf of the was valid and regular, is based on
aforesaid government incorrect facts and erroneous
corporation into a application of the law.
Lease Agreement
covering LRTA d. Likewise, the finding of the Court that
property located in Sta. there was no denial of the right of
Cruz, Manila, with the petitioner to counsel before the
Philippine General Sandiganbayan is based on an
Hospital Foundation, erroneous perception of the relevant
Inc. (PGHFI), a private facts.
enterprise, under terms
 I utterly illogical to acquit Dans who entered into the
The Information in Criminal Case No. 17450 (Violation
of Sec. 3[g] of R.A. 3019, as amended) under which
petitioner Marcos was convictedd reads:
The undersigned Special Prosecution
Officer I, Office of the Special
Prosecutor, hereby accuses IMELDA
R. MARCOS and JOSE P. DANS, JR.,
public officers being then the Chairman
and Vice-Chairman, respectively, of
the Light Rail Transit Authority (LRTA),
a government corporate entity created
under Executive Order No. 603 of the
Former President Ferdinand E.
Marcos, while in the performance of
their official functions, taking
advantage of their positions and
committing the crime in relation to their
offices, did then and there wilfillly,
unlawfully and criminally conspiring
with one another, enter on behalf of the
aforesaid government corporation into
a Lease Agreement covering LRTA
property located in Pasay City, with the
Philippine General Hospital
Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions
manifestly and grossly
disadvantageous to the government.
CONTRARY TO LAW.
Sec. 3(g) of R.A No. 3019 requires that the following be
established:
a. The accused public
officer entered, on
behalf of the
Government, into a
contract or transaction,
and
b. The contract or
transaction entered into
by the public officer, on
behalf of the
Government, is
manifestly and grossly
disadvantageous to the
Government.
Under the Infornation, petitioner Marcos is alleged to
have violated Sec. 3(g) of R.A. No. 3019 because while
in the performance of her official functions as Chairman
of the LRTA, she entered on behalf of said corporation
into a Lease Agreement covering the LRTA property
located in Pasay City with the PGHFI, under terms and
conditions manifestly and grossly disadvantageous to
the government and in conspiracy with Dans.
However, it is clear from the Lease Agreement that it
was Dans, not petitioner Marcos, who entered into the
said agreement, subject of the Information, in behalf of
the LRTA. Petitioner Marcos signed the agreement in
her capacity as Chairman of the PGHFI, a private
enterprise. Since it is conceded in the decision sought
to reconsidered that there was no conspiracy between
Dans and Marcos in entering into the contract, it is
contract "on behalf of the Government" and convict
Marcos who signed the same in her capacity as
Chairman of the PGHFI, a private enterprise.
It is the argument of the Solicitor General, to which
some members of the Court agree, that since petitioner
Marcos was Chairman of the Board of Directors of the
LRTA, she must have directly and actively participated
in the authorization, approval and execution of the
Lease Agreement for and in behalf of the LRTA,
manifesting a conflict of interest.
In all due respect, the proposition has no factual
moorings; it rests on pure speculations.
First, petitioner Marcos and Dans were virtually
charged with conflict of interest in Criminal Case Nos.
17449, 17451 and 17453. But they were cleared by the
Sandiganbayan; their acquittal has laid to rest the
accusation that they acted in a double capacity.
Second, it is pure speculation and conjecture to allege
that petitioner Marcos acted for the LRTA or is
assumed to have given her approvel to the execution
of the Lease Agreement by the LRTA being Chairman
thereof. There is no iota of proof at all that petitioner
Marcos was present or had participated in any meeting
of the LRTA Board of Directors authorizing the
agreement. To convict, there should be proof of guilt
beyond reasonable doubt. Bare assumptions and
speculations cannot be bases for conviction.
Third, if petitioner Marcos had taken part in any action
of the Board, why were the other members of the Board
not included in the Information for violation of Sec. 3(g)
of R.A. No. 3019? The decision of the Third Division of
the Court itself has provided the answer when it stated
that "this Court's opinion that the alleged conspiracy
between the petitioners (Marcos and Dans) was not
sufficiently established by the State's evidence" (page
22). Verily, having found that the alleged conspiracy
between petitioner Marcos and Dans has not been
established, no act committed by Dans may be imputed
to Marcos, in the same way that it is purely guesswork
to insinuate that the act of the LRTA in authorizing the
Lease Agreement may be imputed to petitioner
Marcos, absent any semblance of proof.
II
The decision sought to be reconsidered opted to rely
solely on the documentary evidence of the prosecution,
namely, the Lease Agreement (Exh. "B") and the sub-
lease contract (Exh. "D") in rationalizing that the former
is "manifestly and grossly disadvantageous to the
government."
We should stress that in affirming the conviction of
petitioner Marcos, this Court relies mainly on the
prosecution's documentary evidence showing the
disparity between the P102,760.00 monthly rental
stipulated in Exhibit "B" and the P734,000.00 monthly
rental provided in Exhibit "D." 1
I feel quite uneasy with the method used by the
prosecution in determining that the government was
grossly disadvantaged in the Lease Agreement, this is,
by simply comparing the rental in the Lease Agreement
and that in the sub-lease contract. Just by considering
the disparity in the rentals, cannot it be argued as well
that the lease rental is fair and reasonable and the
sublease rental is too high? Supposing there was no
sublease contract at all, or the sublease rental was
equal or lower than that in the Lease Agreement, would
the conclusion of the Court be the same, considering
that there would then be nothing to compare the lease
rental with? The point I am trying to drive at is that proof
should have been adduced to determine the fair market
value of the Pasay lot based on the market data
approach which considers how much properties in that
particular area were sold or offered to be sold.
Curiously enough, when Sandiganbayan Chief
Prosecutor Leonardo P. Tamayo was asked during the
oral argument before the Court on September 10,
1998, why no such independent evidence was
presented by the prosecution, he answered that he was
not then involved in the case, but added that if he were
the prosecutor, he would have adduced such evidence.
This is an admission that the prosecution's evidence
against Marcos is sorely lacking.
One other point. An essential element of Section 3(g)
of R.A. No. 3019 is that the contract entered into by the
public officer concerned is manifestly and grossly
disadvantageous to the government. In the case at bar,
a close scrutiny, however, reveals that the main and
ultimate beneficiary of the subject transactions was the
government-owned hospital, the Philippine General
Hospital (PGH). The Philippine General Hospital
Foundation, Inc. (PGHFI) was established as a
charitable organization.2 The funds it raised eventually
went to the rehabilitation and support of the PGH as
evidenced by the list of various medical equipment,
drugs and supplies donated by the foundation to the
said hospital. 3 There is no allegation, much less proof,
that Marcos misappropriated a single centavo from the
transactions. Since the major recipient of the high
rentals negotiated by PGHFI (with private corporations)
was one of the state-run medical facilities, the
perceived disadvantage to the LRTA was negated by
the benefits reaped by PGH. In the end, therefore,
albeit indirectly, the ultimate gain still went to the
government.
III
I cannot abide with the manner by which the
Sandiganbayan rendered its decision in these cases,
aptly termed by Justice Francisco in his Concurring and
Dissenting Opinion as the "jurisdictional fiasco
between the First and Special Division" of the
Sandiganbayan. To my mind, it is not a mere "technical
impropriety" which can readily be dismissed, as the
majority did. The procedural infraction committed by
the Sandiganbayan (First Division), unfortunately, has
fatal consequences because it has decidedly placed
the whole proceedings in serious doubt. It must be
recalled that this is a criminal case. Thus, it is
indispensable that all proceedings to determine the
guilt or innocence of the accused must be undertaken
with nary a hint of irregularity, for what is at stake is
one's personal freedom.
To recap, at the initial voting of the First Division of the
Sandiganbayan (composed of Presiding Justice
Garchitorena, Justice Balajadia and Justice Atienza),
Justices Garchitorena and Balajadia voted to convict
petitioner Marcos in Criminal Case Nos. 17449, 17450
and 17451 and to acquit her in Criminal Case No.
17453, whereas Justice Atienza voted to convict her in
Criminal Case Nos. 17450 and 17453 and to acquit her
in Criminal Case Nos. 17449 and 17451. Due to the
failure of the First Division to reach a unanimous
agreement regarding the disposition of the criminal
cases, Presiding Justice Garchitorena on September
15, 1993 created a Special Division to resolve the
above cases pursuant to Sec. 5 of P.D. No. 1606, as
amended:
Sec. 5. Proceedings, how conducted;
votes required. — The unanimous vote
of the three justices in a division shall
be necessary for the pronouncement of
a judgment. In the event that the three
justices do not reach a unanimous
vote, the Presiding Justice shall
designate two other justices from
among the members of the Court to sit
temporarily with them, forming a
division of five justices, and the
concurrence of a majority of such
division shall be necessary for
rendering judgment.
The Special Division was composed of the aforenamed
three justices, with Justice Amores and Justice del
Rosario in addition.
On September 21, 1993 over a late lunch at a
restaurant in Quezon City, after attending a committee
hearing in Congress, Justice Garchitorena, Justice del
Rosario and Justice Balajadia, in the presence of
Justice Regino C. Hermosisima, who was not a
member of the First Division (Justices Atienza and
Amores were absent), discussed their respective
positions in the criminal cases. After learning that
Justice del Rosario concurred with the dissent of
Justice Atienza, Justices Garchitorena and Balajadia
capitulated and decided to adopt Justice Atienza's
position. On the rationale that "there had resulted a
unanimity among the regular members of the First
Division" and thus concluding that there was no longer
any need for the Special Division, Presiding Justice
Garchitorena upon arrival at his Sandiganbayan office
issued on the same day A.O. No. 293-93 dissolving
said Special Division. When informed that same day of
what transpired at the Quezon City restaurant, Justice
del Rosario manifested that he "did not mind" the
dissolution of the Special Division, while Justice
Amores submitted a written manifestation requesting a
fifteen-day extension to give his opinion. No action on
Justice Amores' request was made as of September
24, 1993 when the First Division rendered its judgment.
The procedure is highly anomalous, irregular and is not
sanctioned by practice. It is a blatant violation of the
law, specifically Sec. 5 of P.D. No. 1606 and Sec. 1(b),
Rule XVIII of the Revised Rules of the
Sandiganbayan. 4
On this point, the majority of the Third Division of this
Court opined:
While it is true that under Section 5 of
Presidential Decree No. 1606, as
amended, when a unanimous vote is
not reached by a division, two other
justices shall be designated by the
 Presiding Justice to sit in a special
division, and their majority vote shall be
required to reach a valid verdict, this
provision does not totally rule out a
situation where all members of the 3-
justice division eventually come to a
common agreement to reach a
unanimous decision, thus, making
another division's participation in these
cases redundant. This is exactly what
transpired in this case. The change of
heart of Justices Garchitorena and
Balajadia, though reached unofficially,
may be perceived as a supervening
event which rendered the Special
Division's functions superfluous. . . . .
I beg to disagree for the following
reasons:
1. The informal meeting of the Justices at a Quezon
City restaurant where the criminal cases were
discussed or taken up (perhaps as part of the menu, a
Justice of the Court commented during the oral
argument) is not sanctioned by law and the rules.
The Sandiganbayan law provides that:
The Sandiganbayan shall have its
principal office in the Metro Manila area
and shall hold sessions thereat for the
trial and determination of all cases filed
with it irrespective of the place where
they may have arisen, . . . 5
The Sandiganbayan Rules of Procedure also requires
that:
sessions of the Sandiganbayan,
whether en banc or division, shall be
held in its principal officein the
Metropolitan Manila area where it shall
try and determine all cases filed with it
. . . 6(Emphasis supplied.)
Besides, it goes without saving, there are certain
formalities to be followed for meetings and
deliberations by a collegial body. There should be an
agenda, with advance notice of what cases are to be
deliberated upon or matters to be taken up. The reason
for these formalities is obvious. The members should
be notified of the session to assure their presence and
to enable them to prepare and discuss intelligently and
authoritatively the matters to be taken up. Justices
Amores and Atienza were not present because they
were not notified. Thus, Justice Amores' views were
not ventilated because he was not aware of the
meeting.
Hence, I agree with the dissenting opinion of Justice
Francisco that whatever discussion and agreement
was made among the Justices present in the restaurant
cannot be considered as "official business" and,
therefore, has no binding effect.
2. The moment the Special Division of five justices was
created, it assumed jurisdiction over the criminal cases
to the exclusion of the First Division. It is a fundamental
rule that once jurisdiction to try a criminal case is
acquired, it remains with the court until it is finally
decided. The mere fact that the original three members
of the First Division of the Sandiganbayan had arrived
at a unanimity over the issues on which they had been
previously divided did not authorize the Presiding
Justice to abolish the Special Division of five justices
and refer the cases back to the First Division. Besides,
if the majority of the Special Division had already
arrived at a consensus and was ready to vote, why did
it not Simply and promptly vote on the cases and
promulgate the judgment itself, instead of resorting to
the rigmarole of dissolving the body and returning the
cases to the First Division?
I am not persuaded by the contention that since the
Rules do not provide how and by whom a special
division may be dissolved, the Presiding Justice has
the authority to order the dissolution. As already
mentioned, once jurisdiction to try a criminal case is
acquired, the court retains jurisdiction to try it until
finally disposed of Moreover, a Sandiganbayan regular
division and a Special Division of five that may be
created in case of lack of unanimity by the former are
not one and the same body, albeit three members of
the special division are also members of the regular
division. When a justice participates in the deliberation
of the special division and votes, he does so as a
member of that special division, not as a member of the
regular division to which he belongs. Whatever opinion
or view he had entertained of the case while it was
being deliberated upon in the regular division does not
bind him as a member of the special division.
How then could three justices of the original division
have come to a unanimous decision, when in fact and
in law, said division no longer existed, having been
replaced by the Special Division? To repeat, under
P.D. No. 1606, if a unanimous vote is not reached, a
division of five justices shall be formed and it is the
majority decision of such division which is required to
render a judgment. Quite plainly, this means that the
case is removed from the jurisdiction of the regular
division and the final decision lies with the Special
Division. The law is clear and leaves no room for any
other interpretation. On this basis, I find it difficult to
accept the majority's sweeping assertion that Section 5
of P.D. No. 1606 "does not rule out a situation where
all members of the 3-justice division eventually come
to a common agreement to reach a unanimous
decision, thus, making another division's participation
in these cases redundant." If we follow the majority's,
logic, suppose another member of the three-man
division had changed his mind anew, would a special
division of five have been created again? And
supposing further, the original members of the three-
man division had come to an agreement, should the
special division be dissolved again, and so on ad
infinitum? The framers of the law, certainly, could not
have intended such resultant absurdity.
3. The arbitrary dissolution of the Special Division had
inappropriately, perhaps illegally, deprived Justice
Amores of the chance to present his own viewpoint and
to vote. Justice Garchitorena rationalized that Justice
Amores' vote would not change the result of the
decision anyway:
If Justice Amores were to have
disagreed with the conclusions
reached by Justices del Rosario and
Atienza (which were subsequently
 adopted by Justices Balajadia and the
undersigned), he would have been
outvoted by the other four Justices. On
the other hand, if Justice Amores had
concurred with the position taken by
the four other Justices of the Special
Division, it would not have altered the
decision as promulgated. Such
concurrence would only bring about
unanimity in the decision — which
would.be a very odd situation since a
Special Division is constituted precisely
because of the existence of a divided
court. If the Special Division had
remained, the vote of Justice Amores
either way would not have resulted in
any change in the result of the decision
as promulgated. 7
Had Justice Amores been allowed to participate and
vote, it is not such a far-fetched idea that in the course
of the deliberations of the Special Division, the other
justices might have been persuaded by his arguments
and might have changed their minds and
consequently, their votes, just as what Justice
Garchitorena and Balajadia had done.
This case has drawn more than a passing attention,
some mixed feelings, because it involves one of the
most powerful personalities on the center stage during
the difficult years when the light of freedom had been
shut out across the land. When, finally, democracy was
restored by the EDSA revolution in February 1986, the
Filipino people, hurting from the wounds and iniquities
inflicted by the dictatorship, vowed never again to allow
democracy be taken away from them.
The martial law days may be far behind us but we have
certainly not forgotten. No matter the odds, the toil
continues to bring to justice all who have abused power
and betrayed the Filipino people. This pursuit,
however, is, or should be, tempered by the lessons
from our past. We must forever be true to our vow to
be faithful to the letter of the law and the dictates of due
process, and not be distracted by the personalities
involved. For the right to due process and the rule of
law are immutable principles in a democratic society
that should apply to all, even to those we hate. We
should take a page from the dissenting opinion of
Justice Abraham-Sarmiento in Marcos
Manglapus8 on the issue of whether or not the
Marcoses may be prohibited from returning to the
Philippines after the EDSA revolution. The majority
ruled against the Marcoses and opined that at that
particular time their return posed a serious threat to
national interest and welfare. Justice Sarmiento, who
lost a son to, and himself experienced, the cruelties of
the martial law regime disagreed and said:
. . . I am for Marcos's return not
because I have a score to settle with
him. Ditto's death or my arrest are
scores that can not be settled.
I feel the ex-President's death abroad
(presented in the dailies as "imminent")
would leave him "unpunished" for his
crimes to country and countrymen. If
punishment is due, let this leadership
inflict it. But let him stand trial and
accord him due process.
Modesty aside, I have staunchly and
consistently advocated the human right
of travel and movement and the liberty
of abode. We would have betrayed our
own ideals if we denied Marcos his
rights. It is his constitutional right, a
right that can not be abridged by
personal hatred, fear, founded or
unfounded, and by speculations of the
man's "capacity" "to stir trouble." Now
that the shoe is on the other foot, let no
more of human rights violations be
repeated against any one, friend or foe.
In a democratic framework, there is no
such thing as getting even.
Any quest no matter how noble will be in vain if pursued
for ends other than truth and justice.
WHEREFORE, I vote to grant the motion for
reconsideration and acquit petitioner Imelda R.
Marcos.
ROMERO, J., dissenting opinion;
I dissent.
The Court, in its decision promulgated on January 29,
1998, upheld the conviction of petitioner Marcos in
Criminal Case No. 17450 and ordered her to reimburse
the Light Rail Transit Authority (LRTA) the amount of
P189,372,000.00. On February 18, 1998, petitioner
filed a motion for reconsideration of said decision on
the grounds, inter alia, (a) that it was Dans, not
petitioner Marcos, who entered into the Lease
Agreement (Exh. "B"); (b) that the prosecution was not
able to establish beyond reasonable doubt that the
terms and conditions of said Lease Agreement were
manifestly and grossly disadvantageous to the
Govemment; and (c) that the promulgation of the
assailed decision by the Sandiganbayan's First
Division after the constitution of the Special Division
rendered said judgment null and void.
v.
As can be readily observed, these grounds merely
reprise the issues already raised in the petition and
adequately tackled in the challenged decision.
Nevertheless, after the hearing of oral arguments
before the Court en banc held on September 10, 1998,
I feel the need to discuss further some of the points
raised thereat.
Petitioner insists that the acquittal of Jose P. Dans, Jr.,
her co-accused in Criminal Case. No. 17450, should
also have benefited her because the prosecution failed
to prove that she entered into the lease agreement
(Exhibit "B") in behalf of the LRTA. Since the LRTA was
represented by Dans, who was acquitted, and no
conspiracy was established between them, then
petitioner should also have been exonerated.
While there is no dispute that the alleged conspiracy
between petitioner and Dans in executing the lease
agreement (Exhibit "B") was never proven by the
prosecution, there is likewise no question, in fact, it is
only too obvious, that petitioner could not have signed
in behalf of the LRTA at the time even if she had
wanted to do so because she was already signing for
the other party, the PGH Foundation, Inc. This does not
detract from the admitted fact that petitioner was the
Chairman of the LRTA during the negotiations.
Expectedly, petitioner, despite extensively lifting
excerpts from the assailed decision, purposely omitted
the Court's discussion on how the lease transaction
was tainted by her conflict of interest, a glaring fact
which has been repeatedly glossed over by petitioner
and her counsel in the course of these proceedings.
Thus, we stated:
Indubitably, there was some kind of
conflict of interest in the premises.
Marcos and Dans, who were then
Cabinet members, occupied the
highest positions in the Boards of the
LRTA and the PGHFI in a concurrent
capacity at the time the questioned
deals were made. They were, as it
were, playing both ends; but on paper,
one was acting for the lessor and the
other for the lessee. The fact that
petitioners were cleared of the charge
that they acted improperly in accepting
seats in the PGHFI Board of Trustees
at the time when it had pending
business transactions with the LRTA,
of which they were also officers is of no
moment. First, their acquittal in
Criminal Case No. 17451 and No.
17452 was simply due to the
insufficiency of the informations.
Second, the accusation in said
informations have no bearing
whatsoever on the subject matter of the
other cases filed against them as
signatories to the assailed lease
agreements. Even Justice Garhitorena
had occasion to advert to this conflict of
interest in his resolution of November
13, 1996. 1
There is no dispute that petitioner was the chair of the
LRTA at the time of execution of the lease agreement,
but she chose to "enter" it as chair of the PGHFI.
Moreover, it was conclusively demonstrated at the
hearing on September 10, 1998, that although Dans
was "duly authorized" to sign for the LRTA, it was the
entire LRTA through its policy-making body, which
approved the lease agreement. It is, therefore,
erroneous for petitioner to argue that she did not enter
into said agreement on behalf of the government
because, certainly, she did. She may not have signed
for the LRTA but she was one of those who approved
it and duly authorized Dans to sign for the LRTA.
Furthermore, it must be remembered that a lease
agreement is a bilateral contract which gives rise to
reciprocal rights and obligations on the part of the
lessor and the lessee. It is an agreement which
becomes a contract when the parties signify their
consent or assent thereto, thereby reflecting the
meeting of the minds between said parties. By himself,
the lessor cannot enter into a contract of lease; there
must be another party, the lessee, who will take
possession of the property subject of the lease during
its effectivity. Thus, when Dans "entered" into the lease
agreement, he did so as representative of the lessor;
petitioner did so in representation of the lessee. It is
erroneous to state, as petitioner maintains in her
motion for reconsideration, that she did not enter into
the lease contract simply because she did not sign it,
for certainly she did, as one of two indispensable
parties. The immediate beneficiary of the lease was the
government, represented by the LRTA. For all intents
and purposes, brushing aside semantics, the lease
agreement was entered into in behalf of the
Government by both petitioner and Dans.
Shifting now to the alleged procedural anomaly which
attended the promulgation of the assailed decision of
the Sandiganbayan's First Division on account of
Justice Garchitorena's unilateral dissolution of the
Special Division which he himself had formed to break
a voting impasse, I find petitioner's arguments in this
regard to be shallow and self-serving, as will be
presently elucidated.
The principle that a Special Division in the
Sandiganbayan cannot be stripped of jurisdiction once
it is vested with the same was originally a rule in Civil
Procedure first applied to trial courts, later to appellate
courts. It is applicable to single sala courts or entire
courts, but not to Divisions. Even the non-forum
shopping rule refers to the filing of cases involving the
same parties and causes of action from one court to
another, and not from one Division to another.
Secondly, there is no rule in the Sandiganbayan
authorizing or disauthorizing a Chairman of a Division
from dissolving a Special Division once it has
effectively become functus officio.
Third, by analogy, in appellate courts, such as the
Court of Appeals, rules are fixed and practices have
been established. In the Supreme Court, however,
there are no rules regarding the dissolution of Special
Divisions; hence, thereis nothing against which the
alleged procedural irregularities can be measured.
Finally, assuming arguendo that there was a lapse in
procedure in the Sandiganbayan, this will not render
the judgment null and void. If at all, it may indicate the
bias of the judge concerned which may be proved in an
administrative case, but certainly not to render the
judgment null and void.
For these reasons, I vote to dissent from the majority
opinion.
PANGANIBAN, J., dissenting opinion;
In its Decision promulgated on January 29, 1998, this
Court (through its Third Division), voting three1 to
two,2 AFFIRMED (1) the conviction of Petitioner Imelda
R. Marcos for violation of the Anti-Graft Law in Criminal
Case No. 17450, and (2) the penalty of imprisonment
of nine years and one day as minimum to twelve years
and ten days as maximum. It also ordered her to pay
the Light Rail Transit Authority (LRTA) P189,372,000,
the amount the government lost because of her
criminal acts.
In view of the appointment of two new members to the
Court, namely, Justices Leonardo A. Quisumbing and
Fidel P. Purisima, the three Divisions of the Court were
reorganized on February 1, 1998. The Chief Justice
transferred Justice Melo to the Second Division; and
Justice Panganiban, to the First. Justices Kapunan and
Purisima were, in turn, assigned to the Third Division in
addition to the three retained members, namely, Chief
Justice Narvasa and Justices Romero and Francisco.
However, on February 13, 1998, Justice Francisco
retired from the Court upon reaching the age of 70.
Hence, when petitioner filed her Motion for
Reconsideration (MR) on February 18, 1998, the Third
Division had only four members (Chief Justice Narvasa
and Justices Romero, Kapunan and Purisima). After
several attempts to deliberate and resolve the MR and
upon motion of petitioner, the Division finally decided
to elevate the matter to the Court en banc, which in turn
accepted it.3 Although as a member of the banc, I had
initial reservations on the propriety of elevating the MR
to the full court, as it is well-settled that the banc is not
an appellate body to which decisions of Divisions may
be brought, I finally supported the referral in view of the
unanimous request of all the four incumbent members
of the Third Division. In fact, the banc'sacceptance was
unanimous, too. Again upon motion of petitioner,
the banc heard oral argument on the MR on
September 10, 1998, and thereafter required the
parties to file their respective memoranda. Even if all
the arguments raised in the MR had already been
considered and passed upon in our January 29, 1998
Decision, I acceded (as all the Court members did) to
the oral argument to forestall any further charge of
denial of due process, which petitioner had repeatedly
leveled at the Sandiganbayan.
I write these preliminary matters to show that this Court
has bent backwards to accord, the former First Lady of
the land all the legal opportunities to defend herself —
a right that she vehemently claims was denied her by
the lower court.
I realize, and I am sure each member of this Court does
too, that this case involves not merely a judgment on
the acts of the former First Lady. By its Decision here,
this Court will be evaluated by the nation and by the
world. History will judge this Court — how it acted and
how each member participated and voted. What we
say and write here will still be remembered and
discussed by our countrymen and by the world fifty
years from now, when all of us are, in all likelihood,
already in the Great Beyond.
Having said that, I will now discuss the issues raised in
the MR.
The Issues
To support her plea of acquittal in her Motion for
Reconsideration, Petitioner Marcos alleges the
following:
1. She did not "enter, on behalf of the
government," (through the LRTA) into
the lease contract that was allegedly
"manifestly and grossly
disadvantageous to the government."
2. The prosecution failed to prove
beyond reasonable doubt that she
violated Section 3(g) of RA 3019, as
amended, specifically because there is
no evidence showing the fair and
reasonable rental of the subject
property.
3. The Decision of the Sandiganbayan
was rendered without jurisdiction.
4. Petitioner was denied her right to
counsel.
All these "grounds" were aleady raised in her Petition
and resolved in our January 29, 1998 Decision.
Normally then, the MR should have been denied with
the usual minute resolution, which abhors mere
repetition of arguments already passed upon. Since in
the said Decision of January 29, 1998, I did not write
any opinion on these matters but merely concurred in
Justice Romero's ponencia, I thought it now prudent to
refute each of petitioner's arguments seriatim.
First Ground:
Petitioner, as a Public Official. "Entered" into
the
Lease Agreement on Behalf of the Government
On the first ground, petitioner elucidates in her
Memorandum that as a public officer, she did
not sign the lease contract on behalf of the
government. She merely signed it as chairperson of the
Philippine General Hospital Foundation, Inc. (PGHFI).
Ergo, she cannot be held liable for violating Section
3(g) of RA 3019, the Anti-Graft Law, which reads:
(g) Entering, on behalf of the
Government, into any contract or
transaction manifestly and grossly
disadvantageous to the same, whether
or not the public officer profited or will
profit thereby. (Emphasis supplied)
It does not take too much imagination to see the
obvious flaw in this argument. Plainly, the law does not
use the word "signing." It employs the word "entering."
Definitely, signing is not the only way of entering into a
transaction. Those who authorized, approved or
assented to such contract must be held equally, if not
more, accountable for having entered into the
agreement. The campaign against graft and corruption
would be seriously undermined, if only the obedient
underlings are punished, while the bigwigs who
ordered, authorized, approved or assented to such
anomalous contract are freed of accountability. That is
simply unconscionable!
Furthermore, the fact that Petitioner Marcos was
chairman of the board of directors of the LRTA, in
which was vested the powers to carry out the functions
of the agency, proves her actual participation as a
public officer, albeit imdirectly, in the execution of the
lease contract on behalf of the LRTA. She had actually
entered into the anomalous contract in a double
capacity: as chair of the lessor, acting through an agent
(in the person of Jose Dans Jr.); and as head of the
lessee, signing the contract on behalf of the PGHFI.
Under its charter, 4 the powers and functions of the
LRTA were "vested in and exercised by the Board of
Directors." 5 This simply means that, as Solicitor
General Ricardo P. Galvez correctly construes, the
agency "can officially act only through its Board of
Directors." In fact, in the exercise of its general powers,
among which was the power to lease real property, the
LRTA was specifically mandated to act "through the
Board of Directors." 6
Consistent with the provisions of EO 603, the lease
agreement executed between LRTA and PGHFI stated
in unequivocal terms that Dans, the signatory on behalf
of LRTA, was "duly authorized for the purpose." This
qualification can only mean that Dans was priorly
mandated by the proper body — the LRTA board of
directors — to sign the said contract. There is no
evidence whasoever that the LRTA board did not
authorize the transaction. Hence, the presumption of
regularity operates and applies.
Being the chairman of the board at the time, Petitioner
Marcos is assumed to have given her approval to the
execution of the contract by the LRTA. She could or
should have known that, indeed, the board she chaired
gave such authority. She, however, insists that this fact
has not been proven beyond reasonable doubt.
I strongly disagree. What could her representation of
the PGHFI, the other party to the lease agreement,
manifest other than her full knowledge of and
unqualified consent to the contract? In other words,
Petitioner Marcos cannot deny her knowledge of and
consent to the contract which LRTA entered into. She
was the signing officer of the other party (the lessee) to
the same contract! There was no way she could not
have known with whom she was contracting (that is,
that she was contracting virtually with herself), as well
as the specific terms of the contract. She could not
have blindly bound PGHFI to the agreement with
LRTA, if she had disapproved of LRTA entering into the
same contract. Considering that at the time she was
not only LRTA chair, but also human settlements
minister, Metropolitan Manila governor and First Lady,
it is simply inconceivable that the LRTA board would
authorize the contract without her approval! To hold
otherwise is to be blind to the obvious. Verily, to all legal
intents and purposes, Petitioner Marcos authorized
and effectively "entered" into the lease agreement on
behalf of LRTA, a government agency.
Had she disapproved, even ex post facto, of LRTA's
participation, petitioner could have sought the
rescission of the LRTA-PGHFI agreement, when she
became aware of the terms of the sublease contract
and realized the manifest and gross disadvantage at
which LRTA had been placed. She could then have
sought to contract directly with the sublessee, the
Transnational Construction Corporation (TNCC). But
she made no such efforts. There is no showing that
petitioner ever denounced the original lease contract
as grossly disadvantageous to the government, even
after she had learned of the great disparity in the
rentals. No, she did not. The whole transaction was a
charade devised openly to benefit her private
foundation at the expense of the government.
She belatedly claims before the media that she simply
raised funds through "creative financing" in order to
extend assistance to a hospital. But such defense was
never presented in court. Other than her our-of-court
utterances, petitioner has submitted no evidence
whatsoever to indicate that the money gained by
PGHFI from TNCC (and lost by the LRTA) was actually
spent for a hospital or any other charitable purpose, for
that matter. Even if she has, such submission would be
beside the point.
Under the circumstances of the case, to claim that she,
as a public officer, did not approve of the lease by the
LRTA is pure sophistry. And for her to add that, even if
she knew of the transaction, she did not directly
represent and sign for the government and is thus
deserving of acquittal, is to render the Anti-Graft Law
toothless. Furthermore, to insist that her approval must
be independently proven "beyond reasonable doubt" is
a futile and unworthy argument in the face of the very
documents where, unquestionably, her signature
appears.
Petitioner also harps on Dans' acquittal, arguing that
she, as a mere conspirator, must also be acquitted.
True, in conspiracy, the act of one is the act of all. 7 But
the converse does not always follow; the absence of
conspiracy does not necessarily result in the acquittal
of all or both alleged conspirators. The innocence of
one is not absolute proof of the innocence of the other.
For one may have acted independently of the other;
and for one's own felonious acts, he or she alone is
liable. 8 Indeed, this Court found no evidence of
conspiracy. And petitioner was convicted not because
of conspiratorial acts, but because of her own act.
In the instant case, Dans' guilt was not proven beyond
reasonable doubt, because his participation in the
sublease agreement had not been duly established.
This cannot be said of Petitioner Marcos. There is no
equivocation in the earlier finding that she actively
participated in both the lease and the sublease.
Second Ground:
Manifest and Gross Disadvantage
Proven Beyond Reasonable Doubt
Petitioner avers that the prosecution failed to prove
beyond reasonable doubt that "manifest and gross
disadvantage to the government" was caused by the
LRTA-PGHFI-TNCC masquerade. While the terms
have not been explicitly defined by law or
jurisprudence, I agree with the common and accepted
meanings ofmanifest and gross, as culled by Solicitor
General Galvez from Black's Law Dictionary:9
"Manifest" means obvious to the
understanding, evident to the mind, not
obscure or hidden, and is synonymous
with open, clear, visible, unmistakable,
indubitable, evident and self-evident. In
evidence, that which is notorious. On
the other hand, "gross" means flagrant,
shameful, such conduct as is not to be
excused . . . .
The lease and sublease agreements, construed
together, speak for themselves. There can be no
stronger evidence of the blatant discrepancy in the
rental amounts and the resulting "gross and manifest
disadvantage" sustained by the lessor — the LRTA,
which is a government agency.
A simple mathematical computation will illustrate the
huge amount which the government lost thereby. LRTA
leased the property at P102,760 per month to the
PGHFI, which in turn subleased it to the TNCC for
seven times that amount, at P734,000, resulting in a
net loss to the government in the amount of P621,240
a month, or a grand total of P189,372,000 for the 25-
year term of the two agreements. In other words, the
PGHFI, the middleman, pocketed six times more than
the LRTA, the property owner.
Petitioner argues that the prosecution should have
presented expert opinion to show which of the two
rental amounts was the "fair and reasonable" price.
However, the law (RA 3019) does not speak of fair or
reasonable price. It speaks of "gross and manifest
disadvantage." And what better evidence is there of
such prejudice than the two contracts themselves,
which show the great loss incurred by the people and
the government. Opinion cannot prevail over hard fact!
In view of these actual, concrete and operative
contracts, which provided terms that were complete
and facts that were indelible, expert opinion, if not
entirely worthless, certainly cannot prevail. The expert
witness' testimony cannot rebut and overcome the
contents of the executed documents, specifically the
rental price that the property actually commanded.
Such utter uselessness of expert opinion is
demonstrated by Ramon F. Cuervo's testimony. His
opinion of the "fair and reasonable" rental value of the
property was based on "offers for sale, actual sales and
appraisal jobs . . . of comparable [bare] lots in the same
vicinity." 10 He did not consider the improvements and
commerce that would be brought about by the
operation of the adjacent LRT stations.
Be it remembered that the subject agreement and the
rentals stipulated would become demandable only
after the start of the LRT operations, or when the
PGHFI would commence its business. 11 Such being
the case, mere "expert" opinion based on the then
prevailing rentals would be totally immaterial and
irrelevant. Thus, Sandiganbayan Presiding Justice
Garchitorena had to elicit from the witness what would
be the fair and reasonable rental value, if these factors
were taken into account. In response, Cuervo
estimated that the amount would likely double. 12
Still, this was merely his estimate. The
indubitable fact remains, as shown by the sublease
contract executed between PGHFI and TNCC, that the
leased property commanded seven times more than
the amount for which LRTA.rented it out. TNCC, a
private commercial enterprise, would not have
unwittingly or moronically agreed to pay a ludicrously
high amount to PGHFI if it did not indeed value the
subject property at that amount.
Moreover, it is undisputed that, as pointed out by the
Republic's counsel, the LRTA-PGHFI agreements
themselves state in no uncertain terms that the
unabashed purpose of the lease was to extend finacial
advantage to the PGHFI, viz.:
. . . The AUTHORITY (LRTA), realizing
the charitable objectives of the
FOUNDATION (PGHF) is desirous of
extending financial support which can
be derived from the development of
such areas, for the pursuit of the
objectives of the FOUNDATION . . . . 13
. . . the LESSEE (PGHF), as a means
of generating funds to undertake its
projects (to establish, maintain or equip
medical institutions), has been granted
by the Light Rail Transit Authority the
right, authority, permit and license to
develop the areas adjacent to the Light
Rail Transit Stations, and manage and
operate the concessions in such areas
...
. . . the LESSOR, realizing that the
business of developing the specified
areas adjacent to the LRT stations and
of taking charge of the management
and operation of the concessions
therein, whose earnings will be used to
fund medical services and facilities,
charities and other benevolent projects
of the FOUNDATION in Metro Manila,
will be directly beneficial to the
residents therein, and realizing also
that the LESSEE finds it necessary to
use these parcels of land described in
the first paragraph, for the above
mentioned purposes, has agreed to
lease the above-described property to
the LESSEE . . . 14
In disregard of the law, the government, through
petitioner, accommodated a private institution that was
raising funds. The net effect of the juggling scheme,
however, was the plunder of government earnings.
Whether the funds raised were actually used for
charitable and benevolent purposes, a matter claimed
but not proven at all, will not erase the illegality of
petitioner's maneuverings.
Petitioner repeatedly carps at the charges that she had
authorized the anomalous transactions and that the
government wa placed at a gross and manifest
disadvantage. She terms such conclusions "mere
speculations or conjectures." They definitely are not.
They are logical inferences from known and proven
facts, or matters that the Court may take judicial notice
of. To require proof that petitioner directly admitted
authorizing the two contracts is to demand the
unreasonable. If she did that, there would have been
no need for trial. To require such proof is to require a
virtual confession of guilt! On the other hand, to ask for
expert opinion on fair and reasonable rental in the face
of hard evidence of actual rental value clearly
demonstrating manifest and gross disadvantage is to
require a superfluity, an exercise in legal inutility.
In sum, petitioner was well aware of the manifest and
gross disadvantage incurred by the government, when
the LRTA property was leased out for an almost token
amount through the execution of the subject contracts,
which she, as a public official, was deemed to have
entered into on behalf of the government.
 Third Ground:
Decision of Sandiganbayan Valid
An error or irregularity in the rendition of a judgment
does not affect the court's jurisdiction; neither does it
affect the validity of the judgment. While error in
jurisdiction makes the judgment or order void or
voidable, 15 an error in the exercise of jurisdiction does
not. 16 The decision rendered in the latter is correctable
merely through an appeal. 17 This remedy of appeal has
already been availed of by petitioner's filing of the
present recourse before this Court.
Consistent with the above principles, I respectfully
submit that the assailed Decision of the
Sandiganbayan (First Division) cannot be rendered
void (or even voidable) simply because of an
irregularity, assuming arguendo that it existed, in its
rendition. Worth noting is the fact that petitioner took
the recourse of filing a petition for review under Rule
45, not a special civil action for certiorari under Rule
65, the proper remedy to annul judgments rendered
without jurisdiction or with grave abuse of discretion. 18
Years ago, the Court taught the difference between
"jurisdiction" and the "practice and method of
procedure of the court" in these very explicit terms: 19
. . . the word "jurisdiction" refers to
something which, if once possessed by
a court, does not vanish in the
vicissitudes of decision. After a cause
over which a division has undoubted
jurisdiction has been debated and
considered, the jurisdiction of the body
does not cease when it is discovered
that only three out of four or five of the
members of the division concur in the
prevailing view. This shows that the
matter of the requirement of a certain
number for the decision of a case is a
matter of practice and procedure rather
than of fundamental jurisdiction. Where
a body consisting of more than two
members is created, it must, by the
very law of its being, be allowed to
proceed upon a mere majority, in the
absence of specific provision for a
majority consisting of a precise
number. (Emphasis ours.)
In Faypon v. Quirino, 20 a Resolution of the Court en
banc, dated September 15, 1952, was invoked in order
to set aside a judgment of the Court of Appeals for
alleged want of jurisdiction. Said Resolution required
that when there was no unanimous concurrence in a
division of three, the presiding justice was to designate
two additional associate justices "by rotation in the
order of seniority." Such manner of choice was not
observed by the appellate court, but this Court said that
the "alleged violation of the resolution does not affect
the jurisdiction of the Court of Appeals to hear and
decide the case before it on appeal. If the alleged
irregular designation be a sufficient ground for setting
aside the judgment rendered by the Court of Appeals
and remanding the case to it for further proceeding; it
would unnecessarily delay the disposition of this case
to the detriment of public interest."
The jurisdiction of the Sandiganbayan is defined
principally in PD 1606, as amended, and additionally in
special laws, such as RA 7080 on plunder and EO 14
on ill-gotten wealth cases. 21 Specifically, Section 4 of
PD 1606, as amended by PD 1861, vests in the
Sandiganbayan jurisdiction, ver "all cases involving: (1)
violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act . . . ." There should therefore be no
question on said court's jurisdiction over the case at bar
— a proceeding for a violation by petitioner of the Anti-
Graft Law. Rather, the material issue involved is
theauthority of the Sandiganbayan's First Division to
issue its assailed September 24, 1993 Decision.
I submit that the First Division of the Sandiganbayan
not only had the jurisdiction to resolve the case at bar,
but the authority as well. The alleged flaw in the
rendition of its Decision was a procedural technicality
that did not oust it of jurisdiction. While the initial
absence of a unanimous concurrence of the three
members in the said Division necessitated the
designation of two additional justices to form a
temporary special division of five, it must be stressed
that the purpose of such designation was simply to
obtain the concurrence of at least three in the final
judgment, pursuant to the requirement of PD 1606. 22
But the subsequent change in disposition of the two
original members of the First Division, such that
a unanimity in conclusion among all three original
members was reached, practically aborted the purpose
of the special division. Because of this development,
the presiding justice forthwith revoked his previous
order appointing the two additional magistrates, in
effect dissolving the special division. Obviously, there
was no more need for additional members. I think it is
also worth noting that the unanimous concurrence of
the original division members had been arrived at, even
before the special division convened. In any event, the
more conclusive fact is the final and indubitable
vote appearing on the Decision itself of each of the
three justices in the Division.
Furthermore, the law and the rules of the
Sandiganbayan do not expressly provide under what
circumstances and in what manner a special division
may be dissolved. Such being the case, how can the
Court attribute error, irregularity or abuse of discretion
to Presiding Justice Garchitorena's actions? As
similarly provided in Section 5 of PD 1606, as
amended, the Sandiganbayan rules simply state: 23
Sec. 1. Votes Necessary to Decide. —
xxx xxx xxx
(b) In Division. — The unanimous vote
of three Justices in a Division shall be
necessary for the rendition of a
judgment or order. In the event that the
three Justices do not reach a
unanimous vote, the Presiding Justices
shall designate by raffle two Justices
from among the other members of the
Sandiganbayan to sit temporarily with
them forming a special Division of five
Justices, and the vote of a majority of
such special Division shall be
necessary for the rendition of a
 judgment or order. (Emphasis
supplied)
Clearly, the presiding justice has the authority to
designate two additional justices if the need arises.
Since the said Rules do not provide who may dissolve
a special division and under what circumstances it may
be dissolved, it follows that the presiding justice
likewise possesses the power to revoke such
designation when the need therefor ceases. Note that
the Rules expressly state that the two additional
justices sit only temporarily — meaning as long as
there is a need for them. In the instant case, the
ensuing unanimity among the three original members
of the Division rendered such designation functus
oficio. Thus, the revocation by Presiding Justice
Garchitorena of his earlier order forming the special
Division was not irregular. There being no violation of
a law or rule, the Sandiganbayan could not have been
ousted of jurisdiction, and neither could petitioner have
been denied due process, under the circumstances.
While it is desirable to observe procedural rules
faithfully and even meticulously, courts should not be
overly strict with procedural lapses that do not really
impair the proper administration of justice. 24 Rules are
mere tools designed to facilitate the administration and
the attainment of justice. 25 Where no serious injustice
or grave abuse of discretion is committed, a
suspension of the operation of adjective rules is not
proscribed.
In the case at bar, no substantive right of petitioner was
traversed by the First Division of the Sandiganbayan.
She was given full opportunity to participate in the trial.
All the defenses she offered were addressed by the
court a quo, as well as by this Court. All the points —
factual, procedural and legal — that she raised in her
93-page Petition were thoroughly taken up in the earlier
Decision of this Court's Third Division. Through her
Motion for Reconsideration and by way of oral
argument and written memorandum, she was given
several opportunities to amplify the same defenses
before the Court en banc. I say, she has been more
than fully heard.
Moreover, petitioner's plea for acquittal due to the
alleged nullity of the Sandiganbayan judgment cannot
be granted. A void judgment of conviction may entitle
the accused only to a remand of the case to the trial
court for further proceedings conformably with law. 26 A
remand of her case to the graft court for another full-
length proceeding will not only be a waste of time and
effort, but a virtual approbation of trifling with the
judicial process, a mockery of it. It would be a cop-out.
Fouth Ground:
No Denial of Right to Counsel
Records clearly show that Petitioner Marcos was
represented by counsel during the entire trial
proceedings. The failure of her counsel to appear in a
couple of scheduled hearings 27 is not equivalent to a
deprivation by the Sandiganbayan of her right to
counsel. In her own words, "[n]otices of hearing were
being sent directly to her," and her councel "was
apparently notified." Aside from the written notices, she
was also informed by telephone. But, apparently, she
chose not to be present; neither did she ensure the
presence of her counsel in all the hearings. Well-settled
is the rule that the negligence of counsel binds the
party-litigant. It is also incumbent upon a party to take
an active role, thus:
Litigants represented by counsel,
should not expect that all they need to
do is sit back, relax and await the
outcome of their case. They should
give the necessary assistance to their
counsel for what is at stake is their
interest in the case. 28
Neither did the suspension of her initial counsel of
record (Atty. Antonio Coronel) from the practice of law
amount to a deprivation of her right to counsel. She
was continually represented by various lawyers. The
fact that some 29 were contemned by the
Sandiganbayan for effectively continuing the practice
of Atty. Coronel did nor altogether forfeit her
representation. It does not appear that the actual
participation of any of these contemned lawyers during
the proceedings or any of the pleadings they had filed
was stricken from the records or disregarded by the
court a quo.
In any event, as I have mentioned earlier, petitioner's
defenses, even those belatedly raised before this Court
only, have been thoroughly reviewed, evaluated and
duly considered. Whatever shortcomings, if any, she
may have perceived in the Sandiganbayan
proceedings must have been rectified by this Court,
even twice over — by the Third Division and by
the banc. Here, she is represented by one of the most
adroit legal minds in this country, Atty. Estelito P.
Mendoza. No longer can she whimper and whine about
counsel deprivation.
Epilogue
To say that Petitioner Marcos could not be held
criminally liable simply because she did not sign the
lease contract in her public capacity is either pure
naiveté or utter sophistry designed to create an
improvident loophole to circumvent what is glaring: that
this lease-and-sublease charade was a clever device
to illegally siphon into private hands money that should
properly go to the coffers of the government. Such
charade cannot and should not be allowed! This Court
has the duty to unmask and to condemn this raid
against the public treasury. No amount of verbal
juggling or legal nit-picking can alter the indelible fact
that petitioner, by this ingenious but illegal method, has
deprived the government of badly needed revenues.
Equally untenable is petitioner's contention that she
deserves acquittal, because the prosecution did not
present expert opinion showing the fair and reasonable
rental price for the disputed premises. Be it
remembered that the Anti-Graft Law requires proof, not
of "fair and reasonable" price, but of "manifest and
gross disadvantage" to the government. The glaring
disparity between the two rental amounts, totaling
P189 million which the lease-sublease
charade diverted to private hands, is more than
enough monument to graft. Certainly, such concrete
and actual fact cannot be overturned by mere opinion,
however expert it may be. Indubitably, in the presence
of the incontrovertible fact of government loss,
any opinion of what constitutes "fair price" is not only money or other
superfluous but counter productive. property, real or
personal, as the
Petitioner's claim of irregularity or denial of due process corporation may
in the Sandiganbayan proceedings is plainly baseless. acquire or receive for
In any event, such allegation is not enough to warrant the above-mentioned
an invalidation of the judgment of conviction. Neither purposes, and to all
can it justify a remand to the anti-graft court. Such other acts incidental or
sidetrack, I repeat, is an obvious cop-out. If at all, the related to the
alleged defects do not impair the lower court's maintenance of the
jurisdiction or the binding effect of its Decision. They charity herein
can, at best, only be grounds for possible described;
administrative sanctions.
2. To carry on any and
Finally, the over-indulgent attention given by this Court all educational
— initially by the Third Division and then the banc, with activities related to
full oral argument and written memorandum — is more rendering care to the
than sufficient proof that petitioner has been granted sick and injured or the
due process. In fact, I believe she has, in more ways promotion of health,
than one, been the recipient of "over-due" process in which in the opinion of
this Court. its Board of Trustees
may be justified by the
WHEREFORE, I vote to DENY with finality the Motion facilities, personnel,
for Reconsideration and to AFFIRM the conviction of funds or other
petitioner for graft. requirements that are,
or can be made,
available;
Footnotes
3. To promote and
2 In the Article of Incorporation
carry on scientific
submitted to the SEC on November 17,
research related to the
1981 the PGHFI listed the following
care of the sick and
purposes:
injured insofar as, in
the opinion of its Board
1. To establish, of Trustees, such
construct, equip, research can be carried
maintain, administer, on, or in connection
conduct and operate an with the hospital;
integrated and general
medical institution
4. To participate, as
which shall provide
circumstances may
medical, surgical and
warrant, in any activity
related services,
designed and carried
facilities and
on to promote the
accommodations for
general health of the
the treatment, care,
community;
rehabilitation and/or
relief of persons
suffering from 5. To establish and
illnesses, injuries and manage similar
disabilities, primarily for institutions and/or
the benefit of the clinics in other parts of
people of the the country as its
Philippines, particularly facilities, funds and
those who are wiihout personnel can sustain
the necessary or and support;
sufficient means of
support and are 6. To facilitate the
incapable of obtaining dissemination of ideas
a comfortable and public acceptance
livelihood, in pursuance of information on
of the policy of the medical and health
State to secure the consciousness or
well-being of the awareness, and the
people by providing development of fact-
them with the general finding, information and
medical, health and reporting facilities for
hygienic services and and in aid of these
facilities; and for this general purposes or
purpose to manage objects aforesaid,
and expend such especially in general
health and physical equipment, educational
fitness, and other materials and supplies
relevant or related by purchase, donation,
fields; or otherwise, and to
dispose and distribute
7. To encourage the the same in such
training of physicians, manner, and on such
nurses, health officer, basis as the
social workers and corporation shall, from
medical and technical time to time, deem
personnel in the proper and best, under
practical and scientific the particular
implementation of such circumstances, to
persons or personnel; serve its general and
non-profit purposes
8. To assist universities and objectives;
and research
institutions in the field 13. To buy, purchase,
of medicine, and to acquire, own, lease,
encourage and to hold, sell, exchange,
support educational transfer and dispose of
programs of value to properties whether real
general health; or personal for
purposes herein
9. To encourage the mentioned; and
formation of other
organizations on the 14. To do everything
national, provincial necessary, proper,
and/or city and local advisable or
levels; and to convenient for the
coordinate their various accomplishment of any
efforts and activities for of the powers herein
the purpose of set forth and to do
achieving a more every other act and
effective programmatic thing incidental thereto
approach on the or connected therewith.
common problems
relative to the 3 Submitted by the Accounting
objectives enumerated Services Division of the UP-PGH on 13
herein; October 1993 and attached to the Initial
Report of the investigating prosecutors
10. To seek and obtain submitted to the Sandiganbayan on 26
assistance in any form October 1993 in Crim. Case Nos.
from both internation 17449-17453; Original Records, pp.
and local foundations 11-14; 49-67.
and organizations; and
to administer grants 4 (b) In Division. — The unanimous
and funds that may be vote of three Justices in a division shall
given to the be necessary for the rendition of a
organization; judgment or order. In the event that the
three justices do not reach a
11. To help prevent, unanimous vote, the Presiding Justice
relieve and alleviate the shall designate by raffle two Justices
afflictions and maladies from among the other members of the
of the people in any Sandiganbayan to sit temporarily with
and all walks of life, them forming a special division of five
including those who are Justices, and the vote of a majority of
poor and needy, all such special division shall be
without regard to or necessary for the rendition of a
discrimination, judgment or order.
because of race, creed,
color or political belief 3 Under a Resolution of the Court en
of the persons helped; banc, dated November 18, 1993, "the
and to enable them to following are considered en
obtain treatment when banc cases:
such disorders occur;
xxx xxx xxx
12. To acquire and/or
borrow funds, and to 8. Cases assigned to a
own all funds and/or division which, in the
 opinion of at least three designated Court Interpreter Arlyn Minguez in her
(3) members thereof, stead.2
merit the attention of
the Court en banc and Acting on the reported financial irregularities in the
are acceptable to a MTC-San Jose, the Office of the Court Administrator
majority of the actual (OCA) sent an audit team to conduct its own
membership of the investigation on the matter. Relative to Nolasco’s
Court en banc; accountabilities, the audit team discovered that she
incurred shortages in the following amounts:
11 Under the lease agreement, the
PGHFI would start paying the monthly
Special Allowance for the P
rental only after either of the following
Judiciary Fund (SAJF) 49,265.60
has happened, whichever is earlier:
General Fund (GF) 3,187.00
(a) The date the LRT is Judiciary Development Fund
fully operational. 113,428.04
(JDF)

(b) The date when the Sheriff Trust Fund (STF) 7,000.00
lessee commences its Fiduciary Fund (FF) 614,999.95
business operations.
GRAND TOTAL 787,880.59
22 Sec. 5. Proceeding, how conducted;
votes required. — The unanimous vote With respect to the FFA, the audit team found that
of the three justices in a division shall Nolasco had undeposited collections in the amount of
be necessary for the pronouncement of P441,199.95, and unauthorized withdrawals specified
a judgment. In the event that the three as follows:3
justices do not reach a unanimous
vote, the Presiding Justice shall Over Withdrawal of Cash Bonds:
designate two other justices from
among the members of the Court to sit
temporarily with them, forming a C Amo
Cou Over
division of five justices, and the as Bon unt
rt OR OR Amo With
concurrence of a majority of such e dsm With
Or. No. Date unt draw
division shall be necessary for N an draw
Date al
rendering judgment. o. n
Reni
6/7/ 768
(5) A.M. No. P-06-2148 March 4, 2009 68 ta 9/10 6,00
200 528
37 Gab /99 0.00
2 7
OFFICE OF THE COURT o
ADMINISTRATOR, Complainant, 6/7/ Dani 146 30,0 21,0
vs. 77 5/27 3,00
200 el G. 993 00.0 00.0
JINGKEY NOLASCO, Clerk of Court, Municipal 74 /00 0.00
2 Rafil 10 0 0
Trial Court, San Jose, Antique, Respondent.
Azue
2/7/ 498
62 na 03/0 6,00
DECISION 200 742
30 Parr 3/97 0.00
3 2
eno
PER CURIAM:
Emili
2/5/ 385
This administrative matter arose from an examination 57 e 09/2 4,20
200 360
conducted by the Commission on Audit (COA) on the 49 Pela 8/94 0.00
3 7
go
cash and accounts of respondent Jingkey B. Nolasco,
Clerk of Court II, Municipal Trial Court (MTC)-San Rica
2/12 912 10,0
Jose, Antique. 66 rdo 12/1
/200 886 00.0
42 Brita 4/98
3 7 0
On March 21, 2005, the Fiscal Monitoring Division of nia
the Court Management Office (FMD-CMO) received a 2/20 Dina 146 2/18 10,0
letter from Judge Monina S. Misajon, Presiding Judge, 76
/200 Hipo 992 /200 00.0
MTC-San Jose, Antique, informing then Chief Justice 96
4 nia 98 2 0
Hilario G. Davide, Jr. of the initial results of a COA
examination of the cash and accounts kept by Nolasco. Mari
The COA audit disclosed that as financial custodian of 2/12 eta 118 60,0 27,8
69 02/1 2,00
said court, Nolasco had undeposited collections in the /200 De 071 00.0 00.0
83 5/00 0.00
amount of P563,683.35, and 3 Guz 78 0 0
undocumented/unauthorized withdrawals from the man
Fiduciary Fund Account (FFA) amounting to 8/12 Lynl 125
P128,317.64.1 Upon advice of the COA Audit Team, 69 6/22 6,00
/200 yn 574
34 /04 0.00
Judge Misajon relieved Nolasco of her duties as 4 Ziga 61
financial custodian on February 14, 2005 and
 Rick A. EXPLAIN in writing why she should not be
8/19 161 10,0 44,0 28,0 administratively charged with incurring the total
83 y 3/12
/200 968 00.0 00.0 00.0 initial shortage of SEVEN HUNDRED EIGHTY
22 Guti /04
4 62 0 0 0 SEVEN THOUSAND EIGHT HUNDRED
errez
EIGHTY & 59/100 (P787,880.59) x x x.
Rick
8/19 161 10,0 14,0
83 y 3/12 4,00
/200 968 00.0 00.0 B. PAY/DEPOSIT the initial shortages in the
22 Guti /04 0.00
4 62 0 0 SAJF, GF, JDF, STF and FF amounting to
errez
P49,265.60, P3,187.00, P113,428.04,
67,2 148, 80,8 P7,000.00 and P614,999.95 respectively and
Total 00.0 000. 00.0 SUBMIT to the FMD-CMO the proof of
0 00 0 remittance thereof.

========================================= C. EXPLAIN why withdrawals from the

============================ Fiduciary Fund were made:

Withdrawal Without Supporting Documents 1. In excess of the cash bond

deposited;
Amou
Ca Date Co Acknowled 2. Without the court
Bonds nt
se Withdr urt gment orders/acknowledgment receipts; and
man Withdr
No. awn Or. Receipt
awn
3. (Why some ) Cash bonds (were) not
7/2/20 60,000
x X deposited with SA No. 0771-0107-33.5
04 .00
Rochie In compliance with the OCA directive, Nolasco sent an
75 1/31/2 3,000.
Gutierr x X undated letter to then Court Administrator Presbitero J.
74 005 00
ez Velasco, Jr., reporting on her efforts to restitute the
67 Delia 1/31/2 2,000. shortages, thus:
x X
17 Noble 005 00
With regards the Special Allowance for the Justices
65,000
Total Fund (SAJF) as well as the General Fund (GF), I have
.00
already restituted the amount of P56,274.30. It was so
because on the initial findings of the Commission on
========================================= Audit-Region VI, there was a shortage of P45,342.30
======================== for the SAJF and P9,748.00 for the STF, supposedly
SGF or Sheriff's General Fund which is also remitted in
Withdrawal of Bail Bond not Deposited with SA NO- the SAJF account which totals to P55,090.30 but lately
0771-0101-33 Miss Bonifacia Lee informed me that my total shortage
for the SAJF account amounted to P56,272.30 hence;
Ca Court Date an additional remittance was made. I could no longer
Bonds Court Amou deposit Your Honor, the amount of P3,187.00 for the
se Or. Withdr
man Or. nt General Fund (GF) in the account of the Treasurer of
No. Date awn
the Philippines considering that there was a Circular to
Ma. remit the collections from the Treasurer of the
79 1/20/2 56118 4/14/0 12,000
Bella Philippines to SAJF Fund, so I would humbly beg that
39 003 41 0 .00
Lim the same be credited Your Honor since the total
Raymu accountability I have as per findings of the Supreme
62 3/24/2 11307 12/24/ 16,000 Court Audit Team amounted to P52,452.60. As to
ndo
38 004 167 02 .00 Judiciary Development Fund (JDF), please find
Jungco
attached deposit slip as to the restitution of
28,000 P73,910.40. Again, Your Honor, in the COA findings, I
Total
.00 was short of P77,431.00 which prompted me to remit
additional amount of P4,520.60. As to the interest
========================================= income of P39,517.64, that need to be deposited with
======================= the JDF account, could it be possible Your Honor that
the over remittance I have with the JDF account in the
The audit team further observed that the withdrawal amount of P4,520.60 and SAJF account in the amount
slips and passbook indicating the foregoing of P3,821.70 for a total sum of P8,342.30 be offset
withdrawals from the FFA, under Land Bank of the and/or deducted to the amount of P39,517.64 so that I
Philippines (LBP) Savings Account (SA) No. 0771- will only remit P31,175.34 instead?
0107-33, were signed by Judge Misajon and
countersigned by Nolasco. The Sheriff's Trust Fund (STF) Your Honor in the
amount of P7,000.00 was received by Ms. Arlyn
On August 12, 2005, the OCA issued a Minguez, Court Interpreter and Designated Financial
Memorandum 4 directing Judge Misajon to explain why Custodian from the undersigned on April 22, 2005 and
the foregoing withdrawals from the FFA were allowed. the same was deposited on even date at the account
Likewise, the OCA directed respondent Nolasco to: of STF-MTC, San Jose, Antique.6
With regard to the undeposited collections in the FFA,
Nolasco stated that, during a chamber conference held
on May 4, 2005, she already admitted her failure to
deposit collections amounting to more than
P400,000.00 before then Deputy Court Administrator
Zenaida Elepaño, Atty. Thelma Bahia and Judge
Misajon. She expressed willingness to restitute the
amount if given ample time.7
On the other hand, Nolasco explained the
unauthorized withdrawals from the FFA, as follows:
As to OVERWITHDRAWALS, in the amount of
P80,800.00, please be informed Your Honor that in the
withdrawn amount of P30,000.00, the amount was
withdrawn per instruction of Judge Ma. Monina S.
Misajon, for that time she needed the money in going
home to Cebu City, her native town to partition her
properties. Indeed, I have knowledge and consented to
said withdrawal even though I knew it was wrong since
the authorized amount to be withdrawn is only
P9,000.00, but I was ordered by her, who am I to refuse
a judge, Your Honor? Nonetheless, the Supreme Court
Audit Team must have noted that the amount of
P21,000.00 excess of the authorized amount
withdrawn, it was restituted on June 18, 2002 because
even the COA-Regional Office findings would reveal
that there was an over deposit of P21,000.00 for the
year 2002. Vivid perusal of Annex 12 would show that
said amount was deposited/restituted by Judge
Misajon herself because the penmanship in the
amount of P21,000.00 was hers, she let me sign the
deposit slip that I was the depositor and place the total
amount of P21,000.00 but it was her handwriting on the
amount of 42 pieces of 500 bills and the figures
P21,000.00 and she personally deposited the amount
at Land Bank of the Philippines, San Jose, Antique
branch. x x x
On the second amount of P60,000.00, Your Honor, the
authorized amount to be withdrawn is only P32,200 for
it represents the forfeited bonds to be deposited to the
JDF Account but again, I extended another favor for
Judge Misajon since she told me that she badly needed
the money to be used for the cremation of her sister
who died in Cebu City. x x x she paid me P32,200.00
on June 18, 2004 to be deposited to the JDF account
for I told her, I need to make a report thereon. The
remaining amount of P27,800 was never returned by
her Your Honor.
In another withdrawal of P44,000.00, the authorized
amount to be withdrawn is only P12,000.00
representing the cash bond of Ricky Gutierez and
Consolita Veñegas in the amount of P6,000.00 each.
The amount of P32,000.00 representing the cash bond
of the Licanda family was withdrawn because their
cases were dismissed by the Court but the prosecution
filed an appeal to the Order of dismissal, hence, said
amount should have been returned to the Fiduciary
Fund, but I wasn’t able to redeposit the same Your
Honor for again, I used said amount. x x x In effect, the
OVERWITHDRAWAL of cash bond in the amount of
P80,800.00 should be reduced to P59,800 for that is
the total amount not restituted Your Honor.8
Nolasco alleged that the P60,000.00 withdrawal on
July 4, 2004 which the audit team found to be
unsupported by any documents was again made at the
instance of Judge Misajon. Even though she knew that
the same was unauthorized, Nolasco consented to the
withdrawal since it was her superior who asked her to
do so. She also admitted that she had a personal
interest in granting Judge Misajon’s request because
she was then aiming for a promotion and was courting
the judge’s favor. As for the other withdrawals without
supporting documents amounting to P5,000.00, the
same were actually covered by court orders and
acknowledgment receipts which Nolasco attached as
annexes to her letter.
With respect to the withdrawal of bail bonds not
deposited in the FFA, Nolasco stated that the
P16,000.00 cash bond in the Jungco case was
withdrawn and turned over to the bondsman upon
dismissal of the same by Judge Sylvia Jurao of Branch
10, RTC-San Jose, Antique. On the other hand, the
cash bond in the amount of P12,000.00 in the Lim case
was erroneously withdrawn together with the bond
posted by the same accused in another case that was
dismissed at the same time. At any rate, the amount is
covered by an acknowledgment receipt issued by the
accused-bondsman.9 1awphi1
Meanwhile, Judge Misajon explained in a letter10 dated
September 23, 2005, that she did not allow the
unauthorized withdrawals and asserted that Nolasco
schemed and deliberately withdrew the amounts to pay
for her debts and maintain an affluent lifestyle. Judge
Misajon surmised that the amounts in the withdrawal
slips she signed must have been altered by Nolasco,
as shown by an examination of the withdrawal slips.
She asserted that she signed the withdrawal slips in
good faith, as she had full trust and confidence in
Nolasco.
In a Memorandum 11 dated January 16, 2006, the OCA
recommended that the report be docketed as a regular
administrative matter against Nolasco, and that the
same be referred to Judge Rudy Castrojas for further
investigation, report and recommendation, in view of
the conflicting allegations of Judge Misajon and
Nolasco.
On March 14, 2006, Judge Misajon wrote the OCA
requesting that steps be taken by the Court to prevent
Nolasco from leaving the country and evading her
accountabilities.12 On March 28, 2006, the Court thus
issued a resolution immediately suspending Nolasco
from office and ordering the issuance of a hold
departure order against her.13
On June 5, 2007, the Court adopted the
recommendation of the OCA and docketed the audit
report as A.M. No. P-06-2148. The administrative
matter was then referred to Judge Rudy Castrojas of
Branch 12, RTC-San Jose, Antique, for further
investigation.
In the meantime, Judge Misajon compulsorily retired
from the service on June 12, 2007.
After conducting several hearings in which respondent
Nolasco and Judge Misajon were allowed to testify and
present their respective witnesses, Judge Castrojas
terminated his investigation and submitted his report
and recommendation14 to this Court on October 30,
2007. The investigating judge found that there were
three unauthorized withdrawals from the FFA that were
allegedly made at the instance of Judge Misajon, thus:
 1. The amount of P30,000.00 was withdrawn
from the Fiduciary Fund on June 14, 2002, as
shown by the withdrawal slip marked Exh. "A"–
Misajon, and Exh. "1"–Nolasco.
2. P60,000.00 was also withdrawn from the
same fund on June 11, 2004, evidenced by
Exh. "C"–Misajon which is also Exh. "3"–
Nolasco.
3. Another P60,000.00 was withdrawn on July
2, 2004, as reflected in a withdrawal slip
marked Exh. "5"–Nolasco.
4. All the said withdrawal slips were signed by
Judge Ma. Monina S. Misajon and Jingkey
Nolasco.15
With regard to the first withdrawal on June 14, 2002,
Nolasco claimed that only P9,000.00 was authorized to
be withdrawn, but she nonetheless withdrew
P30,000.00 because Judge Misajon allegedly
borrowed P21,000.00 out of the said amount. To prove
her allegation, Nolasco presented a deposit slip on
which Judge Misajon supposedly wrote the figures
"21,000.00" and "42", the latter being the number of
five hundred peso bills which Judge Misajon personally
deposited with the LBP as payment for the borrowed
amount. Judge Misajon strongly denied that it was her
handwriting appearing on the said deposit slip.
As for the withdrawals made on June 11, 2004 and July
2, 2004, Judge Misajon offered several theories to
justify why she signed the withdrawal slips. First, she
surmised that Nolasco probably added the letters "ty"
to the word "six" and a "0" to "6,000.00" to make it
appear that the amount to be withdrawn was
P60,000.00 instead of only P6,000.00. It was also
possible that Nolasco presented four copies of
withdrawal slips for her signature, with two copies left
blank. As Judge Misajon was always busy or under
time constraint, Nolasco most likely took advantage of
the situation and had her sign blank or incomplete
forms. Finally, Judge Misajon speculated that Nolasco
could have used withdrawal slips that were signed in
connection with other criminal cases, but remained
unused and kept by Nolasco for future fraudulent use.
For her part, Nolasco claimed that she withdrew the
amount of P60,000.00 on June 11, 2004 after she was
told by Judge Misajon that the latter needed money for
the cremation of her sister who passed away in Cebu
City. At that time, Nolasco had to withdraw P32,200.00
in forfeited cash bonds from the FFA and transfer the
same to the Judiciary Development Fund (JDF)
Account. Believing that Judge Misajon would need
P60,000.00, Nolasco withdrew P60,000.00 and gave
the entire amount to Judge Misajon. Since Nolasco had
to make a report on the JDF Account by the end of the
month, Judge Misajon returned the amount of
P32,200.00 on June 18, 2004, but never returned the
balance of P27,800.00.
As for the last withdrawal on July 4, 2004, Nolasco
maintained that she withdrew P60,000.00 at Judge
Misajon’s behest, but she never knew what the judge
did with the money.
Between the conflicting accounts of the parties
regarding the unauthorized withdrawals from the FFA,
the investigating judge gave more credence to the
version of Nolasco. On the first withdrawal, Judge
Castrojas made the following findings:
In order to be guided who between the two contending
parties tell the truth on the issue, Judge Misajon was
requested to write twice on a piece of paper the figure
P21,000.00 x x x. It was observed that Judge Misajon
tried to differ the figures she wrote from figure
P21,000.00 appearing on the deposit slip dated June
18, 2002 x x x by not connecting the zeroes. This
notwithstanding, it is noted that the way or manner the
numbers "2", "1" and the last zeroes (0s) written by her
on the piece of paper have distinct similarities on the
"2", "1" and "0" in the P21,000.00 appearing on the
deposit slip x x x.
It is observed that in one of the copies of the cash
deposit slip x x x the lower end of figure 1 in the
21,000.00 allegedly written by Judge Misajon goes
beyond the lower portion of figure 2. And, in the four
21,000.00 written by Judge Misajon during the
investigation x x x three out of four numbers one (1)
also exceed the lower portions of the three twos (2s).
Considering the marked similarities on how they were
written, it appears that the contention of Jingkey
Nolsaco that it was Judge Misajon who wrote the
21,000.00 in the deposit slips x x x and deposited the
said amount with the Land Bank in payment for what
she borrowed from the Fiduciary Fund on June 14,
2002, seems to be credible.
xxxx
To strengthen her stand that she was not the one who
wrote the figure 21,000.00 on the cash deposit slip x x
x Judge Misajon testified that it was her staff, Caroline
Magno, who wrote the same. Unfortunately for her,
when Caroline Magno was called to testify, she
(Magno) denied that the 21,000.00 was her
handwriting.16
Judge Castrojas also observed that the withdrawal
slips for the two other transactions in the amount of
P60,000.00 each were regular on their faces. Contrary
to Judge Misajon’s assertion, no modifications or
intercalations appeared to have been made in the
figures written thereon. Judge Misajon’s other theory
that she may have signed incomplete or blank
withdrawal slips while she was busy or under time
constraint was also unacceptable, considering that it
was incumbent upon her to be cautious about these
matters, as she was dealing with court funds. Thus,
even assuming Judge Misajon’s theory to be true, it did
not render her unaccountable, since she failed to
exercise ordinary diligence in the discharge of her
duties.
Nevertheless, Judge Castrojas concluded that Nolasco
was undeserving of any sympathy. She was motivated
by personal ambition when she acceded to Judge
Misajon’s instructions even if she knew that the
withdrawals were unauthorized. In fine, Judge Misajon
and Nolasco cooperated with each other in effecting
the unauthorized withdrawals and should both be
faulted for the same.
Consequently, the investigating judge recommended
that Judge Misajon and Nolasco be ordered to jointly
and severally pay the amount of P87,800.00. He also
recommended that Nolasco be dismissed from the Judiciary Development Fund (May 1, 2001 to February
service in view of the seriousness of her offense. 13, 2005)
However, since Judge Misajon had already
compulsorily retired while the investigation was still
Collections P 572
pending, her dismissal from the service was no longer
possible.1awphi1 Less: Deposits 459,3

On November 13, 2007, the Court referred the Reported Balance of Accountability P 113
investigation report to the OCA for further evaluation.
In a Memorandum 17 to this Court dated August 4, 2008, Less: Restitutions 78,43
the OCA adopted the factual findings of Judge
Castrojas except for the recommended penalty, thus:
Balance of Accountability P 34,
IN VIEW OF THE FOREGOING, it is respectfully
recommended to the Honorable Court that: Special Allowance for the Judiciary Fund

A. Respondent Jingkey Nolasco, Clerk of (November 11, 2003 to February 13, 2005)
Court, MTC, San Jose, Antique be DISMISSED
from the service for dishonesty and grave Collections P 128,18
misconduct and directed to restitute the Less: Deposits 78,920.0
amount of P595,999.95 representing the
amount of shortages in her collections. The
Office of Administrative Services, OCA be Balance of Accountability P 49,265
directed to compute respondent’s leave credits Less: Restitutions 56,274.3
and forward the same to the Finance Division,
Fiscal Management Office-OCA which shall Balance of Accountability
compute the money value of the same, the (Excess Deposit) (7,008.7
amount as well as other benefits she may be
entitled to, dispensing with the usual General Fund (May 1, 2001 to November 10, 2003)
documentary requirements and to apply the
same to the shortages in the following order of
preference: Fiduciary Fund, Judiciary Collections P 60
Development Fund, Special Allowance for the Less: Deposits 57,4
Judiciary and Clerk of Court General Fund;
Reported Balance of Accountability
B. Legal Office, OCA (be) directed to file P 3,
criminal charges against respondent Jingkey Less: Restitutions ___
Nolasco before the appropriate court.
Balance of Accountability
C. Appropriate graft and corruption case be 3,18
initiated by the Legal Office, OCA against
Judge Ma. Monina Misajon before the Office of Sheriff’s Trust Fund (May 1, 2001 to February 13,
the Ombudsman.18 2005)

According to the OCA, while Judge Misajon could no

Collections P 38
longer be held administratively liable due to her
compulsory retirement from the service, a criminal case Less: Withdrawals 31,0
may nonetheless be initiated against her based on the
findings in these administrative proceedings. On the
other hand, apart from being dismissed from the Unwithdrawn Sheriff’s Trust Fund P 7,
service on the grounds of dishonesty and grave Less: Cash Presented ___
misconduct, a criminal case may likewise be brought
against Nolasco whose acts amount to malversation of
public funds under Article 217 of the Revised Penal Reported Balance of Accountability P 7,
Code. Less: Restitution 7,00

We agree with the recommendations of the OCA.

Balance of Accountability ___
Nolasco is administratively liable for the shortages
which she incurred in her cash collections. She failed Fiduciary Fund (May 1, 2001 to February 13, 2005)
to immediately deposit the various funds collected with
the authorized government depository bank, in Unwithdrawn Fiduciary Fund, 5/4/2001 P 775
violation of pertinent court circulars19 which direct the
same. She also admitted that she misappropriated the Add: Collections 2,526
money for her personal use without specifically
explaining the reasons for her actions, and has yet to Total
P 3,3
restitute the total amount of P625,175.29,20 broken
down as follows: Less: Withdrawals 2,089
Unwithdrawn Fiduciary Fund, 2/13/05

Less: Balance of Fiduciary Fund Bank
Net of Unwithdrawn Interest-
Account Balance, 2/13/05
Less: Deposit, 2/21/05
Total
Less: Unwithdrawn Interest
Total
Reported Balance of Accountability
Less: Restitution
Balance of Accountability
TOTAL BALANCE OF
ACCOUNTABILITY P 625,175.2921
As clerk of court, Nolasco was duty-bound to use
reasonable skill and diligence in the performance of her
duties. She was an accountable officer entrusted with
the responsibility of collecting and depositing money
belonging to the court.22 She obviously failed to fulfill
this responsibility and even converted the court’s funds
for her personal use. Her failure to account for the
money entrusted to her, and to adequately explain and
present evidence thereon, constitutes gross
dishonesty, grave misconduct and even malversation
of public funds which this Court will never
countenance.23
Clerks of Court must be individuals of competence,
honesty and probity, charged as they are with
safeguarding the integrity of the court and its
proceedings. They perform a delicate function as
designated custodians of the court’s funds, revenues,
records, properties and premises. As such, they are
responsible for ensuring that the court’s funds are
promptly deposited with an authorized government
depositary bank. They are thus liable for any loss,
shortage, destruction or impairment of such funds and
property.24
Indeed, no position demands greater moral
righteousness and uprightness from the occupant than
does the judicial office. The safekeeping of funds and
collections is essential to the goal of an orderly
administration of justice, and no protestation of good
faith can override the mandatory nature of the circulars
designed to promote full accountability for government
funds. The failure to remit the funds in due time
amounts to dishonesty and grave misconduct, which
the Court cannot tolerate for they diminish the people’s
faith in the judiciary. The act of misappropriating
judiciary funds constitutes dishonesty and grave
misconduct which are punishable by dismissal from the
service, even if committed for the first time.25
As for Judge Misajon, we find no reason to depart from
the findings of the OCA and Judge Castrojas that she
instructed Nolasco to withdraw unauthorized amounts
from the FFA so that she could borrow the same. By
simply comparing the deposit slip pertaining to the first
P 1,212,700.00
withdrawal with her sample handwriting, this Court is
left without any doubt that the penmanship on the
deposit slip is in fact Judge Misajon’s, as asserted by
Nolasco. Judge Misajon even had the temerity to point
P 649,826.11
to one of her other staff members as having filled up
the deposit slip, which said staff member denied. It is
2,000.00
thus evident that Judge Misajon was not forthright
about the matter and did not tell the truth during her
testimony before the investigating judge.
P 651,826.11
33,126.06
At this point, it is well to state that the function of
evaluating the credibility of witnesses in administrative
cases is primarily lodged in the investigating judge. The
P 618,700.05
rule which concedes due respect, and even finality, to
the assessment of credibility of witnesses by trial
P 593,999.95
judges in civil and criminal cases where preponderance
____ of evidence and proof beyond reasonable doubt,
respectively, are required, applies a fortiori in
administrative cases where the quantum of proof
P 593,999.95
required is only substantial evidence. The investigating
judge is in a better position to pass judgment on the
credibility of witnesses, having personally heard them
when they testified and observed their deportment and
manner of testifying.26 In the case of Judge Misajon, we
simply find no reason to disregard this rule.
Needless to say, Judge Misajon had the responsibility
of seeing to it that Nolasco, as clerk of court, performed
her duties and complied with circulars issued by the
Supreme Court on the handling and safekeeping of
court funds.27Had she supervised and managed her
court in the manner that was expected of her as a
judge, she could have discovered earlier that Nolasco
was misappropriating funds and prevented the
misappropriated amount from ballooning to such a
large sum. It is even probable that Nolasco was
emboldened to convert court collections for her
personal use, as Judge Misajon herself dipped her
hands into the court funds. By "borrowing" money from
the collections of the court, she knowingly made the
clerk of court violate circulars on the proper
administration of court funds28 and, in the process,
became complicit in Nolasco’s own wrongdoing.
Judge Misajon compulsorily retired from the service
without any formal administrative charges brought
against her. Despite the clear misconduct which she
committed, the Court cannot impose administrative
sanctions against her, since she no longer falls within
the administrative supervision of the Court. The Court,
however, is not without recourse. As pointed out by the
OCA, her act of inducing or persuading respondent
Nolasco to violate duly promulgated rules on the
administration of court funds may well constitute a
violation of Section 3(a), Republic Act No.
3019.29 Thus, a criminal case may be initiated against
Judge Misajon on the basis of the findings in this
administrative matter.
Time and again, this Court has stressed that those
charged with the dispensation of justice – from the
presiding judge to the lowliest clerk – are circumscribed
with a heavy burden of responsibility. Their conduct at
all times must not only be characterized by propriety
and decorum but, above all else, must be beyond
suspicion. Every employee of the judiciary should be
an example of integrity, uprightness and honesty.
Sadly, respondent Nolasco and Judge Misajon failed to
live up to these stringent standards.30
WHEREFORE, in view of the foregoing, respondent
Jingkey B. Nolasco is found GUILTY of gross
dishonesty and grave misconduct and is
hereby DISMISSED from the service with forfeiture of
retirement and all other benefits, and with prejudice to
reemployment in any branch, agency or instrumentality
of the government, including government-owned and
controlled corporations. She is directed
to RESTITUTE the amount of P625,175.29
representing the amount of shortages in her
collections. The Office of Administrative Services
(OAS)-OCA is directed to compute her leave credits
and forward the same to the Finance Division, FMO-
OCA which shall compute the money value of the
same, and to apply the same to her accountabilities in
the following order of preference: Fiduciary Fund,
Judiciary Development Fund, Special Allowance for
the Judiciary and Clerk of Court General Fund.
The Legal Office-OCA is further directed
to INITIATE the filing of criminal charges against
respondent Nolasco and (Ret.) Judge Ma. Monina S.
Misajon before the appropriate court or body.
SO ORDERED.
Footnotes
29
SECTION 3. Corrupt practices of public
officers. – In addition to acts or omissions of
public officers already penalized by existing
law, the following shall constitute corrupt
practices of any public officer and are hereby
declared to be unlawful:
xxxx
(a) Persuading, inducing or influencing
another public officer to perform an act
constituting a violation of rules and
regulations duly promulgated by
competent authority or an offense in
connection with the official duties of the
latter, or allowing himself to be
persuaded, induced or influenced to
commit such violation or offense.
xxxx
(6) G.R. No. 167278 February 27, 2008
ATTY. GIL A. VALERA, CPA-LCB, Deputy
Commissioner, Revenue Collection Monitoring
Group, Bureau of Customs, petitioner,
vs.
OFFICE OF THE OMBUDSMAN, rep. by Hon.
ORLANDO C. CASIMIRO, Deputy Ombudsman for
the and Military Other Law Enforcement Offices
(MOLEO), in his capacity as Acting Ombudsman;
PNP-CIDG, rep. by Director General Eduardo S.
Matillano (public complainant); ATTY. ADOLFO
CASARENO (private complainant); Hon. CESAR V.
PURISIMA, Secretary of Finance, Department of
Finance; Hon. ALBERTO D. LINA, Commissioner of
Customs, Bureau of Customs; Hon. ROBERTO D.
GEOTINA, Deputy Commissioner for Internal
Administration Group, Bureau of Customs; and
HONORABLE COURT OF APPEALS(Fourth
Division), respondents.
DECISION
PUNO, C.J.:
Public office is a public trust.1 Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, and act with patriotism and
justice, and lead modest lives.2 With the numerous ills
and negative perception surrounding the revenue
collection agencies of the government, this mandate of
our fundamental law becomes all the more relevant to
the present petition. Petitioner, a Deputy
Commissioner of the Bureau of Customs, seeks to
reverse and set aside the Decision3 rendered by the
Court of Appeals which affirmed the Decision4 of the
Office of the Deputy Ombudsman for the Military and
other Law Enforcement Offices (OMB-MOLEO) finding
him guilty of grave misconduct, and decreeing his
dismissal from the service with all the accessory
penalties appertaining thereto.
The records show that petitioner Gil A. Valera was
appointed by President Gloria Macapagal Arroyo as
Deputy Commissioner of Customs in charge of the
Revenue Collection Monitoring Group on July 13,
2001. He took his oath of office on August 3, 2001, and
assumed his post on August 7 of the same year.
On December 21, 2001, he filed in the Regional Trial
Court (RTC) of Manila, for and on behalf of the Bureau
of Customs, a collection case with prayer for the
issuance of a writ of preliminary attachment for the
collection of P37,195,859.00 in unpaid duties and
taxes against Steel Asia Manufacturing Corporation
(SAMC), which utilized fraudulent tax credit certificates
in the payment of its duties. The case, docketed as Civil
Case No. 01-102504, was raffled off to Branch 39 of
the RTC of Manila.
On January 16, 2002, a writ of preliminary attachment
was issued against SAMC in the aforementioned case.
The writ was duly implemented and the raw materials,
finished products and plant equipment of SAMC were
subsequently attached. Petitioner and SAMC entered
into a compromise agreement wherein the latter
offered to pay on a staggered basis through thirty (30)
monthly equal installments the P37,195,859.00 duties
and taxes sought to be collected in the civil case.
On August 20, 2003, the Director of the Criminal
Investigation and Detention Group of the Philippine
National Police, Eduardo Matillano, filed a letter-
complaint against petitioner with the Ombudsman,
which reads:
Investigation conducted disclosed that Atty. Gil
A. Valera was appointed as Deputy
Commissioner, Bureau of Customs by the
President on July 13, 2001, took his oath on
August 03, 2001 and assumed his post on
August 07, 2001.
On January 30, 2002, while in the performance
of his official functions, Atty. Gil A. Valera had
compromised the case against the Steel Asia
Manufacturing Corporation in Civil Case No.
 01-102504 before Branch 39, RTC Manila
without proper authority from the
Commissioner of the Bureau of Customs in
violation of Section 2316 TCCP (Authority of
the Commission to make Compromise) and
without the approval of the President, in
violation of Executive Order No. 156 and
Executive Order No. 38. Such illegal acts of
Atty. Gil A. Valera indeed caused undue injury
to the government by having deprived the
government of its right to collect the legal
interest, surcharges, litigation
expenses and damages and gave the Steel
Asia unwarranted benefits in the total
uncollected amount of FOURTEEN MILLION
SEVEN HUNDRED SIXTY TWO THOUSAND
FOUR HUNDRED SIXTY SEVEN PESOS
AND SEVENTY
CENTAVOS (P14,762,467.70),which is
violative of Sections 3(e) and (g) respectively of
RA 3019.
Further investigation disclosed that Atty. Gil A.
Valera while being a Bureau of Customs official
directly and indirectly had financial or pecuniary
interest in the CACTUS CARGOES SYSTEMS
a brokerage whose line of business or
transaction, in connection with which, he
intervenes or takes part in his official capacity
by way of causing the employment of his
brother-in-law, Ariel Manongdo, thus, violating
3(h) of RA 3019 and RA 6713 and Section 4,
RA 3019 as against Ariel Manongdo.
Finally, investigation also disclosed that on
April 21, 2002 Atty. Gil A. Valera traveled to
Hongkong with his family without proper
authority from the office of the President in
violation of Executive Order No. 298 (foreign
travel of government personnel) dated May 19,
1995, thus, he committed an administrative
offense of Grave Misconduct.5
The administrative aspect of the complaint was
docketed as OMB-C-A-03-0379-J. On November 12,
2003, then Ombudsman Simeon V. Marcelo issued a
Memorandum 6 to Special Prosecutor Dennis M. Villa-
Ignacio, inhibiting himself from the cases against the
petitioner, and directing the latter to act in his stead and
place. Acting pursuant to this authority, Special
Prosecutor Villa-Ignacio made the finding that by
entering into the compromise agreement, petitioner
may have made concessions that may be deemed
highly prejudicial to the government, i.e., waiver of the
legal interest and the penalty charges imposed by law,
as well as the virtual exoneration of SAMC of its
fraudulent act of using spurious tax credit certificates.
He issued an Order7 placing petitioner on preventive
suspension for six (6) months without pay pending
administrative investigation on the matter.
On March 19, 2004, the petitioner filed his motion for
reconsideration of the preventive suspension order.
Upon the lapse of the period8 within which the Special
Prosecutor, as acting Ombudsman, should have
resolved the motion for reconsideration, petitioner filed
a Petition for Certiorari and Prohibition before the
Court of Appeals on March 29, 2004, docketed as CA-
G.R. SP No. 83091 and raffled off to the Special First
Division.
On June 14, 2004, Special Prosecutor Villa-Ignacio
inhibited himself from the cases of herein petitioner in
view of a complaint filed by the latter against him. OMB-
C-A-03-0379-J was next assigned to the OMB-
MOLEO, represented by respondent Orlando C.
Casimiro.
On June 25, 2004, the Special First Division of the
Court of Appeals rendered a Decision9 setting aside
the preventive suspension order of Special Prosecutor
Villa-Ignacio and directing him to desist from taking any
further action in OMB-C-A-03-0379-J. In so ruling, the
appellate court held mainly that Special Prosecutor
Villa-Ignacio was not authorized by law to sign and
issue preventive suspension orders.
The OMB-MOLEO perfected an appeal from this
decision on July 16, 2004. The appeal, docketed as
G.R. No. 164250, was raffled off to the Second Division
of this Court, and was eventually elevated motu
proprio to the Court En Banc.
In the meantime, the adjudication of OMB-C-A-03-
0379-J continued and the respondent Deputy
Ombudsman issued a Decision10 finding the petitioner
administratively liable for grave misconduct and
decreeing his dismissal from the service, with all the
accessory penalties appertaining thereto. It was found
that petitioner committed grave misconduct based on
the following charges:
(i) compromising the case against SAMC in
Civil Case No. 01-102504 before Branch 39,
RTC Manila, without proper authority from the
Commissioner of the Bureau of Customs in
violation of Section 231611 of the Tariff and
Customs Code, and without the approval of the
President in violation of Section 4(d) of
Executive Order (E.O.) No. 156 as amended by
E.O. No. 38;12
(ii) causing the employment of his brother-in-
law with the Cactus Cargoes Systems, Inc.
whose principal business involves transactions
with the Bureau of Customs in violation of
Section 3(d) of Republic Act (R.A.) No.
3019;13 and
(iii) traveling to Hongkong without conforming
with the guidelines on the application to travel
abroad for private purposes of public officials.14
The petitioner questioned this decision before the
Court of Appeals, via a petition for review, and the case
was raffled off to the 4th Division and docketed as CA
G.R. SP. No. 86281.
The 4th Division of the Court of Appeals refrained from
ruling on the first charge against the petitioner in
deference to this Court in G.R. No. 164250. It however
found enough evidence to substantiate the second and
third charges and issued and promulgated its assailed
decision affirming the decision of respondent Deputy
Ombudsman finding petitioner guilty of grave
misconduct. It held as follows:
After careful consideration of the matter, this
Court finds it more prudent to defer from
deciding the matters raised in connection with
the first ground raised by petitioner in
deference to the Supreme Court which is now
tackling the very same issues. Respondents
themselves argued that:
"Needless to state, the Office of the
Ombudsman lost no time in bringing
the foregoing matters to the attention of
the Honorable Supreme Court in a
petition for review (G.R. No. 164250).
Since then, the Supreme Court
has motu proprio elevated the case
from the Second Division to the
Court En Banc,apparently because of
the serious nature of the issues raised
against the honorable Special First
Division." (Rollo, p. 292)
It should also be considered that a ruling of the
Supreme Court on the applicability of Section
2316 of the TCC is determinative of the
existence of a basis to the charges made
against petitioner.
Coming now to the second ground raised,
petitioner asserted that the respondents erred
in finding him liable for the employment of his
brother-in-law Ariel N. Manongdo with CCSI,
claiming that there is no evidence that he had
any participation in the employment of said
brother-in-law, to wit:
"But, nothing is contained in the
decision under review, particularly
under the heading 'evidence for the
complainant', which shows that
petitioner did anything or performed
any act or participated in any way,
directly or indirectly, in the employment
of his brother-in-law, Ariel N.
Manongdo, with CCSI. Simply put, the
finding of fact is also a conclusion of
law with no fact or iota of evidence to
support the discussion and conclusion
in the decision under review." (Rollo, p.
48)
Respondents countered that petitioner not only
used his "official ascendancy" (Rollo, p. 348) to
cause the employment of his brother-in-law
with CCSI, but they further claimed that the
joint-affidavit (Rollo, pp. 88-93) of the elements
of the Criminal Investigation Detection Group
(CIDG) showed that petitioner was a co-owner
of CCSI as shown by the fact that he invited his
close friends and relatives to the blessing of the
brokerage firm. The relevant portion of said
joint-affidavit stated that:
"12. Further, during the conduct of our
surveillance on the lifestyle of Atty.
Valera, we received information that he
has sent text messages to his close
friends and relatives for the blessing of
his brokerage. The text of the message
is as follows" 'ON WED, INVITE KO
KAYO SA BLESSING NG
BROKERAGE KO. ROOM 604, GLC
Bldg., TM KALAW cor MABINI 6 TO 8
PM.'
13. Atty. Gil A. Valera's visitors were
mostly his classmates from Ramon
Magsaysay Cubao High School. He
gave our asset his professional card
(Annex '35');
14. Our investigation disclosed that the
GLC Bldg. is owned by a certain Mr.
GERARDO L. CONTRERAS.
According to Ms. JENNIE ESGUERRA,
the building administrator, party on the
6th Floor was the inauguration of the
CACTUS CARGOES SYSTEMS
represented by its Marketing
Coordinator, Mr. ARIEL MONONGDO
(sic). Our information was that
Monongdo is the brother-in-law of Atty.
Valera. Attached are the SEC
Registration of Cactus Cargo Inc.,
(Annex '36') and the Contract of Lease
signed by Mr. Ariel Monongdo the
Marketing Manager of Cactus with the
building administrator (Annex '37')."
(Rollo, pp. 91-92)
Respondents also asserted that CCSI is a
customs brokerage firm which necessarily
deals on a regular basis with petitioner's office,
more particularly:
"The Code of Conduct and Ethical
Standards (R.A. No. 6713), under
Section 7, subpar. (b)(3) thereof, is
very specific in criminalizing the act of
'(r)ecommend(ing) any person to any
position in a private enterprise which
has a regular or pending official
transaction with their office.' On the
other hand, Section 3 (d) of the Anti
Graft and Corrupt Practices Act (sic)
(R.A. No. 3019) punishes as criminal
offense a public officer's act of
'(a)ccepting or having any member of
his family accept employment in a
private enterprise which has pending
official business with him during the
pendency thereof or within one year
after its termination." (Rollo, pp. 349-
350)
Parenthetically, petitioner also argued that this
charge was also held by the Special First
Division to be "too trivial". However, the Court
considers that statement to have been made in
relation to the question of whether or not the
deputy ombudsman had the power to order
petitioner's preventive suspension. That is, that
statement should not be read to be a
disposition of the question on the merits.
Now, to dispose of the matter, it should be
noted that the findings of the respondent
Deputy Ombudsman regarding the second
charge was based on two (2) grounds: first, the
alleged act of using petitioner's influence to
obtain employment for his brother-in-law and,
second, the mere fact of employment of his
brother-in-law in a company which has regular
business with petitioner's office.
While the evidence regarding the alleged use
of influence by the petitioner to cause the
employment of his brother-in-law maybe a little
tenuous, the Court finds basis to the second
ground. The Court notes that petitioner did not
deny that CCSI has regular transactions with
his office. Neither did he deny that Ariel
Monongdo is his brother-in-law. Under Section
3(d) of R.A. No. 3019, as amended, mere
acceptance by a member of his family of
employment with a private enterprise which
has pending official business with the official
involved is considered a corrupt practice. It is
clear, therefore, that mere acceptance by Ariel
Manongdo, a family member, of the
employment with CCSI rendered petitioner
liable under the law. The Court, therefore,
agrees with respondent Deputy Ombudsman
when he held that:
"Moreover, the Anti-Graft and Corrupt
Practices Act (R.A. 3019) prohibits the
public officer's act of accepting or
having any member of his family accept
employment in a private enterprise
which has pending official business
with him during the pendency thereof or
within one year after its termination.
Ariel N. Manongdo, as brother-in-law of
respondent Valera falls squarely within
the definition of family under Section 4
of the same law." (Rollo, p. 70)
Coming now to the matter of his travel to
Hongkong which is the subject matter of the
third objection raised by petitioner, he first
argued that his constitutional right to be
informed of the charges against him had been
violated. He asserted that while the Matillano
Complaint charged him with violating E.O. No.
278, the questioned Decision was based on
E.O. No. 39.
The Court does not agree with this assertion. It
should be remembered that the present case is
an administrative case while Section 14 of Art.
3 of the 1987 Constitution refers strictly to
criminal prosecution. Said Constitutional
provision reads:
"SECTION 14. (1) No person shall be
held to answer for a criminal offense
without due process of law. (2) In all
criminal prosecutions, the accused
shall be presumed innocent until the
contrary is proved, and shall enjoy the
right to be heard by himself and
counsel, to be informed of the nature
and cause of the accusation against
him, to have a speedy, impartial, and
public trial, to meet the witnesses face
to face, and to have compulsory
process to secure the attendance of
witnesses and the production of
evidence in his behalf. However, after
arraignment, trial may proceed
notwithstanding the absence of the
accused provided that he has been
duly notified and his failure to appear is
unjustifiable."
It is well-settled that in an administrative case,
due process is served when the respondent
was given an opportunity to be heard (Utto v.
Comelec, 375 SCRA 523 [2002]). In the instant
case, petitioner cannot deny that he was given
all the opportunity to present his side of the
story. Thus, the Court agrees with respondents
when they argued:
"It is, thus, unfortunate that instead of
demonstrating that he either complied
with the requirement of presidential
authority to travel that petitioner, as a
lawyer, presumably knows to have
existed (sic), or that he was legitimately
exempted therefrom, petitioner instead
resorted to the unavailing technicality
that the complaint did not properly
identify by the correct number [the] EO
in point. Petitioner invokes the right to
be informed of charges against an
accused which, needless to state, has
specific application to criminal charges.
Needlessly, however, even in criminal
cases, what matters is not the title of
the law violated but rather the
allegations of acts constituting a crime.
In his case, the allegation in the
complaint was simply that petitioner did
not comply with the requirement for
presidential authority to travel abroad.
It certainly fully informed him of his
infraction. After the issue was joined on
such factual allegation, identifying and
enforcing the applicable law by the
public respondent simply followed as
part and parcel of its quasi-judicial
function." (Rollo, p. 35)
Turning now to his defense that his foreign
travel should not be taken against him because
at the time he made the travel with his family,
he was a private citizen because he was
prevented by a temporary restraining order
issued by this Court in CA-G.R. SP No. 69855
(in the case entitled Rosqueta versus Hon.
Judge Juan Nabong) from assuming office and
from dispossessing then Deputy
Commissioner Rosqueta of the position of
Deputy Commissioner.
The Court cannot subscribe to this argument.
Under the theory proposed by petitioner, there
was in effect an interegnum as to his
government service during the effectivity of the
TRO. But it cannot be denied that once CA-
G.R. SP No. 69855 was decided and petitioner
was allowed to assume his position, the
effectivity of his appointment retroacted to the
original date of appointment. While the
temporary restraining order was in effect, he
nevertheless continued to assert on his right to
the office. The Court also notes that petitioner
did not even present any evidence to show that
he had dissociated himself from the office at
the time in question. As pointed out by the
respondents' Comment:
"For that matter, petitioner cannot claim
that he suffered a gap in his public
 service during the period covered by
the so-called TRO. He certainly was
not dissociated from office during such
period. He continued to be a public
officer, notwithstanding, such that the
application on him of the presidential
authority to travel can not be deemed
to have been then suspended." (Rollo,
p. 356)
xxx
In fine, while the Court refrained from tackling
the first charge against petitioner, the Court
finds that as to the second and third charges,
respondent Deputy Ombudsman did not err in
finding petitioner guilty of grave misconduct.15
On September 30, 2005, without going into the issue of
petitioner's guilt, the Court En Banc rendered a
decision in G.R. No. 164250 ruling that the power to
place a public officer or employee under preventive
suspension pending an investigation is lodged only
with the Ombudsman or the Deputy Ombudsmen and
affirmed the nullification and setting aside by the
appellate court of the preventive suspension order of
the Special Prosecutor.
Petitioner now comes before us praying that he be
absolved of the charges against him and that the
decision of the 4th Division of the Court of Appeals
which effectively affirmed the decision of the OMB-
MOLEO be annulled and set aside.
We shall now put a finis to this controversy that has
raged bitterly for the past several months and shun
further delay so as to ensure that this case would really
attain finality and resolve whether petitioner is guilty of
grave misconduct in connection with administrative
case OMB-C-A-03-0379-J.
First, we discuss the definition of grave misconduct as
established by jurisprudence:
Misconduct is a transgression of some established and
definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer. 16 The
misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law
or disregard of established rules, which must be proved
by substantial evidence.17
At the onset, the Court would like to point out that in an
administrative proceeding, the quantum of proof
required for a finding of guilt is only substantial
evidence, that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.18 We reiterate the well-settled rule that,
when supported by substantial evidence and absent
any clear showing of abuse, arbitrariness or
capriciousness, findings of fact of administrative
agencies, especially when affirmed by the Court of
Appeals, are binding and conclusive upon this
Court.19 After a thorough examination of the evidence
on record, we find no reason to depart from this rule.
With respect to the second and third charges against
the petitioner, the 4th Division of the Court of Appeals
agreed with the findings of the OMB-MOLEO. The
petitioner utterly failed to show that the factual findings
of the respondent, affirmed by the appellate court, were
attended with arbitrariness or abuse. The Matillano
letter-complaint as well as its supporting affidavits
made clear allegations under oath that petitioner
recommended his brother-in-law, Ariel Manongdo, for
employment with Cactus Cargoes Systems, Inc.
(CCSI), a customs brokerage firm which necessarily
deals on a regular basis with petitioner's office. Further,
the Matillano letter-complaint also categorically
asserted that petitioner traveled to Hongkong without
obtaining the proper clearance. These allegations
under oath constitute substantial evidence required in
administrative proceedings.
On the other hand, petitioner did not deny that Ariel
Manongdo is his brother-in-law or that CCSI has
regular transactions with his office. Neither did he deny
that he failed to comply with the requirement of
presidential authority to travel abroad. It is thus
unfortunate that instead of demonstrating that he is
innocent of the charges, the petitioner instead resorted
to unavailing technicalities to disprove the allegations.
The Supreme Court cannot weigh once more the
evidence submitted not only before the Office of the
Ombudsman but also before the Court of Appeals. All
told, we are convinced that there is substantial
evidence to hold petitioner liable for the second and
third charges against him.
Be that as it may, petitioner raises some legal issues
regarding these charges which we shall settle.
Anent the second charge, petitioner contends that
under Section 3(d) of R.A. No. 3019,20 a brother-in-law
is not included within the scope of the word "family" and
therefore, he cannot be found liable under the said law.
In arguing so, petitioner refers to the definition of the
word "family" found under Section 3(g) of R.A. No.
6713, which states:
SEC. 3. Definition of Terms. - As used in this
Act, the term:
xxx
(g) "Family of public officials or employees"
means their spouses and unmarried children
under eighteen (18) years of age.
This contention deserves scant consideration.
Section 3 of R.A. No. 6713 is unequivocal in that its
definition of terms is limited to as used in the
Act. Under R.A. No. 6713, the term "family" was
used only once under Section 4, par. (h),21 which
implores public officials and employees and their
families to observe "simple living." The restrictive
definition accorded to the word "family" under the law
is logical since children of public officials and
employees who are above eighteen and already
emancipated by law and freed from parental authority
should not be bound by this standard where their
emancipation may lead them to an otherwise private
lifestyle or one which is not beholden to the public trust.
This otherwise perfect logic would result in irrationality
if we follow the contention of petitioner that the
definition of "family" under R.A. No. 6713 should also
apply to R.A. No. 3019. It makes no rhyme nor reason
to suppose that public officials and employees are
prohibited from having their children under eighteen
years accept employment in a private enterprise having
pending official business before their office, and yet are
allowed to have their children over eighteen years,
which is the employable age, to do so.
What petitioner fails to mention is that R.A. No. 6713
itself prohibits the act of public officials and employees
during their incumbency to recommend any person to
any position in a private enterprise which has a regular
or pending official transaction with their
office.22 Certainly, the definition of the word "family"
under said law would unduly limit and render
meaningless Section 3(d) of R.A. No. 3019 if applied to
the latter. In fact, family relation is defined under
Section 4 of R.A. No. 301923 which, according to the
said section, "shall include the spouse or relatives by
consanguinity or affinity in the third civil degree." Thus,
we need not look beyond the provisions of R.A. No.
3019 to hold that a brother-in-law falls within the
definition of family under Section 3(d) thereof.
Proceeding now to the legal issue with respect to the
third charge, it is advanced by petitioner that a public
official reverts to his quo ante status as a private citizen
upon being subjected to a temporary restraining order
directing him to refrain from holding his office. Hence,
he need not comply with the requirements for traveling
abroad during said period.
We are not persuaded.
We agree with the appellate court that petitioner
suffered no gap in his public service while the
temporary restraining order was in effect. The nature of
a temporary restraining order which would have the
effect of preventing a public officer from discharging his
office is provisional until a preliminary injunction is
issued by the court hearing the case. Because of its
temporary character, it would not have the effect of
divesting such officer of the public character of his
office.
It cannot be denied that once CA-G.R. SP No. 69855
was decided and petitioner was allowed to re-assume
his office, the effectivity of his appointment retroacted
to the original date of his appointment. He certainly
remained as a public officer during such period and it
was incumbent upon him, especially since he was
continuously asserting his right to the office, to comply
with the guidelines on the application to travel abroad
for private purposes24 of public officials.
We now come to the pivotal first charge facing
petitioner that was left unresolved by the Court of
Appeals in deference to this Court - that of
compromising the case against SAMC without prior
authorization from the Commissioner of Customs in
violation of Section 231625 of the Tariff and Customs
Code, and without prior approval of the President as
required by Section 4(d)26 of E.O. No. 156 as amended
by E.O. No. 38.
Prefatorily, we emphasize that violations or disregard
of regulations governing the collection of government
funds are administratively sanctionable. Intended to
raise revenue for government operations, these
regulations must be followed strictly.
On the first provision of the special law alleged to have
been violated by petitioner, Title VI Book II of the Tariff
and Customs Code entitled "ADMINISTRATIVE AND
JUDICIAL PROCEEDINGS" is divided as follows:
1. Part 1 - Search, Seizure and Arrest,
2. Part 2 - Administrative Proceedings,
3. Part 3 - Judicial Proceedings,
4. Part 4 - Surcharges, Fines and Forfeitures,
5. Part 5 - Disposition of Property in Customs
Custody, and
6. Part 7 - Fees and Charges. (Note: No Part 6)
According to petitioner, Sections 2301 up to 2316 are
provisions found under Part 2 and pertain to
administrative proceedings, while Sections 2401 and
2402 are provisions found under Part 3 and pertain to
judicial proceedings. Section 2316 provides:
Section 2316. Authority of Commissioner to
make Compromise.-Subject to the approval of
the Secretary of Finance, the Commissioner
of Customs may compromise any case arising
under this Code or other laws or part of laws
enforced by the Bureau of Customs involving
the imposition of fines, surcharges and
forfeitures unless otherwise specified by law.
While Section 2401 as amended, which was made by
petitioner as basis for his entering into the compromise
agreement, provides:
Section 2401. Supervision and Control over
Criminal and Civil Proceedings.-Civil and
criminal actions and proceedings instituted in
behalf of the government under the authority of
this Code or other law enforced by the Bureau
shall be brought in the name of the government
of the Philippines and shall be conducted by
customs officers but no civil or criminal action
for the recovery of duties or the enforcement of
any fine, penalty or forfeiture under this Code
shall be filed in court without the approval of the
Commissioner.
Thus, for petitioner, since the case wherein the
compromise agreement was entered into was already
pending before a regular court, the requirement of prior
authority of the Commissioner of Customs to enter into
a compromise is not necessary.
This contention must fail.
Basic is the maxim in statutory construction that a
statute must be read or construed as a whole or in its
entirety. All parts, provisions, or sections, must be read,
considered or construed together, and each must be
considered with respect to all others, and in harmony
with the whole.27
A reading of the provisions cited by the petitioner will
show that there is really no conflict between them.
Section 2401 covers the matter of the institution and
filing of civil and criminal actions by customs officers,
which is subject to the approval of the Commissioner if
filed for the recovery of duties or the enforcement of
any fine, penalty or forfeiture under the Code. It does
not cover the compromise of such civil or criminal
actions, while Section 2316 is the provision that deals
with such a situation. In fact, the latter is categorical in
providing an encompassing scope for the strict
conditions for any compromise. Its coverage
includes "any case arising under this code or other
laws or part of laws enforced by the Bureau of
Customs involving the imposition of fines,
surcharges and forfeitures unless otherwise
specified by law." Doubtless, civil cases for collection
of customs taxes and duties, including the one in the
case at bar, would fall under this coverage.
To be sure, the adoption of petitioner's interpretation of
these provisions would result in absurdity that could not
have been intended by Congress. Following his logic,
the Commissioner of Customs has to actively
participate and seek the approval of the Secretary of
Finance in compromising administrative collection
cases; whereas, customs officers without even seeking
authority from the Commissioner or approval from the
Secretary of Finance can proceed to bargain off much
larger collection cases in courts. Clearly, the Court
cannot countenance the abuse and corruption
engendered by this misreading of the law.
Petitioner next claims that there was no violation of
Section 4(d)28 of E.O. No. 156 as amended by E.O. No.
38, when he entered into the compromise agreement
without the express approval of the President.
E.O. No. 156, as amended by E.O. No. 38, created a
Special Task Force to investigate and prosecute the
irregularities relative to the "tax credit scam" committed
at the center of the Department of Finance and to
recover and collect revenues lost by the government
through the "scam." Section 4(d) thereof provides:
Section 4. Powers, Duties and Functions. The
Task Force shall have the following powers,
duties and functions:
xxx
d) To recommend the settlement of cases for
approval of the President, subject to
appropriate rules on the settlement of claims by
the government;
In the case at bar, and during the time relevant to this
case,29 specifically on May 10, 2002, the then
Chairman of the Task Force, Department of Finance
Undersecretary Cornelio Gison, reported to the then
Department of Finance Secretary Jose Isidro Camacho
the successful collection by petitioner
of P37,195,859.00 in the SAMC case. On October 3,
2002, in his Memorandum,30 Department of Finance
Undersecretary Innocencio P. Ferrer, Jr., who
succeeded Undersecretary Gison, also congratulated
petitioner for his accomplishment in the said case.
Petitioner invokes the principle of qualified political
agency wherein these acts of the Special Task Force
Chairmen - who both approved the compromise
agreement and lauded him for his accomplishment in
the recovery efforts against the original grantees and
buyers of fraudulently secured tax credit certificates -
should be considered as approval by the President
herself, especially since she did not disapprove of nor
reprobate their acts.
This argument is likewise unavailing.
E.O. No. 156, as amended by E.O. No. 38, is clear in
its requirement that in cases involving tax credit
scams the favorable recommendation for approval
by the Special Task Force and the approval by the
President of the Republic are both required. The
approval by the Chairmen of the Special Task Force is
still subject to approval of the President. Prior
presidential approval is the highest form of check and
balance within the Executive branch of government
and cannot be satisfied by mere failure of the President
to reverse or reprobate the acts of subordinates. To
sanction otherwise would be to ask the Court to reward
passivity and render nugatory the fundamental
safeguard required under the law.
The Court notes that in Civil Case No. 01-102504,
SAMC defrauded the government of the amount
of P37,195,859.00 in unpaid duties and taxes with the
use of fraudulent tax credit certificates that were
directly and originally procured by its officials on the
basis of inexistent supporting documents. The legal
interest, surcharges, litigation expenses and damages
of this principal amount totaled a
staggering P14,762,467.70, which petitioner
effectively waived through his entering into a
compromise agreement with SAMC. We find
lamentable the utter disregard of the legal
requirements for entering into a compromise displayed
by petitioner which is further aggravated by the fact that
there were already sufficient properties of SAMC that
were attached in the said case to satisfy not only the
principal amount owed but also the penalties,
surcharges and interests.
No amount of reasoning can infuse an empty plea to
justify this bloodletting. Fundamental it is in law that
taxes being the lifeblood of the government, 31 such
must be continuously replenished and carefully
preserved-and no public official should maintain a
standard lower than utmost diligence in keeping our
revenue system flowing. It is not for any government
official to deem it within his complete control to let
precious blood flow to the private sphere where it would
have been rightfully and lawfully collected by the public
through the government.
Persons appointed to the revenue collection agencies
of the government, like petitioner, ought to live up to
the strictest standards of honesty and integrity in the
public service and must at all times be above suspicion.
Because of the nature of their office, the officials and
employees of the Bureau of Customs should serve as
the primary role models in the faithful observance of the
constitutional canon that public office is a public trust.
Petitioner, being a Deputy Commissioner of the
Revenue Collection Monitoring Group, should know
that his actuations reflect adversely on the integrity and
efficiency of his office and erode the faith and
confidence of our people in its daily administration. We
find that the totality of petitioner's acts constitutes
flagrant disregard of established rules constitutive of
grave misconduct.
One final note. It appears that petitioner is no longer a
Deputy Commissioner of Customs.32 This fact,
however, does not render this petition moot and
academic. As held in Gallo v. Cordero:
. . . [T]he jurisdiction that was ours at the time
of the filing of the administrative complaint was
not lost by the mere fact that the respondent
public official had ceased to be in office during
the pendency of his case. The Court retains its
jurisdiction either to pronounce the respondent
official innocent of the charges or declare him
guilty thereof. A contrary rule would be fraught
with injustices and pregnant with dreadful and
dangerous implications. For what remedy
would the people have against a judge or any
other public official who resorts to wrongful and
illegal conduct during his last days in office?
xxx If innocent, respondent official merits
vindication of his name and integrity as he
leaves the government which he has served
well and faithfully; if guilty, he deserves to
receive the corresponding censure and a
penalty proper and imposable under the
situation.33
WHEREFORE, premises considered, the petition
is DENIED. The assailed Decision dated February 28,
2005 of the Court of Appeals in CA G.R. SP. No. 86281
is hereby AFFIRMED.
SO ORDERED.
Footnotes
11
Section 2316 of the Tariff and Customs Code
provides:
Section 2316. Authority of
Commissioner to make Compromise.-
Subject to the approval of the Secretary
of Finance, the Commissioner of
Customs may compromise any case
arising under this Code or other laws or
part of laws enforced by the Bureau of
Customs involving the imposition of
fines, surcharges and forfeitures
unless otherwise specified by law.
12
Section 4(d) of Executive Order No. 156
dated October 7, 1999, entitled "CREATING A
SPECIAL TASK FORCE TO REVIEW,
INVESTIGATE, AND GATHER EVIDENCE
NECESSARY TO SUCCESSFULLY
PROSECUTE IRREGULARITIES
COMMITTED AT THE BUREAU OF
INTERNAL REVENUE, BUREAU OF
CUSTOMS AND OTHER GOVERNMENT
OFFICES OR AGENCIES UNDER OR
ATTACHED TO THE DEPARTMENT OF
FINANCE," as amended by Executive Order
No. 38, provides:
SEC. 4. Powers, Duties and Functions.
The Task Force shall have the
following powers, duties and functions:
xxx
d) To recommend the settlement of
cases for approval of the President,
subject to appropriate rules on the
settlement of claims by the
government;
13
Section 3(d) of R.A. No. 3019, entitled "ANTI-
GRAFT AND CORRUPT PRACTICES ACT,"
enacted on August 17, 1960, provides:
SEC. 3. Corrupt practices of public
officers.-In addition to acts or
omissions of public officers already
penalized by existing law, the following
shall constitute corrupt practices of any
public officer and are hereby declared
to be unlawful:
xxx
(d) Accepting or having any member of
his family accept employment in a
private enterprise which has pending
official business with him during the
pendency thereof or within one year
after its termination.
14
A Memorandum dated May 11, 1999, in
accordance with Executive Order No. 39, dated
August 6, 1986, and Malacañang
Memorandum Circular No. 18, dated October
27, 1992, was issued by Deputy Commissioner
Julita S. Manahan providing Guidelines on
Application for Travel Abroad for Private
Purposes, which states:
3. Request shall be submitted at least
ten (10) days prior to the expected date
of departure supported by the following
documentary requirements:
k. Letter request for travel abroad.
l. Indorsement from Legal Service
Chief/District Collector.
m. Clearance from Legal Service.
n. Application for Leave.
o. Affidavit of support from sponsor
who will shoulder such travel.
p. Last year income tax return and
assets & liabilities of sponsor.
q. Affidavit of official or employee if
he/she will shoulder expenses.
r. Last year income tax return and
assets & liabilities of official or
employee if he/she will shoulder
expenses.
s. Affidavit stating that the travel will not
exceed ten (10) days. No request for
extension shall be entertained unless it
is extremely necessary.
 t. Request shall be approved on a case
to case basis dependent on the
justification submitted.
4. No application for travel abroad shall
be approved unless all the documents
required are submitted. Failure on the
part of the official or employee to report
back on duty after the expiration of the
authorize travel abroad shall be
considered AWOL.
21
Section 4, par. (h) of R.A. No. 6713, provides:
SEC. 4. Norms of Conduct of Public
Officials and Employees.-xxx
(h) Simple living. - Public officials and
employees and their families shall lead
modest lives appropriate to their
positions and income. They shall not
indulge in extravagant or ostentatious
display of wealth in any form.
23
Section 4 of R.A. No. 3019 provides:
SEC. 4. Prohibition on private
individuals. - (a) It shall be unlawful for
any person having family or close
personal relation with any public official
to capitalize or exploit or take
advantage of such family or close
personal relation by directly or
indirectly requesting or receiving any
present, gift or material or pecuniary
advantage from any other person
having some business, transaction,
application, request or contract with the
government, in which such public
official has to intervene. Family
relation shall include the spouse or
relatives by consanguinity or affinity
in the third civil degree. The word
"close personal relation" shall include
close personal friendship, social and
fraternal connections, and professional
employment all giving rise to intimacy
which assures free access to such
public officer.
26
Section 4(d) of Executive Order No. 156
dated October 7, 1999, entitled "CREATING A
SPECIAL TASK FORCE TO REVIEW,
INVESTIGATE, AND GATHER EVIDENCE
NECESSARY TO SUCCESSFULLY
PROSECUTE IRREGULARITIES
COMMITTED AT THE BUREAU OF
INTERNAL REVENUE, BUREAU OF
CUSTOMS AND OTHER GOVERNMENT
OFFICES OR AGENCIES UNDER OR
ATTACHED TO THE DEPARTMENT OF
FINANCE," as amended by Executive Order
No. 38, provides:
Section 4. Powers, Duties and
Functions. The Task Force shall have
the following powers, duties and
functions:
xxx
d) To recommend the settlement of
cases for approval of the President,
subject to appropriate rules on the
settlement of claims by the
government;
29
Section 5 of E.O. No. 156, as amended by
E.O. No. 38, provides:
SECTION 5. Section 6 of the same
issuance shall read as follows:
Section 5. Term. The Task Force shall
exist for another two years to expire on
October 7, 2003, unless extended by
the Office of the President.
(7) G.R. Nos. 170339, 170398-403 March 9,
2010
ROLANDO E. SISON, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CORONA, J.:
The requirements of the law on government
procurements should never be taken for granted
because grave consequences await those who violate
them.
Petitioner Rolando E. Sison was the municipal mayor
of Calintaan, Occidental Mindoro, a fourth-class
municipality,1from July 1, 1992 to June2 30, 1995, while
Rigoberto de Jesus was the municipal treasurer. On
July 18, 1994, state auditor Elsa E. Pajayon conducted
a post-audit investigation which revealed that during
petitioner’s incumbency, no public bidding was
conducted for the purchase of a Toyota Land Cruiser,
119 bags of Fortune cement, an electric generator set,
certain construction materials, two Desert Dueler tires,
and a computer and its accessories. Pajayon also
found out that there were irregularities in the
documents supporting the acquisitions.
Thus, on June 4, 1998, petitioner and de Jesus were
indicted before the Sandiganbayan in seven separate
Informations3 for seven counts of violation of Section
3(e) of Republic Act (RA) 3019.4
On June 24, 1999, petitioner pleaded not guilty to all
the Informations. Accused de Jesus has remained at
large.
Trial on the merits ensued. Pajayon was the lone
witness for the prosecution. She narrated the State’s
version of the facts as above stated. The prosecution
thereafter rested its case and formally offered its
exhibits.
When it was the turn of the defense to present
evidence, petitioner was called to the witness stand
where he admitted that indeed, no public bidding was
conducted insofar as the purchases he was being
accused of were concerned. When asked how the
purchases were made, he answered that they were
done through personal canvass. When prodded why
personal canvass was the method used, he retorted
that no public bidding could be conducted because all
the dealers of the items were based in Manila. It was
therefore useless to invite bidders since nobody would
bid anyway. The defense thereafter rested its case and
formally offered its exhibits.
On November 14, 2005, the Sandiganbayan found
petitioner guilty as charged.5 As such, he was meted in
each Information an imprisonment term ranging from
six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding
public office. The Sandiganbayan also ordered that an
alias warrant of arrest be issued against accused de
Jesus.
Petitioner appealed6 to this Court, praying for an
acquittal because his guilt was allegedly not proven
beyond reasonable doubt.
We dismiss the appeal.
Non-Compliance with the Requirements of
Personal Canvass
RA 71607 explicitly provides that, as a rule,
"acquisitions of supplies by local government units
shall be through competitive bidding."8 By way of
exception, no bidding is required in the following
instances:
(1) personal canvass of responsible
merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or
exclusive distributors and
(5) purchase from other government entities.9
Since personal canvass (the method availed of by
petitioner) is an exception to the rule requiring public
bidding, Section 367 of RA 7160 provides for limitations
on the resort to this mode of procurement:
Sec. 367. Procurement through Personal Canvass.—
Upon approval by the Committee on Awards,
procurement of supplies may be affected after personal
canvass of at least three (3) responsible suppliers in
the locality by a committee of three (3) composed of the
local general services officer or the municipal
or barangay treasurer, as the case may be, the local
accountant, and the head of office or department for
whose use the supplies are being procured. The
award shall be decided by the Committee on Awards.
Purchases under this Section shall not exceed the
amounts specified hereunder for all items in any one
(1) month for each local government unit:
xxx
Municipalities
:
—One hundred fifty
First
First Class thousand pesos
Class
(P150,000.00)
Third —Forty thousand
Second and
Class pesos (P40,000.00)
—Twenty thousand
Fourth Class and
pesos (P20,000.00)
Below
(emphasis supplied)
In relation thereto, Section 364 of RA 7160
mandates:
Section 364. The Committee on Awards.—
There shall be in every province, city or municipality a
Committee on Awards to decide the winning bids and
questions of awards on procurement and disposal of
property.
The Committee on Awards shall be composed of the
local chief executive as chairman, the local treasurer,
the local accountant, the local budget officer, the local
general services officer, and the head of office or
department for whose use the supplies are being
procured, as members. In case a head of office or
department would sit in a dual capacity a member
of the sanggunian elected from among its
members shall sit as a member. The Committee on
Awards at the barangay level shall be the sangguniang
barangay. No national official shall sit as member of the
Committee on Awards. (emphasis supplied)
Note that the law repeatedly uses the word "shall" to
emphasize the mandatory nature of its provisions.
This Court is not a trier of facts. The resolution of
factual issues is a function exercised by lower courts,
whose findings on these matters are received with
respect and are in fact binding on the Court except only
where it is shown that the case falls under the accepted
exceptions.10 Petitioner failed to establish that his case
falls under those exceptions. Hence, we have no other
option but to uphold the Sandiganbayan’s factual
findings.
Insofar as the purchase of the Toyota Land Cruiser 11 is
concerned, the Sandiganbayan found that the personal
canvass was effected solely by petitioner, without the
participation of the municipal accountant and
petitioner’s co-accused de Jesus, the municipal
treasurer. Worse, there was no showing that that the
award was decided by the Committee on Awards. Only
an abstract of canvass supported the award, signed by
petitioner and de Jesus, without the required
signatures of the municipal accountant and budget
officer.
To reiterate, RA 7160 requires that where the head of
the office or department requesting the requisition sits
in a dual capacity, the participation of
a Sanggunian member (elected from among the
members of the Sanggunian) is necessary. Petitioner
clearly disregarded this requirement because, in all the
purchases made, he signed in a dual capacity—as
chairman and member (representing the head of office
for whose use the supplies were being procured). That
is strictly prohibited. None of the regular members of
the Committee on Awards may sit in a dual capacity.
Where any of the regular members is the requisitioning
party, a special member from the Sanggunian is
required. The prohibition is meant to check or prevent
conflict of interest as well as to protect the use of the
procurement process and the public funds for irregular
or unlawful purchases.
The same flaws attended the procurement of 119 bags
of Fortune cement,12 electric power generator
set,13 various construction materials,14 two Desert
Dueler tires15 and a computer and its accessories.16
With the kind of items purchased by petitioner, he also
clearly spent more than ₱20,000—or beyond the
threshold amount per month allowed by Section 367 of
RA 7160 as far as purchases through personal
canvass by fourth-class municipalities (like Calintaan)
are concerned.
Violation of Section 3(e) of RA 3019
Section 3(e) of RA 3019 provides:
Section 3. Corrupt practices of public officers—In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest impartiality, evident bad
faith or gross inexcusable negligence. xxx. (emphasis
supplied)
To be found guilty under said provision, the following
elements must concur:
(1) the offender is a public officer;
(2) the act was done in the discharge of the
public officer’s official, administrative or judicial
functions;
(3) the act was done through manifest partiality,
evident bad faith, or gross inexcusable
negligence; and
(4) the public officer caused any undue injury
to any party, including the
Government, or gave any unwarranted
benefits, advantage or preference.17 (emphasis
supplied)
It is undisputed that the first two elements are present
in the case at bar. The only question left is whether the
third and fourth elements are likewise present. We hold
that they are.
The third element of Section 3 (e) of RA 3019 may be
committed in three ways, i.e., through manifest
partiality, evident bad faith or gross inexcusable
negligence. Proof of any of these three in connection
with the prohibited acts mentioned in Section 3(e) of
RA 3019 is enough to convict.18
Explaining what "partiality," "bad faith" and "gross
negligence" mean, we held:
"Partiality" is synonymous with "bias" which "excites a
disposition to see and report matters as they are
wished for rather than as they are." "Bad faith does not
simply connote bad judgment or negligence; it imputes
a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty
through some motive or intent or ill will; it partakes of
the nature of fraud." "Gross negligence has been so
defined as negligence characterized by the want of
even slight care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but
wilfully and intentionally with a conscious indifference
to consequences in so far as other persons may be
affected. It is the omission of that care which even
inattentive and thoughtless men never fail to take on
their own property." 19 (citations omitted)
In the instant case, petitioner was grossly negligent in
all the purchases that were made under his watch.
Petitioner’s admission that the canvass sheets sent out
by de Jesus to the suppliers already contained his
signatures because he pre-signed these forms20 only
proved his utter disregard of the consequences of his
actions. Petitioner also admitted that he knew the
provisions of RA 7160 on personal canvass but he did
not follow the law because he was merely following the
practice of his predecessors.21 This was an admission
of a mindless disregard for the law in a tradition of
illegality. This is totally unacceptable, considering that
as municipal mayor, petitioner ought to implement the
law to the letter. As local chief executive, he should
have been the first to follow the law and see to it that it
was followed by his constituency. Sadly, however, he
was the first to break it.
Petitioner should have complied with the requirements
laid down by RA 7160 on personal canvass, no matter
how strict they may have been. Dura lex sed lex. The
law is difficult but it is the law. These requirements are
not empty words but were specifically crafted to ensure
transparency in the acquisition of government supplies,
especially since no public bidding is involved in
personal canvass. Truly, the requirement that the
canvass and awarding of supplies be made by a
collegial body assures the general public that despotic,
irregular or unlawful transactions do not occur. It also
guarantees that no personal preference is given to any
supplier and that the government is given the best
possible price for its procurements. 1avvphi1
The fourth element is likewise present. While it is true
that the prosecution was not able to prove any undue
injury to the government as a result of the purchases,
it should be noted that there are two ways by which
Section 3(e) of RA 3019 may be violated—the first, by
causing undue injury to any party, including the
government, or the second, by giving any private party
any unwarranted benefit, advantage or preference.
Although neither mode constitutes a distinct
offense,22 an accused may be charged under either
mode or both.23 The use of the disjunctive "or"
connotes that the two modes need not be present at
the same time. In other words, the presence of one
would suffice for conviction.24
Aside from the allegation of undue injury to the
government, petitioner was also charged with having
given unwarranted benefit, advantage or preference to
private suppliers.25 Under the second mode, damage is
not required.
The word "unwarranted" means lacking adequate or
official support; unjustified; unauthorized26 or without
justification or adequate reason.27 "Advantage" means
a more favorable or improved position or condition;
benefit, profit or gain of any kind; benefit from some
course of action.28 "Preference" signifies priority or
higher evaluation or desirability; choice or estimation
above another.29
In order to be found guilty under the second mode, it
suffices that the accused has given unjustified favor or
benefit to another, in the exercise of his official,
administrative or judicial functions. Petitioner did just
that. The fact that he repeatedly failed to follow the
requirements of RA 7160 on personal canvass proves
that unwarranted benefit, advantage or preference was
given to the winning suppliers. These suppliers were
awarded the procurement contract without the benefit
of a fair system in determining the best possible price
for the government. The private suppliers, which were
all personally chosen by respondent, were able to profit
from the transactions without showing proof that their
prices were the most beneficial to the government. For
that, petitioner must now face the consequences of his
acts.
Propriety of the Penalty
Any person guilty of violating Section 3 (e) of RA 3019
is punishable with imprisonment for not less than six
years and one month nor more than fifteen years and
perpetual disqualification from public office.30 Thus, the
penalty imposed by the Sandiganbayan which is an
imprisonment term ranging from six years and one
month as minimum to ten years as maximum and
perpetual disqualification from holding public office for
each count of the offense, is in accord with law.
WHEREFORE, the petition is
hereby DENIED. Petitioner Rolando E. Sison is hereby
found guilty of seven counts of violation of Section 3(e)
of RA 3019. As such, he is hereby sentenced for each
count of the offense with imprisonment of six years and
one month as minimum to ten years as maximum and
perpetual disqualification from holding public office.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice
Chairperson
WE CONCUR:
Footnotes
3
In Criminal Case No. 24666, petitioner and
co-accused de Jesus were charged as follows:
That in or about February to March
1993, or sometime prior or subsequent
thereto, in Calintaan, Occidental
Mindoro, Philippines and within the
jurisdiction of this Honorable Court, the
above-named accused, both public
officers, then being the Mayor and
Treasurer, respectively, of Calintaan,
Occidental Mindoro, conspiring and
confederating with one another,
committing the offense in relation to
their office, taking advantage of their
positions and acting with manifest
partiality, evident bad faith and/or
inexcusable negligence did then and
there wilfully, unlawfully and criminally
cause undue injury to the government
and give unwarranted benefit,
advantage or preference to a private
supplier by effecting the purchase and
payment of a Toyota Land Cruiser
without public bidding and proper
documentation and without complying
with the legal procedure/steps for
effecting purchase of government
supplies and equipment.
CONTRARY TO LAW.
Petitioner and co-accused de Jesus
were also charged in six other
informations similar to the above
except as to the item purchased and
date of commission of the offense.
8
Section 356, RA 7160. The term "supplies" as
used by the law "includes everything, except
real property which may be needed in the
transaction of public business or in the pursuit
of any undertaking, project or activity, whether
in the nature of equipment, furniture, stationary
materials for construction or personal property
of any sort, including non-personal or
contractual services such as the repair and
maintenance of equipment and furniture, as
well as trucking, hauling, janitorial, security,
and related services." (Section 357(c), id.)
Thus, there is no question that the purchases
in the instant case are covered by RA 7160.
(8) G.R. No. 176546 September 25, 2009
FELICITAS P. ONG, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Assailed in this petition for review is the Decision 1 of
the Sandiganbayan dated November 13, 2006 in
Criminal Case No. 24416, finding petitioner Felicitas P.
Ong guilty beyond reasonable doubt of violation of Sec.
3 (e) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act. Also assailed
is the Resolution2 dated February 2, 2007 denying the
motion for reconsideration.
On August 12, 1996 petitioner in her capacity as Mayor
of Angadanan, Isabela, bought3 an Isuzu dump
truck4 for P750,000.00 from Josephine Ching for the
use of the municipality.
On March 26, 1997, a letter-complaint5 was filed
against petitioner by her successor, Mayor Diosdado
Siquian6 and several other Sangguniang Bayan
members7 before the Office of the Ombudsman,
accusing her of malversation of public funds and
property in connection with several alleged
irregularities committed during her term as Mayor of
Angadanan, including the purchase of the dump truck
for being grossly overpriced.
On August 14, 1997, Graft Investigation Officer I
Germain G. Lim found no probable cause to hold
petitioner liable for the charges. Upon reconsideration
however, she was indicted for violation of Sec. 3 (e) of
RA No. 3019, as amended, with respect to the
acquisition of the dump truck.
The Information reads:
8 Ong, GUILTY beyond reasonable doubt, for violation of
That on or about August 1996, or sometime prior or
subsequent thereto in the Municipality of Angadanan,
Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, Felicitas
P. Ong, a public official, being the Municipal Mayor of
Angadanan, Isabela, taking advantage of her official
position and committing the offense in relation to her
office, acting with manifest partiality, evident bad faith
or gross inexcusable negligence, did then and there
willfully, unlawfully and feloniously cause injury to the
Municipality of Angadanan by causing and approving,
without public bidding, the acquisition of an Isuzu dump
truck with Plate Number T-BBB-206 from J.C. Trucking
in the amount of SEVEN HUNDRED FIFTY
THOUSAND PESOS (P750,000.00) when the same or
similar type of dump truck could have been bought at a
much lower price of not more than FIVE HUNDRED
THOUSAND PESOS (P500,000.00), to the damage
and prejudice of the Municipality of Angadanan in the
amount of TWO HUNDRED AND FIFTY THOUSAND
PESOS (P250,000.00).
CONTRARY TO LAW.
On January 12, 1999, petitioner was arraigned and
entered a plea of "Not guilty."9
During trial, Ramon De Guzman Sevilla, Sales
Manager of Christian Motor Sales in Cabanatuan City,
Nueva Ecija, testified that the cost of a ten wheeler-
front drive, military type Isuzu dump truck ranges from
P190,000.00-P490,000.00.10
Sangguniang Bayan members and complainants
Ruben P. Lappay and Mirasol P. Lappay both testified
that the dump truck was bought without conducting a
public bidding or a resolution by the Sangguniang
Bayan; that the truck was merely reconditioned and not
brand new as can be seen from its deplorable
condition, worn tires and old battery;11 and that a
subsequent canvass of other suppliers showed that
better quality dump trucks cost no more than
P500,000.00.12
In her defense, petitioner testified that in 1996, the
municipality appropriated the amount of P1,000,000.00
for the purchase of a dump truck;13 that pursuant to said
appropriation, the subject vehicle was purchased on
August 12, 1996 for P750,000.00 through a negotiated
purchase from Josephine Ching of J.C. Trucking; that
the public bidding and prior Sangguniang Bayan
resolution were dispensed with pursuant to
Commission on Audit (COA) Resolution Nos. 95-
24414 and 95-244-A15 which do not require the conduct
of a public bidding on any negotiated purchase in
amounts not exceeding P10,000,000.00;16 that the
truck was not in disrepair as the same was inspected
by the Regional Engineer from COA who declared it fit
and in good running condition;17 and that the purchase
was allowed by COA because it did not issue a notice
of disallowance.18
On November 13, 2006, the Sandiganbayan rendered
its Decision finding petitioner guilty beyond reasonable
doubt of violation of Sec. 3 (e) of RA No. 3019. The
dispositive portion thereof reads:
WHEREFORE, the Court finds accused Felicitas P.
Sec. 3 (e) of RA No. 3019, and is hereby sentenced to
suffer the penalty of:
(A) Imprisonment of, after applying the
Indeterminate Sentence Law, six years and
one month as minimum, up to ten years, as
maximum; and
(B) Perpetual disqualification from Public
Office.
Accused is hereby ordered to RETURN to the
Municipality of Angadanan the amount of P250,000.00.
SO ORDERED.19
The Sandiganbayan found that as Mayor of
Angadanan, there is no dispute that petitioner was a
public officer discharging administrative and official
functions; that there is no merit to petitioner’s claim that
the purchase of the dump truck without public bidding
was justified by COA Resolution Nos. 95-244 and 95-
244-A; and that the prosecution was able to prove that
had petitioner observed the proper procurement
procedure, the municipality could have acquired a
dump truck similar to, if not better than that which she
bought, for a much lesser price.
Hence, this appeal where petitioner contends that the
Sandiganbayan erred in finding her guilty of violation of
Section 3 (e) of RA No. 3019. In particular, petitioner
denies causing injury or giving anybody any
unwarranted benefits, advantage or preference in the
discharge of her official or administrative functions, or
that she is guilty of any manifest partiality, evident bad
faith or gross negligence.
We are not persuaded.
It is a well-entrenched rule that factual findings of the
Sandiganbayan are conclusive upon the Supreme
Court except where: (1) the conclusion is a finding
grounded entirely on speculation, surmise and
conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts and the
findings of fact of the Sandiganbayan are premised on
the absence of evidence and are contradicted by
evidence on record.20 None of the above exceptions
obtains in this case.
Section 3 (e) of RA No. 3019, as amended, provides:
Section 3. Corrupt practices of public officers.- In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful
xxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
The following essential elements must be present:
1. The accused must be a public officer
discharging administrative, judicial or official
functions;
2. He must have acted with manifest partiality,
evident bad faith or gross inexcusable
negligence; and
3. His action caused any undue injury to any
party, including the government, or gave any
private party unwarranted benefits, advantage
or preference in the discharge of his
functions.21
We find that all the elements of the offense charged
have been duly established beyond reasonable doubt.
Petitioner, being then the Mayor of Angadanan, Isabela
is a public officer discharging administrative and official
functions. The act of purchasing the subject truck
without the requisite public bidding and authority from
the Sangguniang Bayan displays gross and
inexcusable negligence. Undue injury was caused to
the Government because said truck could have been
purchased at a much lower price.
The contention that the acquisition through
a negotiated purchase was valid the same being
pursuant to COA Resolution Nos. 95-244 and 95-244-
A, is untenable. Petitioner’s reliance on said COA
Resolutions is misplaced. COA Resolution No. 95-244
as amended by Resolution No. 95-244-A states that
there is no necessity of prescribing the limit of
purchases not subject to public bidding since Executive
Order No. 30122 authorizes the heads of an agency
with the approval of the Department Heads to enter into
a negotiated purchase as long as the same is
advantageous to the government.
Both resolutions are implementing guidelines which
must be read and applied in conjunction with Title
VI,23 Book II, of Republic Act No. 7160 otherwise
known as the Local Government Code of 1991. Section
356 thereof states the general rule that the acquisition
of supplies by the local government units shall be
through competitive bidding. The only instances when
public bidding requirements can be dispensed with are
provided under Section 366, to wit:
Section 366. Procurement without Public
Bidding. - Procurement of supplies may be made
without the benefit of public bidding under any of the
following modes:
<="" p=""><="" p="">Negotiated purchase;
<="" p=""><="" p="">
negotiated purchase is further qualified by Section 369
thereof which states:
Section 369. Negotiated Purchase.- (a) In cases
where public biddings have failed for two (2)
consecutive times and no suppliers have qualified to
participate or win in the biddings, local government
units may, through the local chief executive concerned,
undertake the procurement of supplies by negotiated
purchase, regardless of amount, without public
bidding: provided, however, that the contract covering
the negotiated purchase shall be approved by the
Sanggunian concerned x x x.
Thus, a local chief executive could only resort to
a negotiated purchase under Section 366 of RA No.
7160 and COA Resolution Nos. 95-244 and 95-244-A,
if the following two requisites are present: (1) public
biddings have failed for at least two consecutive times
and; (2) no suppliers have qualified to participate or win
in the biddings.
The Sandiganbayan correctly ruled that by procuring
the subject truck through a negotiated
purchase without public bidding, petitioner failed to
comply with the above stated procedure. Indeed, as the
local chief executive, petitioner is not only expected to
know the proper procedure in the procurement of
supplies, she is also duty bound to follow the same and
her failure to discharge this duty constitutes gross and
inexcusable negligence.
Price quotations obtained from several suppliers24 as
well as the testimonies of Ramon de Guzman Sevilla,
Ruben Lappay and Mirasol Lappay proved that the
dump truck purchased by petitioner was over-priced.
Hence, had petitioner observed the proper
procurement procedure, the municipality of Angadanan
could have acquired a dump truck similar to, if not
better than the one originally bought, at a much lower
price of not more than P500,000.00. Without doubt,
petitioner’s negligence caused undue injury to the
government while at the same time gave unwarranted
benefits to Josephine Ching.
The penalty for violation of Section 3(e) of RA 3019 is
"imprisonment for not less than six years and one
month nor more than fifteen years, and perpetual
disqualification from public office." 25 Under the
Indeterminate Sentence Law, if the offense is punished
by special law, as in the present case, an indeterminate
penalty shall be imposed on the accused, the
maximum term of which shall not exceed the maximum
fixed by the law, and the minimum not less than the
minimum prescribed therein.26
In view of the circumstances obtaining in the instant
case, the Sandiganbayan correctly imposed the
indeterminate prison term of six (6) years and one (1)
month, as minimum, to ten (10) years and one (1) day,
as maximum, with perpetual disqualification from
public office.
WHEREFORE, the petition is DENIED. The Decision
of the Sandiganbayan dated November 13, 2006
finding petitioner Felicitas P. Ong guilty beyond
reasonable doubt of violation of Section 3 (e) of
Republic Act No. 3019 and sentencing her to suffer the
penalty of six (6) years and one (1) month, as
minimum, to ten (10) years and one (1) day, as
maximum, with perpetual disqualification from holding
public office and with order to return the amount of
P250,000.00, is AFFIRMED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
(9) G.R. No. 180363 April 28, 2009
EDGAR Y. TEVES, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and HERMINIO
G. TEVES, Respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution is whether the crime of which
petitioner Edgar Y. Teves was convicted in Teves v.
Sandiganbayan1 involved moral turpitude.
The facts of the case are undisputed.
Petitioner was a candidate for the position of
Representative of the 3rd legislative district of Negros
Oriental during the May 14, 2007 elections. On March
30, 2007, respondent Herminio G. Teves filed a petition
to disqualify2petitioner on the ground that in Teves v.
Sandiganbayan,3 he was convicted of violating Section
3(h), Republic Act (R.A.) No. 3019, or the Anti-Graft
and Corrupt Practices Act, for possessing pecuniary or
financial interest in a cockpit, which is prohibited under
Section 89(2) of the Local Government Code (LGC) of
1991, and was sentenced to pay a fine of P10,000.00.
Respondent alleged that petitioner is disqualified from
running for public office because he was convicted of a
crime involving moral turpitude which carries the
accessory penalty of perpetual disqualification from
public office.4 The case was docketed as SPA No. 07-
242 and assigned to the COMELEC’s First Division.
On May 11, 2007, the COMELEC First Division
disqualified petitioner from running for the position of
member of House of Representatives and ordered the
cancellation of his Certificate of Candidacy.5
Petitioner filed a motion for reconsideration before the
COMELEC en banc which was denied in its assailed
October 9, 2007 Resolution for being moot, thus:
It appears, however, that [petitioner] lost in the last 14
May 2007 congressional elections for the position of
member of the House of Representatives of the Third
district of Negros Oriental thereby rendering the instant
Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration dated 28 May 2007 filed by
respondent Edgar Y. Teves challenging the Resolution
of this Commission (First Division) promulgated on 11
May 2007 is hereby DENIED for having been rendered
moot and academic.
SO ORDERED.6
Hence, the instant petition based on the following
grounds:
I.
THERE WAS ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, WHEN THE COMELEC EN BANC
DEMURRED IN RESOLVING THE MAIN ISSUE
RAISED IN PETITIONER’S MOTION FOR
RECONSIDERATION, WHETHER PETITIONER IS
DISQUALIFIED TO RUN FOR PUBLIC OFFICE
TAKING INTO CONSIDERATION THE DECISION OF
THE SUPREME COURT IN G.R. NO. 154182.
II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND
ACADEMIC AS THE RESOLUTION THEREOF WILL
DETERMINE PETITIONER’S QUALIFICATION TO
RUN FOR OTHER PUBLIC POSITIONS IN FUTURE
ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, WHEN THE COMELEC EN BANC IN
EFFECT AFFIRMED THE FINDINGS OF THE FIRST
DIVISION WHICH RULED THAT PETITIONER’S
CONVICTION FOR VIOLATION OF SECTION 3(H)
OF R.A. 3019 AND THE IMPOSITION OF FINE IS A
CONVICTION FOR A CRIME INVOLVING MORAL
TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS
CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE SHOULD BE RESOLVED TAKING INTO
CONSIDERATION THE FINDINGS OF THE
SUPREME COURT IN G.R. NO. 154182.
B.
THERE IS NOTHING IN THE DECISION OF THE
SUPREME COURT THAT SUPPORTS THE
FINDINGS OF THE FIRST DIVISION OF THE
COMELEC, THAT BASED ON THE "TOTALITY OF
FACTS" DOCTRINE, PETITIONER WAS
CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in
the May 14, 2007 elections did not effectively moot the
issue of whether he was disqualified from running for
public office on the ground that the crime he was
convicted of involved moral turpitude. It is still a
justiciable issue which the COMELEC should have
resolved instead of merely declaring that the
disqualification case has become moot in view of
petitioner’s defeat.
Further, there is no basis in the COMELEC’s findings
that petitioner is eligible to run again in the 2010
elections because his disqualification shall be deemed
removed after the expiration of a period of five years
from service of the sentence. Assuming that the
elections would be held on May 14, 2010, the records
show that it was only on May 24, 2005 when petitioner
paid the fine of P10,000.00 he was sentenced to pay in
Teves v. Sandignbayan.8 Such being the reckoning
point, thus, the five-year disqualification period will end
only on May 25, 2010. Therefore he would still be
ineligible to run for public office during the May 14,
2010 elections.
Hence, it behooves the Court to resolve the issue of
whether or not petitioner’s violation of Section 3(h),
R.A. No. 3019 involves moral turpitude. 1avvphi 1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been
declared by competent authority insane or
incompetent, or has been sentenced by final judgment
for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty
of more than eighteen months, or for a crime involving
moral turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given
plenary pardon or granted amnesty. law phil.n et
The disqualifications to be a candidate herein provided
shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence
had been removed or after the expiration of a period of
five years from his service of sentence, unless within
the same period he again becomes disqualified.
(Emphasis supplied)
Moral turpitude has been defined as everything which
is done contrary to justice, modesty, or good morals;
an act of baseness, vileness or depravity in the private
and social duties which a man owes his fellowmen, or
to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was
convicted, reads:
Sec. 3. Corrupt practices of public officers. — In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
The essential elements of the violation of said provision
are as follows: 1) The accused is a public officer; 2) he
has a direct or indirect financial or pecuniary interest in
any business, contract or transaction; 3) he either: a)
intervenes or takes part in his official capacity in
connection with such interest, or b) is prohibited from
having such interest by the Constitution or by law.10
Thus, there are two modes by which a public officer
who has a direct or indirect financial or pecuniary
interest in any business, contract, or transaction may
violate Section 3(h) of R.A. 3019. The first mode is
when the public officer intervenes or takes part in his
official capacity in connection with his financial or
pecuniary interest in any business, contract, or
transaction. The second mode is when he is prohibited
from having such an interest by the Constitution or by
law.11
In Teves v. Sandiganbayan,12 petitioner was convicted
under the second mode for having pecuniary or
financial interest in a cockpit which is prohibited under
Sec. 89(2) of the Local Government Code of 1991. The
Court held therein:
However, the evidence for the prosecution has
established that petitioner Edgar Teves, then mayor of
Valencia, Negros Oriental, owned the cockpit in
question. In his sworn application for registration of
cockpit filed on 26 September 1983 with the Philippine
Gamefowl Commission, Cubao, Quezon City, as well
as in his renewal application dated 6 January 1989 he
stated that he is the owner and manager of the said
cockpit. Absent any evidence that he divested himself
of his ownership over the cockpit, his ownership thereof
is rightly to be presumed because a thing once proved
to exist continues as long as is usual with things of that
nature. His affidavit dated 27 September 1990
declaring that effective January 1990 he "turned over
the management of the cockpit to Mrs. Teresita Z.
Teves for the reason that [he] could no longer devote a
full time as manager of the said entity due to other work
pressure" is not sufficient proof that he divested himself
of his ownership over the cockpit. Only the
management of the cockpit was transferred to Teresita
Teves effective January 1990. Being the owner of the
cockpit, his interest over it was direct.
Even if the ownership of petitioner Edgar Teves over
the cockpit were transferred to his wife, still he would
have a direct interest thereon because, as correctly
held by respondent Sandiganbayan, they remained
married to each other from 1983 up to 1992, and as
such their property relation can be presumed to be that
of conjugal partnership of gains in the absence of
evidence to the contrary. Article 160 of the Civil Code
provides that all property of the marriage is presumed
to belong to the conjugal partnership unless it be
proved that it pertains exclusively to the husband or to
the wife. And Section 143 of the Civil Code declares all
the property of the conjugal partnership of gains to be
owned in common by the husband and wife. Hence, his
interest in the Valencia Cockpit is direct and is,
therefore, prohibited under Section 89(2) of the LGC of
1991, which reads:
Section 89. Prohibited Business and Pecuniary
Interest. – (a) It shall be unlawful for any local
government official or employee, directly or indirectly,
to:
xxxx
(2) Hold such interests in any cockpit or other games
licensed by a local government unit…. [Emphasis
supplied].
The offense proved, therefore, is the second mode of
violation of Section 3(h) of the Anti-Graft Law, which is
possession of a prohibited interest.13
However, conviction under the second mode does not
automatically mean that the same involved moral
turpitude. A determination of all surrounding
circumstances of the violation of the statute must be
considered. Besides, moral turpitude does not include
such acts as are not of themselves immoral but whose
illegality lies in their being positively prohibited, as in
the instant case.
Thus, in Dela Torre v. Commission on Elections, 14 the
Court clarified that:
Not every criminal act, however, involves moral
turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to
determine." In resolving the foregoing question, the
Court is guided by one of the general rules that crimes
mala in se involve moral turpitude, while crimes mala
prohibita do not, the rationale of which was set forth in
"Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself,
regardless of the fact that it is punishable by law or not.
It must not be merely mala prohibita, but the act itself
must be inherently immoral. The doing of the act itself,
and not its prohibition by statute fixes the moral
turpitude. Moral turpitude does not, however, include
such acts as are not of themselves immoral but whose
illegality lies in their being positively prohibited."
This guideline nonetheless proved short of providing a
clear-cut solution, for in "International Rice Research
Institute v. NLRC, the Court admitted that it cannot
always be ascertained whether moral turpitude does or
does not exist by merely classifying a crime as malum
in se or as malum prohibitum. There are crimes which
are mala in se and yet but rarely involve moral turpitude
and there are crimes which involve moral turpitude and
are mala prohibita only. In the final analysis, whether
or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the
circumstances surrounding the violation of the statute.
(Emphasis supplied) 1awphi1
Applying the foregoing guidelines, we examined all the
circumstances surrounding petitioner’s conviction and
found that the same does not involve moral turpitude.
First, there is neither merit nor factual basis in
COMELEC’s finding that petitioner used his official
capacity in connection with his interest in the cockpit
and that he hid the same by transferring the
management to his wife, in violation of the trust
reposed on him by the people.
The COMELEC, in justifying its conclusion that
petitioner’s conviction involved moral turpitude,
misunderstood or misapplied our ruling in Teves v.
Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which
[petitioner] was convicted may per se not involve moral
turpitude, still the totality of facts evinces [his] moral
turpitude. The prohibition was intended to avoid any
conflict of interest or any instance wherein the public
official would favor his own interest at the expense of
the public interest. The [petitioner] knew of the
prohibition but he attempted to circumvent the same by
holding out that the Valencia Cockpit and Recreation
Center is to be owned by a certain Daniel Teves. Later
on, he would aver that he already divested himself of
any interest of the cockpit in favor of his wife. But the
Supreme Court saw through the ruse and declared that
what he divested was only the management of the
cockpit but not the ownership. And even if the
ownership is transferred to his wife, the respondent
would nevertheless have an interest thereon because
it would still belong to the conjugal partnership of gains,
of which the [petitioner] is the other half.
[Petitioner] therefore maintained ownership of the
cockpit by deceit. He has the duty to divest himself but
he did not and instead employed means to hide his
interests. He knew that it was prohibited he
nevertheless concealed his interest thereon. The facts
that he hid his interest denotes his malicious intent to
favor self-interest at the expense of the public. Only a
man with a malevolent, decadent, corrupt and selfish
motive would cling on and conceal his interest, the
acquisition of which is prohibited. This plainly shows his
moral depravity and proclivity to put primacy on his self
interest over that of his fellowmen. Being a public
official, his act is also a betrayal of the trust reposed on
him by the people. Clearly, the totality of his acts is
contrary to the accepted rules of right and duty,
honesty and good morals. The crime, as committed by
the [petitioner], plainly involves moral turpitude.15
On the contrary, the Court’s ruling states:
The Sandiganbayan found that the charge against
Mayor Teves for causing the issuance of the business
permit or license to operate the Valencia Cockpit and
Recreation Center is "not well-founded." This it based,
and rightly so, on the additional finding that only the
Sangguniang Bayan could have issued a permit to
operate the Valencia Cockpit in the year 1992. Indeed,
under Section 447(3) of the LGC of 1991, which took
effect on 1 January 1992, it is the Sangguniang Bayan
that has the authority to issue a license for the
establishment, operation, and maintenance of
cockpits. Unlike in the old LGC, Batas Pambansa Blg.
337, wherein the municipal mayor was the presiding
officer of the Sangguniang Bayan, under the LGC of
1991, the mayor is not so anymore and is not even a
member of the Sangguniang Bayan. Hence, Mayor
Teves could not have intervened or taken part in his
official capacity in the issuance of a cockpit license
during the material time, as alleged in the information,
because he was not a member of the Sangguniang
Bayan.16
Thus, petitioner, as then Mayor of Valencia, did not use
his influence, authority or power to gain such pecuniary
or financial interest in the cockpit. Neither did he
intentionally hide his interest in the subject cockpit by
transferring the management thereof to his wife
considering that the said transfer occurred before the
effectivity of the present LGC prohibiting possession of
such interest.
As aptly observed in Teves v. Sandiganbayan:
As early as 1983, Edgar Teves was already the owner
of the Valencia Cockpit. Since then until 31 December
1991, possession by a local official of pecuniary
interest in a cockpit was not yet prohibited. It was
before the effectivity of the LGC of 1991, or on January
1990, that he transferred the management of the
cockpit to his wife Teresita. In accordance therewith it
was Teresita who thereafter applied for the renewal of
the cockpit registration. Thus, in her sworn applications
for renewal of the registration of the cockpit in question
dated 28 January 1990 and 18 February 1991, she
stated that she is the Owner/Licensee and
Operator/Manager of the said cockpit. In her renewal
application dated 6 January 1992, she referred to
herself as the Owner/Licensee of the cockpit. Likewise
in the separate Lists of Duly Licensed Personnel for
Calendar Years 1991 and 1992, which she submitted
on 22 February 1991 and 17 February 1992,
respectively, in compliance with the requirement of the
Philippine Gamefowl Commission for the renewal of
the cockpit registration, she signed her name as
Operator/Licensee.17 (Emphasis supplied)
Second, while possession of business and pecuniary
interest in a cockpit licensed by the local government
unit is expressly prohibited by the present LGC,
however, its illegality does not mean that violation
thereof necessarily involves moral turpitude or makes
such possession of interest inherently immoral. Under
the old LGC, mere possession by a public officer of
pecuniary interest in a cockpit was not among the
prohibitions. Thus, in Teves v. Sandiganbayan, the
Court took judicial notice of the fact that:
x x x under the old LGC, mere possession of pecuniary
interest in a cockpit was not among the prohibitions
enumerated in Section 41 thereof. Such possession
became unlawful or prohibited only upon the advent of
the LGC of 1991, which took effect on 1 January 1992.
Petitioner Edgar Teves stands charged with an offense
in connection with his prohibited interest committed on
or about 4 February 1992, shortly after the maiden
appearance of the prohibition. Presumably, he was not
yet very much aware of the prohibition. Although
ignorance thereof would not excuse him from criminal
liability, such would justify the imposition of the lighter
penalty of a fine of P10,000 under Section 514 of the
LGC of 1991.18 (Italics supplied)
The downgrading of the indeterminate penalty of
imprisonment of nine years and twenty-one days as
minimum to twelve years as maximum to a lighter
penalty of a fine of P10,000.00 is a recognition that
petitioner’s violation was not intentionally done
contrary to justice, modesty, or good morals but due to
his lack of awareness or ignorance of the prohibition.
Lastly, it may be argued that having an interest in a
cockpit is detrimental to public morality as it tends to
bring forth idlers and gamblers, hence, violation of
Section 89(2) of the LGC involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the
local parlance, has a long and storied tradition in our
culture and was prevalent even during the Spanish
occupation.19 While it is a form of gambling, the
morality thereof or the wisdom in legalizing it is not a
justiciable issue. In Magtajas v. Pryce Properties
Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue.
Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there
is nothing in the Constitution categorically proscribing
or penalizing gambling or, for that matter, even
mentioning it at all. It is left to Congress to deal with the
activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling
altogether or allow it without limitation or it may prohibit
some forms of gambling and allow others for whatever
reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries,
cockfighting and horse-racing. In making such choices,
Congress has consulted its own wisdom, which this
Court has no authority to review, much less reverse.
Well has it been said that courts do no sit to resolve the
merits of conflicting theories. That is the prerogative of
the political departments. It is settled that questions
regarding the wisdom, morality, or practicability of
statutes are not addressed to the judiciary but may be
resolved only by the legislative and executive
departments, to which the function belongs in our
scheme of government. That function is exclusive.
Whichever way these branches decide, they are
answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not
to the courts of justice.
WHEREFORE, the petition is GRANTED. The assailed
Resolutions of the Commission on Elections dated May
11, 2007 and October 9, 2007 disqualifying petitioner
Edgar Y. Teves from running for the position of
Representative of the 3rd District of Negros Oriental,
are REVERSED and SET ASIDE and a new one is
entered declaring that the crime committed by
petitioner (violation of Section 3(h) of R.A. 3019) did not
involve moral turpitude.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
PLEASE SEE DISSENTING OPINION
(10) G.R. No. 166510 April 29, 2009
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
BENJAMIN "KOKOY" ROMUALDEZ, and
SANDIGANBAYAN, Respondent.
RESOLUTION
TINGA, J.:
The relevant antecedent facts are stated in the
Decision of the Court dated 23 July 20081 . We
reproduce them, to wit:
The Office of the Ombudsman (Ombudsman) charged
Romualdez before the Sandiganbayan with violation of
Section 3 (e) of Republic Act No. 3019 (R.A. 3019), as
amended, otherwise known as the Anti-Graft and
Corrupt Practices Act. The Information reads:
That on or about and during the period from 1976 to
February 1986 or sometime prior or subsequent
thereto, in the City of Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused Benjamin
"Kokoy" Romualdez, a public officer being then the
Provincial Governor of the Province of Leyte, while in
the performance of his official function, committing the
offense in relation to his Office, did then and there
willfully, unlawfully and criminally with evident bad faith,
cause undue injury to the Government in the following
manner: accused public officer being then the elected
Provincial Governor of Leyte and without abandoning
said position, and using his influence with his brother-
in-law, then President Ferdinand E. Marcos, had
himself appointed and/or assigned as Ambassador to
foreign countries, particularly the People's Republic of
China (Peking), Kingdom of Saudi Arabia (Jeddah),
and United States of America (Washington D.C.),
knowing fully well that such appointment and/or
assignment is in violation of the existing laws as the
Office of the Ambassador or Chief of Mission is
incompatible with his position as Governor of the
Province of Leyte, thereby enabling himself to collect
dual compensation from both the Department of
Foreign Affairs and the Provincial Government of Leyte
in the amount of Two Hundred Seventy-six Thousand
Nine Hundred Eleven Dollars and 56/100 (US
$276,911.56), US Currency or its equivalent amount of
Five Million Eight Hundred Six Thousand Seven
Hundred Nine Pesos and 50/100 (P5,806,709.50) and
Two Hundred Ninety-three Thousand Three Hundred
Forty-eight Pesos and 86/100 (P293,348.86) both
Philippine Currencies, respectively, to the damage and
prejudice of the Government in the aforementioned
amount of P5,806,709.50.
CONTRARY TO LAW.
Romualdez moved to quash the information on two
grounds, namely: (1) that the facts alleged in the
information do not constitute the offense with which the
accused was charged; and (2) that the criminal action
or liability has been extinguished by prescription. He
argued that the acts imputed against him do not
constitute an offense because: (a) the cited provision
of the law applies only to public officers charged with
the grant of licenses, permits, or other concessions,
and the act charged — receiving dual compensation —
is absolutely irrelevant and unrelated to the act of
granting licenses, permits, or other concessions; and
(b) there can be no damage and prejudice to the
Government considering that he actually rendered
services for the dual positions of Provincial Governor
of Leyte and Ambassador to foreign countries.
To support his prescription argument, Romualdez
posited that the 15-year prescription under Section 11
of R.A. 3019 had lapsed since the preliminary
investigation of the case for an offense committed on
or about and during the period from 1976 to February
1986 commenced only in May 2001 after a Division of
the Sandiganbayan referred the matter to the Office of
the Ombudsman. He argued that there was no
interruption of the prescriptive period for the offense
because the proceedings undertaken under the 1987
complaint filed with the Presidential Commission on
Good Government (PCGG) were null and void
pursuant to the Supreme Court's ruling in Cojuangco,
Jr. v. PCGG and Cruz, Jr. [sic]. He likewise argued that
the Revised Penal Code provision that prescription
does not run when the offender is absent from the
Philippines should not apply to his case, as he was
charged with an offense not covered by the Revised
Penal Code; the law on the prescription of offenses
punished under special laws (Republic Act No. 3326)
does not contain any rule similar to that found in the
Revised Penal Code.
The People opposed the motion to quash on the
argument that Romualdez is misleading the court in
asserting that Section 3 (e) of R.A. 3019 does not apply
to him when Section 2 (b) of the law states that corrupt
practices may be committed by public officers who
include "elective and appointive officials and
employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving
compensation, even nominal, from the government."
On the issue of prescription, the People argued that
Section 15, Article XI of the Constitution provides that
the right of the State to recover properties unlawfully
acquired by public officials or employees, from them or
from their nominees or transferees, shall not be barred
by prescription, laches or estoppel, and that
prescription is a matter of technicality to which no one
has a vested right. Romualdez filed a Reply to this
Opposition.
The Sandiganbayan granted Romualdez' motion to
quash in the first Resolution assailed in this petition.
The Sandiganbayan stated:
We find that the allegation of damage and prejudice to
the Government in the amount of P5,806,709.50
representing the accused's compensation is without
basis, absent a showing that the accused did not
actually render services for his two concurrent
positions as Provincial Governor of the Province of
Leyte and as Ambassador to the People's Republic of
China, Kingdom of Saudi Arabia, and United States of
America. The accused alleges in the subject Motion
that he actually rendered services to the government.
To receive compensation for actual services rendered
would not come within the ambit of improper or illegal
use of funds or properties of the government; nor would
it constitute unjust enrichment tantamount to the
damage and prejudice of the government.
Jurisprudence has established what "evident bad faith"
and "gross negligence" entail, thus:
In order to be held guilty of violating Section 3 (e), R.A.
No. 3019, the act of the accused that caused undue
injury must have been done with evident bad faith or
with gross inexcusable negligence. But bad faith per se
is not enough for one to be held liable under the law,
the "bad faith" must be "evident".
xxx xxx xxx
. . . . "Gross negligence" is characterized by the want
of even slight care, acting or omitting to act in a willful
or omitting to act in a willful or intentional manner
displaying a conscious indifference to consequences
as far as other persons may be affected. (Emphasis
supplied)
The accused may have been inefficient as a public
officer by virtue of his holding of two concurrent
positions, but such inefficiency is not enough to hold
him criminally liable under the Information charged
against him, given the elements of the crime and the
standards set by the Supreme Court quoted above. At
most, any liability arising from the holding of both
positions by the accused may be administrative in
nature.
xxx xxx xxx
However, as discussed above, the Information does
not sufficiently aver how the act of receiving dual
compensation resulted to undue injury to the
government so as to make the accused liable for
violation of Section 3 (e) of R.A. No. 3019.
The Sandiganbayan found no merit in Romualdez'
prescription argument.
The People moved to reconsider this Resolution, citing
"reversible errors" that the Sandiganbayan committed
in its ruling. Romualdez opposed the People's motion,
but also moved for a partial reconsideration of the
Resolution's ruling on prescription. The People
opposed Romualdez' motion for partial
reconsideration.
Thereafter, the Sandiganbayan denied via the second
assailed Resolution the People's motion for
reconsideration under the following terms —
The Court held in its Resolution of June 22, 2004, and
so maintains and sustains, that assuming the
averments of the foregoing information are
hypothetically admitted by the accused, it would not
constitute the offense of violation of Section 3 (e) of
R.A. 3019 as the elements of (a) causing undue injury
to any party, including the government, by giving
unwarranted benefits, advantage or preference to such
parties, and (b) that the public officer acted with
manifest partiality, evident bad faith or gross
inexcusable negligence, are wanting.
As it is, a perusal of the information shows that
pertinently, accused is being charged for: (a) having
himself appointed as ambassador to various posts
while serving as governor of the Province of Leyte and
(b) for collecting dual compensation for said positions.
As to the first, the Court finds that accused cannot be
held criminally liable, whether or not he had himself
appointed to the position of the ambassador while
concurrently holding the position of provincial
governor, because the act of appointment is something
that can only be imputed to the appointing authority.
Even assuming that the appointee influenced the
appointing authority, the appointee only makes a
passive participation by entering into the appointment,
unless it is alleged that he acted in conspiracy with his
appointing authority, which, however, is not so claimed
by the prosecution in the instant case. Thus, even if the
accused's appointment was contrary to law or the
constitution, it is the appointing authority that should be
responsible therefor because it is the latter who is the
doer of the alleged wrongful act. In fact, under the rules
on payment of compensation, the appointing authority
responsible for such unlawful employment shall be
personally liable for the pay that would have accrued
had the appointment been lawful. As it is, the
appointing authority herein, then President Ferdinand
E. Marcos has been laid to rest, so it would be
incongruous and illogical to hold his appointee, herein
accused, liable for the appointment.
Further, the allegation in the information that the
accused collected compensation in the amounts of
Five Million Eight Hundred Six Thousand Seven
Hundred Nine Pesos and 50/100 (P5,806,709.50) and
Two Hundred Ninety-three Thousand Three Hundred
Forty Eight Pesos and 86/100 (P293,348.86) cannot
sustain the theory of the prosecution that the accused
caused damage and prejudice to the government, in
the absence of any contention that receipt of such was
tantamount to giving unwarranted benefits, advantage
or preference to any party and to acting with manifest
partiality, evident bad faith or gross inexcusable
negligence. Besides receiving compensation is an
incident of actual services rendered, hence it cannot be
construed as injury or damage to the government.
It likewise found no merit in Romualdez' motion for
partial reconsideration.2
Petitioner filed a Petition for Certiorari under Rule 65,
imputing grave abuse of discretion on the part of the
Sandiganbayan in quashing the subject information.
Private respondent responded with a Motion to Dismiss
with Comment Ad Cautelam, wherein he argued that
the proper remedy to an order granting a motion to
quash a criminal information is by way of appeal under
Rule 45 since such order is a final order and not merely
interlocutory. Private respondent likewise raised before
this Court his argument that the criminal action or
liability had already been extinguished by prescription,
which argument was debunked by the Sandiganbayan.
The Court granted the petition in its 23 July 2008
Decision. While the Court acknowledged that the mode
for review of a final ruling of the Sandiganbayan was
by way of a Rule 45 petition, it nonetheless allowed the
Rule 65 petition of petitioners, acceding that such
remedy was available on the claim that grave abuse of
discretion amounting to lack or excess of jurisdiction
had been properly and substantially alleged. The
Decision then proceeded to determine that the quashal
of the information was indeed attended with grave
abuse of discretion, the information having sufficiently
alleged the elements of Section 3(e) of Rep. Act No.
3019, the offense with which private respondent was
charged. The Decision concluded that the
Sandiganbayan had committed grave abuse of
discretion by premising its quashal of the information
"on considerations that either not appropriate in
evaluating a motion to quash; are evidentiary details
not required to be stated in an Information; are matters
of defense that have no place in an Information; or are
statements amounting to rulings on the merits that a
court cannot issue before trial."
Private respondent filed a Motion for Reconsideration,
placing renewed focus on his argument that the
criminal charge against him had been extinguished on
account of prescription. In a Minute Resolution dated 9
September 2008, the Court denied the Motion for
Reconsideration. On the argument of prescription, the
Resolution stated:
We did not rule on the issue of prescription because
the Sandiganbayan's ruling on this point was not the
subject of the People's petition for certiorari. While the
private respondent asserted in his Motion to Dismiss
Ad Cautelam filed with us that prescription had set in,
he did not file his own petition to assail this aspect of
the Sandiganbayan ruling, he is deemed to have
accepted it; he cannot now assert that in the People's
petitionthat sought the nullification of the
Sandiganbayan ruling on some other ground, we
should pass upon the issue of prescription he raised in
his motion.
Hence this second motion for reconsideration, which
reiterates the argument that the charges against
private respondent have already prescribed. The Court
required the parties to submit their respective
memoranda on whether or not prescription lies in favor
of respondent.
The matter of prescription is front and foremost before
us. It has been raised that following our ruling in
Romualdez v. Marcelo,3 the criminal charges against
private respondent have been extinguished by
prescription. The Court agrees and accordingly grants
the instant motion.
Private respondent was charged with violations of Rep.
Act No. 3019, or the Anti-Graft and Corrupt Practices
Act, committed "on or about and during the period from
1976 to February 1986". However, the subject criminal
cases were filed with the Sandiganbayan only on 5
November 2001, following a preliminary investigation
that commenced only on 4 June 2001. The time span
that elapsed from the alleged commission of the
offense up to the filing of the subject cases is clearly
beyond the fifteen (15) year prescriptive period
provided under Section 11 of Rep. Act No. 3019.4
Admittedly, the Presidential Commission on Good
Government (PCGG) had attempted to file similar
criminal cases against private respondent on 22
February 1989. However, said cases were quashed
based on prevailing jurisprudence that informations
filed by the PCGG and not the Office of the Special
Prosecutor/Office of the Ombudsman are null and void
for lack of authority on the part of the PCGG to file the
same. This made it necessary for the Office of the
Ombudsman as the competent office to conduct the
required preliminary investigation to enable the filing of
the present charges.
The initial filing of the complaint in 1989 or the
preliminary investigation by the PCGG that preceded it
could not have interrupted the fifteen (15)-year
prescription period under Rep. Act No. 3019. As held
in Cruz, Jr. v. Sandiganbayan,5 the investigatory power
of the PCGG extended only to alleged ill-gotten wealth
cases, absent previous authority from the President for
the PCGG to investigate such graft and corruption
cases involving the Marcos cronies. Accordingly, the
preliminary investigation conducted by the PCGG
leading to the filing of the first information is void ab
initio, and thus could not be considered as having tolled
the fifteen (15)-year prescriptive period,
notwithstanding the general rule that the
commencement of preliminary investigation tolls the
prescriptive period. After all, a void ab initio proceeding
such as the first preliminary investigation by the PCGG
could not be accorded any legal effect by this Court.
The rule is that for criminal violations of Rep. Act No.
3019, the prescriptive period is tolled only when the
Office of the Ombudsman receives a complaint or
otherwise initiates its investigation.6 As such
preliminary investigation was commenced more than
fifteen (15) years after the imputed acts were
committed, the offense had already prescribed as of
such time.
Further, the flaw was so fatal that the information could
not have been cured or resurrected by mere
amendment, as a new preliminary investigation had to
be undertaken, and evidence had again to be adduced
before a new information could be filed. The rule may
well be that the amendment of a criminal complaint
retroacts to the time of the filing of the original
complaint. Yet such rule will not apply when the original
information is void ab initio, thus incurable by
amendment.
The situation herein differs from that in the recent case
of SEC v. Interport,7 where the Court had occasion to
reexamine the principles governing the prescription of
offenses punishable under special laws. Therein, the
Court found that the investigative proceedings
conducted by the Securities and Exchange
Commission had tolled the prescriptive period for
violations of the Revised Securities Act, even if no
subsequent criminal cases were instituted within the
prescriptive period. The basic difference lies in the fact
that no taint of invalidity had attached to the authority
of the SEC to conduct such investigation, whereas the
preliminary investigation conducted herein by the
PCGG is simply void ab initio for want of authority.
Indeed the Court in 2006 had the opportunity to
favorably rule on the same issue of prescription on
similar premises raised by the same respondent. In
Romualdez v. Marcelo8 , as in this case, the original
preliminary investigation was conducted by the PCGG,
which then acted as complainant in the complaint filed
with the Sandiganbayan. Given that it had been settled
that such investigation and information filed by the
PCGG was null and void, the Court proceeded to rule
that "[i]n contemplation of the law, no proceedings exist
that could have merited the suspension of the
prescriptive periods." As explained by Justice Ynares-
Santiago:
Besides, the only proceeding that could interrupt the
running of prescription is that which is filed or initiated
by the offended party before the appropriate body or
office. Thus, in the case of People v. Maravilla, this
Court ruled that the filing of the complaint with the
municipal mayor for purposes of preliminary
investigation had the effect of suspending the period of
prescription. Similarly, in the case of Llenes v.
Dicdican, this Court held that the filing of a complaint
against a public officer with the Ombudsman tolled the
running of the period of prescription.
In the case at bar, however, the complaint was filed
with the wrong body, the PCGG. Thus, the same could
not have interrupted the running of the prescriptive
periods.9
Clearly, following stare decisis, private respondent’s
claim of prescription has merit, similar in premises as it
is to the situation in Marcelo. Unfortunately, such
argument had not received serious consideration from
this Court. The Sandiganbayan had apparently
rejected the claim of prescription, but instead quashed
the information on a different ground relating to the
elements of the offense. It was on that point which the
Court, in its 23 July 2008 Decision, understandably
focused. However, given the reality that the arguments
raised after the promulgation of the Decision have
highlighted the matter of prescription as well as the
precedent set in Marcelo, the earlier quashal of the
information is, ultimately, the correct result still.
It would be specious to fault private respondent for
failing to challenge the Sandiganbayan’s
pronouncement that prescription had not arisen in his
favor. The Sandiganbayan quashed the information
against respondent, the very same relief he had sought
as he invoked the prescription argument. Why would
the private respondent challenge such ruling favorable
to him on motion for reconsideration or in a separate
petition before a higher court? Imagine, for example,
that the People did not anymore challenge the
Sandiganbayan rulings anymore. The dissent implies
that respondent in that instance should nonetheless
appeal the Sandiganbayan’s rulings because it ruled
differently on the issue of prescription. No lawyer would
conceivably give such advise to his client. Had
respondent indeed challenged the Sandiganbayan’s
ruling on that point, what enforceable relief could he
have obtained other than that already granted by the
Anti-Graft Court?
Our 2004 ruling in Romualdez v.
Sandiganbayan10 cannot be cited against the position
of private respondent’s. The Sandiganbayan in that
case denied the Motion to Quash filed based on
prescription, and so it was incumbent on petitioner
therein to file an appropriate remedial action to reverse
that ruling and cause the quashal of the information.
Herein, even as the Sandiganbayan disagreed with the
prescription argument, it nonetheless granted the
Motion to Quash, and it would be ridiculous for the
petitioner to object to such action.
Notably, private respondent had already raised the
issue of prescription in the very first responsive
pleading he filed before the Court – the Motion to
Dismiss with Comment Ad Cautelam 11 dated 14 April
2005. The claim that private respondent should be
deemed as having accepted the Sandiganbayan’s
ruling on prescription would have been on firmer
ground had private respondent remained silent on that
point at the first opportunity he had before the Court.
The fact that prescription lies in favor of private
respondent posed an additional burden on the
petitioner, which had opted to file a Rule 65 petition for
certiorari instead of the normal recourse to a Rule 45.
Prescription would have been considered in favor of
private respondent whether this matter was raised
before us in a Rule 45 or a Rule 65 petition. Yet the bar
for petitioner is markedly higher under Rule 65 than
under Rule 45, and its option to resort to Rule 65
instead in the end appears needlessly burdensome for
its part, a burden not helped by the fact that
prescription avails in favor of private respondent.
WHEREFORE, the Second Motion for Reconsideration
is GRANTED. The Decision dated 23 July 2008 and the
Resolution dated 9 September 2008 in the instant case
are REVERSED and SET ASIDE. The Petition is
HEREBY DISMISSED. No pronouncements as to
costs.
DANTE O. TINGA
Associate Justice
WE CONCUR:
(11) G.R. No. 160772 July 13, 2009
HILARIO P. SORIANO, Petitioner,
vs.
OMBUDSMAN SIMEON V. MARCELO, HON.
MARILOU B. ANCHETA-MEJIA, Graft Investigation
Officer II, and ATTY. CELEDONIO P.
BALASBAS, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for certiorari under Rule
65 filed by Hilario P. Soriano (petitioner) seeking to set
aside the Resolution dated 29 July 2002, 1 which
dismissed the complaint against Assistant City
Prosecutor Celedenio P. Balasbas (Balasbas), and the
Order dated 14 July 2003,2 which denied the motion for
reconsideration, both issued by the Office of the
Ombudsman in OMB-C-C-02-0246-E.
The Antecedent Facts
On 1 June 2001, petitioner filed an affidavit-complaint
against Mely S. Palad (Palad), a bank examiner of the
Bangko Sentral ng Pilipinas, for Falsification of Public
Documents and Use of Falsified Document punishable
under Article 172 of the Revised Penal Code. The
complaint was filed with the Office of the City
Prosecutor of Manila and was docketed as I.S. No. 01-
F-22547. Acting on the complaint, Balasbas issued a
Resolution on 27 August 2001 recommending that
Palad be charged in court with Falsification of Public
Documents and that the charge of Use of Falsified
Document be dropped for lack of merit.
The Resolution of 27 August 2001 was forwarded to
2nd Assistant City Prosecutor Leoncia R. Dimagiba
(Dimagiba) who recommended the filing of the
information. This Resolution was forwarded to the City
Prosecutor for approval.
Meanwhile, on 25 January 2002, Palad filed a Motion
to Re-Open Case on the ground that she was not given
a copy of the subpoena or any notice regarding the
complaint filed against her.
On 27 February 2002, Dimagiba recommended the
reopening of the case. City Prosecutor Ramon R.
Garcia (City Prosecutor) approved the
recommendation. Thus, on 26 March 2002, Balasbas
issued a subpoena to the parties setting the case for
investigation.
The reopening of the case prompted petitioner to file
on 18 April 2002 with the Office of the Ombudsman a
criminal complaint against Balasbas for violation of
Section 3(e) of Republic Act No. 3019 (RA 3019),
otherwise known as the Anti-Graft and Corrupt
Practices Act. Petitioner alleged that in the reopening
of I.S. No. 01-F-22547, Palad received an unwarranted
advantage or preference, through manifest partiality,
evident bad faith and gross inexcusable negligence,
causing undue injury to petitioner.
In the Resolution dated 29 July 2002, Graft
Investigation Officer Charity Grace A. Rico of the Office
of the Ombudsman recommended the dismissal of
petitioner’s complaint for want of sufficient basis. This
recommendation was approved by Ombudsman
Simeon V. Marcelo. The Motion for Reconsideration
was denied in the Order of 14 July 2003, 3 for lack of
merit.
Hence, the present petition for certiorari.
The Issue
Petitioner raises the sole issue of whether or not the
Office of the Ombudsman acted with grave abuse of
discretion, amounting to lack or in excess of
jurisdiction, in dismissing the complaint against
Balasbas.
The Court’s Ruling
The instant petition is a special civil action for certiorari
which is a remedy meant to correct only errors of
jurisdiction, not errors of judgment. Petitioner assails
the resolution of the Office of the Ombudsman
dismissing the criminal case against Balasbas.
Petitioner claims that the subordinates were not
supposed to blindly follow illegal orders of their
superiors. He insists that Balasbas is still liable for the
reopening of the case without lawful reasons, for no law
gives his superiors the right to indiscriminately order
the reopening of a case. Petitioner argues that
Balasbas could have opted not to issue a subpoena
knowing that the directive of the City Prosecutor to
reopen the case of Palad was not warranted. Thus, for
giving unwarranted advantage or preference to Palad
that caused undue injury to petitioner, Balasbas must
be held liable for violation of Section 3(e) of RA 3019.
The arguments raised by petitioner are not errors
involving jurisdiction but one of judgment, which is
beyond the province of the extraordinary remedy of
certiorari. As we have ruled in First Corporation v.
Former Sixth Division of the Court of Appeals,4 to wit:
It is a fundamental aphorism in law that a review of
facts and evidence is not the province of the
extraordinary remedy of certiorari, which is extra
ordinem - beyond the ambit of appeal. In certiorari
proceedings, judicial review does not go as far as to
examine and assess the evidence of the parties and to
weigh the probative value thereof. It does not include
an inquiry as to the correctness of the evaluation of
evidence. Any error committed in the evaluation of
evidence is merely an error of judgment that cannot be
remedied by certiorari. An error of judgment is one
which the court may commit in the exercise of its
jurisdiction. An error of jurisdiction is one where the act
complained of was issued by the court without or in
excess of jurisdiction, or with grave abuse of discretion,
which is tantamount to lack or in excess of jurisdiction
and which error is correctible only by the extraordinary
writ of certiorari. Certiorari will not be issued to cure
errors of the trial court in its appreciation of the
evidence of the parties, or its conclusions anchored on
the said findings and its conclusions of law. It is not for
this Court to re- examine conflicting evidence, re-
evaluate the credibility of the witnesses or substitute
the findings of fact of the court a quo.1a vvphi1
This notwithstanding, may this Court review the
findings of the Office of the Ombudsman? The general
rule has been that the courts will not interfere with the
discretion of the prosecutor or the Ombudsman, in the
exercise of his investigative power, to determine the
specificity and adequacy of the averments of the
offense charged.5 As we have explained in Esquivel v.
Ombudsman:6
The Ombudsman is empowered to determine whether
there exists reasonable ground to believe that a crime
has been committed and that the accused is probably
guilty thereof and, thereafter, to file the corresponding
information with the appropriate courts. Settled is the
rule that the Supreme Court will not ordinarily interfere
with the Ombudsman’s exercise of his investigatory
and prosecutory powers without good and compelling
reasons to indicate otherwise. Said exercise of powers
is based upon the constitutional mandate and the court
will not interfere in its exercise. The rule is based not
only upon respect for the investigatory and prosecutory
powers granted by the Constitution to the Office of the
Ombudsman, but upon practicality as well. Otherwise,
innumerable petitions seeking dismissal of
investigatory proceedings conducted by the
Ombudsman will grievously hamper the functions of
the office and the courts, in much the same way that
courts will be swamped if they had to review the
exercise of discretion on the part of public prosecutors
each time they decided to file an information or dismiss
a complaint by a private complainant.
In Presidential Commission on Good Government v.
Desierto,7 we discussed the value of the Ombudsman’s
independence, thus:
Case law has it that the determination of probable
cause against those in public office during a preliminary
investigation is a function that belongs to the Office of
the Ombudsman. The Ombudsman has the discretion
to determine whether a criminal case, given its
attendant facts and circumstances, should be filed or
not. It is basically his call. He may dismiss the
complaint forthwith should he find it to be insufficient in
form or substance, or he may proceed with the
investigation if, in his view, the complaint is in due and
proper form and substance. We have consistently
refrained from interfering with the constitutionally
mandated investigatory and prosecutorial powers of
the Ombudsman. Thus, if the Ombudsman, using
professional judgment, finds the case dismissible, the
Court shall respect such findings, unless the exercise
of such discretionary powers is tainted by grave abuse
of discretion.
The Ombudsman has the full discretion to determine
whether or not a criminal case should be filed.
Nonetheless, this Court is not precluded from reviewing
the Ombudsman’s action when there is a charge of
grave abuse of discretion. Grave abuse of discretion
implies a capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction. The
Ombudsman’s exercise of power must have been done
in an arbitrary or despotic manner which must be so
patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. 8 An
examination of the records would show that the Office
of the Ombudsman did not act with grave abuse of
discretion, amounting to lack or in excess of
jurisdiction, in dismissing the complaint against
Balasbas.
Balasbas, as Assistant City Prosecutor, was charged
with violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act which provides, thus:
SEC. 3. Corrupt practices of public officers. — In
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby
declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
The elements of the offense of violation of Section 3(e)
of RA 3019, as amended, are as follows:
1) The accused must be a public officer
discharging administrative, judicial or official
functions;
2) He must have acted with manifest partiality,
evident bad faith or inexcusable negligence;
and
3) That his action caused undue injury to any
party, including the government, or gave any
private party unwarranted benefits, advantage
or preference in the discharge of his functions.9
In Albert v. Sandiganbayan,10 we discussed the second
element, to wit:
There is "manifest partiality" when there is a clear,
notorious, or plain inclination or predilection to favor
one side or person rather than another. "Evident bad
faith" connotes not only bad judgment but also palpably
and patently fraudulent and dishonest purpose to do
moral obliquity or conscious wrongdoing for some
perverse motive or ill will. "Evident bad faith"
contemplates a state of mind affirmatively operating
with furtive design or with some motive or self-interest
or ill will or for ulterior purposes. "Gross inexcusable
negligence" refers to negligence characterized by the
want of even the slightest care, acting or omitting to act
in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with
conscious indifference to consequences insofar as
other persons may be affected.
And, as we explained in Collantes v. Marcelo,11
Well-settled is the rule that good faith is always
presumed and the Chapter on Human Relations of the
Civil Code directs every person, inter alia, to observe
good faith which springs from the fountain of good
conscience. Specifically, a public officer is presumed to
have acted in good faith in the performance of his
duties. Mistakes committed by a public officer are not
actionable absent any clear showing that they were
motivated by malice or gross negligence amounting to
bad faith. "Bad faith" does not simply connote bad
moral judgment or negligence. There must be some
dishonest purpose or some moral obliquity and
conscious doing of a wrong, a breach of a sworn duty
through some motive or intent or ill will. It partakes of
the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some
motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action
caused undue injury to any party, including the
government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of
his functions. x x x
Petitioner failed to show that Balasbas acted with
manifest partiality, evident bad faith or inexcusable
negligence in issuing the subpoena. As further pointed
out by the Office of the Ombudsman in its Resolution
of 29 July 2002, there was no undue injury because
petitioner "had suffered no actual damage."
Although Balasbas initially recommended the filing of a
criminal case against Palad, this recommendation was
still subject to the approval of his superiors, Dimagiba
and the City Prosecutor. Balasbas, as investigating
prosecutor, had no power or control over the final
disposition of Palad’s motion to reopen the case.
Conducting a preliminary investigation for the purpose
of determining whether there exists probable cause to
prosecute a person for the commission of a crime,
including the determination of whether to conclude,
reopen or dismiss the criminal complaint subject of the
preliminary investigation, is a matter that rests within
the sound discretion of the provincial or city prosecutor.
This is clear from the provision of Section 4, Rule 112
of the Revised Rules on Criminal Procedure which
specifically states that no complaint or information may
be filed or dismissed by an investigating fiscal without
the prior written authority of the provincial or city fiscal
or chief state prosecutor or the Ombudsman or his
deputy, thus:
SEC. 4. Resolution of investigating prosecutor and its
review. If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath
in the information that he, or as shown by the record,
an authorized officer, has personally examined the
complainant and his witnesses; that there is
reasonable ground to believe that a crime has been
committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint
and of the evidence submitted against him; and that he
was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward
the record of the case to the provincial or city
prosecutor or chief state prosecutor or to the
Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution
within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on
the ground that a probable cause exists, the latter may,
by himself, file the information against the respondent,
or direct another assistant prosecutor or state
prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as
the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies
the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information
without conducting another preliminary investigation,
or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule
shall apply in preliminary investigations conducted by
the officers of the Office of the Ombudsman.
(Emphasis supplied)
Palad filed a motion to reopen the case because she
was not given any notice or subpoena relative to the
criminal case filed against her, invoking her basic
constitutional right to due process of law. When asked
to comment on Palad’s motion to reopen, Balasbas
even objected to the reopening of the case as this
would "only result to the delay in the final disposition of
the case."12 It was Dimagiba, his superior, who
recommended that the motion to reopen be granted "in
the interest of justice and considering that only 1
subpoena containing 2 scheduled dates was sent to
respondent, and there being no return thereof,
attached to the records." Dimagiba’s recommendation
was approved by the City Prosecutor.13 Consonant with
Section 4, Rule 112, Balasbas had no other recourse
but to follow the recommendation of his superior. The
subpoena he issued to the parties setting the case for
investigation was in pursuance to that recommendation
which was finally approved by the City Prosecutor.
As regards petitioner’s claim that Balasbas "blindly
followed the illegal orders of his superiors," it is worthy
to note that petitioner filed a similar case for violation of
Section 3(e) of RA 3019, as amended, this time against
Dimagiba involving the same Resolution dated 27
August 2001 submitted by Balasbas. This Court,
in Soriano v. Marcelo,14dismissed that petition for lack
of merit and held that petitioner was not able to show
that Dimagiba was motivated by self-interest or ill-will
in reopening the preliminary investigation stage of
Palad’s case. The Court further ruled that Dimagiba
acted in good faith, as he believed that a denial of the
motion to reopen the preliminary investigation due to
the accused’s failure to submit her counter-affidavit
would only lead to more delays.
We reiterate the ruling in Collantes,15 thus:
Agencies tasked with the preliminary investigation and
prosecution of crimes should never forget that the
purpose of a preliminary investigation is to secure the
innocent against hasty, malicious and oppressive
prosecution, and to protect one from an open and
public accusation of crime, from the trouble, expense
and anxiety of a public trial, and also to protect the
State from useless and expensive trials. It is, therefore,
imperative upon such agencies to relieve any person
from the trauma of going through a trial once it is
ascertained that the evidence is insufficient to sustain
a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused.
We find that the Office of the Ombudsman, acting
within the bounds of its constitutionally mandated duty,
did not commit grave abuse of discretion in dismissing
the complaint against Balasbas.
WHEREFORE, we DISMISS the petition.
We AFFIRM the Resolution dated 29 July 2002 and
the Order dated 14 July 2003 of the Office of the
Ombudsman in OMB-C-C-02-0246-E. Costs against
petitioner.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ON INFIDELITY IN THE CUSTODY OF PRISONERS
(1) G.R. No. L-58652 May 20, 1988
ALFREDO RODILLAS Y BONDOC, petitioner
vs.
THE HONORABLE SANDIGANBAYAN and THE
PEOPLE OF THE PHILIPPINES, respondents.
Santiago R. Robinol for petitioner.
The Solicitor General for respondents.
GUTIERREZ, JR., J.:
This is a petition brought by Alfredo Rodillas y Bondoc asking for the reversal
of a decision of the Sandiganbayan which found him guilty beyond
reasonable doubt of the crime of Infidelity in the Custody of Prisoner Thru
Negligence (Art. 224, RPC). The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby
rendered finding accused Alfredo
Rodillas y Bondoc GUILTY beyond
 reasonable doubt as principal in the
crime of Evasion through Negligence,
as defined and penalized under Article
224 of the Revised Penal Code, and
there being no modifying circumstance
to consider, hereby sentences him to
suffer the straight penalty of FOUR (4)
MONTHS and ONE (1) DAY of arresto
mayor, to suffer eight (8) years and one
(1) day of temporary special
disqualification and to pay the costs of
this action.
SO ORDERED. (Rollo, p. 30)
Petitioner Rodillas was charged with having committed
the said crime in an information which reads as follows:
That on or about the 27th day of March,
1980, in the City of Caloocan,
Philippines, and within the jurisdiction
of this Honorable Court, said accused,
being then a policeman duly appointed
and qualified as such, hence a public
officer, specially charged with the duty
of keeping under his custody and
vigilance and of conducting and
delivery from the City Jail, Caloocan
City to the Court of First Instance,
Branch XXXIV, Caloocan City and
return, one Zenaida Sacris Andres, a
detention prisoner being tried for
violation of Section 4, R.A. No. 6425,
otherwise known as the Dangerous
Drugs Act of 1972, under Crim. Case
No. C-12888, did then and there with
great carelessness and unjustifiable
negligence, allow and permit said
Zenaida Sacris Andres to have snacks
and enter the comfort room at the
second floor of the Genato Building,
Rizal Avenue, Caloocan City after the
hearing of said case, v,,ithout first
ascertaining for himself whether said
comfort room is safe and without any
egress by which the said detention
prisoner could escape, thereby
enabling said Zenaida Sacris Andres,
to run away and escape thru the
window inside the comfort room, as in
fact she did run away and escape from
the custody of said accused.
CONTRARY TO LAW. (Rollo, p. 6)
The prosecution's evidence upon which the court
based its finding of guilt is summarized as follows:
... accused herein is a Patrolman of the
Integrated National Police Force of
Caloocan City and assigned with the
jail section thereof. On March 27, 1980,
when he reported for work, he was
directed by his superior, Corporal
Victor Victoriano, officer-in-charge in
assigning police officers to escort
prisoners, to escort Zenaida Sacris
deadline Andres, a detention prisoner,
before the sala of Judge Bernardo
Pardo of the Court of First Instance,
Br.XXXIV, located at the Genato
Building, Caloocan City, to face trial for
an alleged Violation of the Dangerous
Drugs Act of 1972, as the policewoman
officer who was supposed to escort the
said detainee was then sick. He and
the detainee proceeded to the court
building and arrived thereat between
8:30 and 9:00 o'clock in the morning.
while waiting for the arrival of the judge
at the courtroom, Pat. Orlando Andres,
who happened to be in the court and a
relative of the husband of said
detention prisoner Zenaida,
approached the accused and
requested the latter if he could permit
Zenaida to talk to her husband. The
accused consented and Zenaida
Andres had a short talk with her
husband. After a short while, the
presiding judge deferred the decision
against her because of a new
Presidential Decree revising some
provisions regarding violations of the
Dangerous Drugs Act.
After the court had already adjourned,
the husband of Zenaida requested the
accused to allow them to have lunch as
they were already very hungry. He
consented to the request and they
proceeded to the canteen located at
the mezzanine floor of the court
building (Exhibit 1). He took a seat
<äre||an º• 1àw>
beside Zenaida and Pat. Andres while
the relatives of said detainee were
seated at a separate table. While
eating, the husband of Zenaida asked
him if he could accompany his wife to
the comfort room as she was not
feeling well and felt like defecating. The
accused accompanied Zenaida and a
lady companion to the ladies' comfort
room located at the second floor of the
building (Exibit 2). Zenaida and her
lady companion entered the comfort
room, while he stood guard along the
alley near the ladies' comfort room
facing the door thereof (Exhibit 5). Not
long after, the lady companion of
Zenaida came out of the comfort room
and told him that she was going to buy
sanitary napkins for Zenaida as the
latter was then bleeding and had a
menstruation and could not go out of
the comfort room.
After ten minutes elapsed without the
lady companion of Zenaida coming
back, the accused became suspicious
and entered the comfort room. To his
surprise, he found Zenaida no longer
inside the comfort room. He noticed
that the window of said comfort room
was not provided with window grills. He
tried to peep out of the window by
stepping on the flush tank which is just
about 3 feet from the window and
noticed that outside of the window
there was a concrete eave extending
down to the ground floor of the building
 which he presumed that Zenaida might
have used as a passage in escaping
(Exhibits 2-A, 3 and 4 to 4-C). He
immediately went out to look for the
escapee inside the building with the
help of Pat. Andres but they were not
able to see her. Pat. Andres advised
him to go to Zenaida's house as she
might be there, which home is located
at Bagong Barrio, Caloocan City. Pat.
Andres having told him that the
husband of the escapee is from Rizal,
Nueva Ecija, the accused borrowed the
car of his brother-in-law and proceeded
to said town. Upon arrival thereat, they
contacted the relatives of Zenaida and
asked for information as to her
whereabouts, but they answered in the
negative. They went back to Caloocan
City and went again directly to Bagong
Barrio to the house of Zenaida, arriving
thereat at around 8:00 o'clock in the
evening. While at the residence of
Zenaida, Cpl. Victoriano arrived and
the accused related to him about the
escape of Zenaida. He formally
reported the matter of his superior
officer at the City Jail Capt. Leonardo
Zamora. The accused declared further
that as a jailer, he never had any
training nor lecture by his superiors
regarding the manner of delivering
prisoners. However, he admitted that
he did not inspect first the comfort room
before he allowed Zenaida to enter
because there were many females
going in and out of said comfort room,
and that he did not promptly report the
escape earlier because they were then
pressed for time to intercept Zenaida at
the highway. (Rollo, pp. 18-21).
The petitioner assigns the following errors:
I
WHETHER PETITIONER'S
CONVICTION BY THE
SANDIGANBAYAN BASED ONLY ON
HIS ADMISSIONS WITHOUT THE
PROSECUTION HAVING
PRESENTED EVIDENCE TO PROVE
HIS NEGLIGENCE WILL LIE.
II
WHETHER THE ACTS OF
PETITIONER COULD BE QUALIFIED
AS DEFINITE LAXITY AMOUNTING
TO DELIBERATE NON-
PERFORMANCE OF DUTY TO
SUSTAIN HIS CONVICTION. (Brief for
the petitioner, p. 5)
In essence, the sole question to be resolved in the case
at bar is whether, under the foregoing facts and
circumstances, the respondent Sandiganbayan
committed a reversible error in holding the petitioner
guilty of infidelity in the custody of a prisoner through
negligence penalized under Art. 224 of the Revised
Penal Code.
The petitioner specifically alleges that his conviction by
the Sandiganbayan was based merely on his
admissions without the prosecution presenting
evidence to prove his negligence.
Sec. 22, Rule 130 of the Rules of Court states that "the
act, declaration, or omission of a party as to a relevant
fact may be given in evidence against him. The
admissions and declarations in open court of a person
charged with a crime are admissible against him. (See
U.S. v. Ching Po, 23 Phil. 578).
The records show that the elements of the crime for
which the petitioner was convicted are present. Article
224 of the Revised Penal Code states:
ART. 224. Evasion through negligence.
If the evasion of the prisoner shall have
taken place through the negligence of
the officer charged with the
conveyance or custody of the escaping
prisoner, said officer shall suffer the
penalties of arresto mayor in its
maximum period to prision correccional
in its minimum period and temporary
special disqualification.
The elements of the crime under the abovementioned
article are: a) that the offender is a public officer; b) that
he is charged with the conveyance or custody of a
prisoner, either detention prisoner or prisoner by final
judgment; and c) that such prisoner escapes through
his negligence (See Reyes, L.B., Revised Penal Code,
Book II, 1977 ed., p. 407).
There is no question that the petitioner is a public
officer. Neither is there any dispute as to the fact that
he was charged with the custody of a prisoner who was
being tried for a violation of the Dangerous Drugs Act
of 1972.
The only disputed issue is the petitioner's negligence
resulting in the escape of detention prisoner Zenaida
Andres. The negligence referred to in the Revised
Penal Code is such definite laxity as all but amounts to
a deliberate non-performance of duty on the part of the
guard (Id., p. 408).
It is evident from the records that the petitioner acted
negligently and beyond the scope of his authority when
he permitted his charge to create the situation which
led to her escape. The petitioner contends that human
considerations compelled him to grant Zenaida Andres
requests to take lunch and to go to the comfort room to
relieve herself.
As a police officer who was charged with the duty to
return the prisoner directly to jail, the deviation from his
duty was clearly a violation of the regulations.
In the first place, it was improper for the petitioner to
take lunch with the prisoner and her family when he
was supposed to bring his charge to the jail. He even
allowed the prisoner and her husband to talk to each
other at the request of a co-officer.
It is the duty of any police officer having custody of a
prisoner to take necessary precautions to assure the
absence of any means of escape. A failure to
undertake these precautions will make his act one of
definite laxity or negligence amounting to deliberate
non-performance of duty. His tolerance of
arrangements whereby the prisoner and her
companions could plan and make good her escape
should have aroused the suspicion of a person of
ordinary prudence.
The request for lunch and the consequent delay was
an opportunity for the prisoner to learn of a plan or to
carry out an earlier plan by which she could escape.
The plan was in fact carried out with the help of the lady
who accompanied his prisoner inside the comfort room.
The use of a toilet is one of the most familiar and
common place methods of escape. It is inconceivable
that a police officer should fall for this trick. The
arrangement with a lady friend should have aroused
the petitioner's suspicion because the only pretext
given by the petitioner was that she was going to
answer the call of nature. It was, therefore,
unnecessary for her to be accompanied by anyone
especially by someone who was not urgently in need
of a toilet if the purpose was merely to relieve herself.
Despite this, the petitioner allowed the two to enter the
comfort room without first establishing for himself that
there was no window or door allowing the possibility of
escape. He even allowed the prisoner's companion to
leave the premises with the excuse that the prisoner
was having her monthly period and that there was a
need to buy sanitary napkins. And he patiently waited
for more than ten minutes for the companion to return.
This was patent negligence and incredible naivette on
the part of the police officer.
Contrary to what the petitioner claims, the escape was
not a confluence of facts and,circumstances which
were not foreseen and were not unnatural in the course
of things. Not only should they have been foreseen but
they should have been guarded against.
Considering that the city jail was only a kilometer away
and it was only 11:30 a.m., it would not have been
inhuman for the petitioner to deny the prisoner's
request to first take lunch. Neither would it have been
inhuman if he cleared the toilet of female occupants
and checked all possible exists first and if he did not
allow the lady companion to go with Zenaida Andres to
the comfort room. These human considerations,
however, are immaterial because the fact remains that
as a police officer, he should have exercised utmost
diligence in the performance of his duty.
The supposed confluence of facts does not alter his
liability. That he was not trained in escorting women
prisoners is likewise unacceptable as there are no hard
and fast rules of conduct under all conceivable
situations for police officers acting as guards. However,
they are expected to use prudence, diligence, and
common sense. That Judge Pardo did not immediately
pronounce judgment so the petitioner could have
immediately brought Zenaida back to jail is
inconsequential. In the first place, the escape would not
have materialized had he immediately escorted her
back to jail after the hearing. That he cannot follow the
prisoner inside the comfort room because it would
create a commotion, he being a male, is a lame
excuse. There is nothing wrong in asking the ladies for
permission so he could check the comfort room first to
insure that the prisoner cannot escape. The fact that
the building is made of concrete and the outside
windows covered with grills should not make a police
officer complacent especially because well-planned
escapes are not uncommon. Escapes are, in fact, even
presumed so much so that two (2) guards are usually
assigned to a prisoner. (Tsn, August 4, 1981, p. 40)
There appears to have been no genuine effort on the
part of the petitioner to recapture the escapee. Instead
of promptly reporting the matter so that an alarm could
immediately be sent out to all police agencies and
expert procedures followed, he allegedly tried to look
for her in the latter's house in Caloocan and failing in
this, proceeded to Nueva Ecija. It was only later in the
evening that he formally reported the matter to his
superior. This even gave the escapee greater
opportunity to make good her escape because the
chances of her being recaptured became much less.
Such action requires concerted police effort, not a one-
man job which petitioner should have been or was
probably aware of.
The petitioner further contends that he cannot be
convicted because there was no connivance between
him and the prisoner. In support of his claim, he cites
the case of Alberto v. dela Cruz, (98 SCRA 406). The
citation, however, is erroneous. It creates the
impression that for one to be held liable under Art. 224,
there must be a showing that he first connived with the
prisoner. This was not the ruling in said case.
Conniving or consenting to evasion is a distinct crime
under Art. 223 of the Revised Penal Code.
The petitioner here is not being charged with conniving
under Art. 223 but for evasion through negligence
under Art. 224 of the same Code. It is, therefore, not
necessary that connivance be proven to hold him liable
for the crime of infidelity in the custody of prisoners.
We quote the Solicitor General that the
Sandiganbayan's observation regarding escaped
prisoners is relevant and timely. The Court stated:
It is high time that the courts should
take strict measures against law
officers to whom have been entrusted
the custody and detention of prisoners,
whether detention prisoners or
prisoners serving sentence. Laxity and
negligence in the performance of their
duties resulting in the mysterious
escapes of notorious criminals have
become common news items, involving
as it does the suspicion that monetary
considerations may have entered into
the arrangements which led to the
successful escape of such notorious
criminals even from military custody.
No quarters should be extended to
such kind of law officers who,
deliberately or otherwise, fail to live up
to the standard required of their duties,
thus directly contributing not only to the
clogging of judicial dockets but also to
the inevitable deterioration of peace
and order. (Brief for Respondents, pp.
17-18)
WHEREFORE, the petition is hereby DISMISSED. The PX626 CC0773
questioned decision of the Sandiganbayan is 1 500.00 1 500.00
388 37
AFFIRMED.
BR666 WW164
1 500.00 1 500.00
SO ORDERED. 774 152
PX626 WW164
1 500.00 1 500.00
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, 388 152
Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
BR666 BR6667
Cortes, and Griño-Aquino, JJ., concur. 1 500.00 1 500.00
774 74

VII. CRIMES AGAINST PUBLIC INTEREST (Art. 161- UU710 PX6263

1 500.00 1 500.00
189) 062 88
CC077 PX6263
Art. 168- Illegal Possesion of False Treasury/ Bank 1 500.00 1 500.00
337 88
Notes
Which are false and falsified.
(1) G.R. No. 194367 June 15, 2011
Contrary to law.
MARK CLEMENTE y MARTINEZ @ EMMANUEL
DINO, Petitioner,
vs. Upon arraignment, petitioner entered a plea of not
PEOPLE OF THE PHILIPPINES, Respondent. guilty. Trial thereafter ensued.

DECISION The version of the prosecution and the defense, as

summarized by the CA, are as follows:6
VILLARAMA, JR., J.:
The prosecution presented three (3) witnesses,
namely: Jail Officer 1 (JO1) Michael Michelle Passilan,
Before us is a petition for review on certiorari under the Investigator of the Manila City Jail; JO1 Domingo
Rule 45 of the 1997 Rules of Civil Procedure, as
David, Jr.; and Loida Marcega Cruz, the Assistant
amended, seeking to reverse the March 29, 2010
Manager of the Cash Department of the Bangko
Decision1 of the Court of Appeals (CA) which denied
Sentral ng Pilipinas.
petitioner's appeal and affirmed the November 3, 2008
Judgment2 of the Regional Trial Court (RTC) of Manila,
Branch 7, convicting petitioner of illegal possession [Their testimonies established the following:]
and use of false bank notes under Article 1683 of
the Revised Penal Code (RPC), as amended. Also Appellant is a detainee at the Manila City Jail. On
assailed is the CA Resolution dated October 14, August 7, 2007, at around 3:30 pm, an informant in the
20104 denying petitioner's motion for reconsideration. person of inmate Francis dela Cruz approached JO1s
Domingo David, Jr. and Michael Passilan. The
Petitioner was charged before the RTC with violation of informant narrated that he received a counterfeit
Article 168 of the RPC under an Information5 which P500.00 bill from appellant with orders to buy a bottle
reads: of soft drink from the Manila City Jail Bakery. The
bakery employee, however, recognized the bill as a
fake and refused to accept the same. Consequently,
That on or about August 5, 2007, in the City of Manila,
JO1s David and Passilan, along with the informant,
Philippines, the said accused, with intent to use, did
proceeded to appellant's cell for a surprise inspection.
then and there willfully, unlawfully, feloniously and
Pursuant to their agreement, the informant entered the
knowingly have in his possession and under his
cubicle first and found appellant therein, lying in bed.
custody and control twenty[-]four (24) pcs. [of] P500.00
The informant returned to appellant the latter's P500.00
bill with Markings ["] IIB-1" to "IIB-24", respectively and
bill. The jail guards then entered the cell and
specifically enumerated, to wit:
announced a surprise inspection. JO1 Passilan frisked
appellant and recovered a black wallet from his back
SERIA PC AMOU SERIAL PC AMOU pocket. Inside the wallet were twenty-three (23) pieces
L NO. S. NT NO. S. NT of P500.00, all of which were suspected to be
counterfeit. They confiscated the same and marked
PX626 P500. CC0773 ₱500. them sequentially with "IIB-2" to "II-B24". They likewise
1 1
388 00 37 00 marked the P500.00 bill that was returned by informant
CC077 CC0773 to appellant with "IIB-1". Appellant was consequently
1 500.00 1 500.00 arrested and brought out of his cell into the office of the
337 37
Intelligence and Investigation Branch (IIB) of the Manila
CC077 CC0773 City jail for interrogation.
1 500.00 1 500.00
337 37
BR666 CC0773 Meanwhile, the twenty-four (24) P500.00 bills
1 500.00 1 500.00
774 37 confiscated from appellant were turned over to
the Bangko Sentral ng Pilipinas for analysis. Pursuant
CC077 BR6667 to a Certification dated August 7, 2007, Acting
1 500.00 1 500.00
337 74 Assistant Manager Loida Marcega Cruz of the Bangko
BB020 BR6667 Sentral ng Pilipinas examined and found the following
1 500.00 1 500.00 bills as counterfeit, viz: one (1) P500.00 bill with Serial
523 74
Number BB020523; six (6) P500.00 bills with Serial
Number BR666774; nine (9) P500.00 bills with Serial
Number CC077337; five (5) P500.00 bills with Serial
Number PX626388; one (1) P500.00 bill with Serial
Number UU710062; and two (2) P500.00 bills with
Serial Number WW164152.
For the defense, appellant was the lone witness
presented on the stand.
Appellant simply raised the defense of frame-up. He
testified that in the afternoon of August 5, 2007, he was
inside his room located at Dorm 1 of the Manila City
Jail. At around 3:00 pm, JO1 Michael Passilan entered
appellant's room while JO1 Domingo David, Jr. posted
himself outside. Without any warning, JO1 Passilan
frisked appellant and confiscated his wallet containing
one (1) P1,000.00 bill. JO1s David and Passilan left
immediately thereafter. Appellant was left with no other
choice but to follow them in order to get back his wallet.
Appellant followed the jail officers to the Intelligence
Office of the Manila City Jail where he saw JO1
Passilan place the P500.00 bills inside the confiscated
black wallet. Appellant was then told that the P500.00
bills were counterfeit and that he was being charged
with illegal possession and use thereof. Appellant also
added that JO1 Passilan bore a grudge against him.
This was because appellant refused to extend a loan
[to] JO1 Passilan because the latter cannot offer any
collateral therefor. Since then, JO1 Passilan treated
him severely, threatening him and, at times, putting him
in isolation.
After trial, the RTC found petitioner guilty beyond
reasonable doubt of the crime charged. The RTC gave
credence to the prosecution's witnesses in finding that
the counterfeit money were discovered in petitioner's
possession during a surprise inspection, and that the
possibility that the counterfeit money were planted to
incriminate petitioner was almost nil considering the
number of pieces involved.7 The RTC also did not find
that the jail officers were motivated by improper motive
in arresting petitioner,8 and applied in their favor the
presumption of regularity in the performance of official
duties considering the absence of contrary evidence.
As to petitioner’s defense of frame-up, the RTC held
that the purported frame-up allegedly staged by JO1
Passilan would not affect the prosecution's evidence
since the testimony of JO1 David could stand by itself.
The RTC likewise found that it was strange that
petitioner did not remonstrate despite the fact that he
was allegedly being framed.9
As to the elements of the crime, the RTC held that the
fact that the ₱500.00 bills found in petitioner’s
possession were forgeries was confirmed by the
certification issued by the Cash Department of
the Bangko Sentral ng Pilipinas, which was testified
into by Acting Assistant Manager Loida A. Cruz. 10 The
RTC also ruled that petitioner knew the bills were
counterfeit as shown by his conduct during the surprise
search and his possession of the bills. As to the
element of intention to use the false bank notes, the
RTC ruled that the fact that petitioner intended to use
the bills was confirmed by the information received by
the jail officers from another inmate.11
Aggrieved, petitioner sought reconsideration of the
judgment. Petitioner argued that the evidence used
against him was obtained in violation of his
constitutional right against unreasonable searches and
seizures. Petitioner also argued that the prosecution
failed to prove his guilt beyond reasonable doubt
because of the non-presentation of the informant-
inmate, Francis dela Cruz, who could have
corroborated the testimonies of the jail officers.
Unconvinced, the RTC denied petitioner’s motion for
reconsideration. The RTC, however, only ruled that
there was no violation of petitioner’s constitutional right
against unreasonable searches and seizures because
the seizure was done pursuant to a valid arrest for
violation of Article 168 of the RPC. The trial court
pointed out that prior to the search, a crime was
committed and the criminal responsibility pointed to
petitioner.12
On appeal before the CA, petitioner argued that the
RTC erred in finding him guilty beyond reasonable
doubt for violating Article 168 of the RPC. Petitioner
contended that one of the elements of the crime which
is intent to use the counterfeit bills was not established
because the informant Francis dela Cruz did not take
the witness stand.13
The CA, however, found the appeal unmeritorious and
denied petitioner’s appeal.14 The appellate court found
that the fact the petitioner was caught in possession of
twenty-four (24) pieces of fake ₱500.00 bills already
casts doubt on his allegation that he was merely
framed by the jail guards. The CA agreed with the RTC
that even without the testimony of JO1 Passilan, the
testimony of JO1 David was already sufficient to
establish petitioner’s guilt since petitioner did not
impute any ill motive on the latter except to point out
that JO1 David was JO1 Passilan’s friend.15 1avvp hi1
Regarding the element of intent to use, the CA found
that there are several circumstances which, if taken
together, lead to the logical conclusion that petitioner
intended to use the counterfeit bills in his possession.
The CA pointed out that jail officers were informed by
inmate Francis dela Cruz that he received a fake
₱500.00 bill from petitioner who told him to buy soft
drinks from the Manila City jail bakery. After Francis
dela Cruz identified petitioner as the person who gave
him the fake money, the jail officers conducted a
surprise inspection. Said inspection yielded twenty-
three (23) pieces of counterfeit ₱500.00 bills inside
petitioner's black wallet, which was taken from his back
pocket. The CA further held that the non-presentation
of Francis dela Cruz would not affect the prosecution's
case because even without his testimony, petitioner’s
intent to use the counterfeit bills was established. The
CA added that the matter of which witnesses to present
is a matter best left to the discretion of the
prosecution.16
Petitioner sought reconsideration of the above ruling,
but the CA denied petitioner’s motion for
reconsideration in the assailed Resolution dated
October 14, 2010.17 Hence, the present appeal.
Petitioner raises the following assignment of errors, to
wit:
I.
THE COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE
 REGIONAL TRIAL COURT, CONVICTING
PETITIONER OF THE CRIME CHARGED,
DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE AN ELEMENT
OF THE OFFENSE.
II.
THE COURT OF APPEALS ERRED IN NOT
EXCLUDING THE COUNTERFEIT BILLS
SINCE THEY WERE DERIVED FROM
UNREASONABLE SEARCH AND SEIZURE.18
The petition is meritorious.
Generally, the trial court’s findings are accorded
finality, unless there appears in the record some fact or
circumstance of weight which the lower court has
overlooked, misunderstood or misappreciated, and
which, if properly considered, would alter the result of
the case. The exception applies when it is established
that the trial court has ignored, overlooked,
misconstrued or misinterpreted cogent facts and
circumstances which, if considered, will change the
outcome of the case.19
Here, the Court finds that the RTC and the CA had
overlooked certain substantial facts of value to warrant
a reversal of its factual assessments. While petitioner's
denial is an intrinsically weak defense which must be
buttressed by strong evidence of non-culpability to
merit credence, said defense must be given credence
in this case as the prosecution failed to meet its burden
of proof.
Article 168 of the RPC, under which petitioner was
charged, provides:
ART. 168. Illegal possession and use of false treasury
or bank notes and other instruments of credit. —
Unless the act be one of those coming under the
provisions of any of the preceding articles, any person
who shall knowingly use or have in his possession, with
intent to use any of the false or falsified instruments
referred to in this section, shall suffer the penalty next
lower in degree than that prescribed in said articles.
[Emphasis supplied.]
The elements of the crime charged for violation of said
law are: (1) that any treasury or bank note or certificate
or other obligation and security payable to bearer, or
any instrument payable to order or other document of
credit not payable to bearer is forged or falsified by
another person; (2) that the offender knows that any of
the said instruments is forged or falsified; and (3) that
he either used or possessed with intent to use any of
such forged or falsified instruments.20 As held in People
v. Digoro, 21 possession of false treasury or bank notes
alone, without anything more, is not a criminal offense.
For it to constitute an offense under Article 168 of the
RPC, the possession must be with intent to use said
false treasury or bank notes.221av vphi1
In this case, the prosecution failed to show that
petitioner used the counterfeit money or that he
intended to use the counterfeit bills. Francis dela Cruz,
to whom petitioner supposedly gave the fake ₱500.00
bill to buy soft drinks, was not presented in court.
According to the jail officers, they were only informed
by Francis dela Cruz that petitioner asked the latter to
buy soft drinks at the Manila City jail bakery using a
fake ₱500.00 bill. In short, the jail officers did not have
personal knowledge that petitioner asked Francis dela
Cruz use the ₱500.00 bill.23 Their account, however, is
hearsay and not based on the personal knowledge.24
This Court, of course, is not unaware of its rulings that
the matter of presentation of prosecution witnesses is
not for the accused or, except in a limited sense, for the
trial court to dictate. Discretion belongs to the city or
provincial prosecutor as to how the prosecution should
present its case.25 However, in this case, the non-
presentation of the informant as witness weakens the
prosecution's evidence since he was the only one who
had knowledge of the act which manifested petitioner's
intent to use a counterfeit bill. The prosecution had
every opportunity to present Francis dela Cruz as its
witness, if in fact such person existed, but it did not
present him. Hence, the trial court did not have before
it evidence of an essential element of the crime. The
twenty-three (23) pieces of counterfeit bills allegedly
seized on petitioner is not sufficient to show intent,
which is a state of mind, for there must be an overt act
to manifest such intent.
WHEREFORE, the petition for review on certiorari is
GRANTED. The Decision dated March 29, 2010 and
Resolution dated October 14, 2010 of the Court of
Appeals in CA-G.R. CR No. 32365 are REVERSED
and SET-ASIDE. Petitioner Mark Clemente y Martinez
alias Emmanuel Dino is hereby ACQUITTED of the
crime of Illegal possession and use of false bank notes
defined and penalized under Article 168 of the Revised
Penal Code, as amended.
With costs de oficio.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR
Footnotes
2
Id. at 47-58. Penned by Judge Ma.Theresa
Dolores C. Gomez-Estoesta. The dispositive
portion of the RTC decision reads:
WHEREFORE, this Court finds
accused Mark Clemente y Martinez
a.k.a. Emmanuel Dino GUILTY beyond
reasonable doubt of a violation of
Article 168 of the Revised Penal Code
for Illegal Possession and Use of False
Bank Notes which is penalized under
Article 168 of the same Code.
There being neither mitigating nor
aggravating circumstance alleged nor
proven, pursuant to the provisions of
the Indeterminate Sentence Law, this
Court imposes upon said Mark
Clemente y Martinez a.k.a. Emmanuel
Dino an indeterminate penalty of
EIGHT (8) YEARS and ONE (1) DAY
of prision mayor in its medium period
as minimum to TEN (10) YEARS,
 EIGHT (8) MONTHS and ONE (1) DAY
of prision mayor in its medium period
as maximum and to pay a FINE OF
FIVE THOUSAND PESOS
(P5,000.00).
The preventive imprisonment accused
has undertaken shall be CREDITED to
the service of his sentence.
In contemplation of Circular No. 61,
Series of 1995, issued by the Bangko
Sentral ng Pilipinas, the Branch Sheriff
of this Court is directed to TRANSMIT
the twenty[-four] (24) pieces of P500.00
bills found to be counterfeit to the Cash
Department of the Bangko Sentral ng
Pilipinas for proper disposition.
With costs de oficio against the
accused.
SO ORDERED.
3
Article 168. Illegal possession and use of
false treasury or bank notes and other
instruments of credit.—Unless the act be one
of those coming under the provisions of any of
the preceding articles, any person who shall
knowingly use or have in his possession, with
intent to use any of the false or falsified
instruments referred to in this section, shall
suffer the penalty next lower in degree than that
prescribed in saidarticles.
(2) G.R. No. 113218 November 22, 2001
ALEJANDRO TECSON, petitioner,
vs.
HON. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DE LEON, JR., J.:
Before us on appeal by certiorari is the Decision1 of the
Court of Appeals in CA-G. R. No. 11744 promulgated
on August 31, 1993, and its Resolution dated
December 23, 1993, denying petitioner's motion for
reconsideration.
This case stemmed from a charge of illegal possession
and use of counterfeit US dollar notes, as defined and
penalized under Article 168 of the Revised Penal Code,
against herein petitioner Alejandro Tecson y Florencio.
The Information reads:
That on or about April 28, 1990, in the City of
Manila, Philippines, the said accused did then
and there wilfully, unlawfully, feloniously and
knowingly have in his possession and under his
custody and control, with intent to use and
pass, as in fact he did use and pass ten (10)
pieces of 100-US dollar notes of the Federal
Reserve Note, or a sum of $1,000.00 (US
Dollar) to Pedro C. Labita, a confidential
assistant of the Central Bank of the Philippines,
which bills were in the resemblance and
similitude of the dollar bills issued by the United
States Government, the said accused knowing,
as he did, that the said US dollar bills were
forged and falsified.
Contrary to law.
Upon being arraigned on July 20, 1990, the petitioner
entered the plea of "Not guilty" to the charge.
After trial on the merits, the trial court rendered a
Decision2 dated May 6, 1991, the dispositive portion of
which reads:
WHEREFORE, the Court finds and declares
accused ALEJANDRO F. TECSON, GUILTY
beyond reasonable doubt of the offense as
defined in Art. 168 and penalized in Art. 166
paragraph 1 of the Revised Penal Code; and
hereby sentenced him to suffer an
indeterminate penalty of from EIGHT (8)
YEARS and ONE (1) DAY of prision mayor in
its medium period as minimum to TEN (10)
YEARS, EIGHT (8) MONTHS and ONE (1)
DAY of prision mayor in its medium period as
maximum; to pay a fine of P5,000.00; and to
pay the cost.
The Branch Clerk of Court is directed to burn
the ten (10) pieces of 100 US dollar notes
subject of the offense.
SO ORDERED.
Aggrieved by the decision of the trial court, the
petitioner filed an appeal with the Court of Appeals
which affirmed the judgment of the trial court in toto on
August 31, 1993. Petitioner sought a reconsideration of
the decision of the appellate court but it was denied on
December 23, 1993.3
Hence, the instant petition.
From the evidence adduced by the prosecution, it
appears that a civilian informer personally informed the
Cash Department of the Central Bank of the Philippines
that a certain Mang Andy was involved in a syndicate
engaging in the business of counterfeit US dollar notes.
On April 26, 1990 a test-buy operation was ordered by
Atty. Pio Chan, Jr., Chief of the Investigation Staff of
the Central Bank, which resulted in the purchase from
Mang Andy of one (1) US dollar note for Two Hundred
Pesos (P200.00) that was found to be counterfeit by
the Currency Analysis and Redemption Division of the
Central Bank. Consequently, Atty. Chan formed a team
to conduct a buy-bust operation composed of
prosecution witnesses Pedro Labita, Confidential
Assistant of the Investigation Staff of the Central Bank,
and Cpl. Johnny Marqueta, a representative of the US
Secret Service, together with William Pasive, Warren
Castillo and Carlos Toralde, Jr. also of the Investigation
Staff of the Central Bank.4
On April 28, 1990, at about 11:30 o'clock in the
morning, the team proceeded to the Jollibee restaurant
in Rizal Ave., Sta. Cruz, Manila. Three (3) members of
the team namely: William Pasive, Carlos Toralde, Jr.,
and Warren Castillo positioned themselves outside the
Jollibee restaurant while Pedro Labita and Johnny
Marqueta proceeded inside. Subsequently, the civilian
informer arrived inside the restaurant and approached
a man who was seated two (2) tables away from where
Labita and Marqueta were positioned. The informer
introduced to Mang Andy the said Pedro Labita and
Johnny Marqueta as the persons interested in buying
US dollar notes. Apparently convinced, the man drew
ten (10) pieces of US $100 dollar notes from his wallet.
At that moment, and upon a pre-arranged signal from
the informer, Labita and Marqueta introduced
themselves as Central Bank operatives and
apprehended the man called Mang Andy whom they
later identified as the herein petitioner Alejandro
Tecson.5
During the investigation at the Central Bank, the
petitioner affixed his initial on the dorsal portion of each
of the ten (10) pieces of US $100 dollar notes 6 and
signed the corresponding receipt7 for the said US dollar
notes seized from him. He also executed a
"Pagpapatunay"8 attesting to the proper conduct of the
investigation by the Central Bank operatives on the
petitioner. Subsequent examination by the Currency
Analysis and Redemption Division of the Central Bank
shows that the ten (10) pieces of US $100 dollar notes
confiscated from the petitioner are indeed counterfeit.9
The defense denied any liability of the petitioner for the
crime of illegal possession and use of counterfeit US
dollar notes. Petitioner testified that he was inside the
Jollibee restaurant in Sta. Cruz, Manila on April 28,
1990 to meet a certain Nora Dizon, wife of his friend,
Reynaldo de Guzman, who previously sought his
assistance in securing insurance payment bond. After
Nora's arrival at the restaurant, she handed to him a
sealed envelope which he accepted thinking that it
contained the documents pertaining to the insurance
payment bond. Upon receipt of the sealed envelope,
however, two (2) male persons approached and
immediately handcuffed him. They dragged him
outside the restaurant where three (3) other persons
were waiting. After boarding a taxi, they blindfolded the
petitioner and took him to the Central Bank building in
F. B. Harrison St., Manila where he was investigated.10
The investigators inquired from the petitioner about the
source of the fake US dollar notes. Petitioner
vehemently denied having possession nor any
knowledge as to the source of the fake US dollar notes
and claimed that the same were merely planted by the
arresting officers. Petitioner also claimed that he was
tortured into initialing the dorsal portions of the ten (10)
counterfeit US $100 dollar notes and into signing the
Receipt and Inventory for Property/Articles Seized as
well as the ''Pagpapatunay".11
The instant appeal by certiorari12 reveals the following
assignment of errors:
I the Revised Penal Code.
RESPONDENT COURT OF APPEALS FAILED TO
FIND THAT THE PROSECUTION'S EVIDENCE IS
NOT SUFFICIENT TO SUPPORT PETITIONER'S
CONVICTION OF THE CRIME CHARGED.
II
RESPONDENT COURT OF APPEALS GRAVELY
ERRED IN NOT FINDING THAT THE EVIDENCE
PRESENTED BY THE PROSECUTION IS NOT
ADMISSIBLE IN LAW.
In essence, petitioner claimed that no buy-bust
operation took place inside the Jollibee restaurant in
Rizal Ave., Sta. Cruz, Manila on April 28, 1990
inasmuch as there was no haggling as to the price
between him and the poseur buyers, and that no
money changed hands. He was merely framed up by
the Central Bank operatives by planting fake US dollar
notes inside the envelope which was handed to him by
the wife of his friend who earlier asked for his
assistance regarding insurance payment bond. He
accepted the envelope thinking that it contained the
documents pertaining to the insurance payment bond.
Assuming arguendo that a buy-bust operation was
conducted, the petitioner claimed that the testimony of
prosecution witness Pedro Labita to the effect that the
civilian informer had to convince the petitioner negated
any alleged intent on his part to sell counterfeit US
dollar notes to the poseur buyers. In addition, he
averred that prosecution witnesses Labita and
Marqueta had no personal knowledge as to petitioner's
alleged possession of counterfeit US dollar notes as
they merely relied on the predetermined signal of the
civilian informer before making the arrest. Hence, the
ten (10) counterfeit US $100 dollar notes allegedly
confiscated from him (petitioner) incidental to his arrest
are inadmissible in evidence. Likewise, his initial on the
dorsal portion of the said US dollar notes and his
signature on the "Pagpapatunay" are inadmissible for
having been obtained without the aid of counsel. That
is the version of the petitioner.
The respondents, represented by the Office of the
Solicitor General (OSG), countered in their Comment
that the absence of haggling among the parties to the
buy-bust operation did not negate petitioner's actual
possession and use of the ten (10) counterfeit US $100
dollar notes, which fact of possession is punishable by
law. Prosecution witnesses Pedro Labita and Johnny
Marqueta, who acted as poseur buyers, testified that
they saw the petitioner drew the subject fake US dollar
notes from his wallet13 in order to sell the same to them.
While respondents, through counsel, conceded that
the "Pagpapatunay" and the "Receipt and Inventory for
Property/Articles Seized" which were signed by the
petitioner during his custodial investigation are
inadmissible in evidence for having been obtained in
the absence of his counsel, they maintained that there
are sufficient independent evidence on record to prove
his guilt beyond reasonable doubt.14
By way of reply,15 the petitioner, who is now 70 years
of age,16 contends that possession should be coupled
with intent to use the counterfeit US dollar bills in order
to hold him liable under the provision of Article 168 of
Article 168 of the Revised Penal Code provides that:
ART. 168. Illegal possession and use of false
treasury or bank notes and other instruments
of credit. — Unless the act be one of those
coming under the provisions of any of the
preceding articles, any person who shall
knowingly use or have in his possession, with
intent to use any of the false or falsified
 instruments referred to in this section, shall
suffer the penalty next lower in degree than that
prescribed in said articles.
The elements of the crime charged for violation of
Article 168 of the Revised Penal Code, are: 1 ) that any
treasury or bank note or certificate or other obligation
and security payable to bearer, or any instrument
payable to order or other document of credit not
payable to bearer is forged or falsified by another
person; 2) that the offender knows that any of the said
instruments is forged or falsified; and 3) that he either
used or possessed with intent to use any of such
forged or falsified instruments.17 Hence, possession of
fake dollar notes must be coupled with the act of using
or at least with intent to use the same as shown by a
clear and deliberate overt act in order to constitute a
crime,18 as was sufficiently proven in the case at bar.
We find no cogent reason to overturn the decision of
respondent Court of Appeals which affirmed the
judgment of the trial court finding the petitioner guilty
beyond reasonable doubt of the crime charged in the
case at bar. The prosecution established, through the
testimonies of Pedro Labita and Johnny Marqueta, that
a buy-bust operation was conducted by the combined
agents of the Central Bank of the Philippines and the
US Secret Service, and that the petitioner was therein
caught in flagrante delicto in the possession of and in
the act of offering to sell counterfeit US dollar notes.
During the buy-bust operation, prosecution witnesses
Labita and Marqueta were introduced by the civilian
informer to the petitioner as interested buyers of fake
US dollar notes. When the petitioner was in the act of
drawing the ten (10) pieces of fake US $100 dollar
notes from his wallet, he was immediately placed under
arrest by Labita and his team.
The testimony of Pedro Labita which was corroborated
by Johnny Marqueta and the presentation during the
trial of the ten (10) counterfeit US $100 dollar notes,
which were confiscated from the petitioner when he
was arrested, proved beyond reasonable doubt the
guilt of the petitioner for the crime of illegal possession
and use of fake US dollar notes under Article 168 of the
Revised Penal Code. The trial court in its decision
characterized the respective testimonies
prosecution witnesses Labita and Marqueta as "clear,
straightforward, impartial and (thus) convincing".19 We
fail to discern any ill motive on the part of the said
prosecution witnesses in testifying against the
petitioner whom they met for the first time only on April
28, 1990. Petitioner himself admitted during the trial
that he was not aware of any ill motive on the part of
the prosecution witnesses to implicate him in the crime
of counterfeiting US dollar notes.20 The settled rule is
that the testimony of even a lone prosecution witness
as long as it is positive and clear and not arising from
an improper motive to impute a serious offense to the
accused, deserves full credit.21
The absence of haggling as to the price of the subject
fake US dollar notes between the petitioner and the
poseur buyers did not negate the fact of the buy-bust
operation. Significantly, the transaction for the
purchase of fake US dollar notes was only at its
inception when the Central Bank operatives at that
point decided to apprehend the petitioner. Mere
possession coupled with intent to use the counterfeit
US dollar notes, as proven in the case at bar, is
sufficient to constitute the crime under Article 168 of the
Revised Penal Code.
The facts, as established by the evidence adduced,
show that the civilian informer introduced prosecution
witnesses Labita and Marqueta to the petitioner as the
persons interested in buying fake US dollar notes.
Having been thus convinced, petitioner removed his
wallet from his pocket and drew the ten (10) pieces of
fake US $100 dollar notes to show the same to the
supposed buyers. Petitioner's natural reaction to the
seeming interest of the poseur buyers to buy fake US
dollar notes constitutes an overt act which clearly
showed his intention to use or sell the counterfeit US
dollar notes. In any event, what we have here is a case
of entrapment which is allowed, and not instigation.
Petitioner cannot validly claim that he had no intention
of committing the crime by citing the testimony of Pedro
Labita to the effect that he (petitioner) was merely
convinced by the civilian informer that Labita and
Marqueta were interested to buy fake US dollar notes.
The pertinent portion of Labita's testimony reads, thus:
ASST. CITY PROSECUTOR:
Q: All right, let me clarify this, Mr. Witness.
This informant or informer that you mentioned,
he also arrived there at the Jollibee Restaurant,
Mr. Witness?
A: Yes, sir, but he arrived late.
Q: So, he arrived late. Now, after the arrival
of this informant at the Jollibee Restaurant,
what did this informant do inside the Jollibee
restaurant while you were there, Mr. Witness?
A: Our informer tried to convince the
accused and after convincing that we are the
buyers of said counterfeit notes, he
immediately draws (sic) from his wallet that
(sic) counterfeit notes, and upon pre-signal of
our informer, we immediately apprehended the
accused, sir.22
of
The above-quoted testimony of prosecution witness
Labita negates the petitioner's claim that he was
merely instigated into committing the crime by the
civilian informer. It appears that prior to the buy-bust
operation, the petitioner already had the intention to
sell counterfeit US dollar notes as he, in fact, had an
agreement with the civilian informer to arrange for a
meeting with interested buyers. In other words, the
civilian informer did not have to convince the petitioner
to sell fake US dollar notes during the buy-bust
operation on April 28, 1990 inside the Jollibee
restaurant in Rizal Ave., Sta Cruz, Manila. What the
informer actually did during the buy-bust operation was
simply to convince the petitioner that prosecution
witnesses Labita and Marqueta were interested buyers
of counterfeit US dollar notes.
The petitioner cannot validly impugn the admissibility
of the subject ten (10) counterfeit US $100 dollar notes
confiscated from him when he was thus arrested. It is
clear from the testimony of prosecution witness Pedro
Labita that he saw the petitioner drew several pieces of
fake US dollar notes from his wallet to show to them
after they were introduced by the civilian informer as
the interested buyers while they were inside the
Jollibee restaurant, thus:
ASST. CITY PROSECUTOR:
Q: Now, Mr. Witness, after this Johnny
Marqueta and you were introduced to the
accused, what did the accused do after the
introduction?
A: He immediately drew his counterfeit
dollar notes from his wallet and right after that
we identified ourselves as agents of the Central
Bank, sir.23
When the arrest of the petitioner was made, Labita did
not have to rely on the prearranged signal of the
informer inasmuch as he (Labita) had unhindered view
and appreciation of what was then taking place right
before his eyes. Hence, the ten (10) counterfeit US
$100 dollar notes are admissible in evidence for the
reason that the petitioner was caught in flagrante
delicto by the prosecution witnesses during the said
buy-bust operation. In other words, this is a case of a
legally valid warrantless arrest and seizure of the
evidence of the crime.
In view of the foregoing, petitioner's allegation that he
was framed-up by the Central Bank agents does not
deserve any consideration. This hackneyed defense of
alleged frame-up of the accused caught in flagrante
delicto during a buy-bust operation has been viewed
with disdain by the courts for it is easy to concoct and
difficult to prove.24Besides, there is a legal presumption
that public officers, including arresting officers,
regularly perform their official duties. 25 That legal
presumption was not overcome by any credible
evidence to the contrary.
Apparently clutching at the last straws, as it were,
petitioner also alleged that he was tortured into signing
the dorsal portions of the fake ten (10) US $100 dollar
notes confiscated from him by the arresting officers and
the "i". Other than his self-serving testimony, the
petitioner failed to prove his allegation of torture. Also,
he did not file any criminal or administrative action
against his alleged tormentors. Suffice it to state that
petitioner's conviction for the crime charged in the
information is not anchored on the evidence obtained
during his custodial investigation which were
disregarded by respondent appellate court for having
been obtained without the assistance of his counsel.
In sum, there is no reversible error in the subject
Decision of the Court of Appeals.
WHEREFORE, the Decision of the Court of Appeals in
CA-G.R. No. 11744 is hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena,
JJ., concur.
On FORGERY
G.R. No. L-16806 December 22, 1961
SERGIO DEL ROSARIO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
P. N. Stuart del Rosario for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
Accused of counterfeiting Philippine treasury notes,
Sergio del Rosario, Alfonso Araneta and Benedicto del
Pilar were convicted by the Court of First Instance of
Davao of illegal possession of said forged treasury
notes and sentenced to an indeterminate penalty
ranging from 8 years and 1 day to 10 years and 1 day
of prision mayor, and pay a fine of P5,000, without
subsidiary imprisonment in case of insolvency, as well
as a proportionate part of the costs. On appeal, the
judgment was affirmed by the Court of Appeals, except
insofar as the maximum of said indeterminate penalty
which was increased to 10 years, 8 months and 1 day
of prision mayor. The case is before us on appeal
by certiorari taken by Sergio del Rosario.
It appears that, after showing to complainant Apolinario
del Rosario the Philippine one-peso bills Exhibits C, E
and G and the Philippine two-peso bill Exhibit H, and
inducing him to believe that the same were counterfeit
paper money manufactured by them, although in fact
they were genuine treasury notes of the Philippine
Government one of the digits of each of which had
been altered and changed, the aforementioned
defendants had succeeded in obtaining P1,700.00
from said complainant, in the City of Davao, on June
23, 1955, for the avowed purpose of financing the
manufacture of more counterfeit treasury notes of the
Philippines. The only question raised in this appeal is
whether the possession of said Exhibits C, E, G and H
constitutes a violation of Article 168 of the Revised
Penal Code. Appellant maintains that, being genuine
treasury notes of our government, the possession
thereof cannot be illegal. We find no merit in this
pretense. lawphil. net
It is not disputed that a portion of the last digit 9 of Serial
No. F-79692619 of Exhibit C, had been erased and
changed so as to read 0 and that similar erasures and
changes had been made in the penultimate digit 9 in
Serial No. F-79692691 of Exhibit E, in the last digit in
Serial No. D-716326 of Exhibit G, and in the last digit 9
of Serial No.
D-716329 of Exhibit H.
Articles 160 and 169 of the Revised Penal Code read:
ART. 168. Illegal possession and use of false
treasury or bank notes and other instruments
of credit. — Unless the act be one of those
coming under the provisions of any of the
preceding articles, any person who shall
knowingly use or have in his possession, with
intent to use any of the false or falsified
instruments referred to in this section, shall
suffer the penalty next lower in degree than that
prescribed in said articles.
ART. 169. How forgery is committed. — The
forgery referred to in this section may be
committed by any of the following means;
 1. By giving to a treasury or bank note or any
instrument payable to bearer or to order
mentioned therein, the appearance of a true
and genuine document.
2. By erasing, substituting, counterfeiting or
altering by any means the figures, letters,
words or signs contained therein.
It is clear from these provisions that the possession of
genuine treasury notes of the Philippines any of "the
figures, letters, words or signs contained" in which had
been erased and or altered, with knowledge of such
notes, as they were used by petitioner herein and his
co-defendants in the manner adverted to above, is
punishable under said Article 168, in relation to Article
166, subdivision (1), of the Revised Penal Code (U.S.
vs. Gardner, 3 Phil., 398; U.S. vs. Solito, 36 Phil., 785).
Being in accordance with the facts and the law, the
decision appealed from is, accordingly, affirmed, with
costs against petitioner Sergio del Rosario. It is so
ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Reyes, J.B.L., Barrera, Dizon and De Leon,
JJ., concur.
Paredes, J., took no part.
Art. 171 Falsification by Public Officer
The Court issued a resolution5 on 7 July 1993 requiring
Judge Diaz to comment on the said motion for
declaration of mistrial. On 14 July 1993, petitioner filed
a motion for the issuance of a temporary restraining
order and inhibition order against Judge Diaz. On 21
July 1993, the Court issued a temporary restraining
order enjoining Judge Diaz from conducting further
proceedings in Criminal Cases Nos. 158-77 and 159-
77 (entitled People of the Philippines vs. Feliciano
Maliwat, Regional Trial Court, Branch 17).6
Judge Diaz filed his comment on petitioner's
motion.7 After careful deliberations, the Court resolved
on 14 March 1994 to lift the entry of final judgment
dated 3 February 1993 and to reinstate and give due
course to this petition for review. The parties were
required to file their respective memoranda as the
Court ordered the RTC of Cavite City to forward the
records of the cases to the Court.8
The antecedent facts of the case may be summarized
as follows:
On 18 November 1977, two (2) separate informations
were filed before the then CFI of Cavite, Branch 3 (now
RTC, Branch 17) charging petitioner with the crime of
Falsification of Public and Official Documents.
The first information, docketed as Criminal Case No.
158-77, reads as follows:

(1) G.R. No. 107041 May 15, 1996 That on or about the first week of
November 1975, in the City of Cavite,
Republic of the Philippines and within
FELICIANO MALIWAT, petitioner,
the jurisdiction of this Honorable Court,
vs.
the above-named accused, a private
HON. COURT OF APPEALS, Former Special First
person, having somehow obtained
Division, and the REPUBLIC OF THE
possession of a blank form of a transfer
PHILIPPINES, respondents.
certificate of title with Serial No.
1403456, which is a public and official
document, did, then and there, wilfully,
unlawfully and feloniously commit acts
PADILLA, J.:p of falsification, by then and there, filling,
typing and inserting on the blank
Assailed in this petition for review on certiorari under Rule 45 of the Rules of spaces therein or causing to be filled,
Court is the decision1 of public respondent Court of Appeals (CA) dated 29
November 1991 in CA-G.R. Nos. 09428-09429, entitled People of the typed and inserted on said public and
Philippines versus Feliciano Maliwat, as well as the resolution dated 17 official document, the technical
September 1992 which denied petitioner's motion for reconsideration. The
CA decision and resolution affirmed the decision of the Regional Trial Court
descriptions of a parcel of land, Lot No.
of Cavite City which convicted herein petitioner of falsification of public 5825 of the Imus Estate Subdivision,
documents as defined and penalized under Article 172 par. 1 of the Revised Province of Cavite, with an area of
Penal Code.
553,853 sq. meters including the
corresponding title number, and
In a resolution dated 16 November 1992, this Court making it appear that the same is the
denied the present petition for review for failure to owner's reconstituted copy of Transfer
comply with the Rules of Court and Circular 28- Certificate of Title No. RT-11850 of the
91.2 Petitioner fried a motion for reconsideration which Register of Deeds of the Province of
the Court denied with finality on 18 January Cavite, with the herein accused as the
1993.3 Petitioner followed with a second motion for registered owner and that the said
reconsideration which the Court noted without action in public and official document was
its 3 March 1993 resolution.4 reconstituted by virtue of the order of
the Court of First Instance of Cavite
On 21 June 1993, petitioner filed a motion for dated November 13, 1963 and causing
declaration of mistrial, pleading for the first time that his it to appear further that the then
constitutional right to due process was impaired when Register of Deeds of the Province of
Judge Rolando Diaz rendered the judgment of Cavite, Escolastico Cuevas had
conviction in Criminal Cases Nos. 158-77 and 159-77, participated in the preparation and
knowing fully well that he (Judge Diaz) previously signing of the said falsified Owner's
testified against the petitioner (then accused) in said copy of TCT No. RT-11850, when in
cases, while then the Clerk of Court of the Court of First truth and in fact, the said accused well
Instance (CFI) Branches 2 and 3 of Cavite City. knew that said parcel of land is already
 registered in the name of Green Valley
Realty Corporation and that then
Register of Deeds Escolastico Cuevas
never intervened in the preparation and
signing of said falsified document much
less did he authorize anybody to write
his name or affix his signature therein
nor was there any judicial proceedings
for reconstitution nor order from the
Court regarding TCT RT-11850, and
thereafter, the above-named accused
presented the said falsified owner's
duplicate copy of Transfer Certificate of
Title No. RT-11850, in the office of the
Register of Deeds of Cavite, for the
purpose of reconstituting the original
thereof.
Contrary to law.9
The second information was docketed as Criminal
Case No. 159-77 and recited the same allegations as
in the first information, except that the number of the
TCT involved in the second information was TCT No.
RT-11854 with serial no. 1403457, allegedly covering
lot no. 5826 of the Imus Estate Subdivision, with an
area of 299,403 sq. meters.
Petitioner was arraigned on 2 August 1978 at which, he
pleaded not guilty to each charge. Thereafter, joint trial
of the two (2) cases ensued.
On 12 February 1986, the trial court rendered a
decision, later amended on 28 June 1988, the
dispositive part of which, as amended, reads as
follows:
WHEREFORE, in view of the
foregoing, the Court finds the accused
Feliciano Maliwat guilty beyond
reasonable doubt of Falsification of
Public Documents as defined and
penalized par. 1, Article 172 of the
Revised Penal Code and he is hereby
sentenced to — in Crim. Case No. 158-
77 to an indeterminate prison term of
from six (6) months of arresto mayor as
minimum, to four (4) years and two (2)
months of prision correccional as
maximum and to pay a fine of
P5,000.00; in Crim. Case No. 159-77 to
an indeterminate [prison] term of from
six (6) months of arresto mayor as
minimum, to four (4) years and two (2)
months of prision coreccional as
maximum and to pay a fine of
P5,000.00 without subsidiary
imprisonment in case of insolvency and
to pay the costs in both instances.
SO ORDERED.10
The evidence for the prosecution sought to establish
that sometime in October 1975, Maliwat, accompanied
by two (2) other persons, went to the office of Atty.
Milagros Santiago, then the acting Register of Deeds
of Cavite, to inquire about the originals of TCT Nos. T-
11850 and T-11854 covering lots 5825 and 5826 of the
Imus Estate Subdivision. The original copies of said
titles, however, could not be located by the vault keeper
of the office. Meanwhile, Atty. Santiago examined the
owner's duplicate copies presented to her by Maliwat
and upon closer scrutiny, she noticed the annotations
on the lower part of the two (2) titles which read:
"reconstituted as per order of CFI/Cavite City dated
November 13, 1963 Sgd. Escolastico Cuevas." The
same annotation on the two (2) titles aroused her
suspicion because she was familiar with the customary
signature of Escolastico Cuevas, and the signatures of
Cuevas appearing in the two (2) titles,11 appeared to be
forged.
Atty. Santiago did not confront Maliwat about the said
signatures, instead, she referred the latter to the Clerk
of Court (of the CFI) to verify the existence of such an
order from the court records. Maliwat allegedly obliged
but did not return to the office of the Register of Deeds.
That same afternoon, Atty. Santiago went to see the
Clerk of Court, Atty. Rolando Diaz, who informed her
that the court had no record of the said orders.
On 6 November 1975, Atty. Santiago wrote a letter to
the NBI Director to report the existence of the alleged
dubious certificates of title in Maliwat's possession and
requested for an investigation of the matter. 12 The
following year, Atty. Santiago went on sick leave and
Atty. Jorge Gutierrez was designated by the Land
Registration Commission Head Office to act in her
stead from 26 January-17 February 1976. When Atty.
Santiago resumed her position on 17 February, she
received a letter13 from Atty. Gutierrez informing her
that during her absence, Feliciano Maliwat had applied
for administrative reconstitution of title and that he
(Gutierrez) approved the same, based on the owner's
duplicate certificates of title submitted to him.
Concerned with these developments, Atty. Santiago
informed the NBI about the reconstitution of the two (2)
alleged fake titles and requested for an immediate
investigation. The NBI acted swiftly and sent
subpoenas to Feliciano Maliwat, Atty. Gutierrez, Atty.
Santiago and Atty. Cuevas who all appeared and
testified before NBI agent Tobias Lozada.
Agent Tobias Lozada's investigation14 revealed that on
his first day in office as acting Register of Deeds (of
Cavite), Atty. Gutierrez met a person in his office who
introduced himself as Feliciano Maliwat. Maliwat
inquired why certain titles he had presented for
reconstitution as early as 14 January 1976 had not
been acted upon. Atty. Gutierrez had the papers
located and seeing no formal defects and believing
them to be in order, reconstituted the titles. Due to
some typing errors, however, only one title was
delivered to Maliwat on that day.
The following day, when the deputy Register of Deeds
Atty. Alejandro Villanueva reported for work, Atty.
Gutierrez recounted to him the events of the previous
day including the fact that he had reconstituted the
titles belonging to Feliciano Maliwat.
Atty. Villanueva informed Atty. Gutierrez that he should
not have reconstituted the titles since Atty. Santiago
believed that they were spurious and had in fact
requested the NBI to look into the matter. Atty.
Villanueva also informed Atty. Gutierrez that Maliwat
had been previously convicted for estafa thru
falsification of public document and was generally
believed to be part of a criminal syndicate operating in
Cavite.
With this information, Atty. Gutierrez told the NBI that
he made his own investigation and discovered that
Maliwat had subsequently tried to obtain a tax
declaration from the Provincial Assessor's Office
(PAO) but this was denied because the PAO personnel
doubted the authenticity of his titles. Upon verification
with the LRC main office, he (Gutierrez) was further
informed that no such titles were originally issued to
Maliwat. A similar verification with the Bureau of Lands
yielded the same results. Atty. Gutierrez alleged that
the formal requisites presented by Maliwat for
reconstitution were the following:
(a) a verified petition for issuance of new titles under
R.A. 26 signed and sworn to by Feliciano Maliwat
before Salvador R. Aguinaldo, a notary public for
Manila and recorded in the latter's notarial book as
Document No. 1215 on Page 3 of Book No. 116 Series
of 1976 (Annex D).
(b) Transfer Certificate of Title No. RT-11850 on Form
No. 1403456 (Annex E) and TCT No. RT-11854
on Form No. 1403457 (Annex E-2).
Atty. Gutierrez properly identified these documents
before the NBI.
Atty. Escolastico Cuevas, retired Register of Deeds of
Cavite Province, whose signatures on the certificates
of title were allegedly forged, testified before the court a
quo denying his alleged signature appearing on the
two (2) titles, i.e. TCT No. RT-11850 on form
no. 1403456 and TCT No. RT-11854 on form
no. 1403457. He also stated that he executed a sworn
statement15 before the NBI where he similarly made the
same denial. In that affidavit, he recalled that as
witness for the prosecution in a certain criminal case
before Judge Coquia (of the CFI Manila) several years
before the present incident, he encountered the very
same titles in open court, and he testified that the
signatures attributed to him in the two (2) titles were not
his, but were plain forgeries.
Maliwat, for his part, denied authorship of the two (2)
forged titles and claimed that he bought the two (2)
parcels of land from a certain Benigno T. Aseo as
evidenced by a Deed of Absolute Sale16 dated 2
January 1963. He registered the same and
surrendered Aseo's titles to the Register of Deeds for
cancellation, after which he was issued two (2) new
titles, namely: TCT No. RT-11850 with Serial
No. 603461 and RT-11854 with Serial
number 603462.17 Maliwat further claimed that he
witnessed Escolastico Cuevas, the then Register of
Deeds, actually sign his name over the said titles
before they were issued to him.18
Thus, from the issuance of his titles in 1963 up to 1975,
Maliwat averred that he took physical possession of the
lands covered thereby, and paid real estate taxes
thereon except in 1974 when he went to Canada. He
was not aware of any title adverse to his own titles and
that he was informed only during the trial that a certain
Green Valley Corporation had titles to said property
and had been paying the real estate taxes thereon.
Although he had a location plan over the said
properties, he did not have them relocated anymore to
determine whether or not there was an overlap of titles.
In 1975, Maliwat alleged that certain buyers were
interested in his property. Together with a friend named
Judge Alejo, they went to the Register of Deeds to have
his titles verified but the Register of Deeds allegedly
could not locate the original file copy of Maliwat's
owner's duplicate TCTs in their records. Maliwat was
then informed that since the Registry of Deeds was
burned twice in the past, the file (original) titles were
presumably destroyed.
Maliwat admitted that in January 1976, he filed two (2)
petitions for reconstitution of the titles before the
Register of Deeds, after which he received a letter from
then acting Register of Deeds Gutierrez requiring him
to submit the owner's duplicate copies before the
Register of Deeds as basis for the reconstitution of title.
Maliwat claimed that Atty. Gutierrez got back the
letter19 when his wife and his lawyer, Moreno Gaid,
went to the office of Atty. Gutierrez to surrender the
owner's duplicate copies — which bore Serial Nos.
603461 and 603462 respectively, and not Serial Nos.
1403456 and 1403457 as evidenced by a
receipt20 issued by Atty. Gutierrez. Maliwat denied
having any knowledge of the existence of TCT-11850
RT and T-11854 RT with serial nos. 1403456 and
1403457 which found their way into the Register of
Deeds of Cavite and maintained that what were
surrendered to Atty. Gutierrez were genuine owner's
duplicate copies of TCT 11850-RT and T-11854 RT
bearing serial numbers 603461 and 603462.
After giving due course to the petition at bar, the Court
painstakingly reviewed the records to inquire and
determine whether or not petitioner was given a fair trial
in the lower court.
The Court notes that from the time of petitioner's
arraignment on 2 August 1978 up to the time the
prosecution offered its evidence, and rested, the
hearings were either reset or cancelled no less than
thirty (30) times owing to a variety of reasons proffered
by petitioner. As early as 20 May 1982, the case was
set for hearing of the evidence for the defense, but the
case was reset for another eight (8) times, again owing
to petitioner's absences. Within said period, the
defense also failed to file any written objections to the
prosecution's formal offer of evidence. When Judge
Diaz took over the case on 12 April 1983, Maliwat
moved to postpone for yet another eight (8) times,
prompting Judge Diaz to issue an order on 17 October
1983 declaring Maliwat to have waived his right to
present further evidence.
This was not, however, the end of the trial court's
leniency in Maliwat's favor. Owing to Maliwat's
manifestation that he was suffering from chronic
malaria, Judge Diaz reconsidered21 and set the case for
hearing on 26 March 1984. When Maliwat and counsel
still failed to appear on said date, Judge Diaz deemed
the case submitted for decision, but again reconsidered
and set another hearing on 11 June 1984 to allow the
defense to present additional evidence. When both
accused and counsel still failed to appear, Judge Diaz
deemed the case submitted for decision and required
the parties to file their respective memoranda.
Maliwat's lawyer appealed this order to the Court of
Appeals but the appeal was deemed abandoned and
dismissed on 24 October 1987.22
Maliwat's absences continued up to the promulgation
of judgment by the trial court which also had to be reset
four (4) times. It was only after then that Maliwat's
counsel filed a motion for new trial before the trial court.
When the motion was denied on 14 September 1988,
Maliwat appealed the decision to the appellate court.
Maliwat could have filed another motion for new trial
before the appellate court on the ground of newly
discovered evidence material to his defense under
Rule 124 Sec 14 of the new Rules of Criminal
Procedure, but he did not. Instead he sought
affirmative relief by prosecuting his appeal from the
judgment of conviction until the Court of Appeals
promulgated its decision affirming the judgment of
conviction of the court a quo.
Under the foregoing facts and circumstances, Maliwat
certainly cannot claim that he was denied due process.
The records show that he did testify on his own behalf
and was cross-examined by the prosecution.
Admittedly, he was unable to adduce additional
documentary evidence that he claims would establish
his innocence and which he now attaches as annexes
in his petition for review and memorandum of law
before the Court. But as noted earlier, it was Maliwat
who had sought the postponements and cancellations
of the hearings for no less than forty (40) times, from
the date of his arraignment to the promulgation of
judgment, a fact that spanned almost a decade (1978
to 1988).
Although admittedly a belated plea, petitioner argues
that there was a mistrial since a vital prosecution
witness, then Clerk of Court Rolando Diaz, became the
judge of the case and had no choice but to render a
judgment of conviction against him.
The records show that Rolando Diaz, then Clerk of
Court of the CFI of Cavite City, indeed testified for the
prosecution. But as explained by the Solicitor General,
his testimony was limited to certain facts directly
connected with or arising from the performance of his
official duties as Clerk of Court, without any reference
to or pronouncement as to the innocence or guilt of the
accused. And as explained by Judge Diaz himself in
his comment before this Court dated 19 January 1994,
That the only participation of the
undersigned Judge as [then] Clerk of
Court was to issue a certification and
the only testimony given in this case
was, while still a Clerk of Court of the
Court of First Instance of Cavite with
station at Cavite City, he saw the
accused Feliciano Maliwat in his office
after he was referred to him by the
Acting Register of Deeds of Cavite
Province, Atty. Milagros Santiago and
who presented to him two certificates of
title and requested for the production of
the order annotated at the bottom of the
face of said certificates of title wherein
it was shown that the same had been
reconstituted as per order of the Court
of First Instance dated November 30,
1983 and which after diligent search he
could not produce, as either the said
order or a copy of the petition were
actually inexistent (sic) and he noticed
further that the signature of Escolastico
Cuevas, Register of Deeds of the
Province of Cavite at the time said
order was issued was not the signature
of Atty. Cuevas with which he was
familiar;
That the undersigned did not consider
said testimony as bias on his part
against the herein accused and he
based his conviction of the accused in
these cases not on his prejudgment but
rather on the over-all evidence
presented before the Court;
That accused did not question his
actuations in these cases during the
trial and instead opted for the
continuation thereof thus perhaps
believing that the undersigned would
render judgment according to the
evidence presented;
That he did not likewise question the
actuations of the Judge in his appeal to
the Court of Appeals nor on certiorari to
this Honorable Court which denied his
petition for review for failure to comply
the Rules of Court in circular No. 28-91
in a resolution of November 13, 1992
whereby entry of Judgment was issued
on February 3, 1993 by the Deputy
Clerk of Court and Chief Judicial
Records Office and it was only on June
21, 1993 did he file the instant motion
so as to hold in abeyance the
promulgation of judgment on the
ground of mistrial;23
The guiding rule is that a judge must not only render a
just, correct and impartial decision but should do so in
such a manner as to be free from any suspicion as to
his fairness, impartiality and integrity. As applied to the
case at bar, the attitude exhibited by Judge Diaz
speaks more of extraordinary leniency to the accused
in granting all his requests for postponements, even to
the extent of reconsidering his orders declaring the
accused as having waived his right to present further
evidence.
Under Rule 137, Sec. 1 of the Rules of Court, Judge
Diaz' previous actuations did not render him legally
disqualified from sitting and deciding the case. The
suggestion that he is not wholly free, disinterested and
independent could have been buttressed by the
exercise of his sound discretion in voluntarily
disqualifying himself. Yet, the manner in which he
exhibited himself during the trial negates any suspicion
of prejudgment in the case.
The only remaining issue then is whether or not
petitioner's guilt has been proven beyond reasonable
doubt. In the interest of justice, the Court treated the
annexes attached to the petition which had been
marked as exhibits in the course of the trial but were
not formally offered, to form part of the records of this
case. And after close scrutiny thereof, the Court is of
the considered opinion, and so holds, that petitioner
was correctly convicted of having committed the crime
of falsification of public documents. As clearly observed
by the trial court which was evidently in the best
position to weigh and evaluate the evidence:
From the evidence submitted, there is
no question that the two certificates of
title RT-11850 with serial no. 1403456
and RT-11854 with Serial No. 1403457
Exhibits A and B are falsified; that as
per finding of the NBI, testified to by
then Senior Agent Toribio Lozada the
same were among those intended for
the province of Cotabato but which
were lost in transit as per certification
issued by Fortunato T. Pascual of the
Land Registration Commission (Exhs.
Q and Q-2); and a memorandum
circular of the loss was issued by then
Acting Commissioner Gregorio Bilog
Jr. of the LRC (Exh. O) and the titles
found their way into the office of the
Register of Deeds of Cavite Province
pursuant to a petition for reconstitution
filed by the herein accused on January
8, 1976 (Exh, R) and the same were
administratively reconstituted by then
Acting Register of Deeds of Cavite
province Atty. Jorge V. Gutierrez and
for which the said owners duplicate
were surrendered to the office of the
Register of Deeds of Cavite province
and new owner's duplicates issued to
the herein accused. The Court cannot
give credence thereto over the positive
identification made by Atty. Santiago in
open Court together with the
confirmation made by the NBI agent on
the case, Atty. Tobias Lozada and the
former Register of
Deeds, Atty. Escolastico Cuevas
whose signature thereon was forged.
(emphasis supplied).
Moreover, a closer scrutiny of the
numbering of the titles in question
which accused alleges to have gotten
from the office of the Register of Deeds
of Cavite Province when he registered
the sale executed in his favor by
Benigno T. Aseo shows the letters "RT"
precedes the number which the Court
can take judicial notice of that the
letters RT stand for reconstituted title
and these initials with the
corresponding number follow the
original number of the title issued, but
in this case the same is missing and
does not state the original number of
the title which is out of the ordinary
procedure of the Register of Deeds.
Likewise, it is quite absurd to see that
Exhibits "A" and "B" which are
accountable forms bearing consecutive
serial numbers (1403456 and
1403457) respectively would have
been given nonconsecutive title
numbers (RT-11850 and RT-11854)
and would have been issued ten
months apart (RT-11850) was issued
on November 15, 1983 while RT-11854
was issued on January 18, 1963.
Moreover, RT-11850 does not beat the
number of the certificate of titles from
which it was transferred whereas TCT
No. RT-11854 is supposed to have
canceled T-8331 and which apparently
conflicts with the allegation of the
accused that he acquired these two
parcels of land from Benigno T. Aseo
whose ownership was evidenced by
TCT No. T-2474 and T- 2475. If that
were the case then, the said title
number would have appeared on
Exhibits "A" and "B".
Anent, the testimony of the accused
that the certificate of title, the owner's
duplicate of TCT No. RT-11850 and
RT-11854 which he presented for
reconstitution bore the serial Nos.
603461 and 663462 it will be noted
that he only presented xerox copies of
the said titles without producing the
originals and during the investigation at
the NBI as per report marked as
Exhibits H and H-4 he never submitted
the originals thereof. Whichever serial
numbers they bore, it appears that said
title forms were falsified in view of the
attestations of the Land Registration
Commission that they were never
intended for the Register of Deeds of
Cavite Province. (emphasis supplied)24
Additionally, the Court observes that the titles
presented by Maliwat for reconstitution were allegedly
owner's duplicate reconstituted titles, since the
numbers were preceded by the letters RT. This fact,
assuming it to be true, negates petitioner's allegation
that these titles were obtained from the Registry of
Deeds by canceling Aseo's (the vendor's) titles which
were not reconstituted titles. It also bears stressing that
there must have been a petition for reconstitution,
whether judicial or administrative, before Maliwat could
be issued said reconstituted titles. But no such petition
was produced. From Maliwat's testimony, he averred
that he obtained the said titles when Aseo's titles were
canceled by virtue of a deed of absolute sale between
him and Aseo.
The Court also observes that Exh. 1-A, which is TCT
Nos. RT-11850 and Exh. 4-A which is TCT No. RT-
1185425were made to appear by accused as
reconstituted titles. Thus, whether or not what were
issued to the accused bore SN 603461 and 603462 or
SN 1403456 and 1493457 is of no moment — because
both titles should never have been reconstituted titles
in the first place. More so, because the
evidence26 shows that Judicial Forms with SN 603461
and 603462 were issued to the Registry of Deeds of
Cotabato province in May 1963. Hence, the titles in
Maliwat's possession cannot be genuine.
The Court further notes that the signatures of
Escolastico Cuevas in SN-1403456; SN-1403457 and
SN-603461 and SN-603462 were not the same and, as
plain to the naked eye, very different from the specimen
signature of Register of Deeds Escolastico
Cuevas27 executed before the NBI. It is ineluctable,
therefore, that these titles were falsified and the
evidence points to Maliwat as the author of the
falsification under par. 1 of Article 172 in relation to
Article 171 of the Revised Penal Code.
As correctly observed by the Court of Appeals:
When Judicial forms 109-D, with Serial
Nos. 1403456 and 1403457 were filled
up, issued and made to appear in form,
as Transfer Certificates of Titles Nos.
RT-11850 and RT-11854, respectively,
both in the name of Feliciano Maliwat
to show his ownership of lots Nos. 5825
and 5826 which are included in the
Imus Estate Subdivision although they
were not, falsification as defined in
paragraph 7 of Article 171 of the
Revised Penal Code was committed.
Again, when in the same forms it was
made to appear that they were signed
and issued by Register of Deeds
Escolastico Cuevas, although in truth
and in fact he has neither signed,
issued nor filled up the same,
falsification penalized under
paragraphs 1, 2, 3 and 4 of the same
Article of the Revised Penal Code has
also been committed.
The fact that no proof was introduced
to prove or show as to who committed
the falsification abovementioned, does
not exempt or exculpate the herein
accused-appellant from liability. The
accused-appellant is the person who
stood to benefit by the falsification of
the documents in question as such, "it
is presumed that he is the material
author of the falsifications." (Sarep vs.
Sandiganbayan, 177 SCRA 440;
449).28
The settled rule is that in the absence of satisfactory
explanation, one found in possession of and who used
a forged document is the forger and therefore guilty of
falsification.29
If a person had in his possession a falsified document
and he made use of it (uttered it), taking advantage of
it and profiting thereby, the clear presumption is that he
is the material author of the falsification.30
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Appeals in CA G.R. Nos.
09428-29 dated 29 November 1991, which upholds the
amended decision of the Court of First Instance of
Cavite dated 28 June 1988 in Criminal Cases Nos.
158-77 and 159-77 is hereby AFFIRMED in toto. Costs
against petitioner.
SO ORDERED.
Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.
Kapunan, J., is on leave.
(2) G.R. No. L-42557 December 7, 1935
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
LORENZO REODICA and SINFOROSO
CORDERO, defendants.
LORENZO REODICA, appellant.
Claudio R. Sandoval for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEÑA, C.J.:
The appellant was sentenced by the Court of First
Instance of Palawan, for the falsification of a public
document, to an indeterminate penalty of from two
years of prision correccional, as the minimum, to eight
years and one day ofprision mayor, as the maximum.
About the month of July, 1931, the appellant was
municipal treasurer of Bacuit, Province of Palawan.
The information alleges that he falsified the municipal
payroll corresponding to that month by making it
appear therein that one, Sinforoso Cordero, rendered
services as municipal secretary from July 23 to July 31,
which was not true, for said Sinforoso Cordero was
absent from the municipality of Bacuit from July 23,
1931, and did not return until 1933.
The evidence discloses that this municipal payroll was
submitted to the appellant by the municipal president,
already prepared, together with a latter (Exhibit 3)
authorizing him to pay Sinforoso Cordero's salary for
the second said Sinforoso Cordero was granted a
leave of eight days from July 23 to July 31. When this
payroll was received by the appellant on July 23, it was
already signed and payment thereof approved by the
president, with the latter's certification that the services
therein mentioned were rendered.
This being the case, the appellant is not guilty of the
falsification of this pay roll, as alleged in the
information, because the president and not he is the
one who certifies that the services of the officers
mentioned therein were in fact rendered.
However, in view of the leave granted to Sinforoso
Cordero from July 23 to July 31, for the purpose of the
payment of his salary, this amounted to his having
rendered services during this period. 1awphil.ne t
While the information likewise states that the appellant
certified in the payroll that paid Sinforoso Cordero's
salary on July 31, 1931, it does not allege, however,
that this was not true, and although it appears that the
appellant made this payment on July 23, he was not
charged Cordero having been in fact paid, it was
immaterial whether this was done on July 23 of July 31.
Such alterations, even granting that the appellant was
responsible therefor, do not effect either the veracity of
the document of the effects thereof, and do not
constitute the crime of falsification. (Decisions of the
Supreme Court of Spain of February 25, 1885, and
June 21, 1886.)
For the foregoing considerations, the appealed
judgment is reversed, and the appellant acquitted, with
costs de oficio. So ordered.
Abad Santos, Hull, Vickers, and Recto JJ., concur.
(3) G.R. No. L-67472 July 3, 1987
DARIO CABIGAS Y CACHO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
PARAS, J.:
Under separate informations both dated September
20, 1982, the Office of the Tanodbayan charges Dario
Cabigas y Cacho and Benedicto Reynes y Lopez on
two (2) counts, with the crime of Falsification of Official
Documents allegedly committed in the following
manner:
(1) Criminal Case No. 6529
That on or about March 29, 1982, in the
Municipality of Makati, Metro Manila, and within
the jurisdiction of this Honorable Court,
accused Dario Cabigas y Cacho and Benedicto
Reynes y Lopez, both public officers being then
employed as Securities Custodian and
Securities Receiving Clerk, respectively, of the
Land Bank of the Philippines, Makati Branch, a
government-owned and/or controlled
corporation, conspiring together, taking
advantage of their official position and
committing the crime herein charged in relation
to their Office, did then and there willfully,
unlawfully and feloniously falsify ... Securities
Delivery Receipt dated March 9, 1982 ...
evidencing, among others, receipt by them in
their official capacity of Treasury Bills bearing
Serial No. A-000064 up to A000082 of the
795th series, by then and there making
alterations and/or intercalations thereon to the
effect that only treasury bills bearing SN-A-
000064 to A-000076 were received by them on
March 9, 1982, for the purpose of hiding or
concealing the loss while in their custody of six
(6) treasury bills bearing SN-A-000077 to A-
000082 of the 795th series, thereby changing
the meaning of said Securities Delivery
Receipt.
(2) Criminal Case No. 6938
That on or about March 30, 1982 in the
Municipality of Makati, Metro Manila, and within
the jurisdiction of this Honorable Court,
accused Dario Cabigas y Cacho and Benedicto
Reynes y Lopez, both public officers, being
then employed as Securities Custodian and
Securities Receiving Clerk, respectively, of the
Land Bank of the Philippines, Makati Branch, a
government-owned and/or controlled
corporation, conspiring together, and taking
advantage of their official positions and
committing the crime herein charged in relation
to their office, did then and there willfully,
unlawfully and feloniously falsify the Daily
Report of Securities/Documents under custody
dated March 30, 1982, which is an official
document evidencing the securities
transactions and/or operations of the Makati
Branch of the aforenamed bank, and which it
was their official duty to prepare and submit to
their superiors, by then and there indicating in
said document, for the purpose of hiding the
loss or disappearance while in their custody of
six (6) treasury bills of the 795th series, with
face value of P500,000.00 each, that the
beginning balance of securities under their
custody as to volume was 1,533 pieces, when,
the ending balance as to volume in the
previous day's report was 1,539 pieces and
that the beginning balance as to face value in
the previous day's report was P610,095,000.00
and thereafter falsely stating in the footnote of
the same document that the reduction was due
to "Adjustment on Erroneous Entry (incoming)
dated 3/09/82" the truth being that the six (6)
pieces of treasury bills with aggregate face
value of P3,000,000.00 were not erroneously
entered in either the Securities Delivery
Receipt or the Daily Report of Securities
/Documents under Custody, both dated March
9, 1982, but were discovered to have been
missing after an inventory conducted by
accused on March 20, 1982, thereby making
an untruthful statement in a narration of facts in
violation of par. 4 of Articles 171 of the Revised
Penal Code.
After arraignment and trial, the Sandiganbayan
rendered its decision in both cases, the dispositive
portion of which reads as follows:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered:
1. In Criminal Case No. 6529 ACQUITTING the
accused Dario Cabigas y Cacho and Benedicto
Reynes y Lopez, with costs de officio and
ordering their bail bonds in the said case
cancelled.
2. In Criminal Case No. 6938:
a) Finding the accused Dario Cabigas
y Cacho GUILTY beyond reasonable
doubt as principal of the crime of
Falsification of a Public or Official
Document defined and penalized
under Article 171, paragraph No. 6 of
the Revised Penal Code without any
mitigating or aggravating
circumstances; and applying the
indeterminate Sentence Law, hereby
sentencing him to an indeterminate
penalty ranging from TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY
of prision correccional as minimum, to
EIGHT (8) YEARS and ONE (1) DAY of
prision mayor, as maximum, to pay a
fine of P2,000.00 without subsidiary
imprisonment in case of insolvency,
and to pay the costs.
 b) ACQUITTING accused Benedicto
Reynes y Lopez, with costs de officio,
an ordering his bail bond cancelled.
SO ORDERED.
The instant petition is an appeal, interposed by
herein petitioner Dario Cabigas y Cacho from
the foregoing decision in Criminal Case No.
6938.
The following pertinent facts are not disputed:
Petitioner Dario Cabigas is the Securities
Custodian of the Securities Section of the Land
Bank of the Philippines assigned to its branch
at Makati, Metro Manila. Assisting him in his
work is Benedicto Reynes, the securities
receiving clerk. The Fund Management
Department (FMD) of the Land Bank of the
Philippines is engaged in money market and
securities trading transactions. The securities
which are in the form of treasury notes and bills
are in turn deposited with the Securities
Section of the Land Bank of the Philippines,
Makati Branch.
On March 9, 1982, the Fund Management
Department, delivered to the Securities
Section, Makati Branch of the Land Bank of the
Philippines, for safekeeping, 112 pieces of
treasury notes and treasury bills worth
P46,000,000.00 and for which a copy of the
Securities Delivery Receipt (SDR) Exh. D, was
issued to the Fund Management Dept. while
the original of the same was retained by the
Securities Section. Included in the securities
received on March 9, 1982 are 19 pieces of
treasury bills with Serial Nos. A-000064 to A-
000082, 795th series, in the denomination of
P500,000.00 each, or a total amount of
P9,500,000.00. After receiving the securities,
the accused would prepare the Daily Report on
Securities/Documents Under Custody (DR
SDUC) evidencing the securities transactions
and operations of the Makati Branch of the
Land Bank of the Philippines. This has been
the routine procedure being adopted by the
accused in the performance of his duty as a
Security Custodian.
On March 29, 1982, in the course of their
inventory of treasury notes and bills deposited
with them, Cabigas and Reynes discovered the
loss of six (6) treasury bills of the 795th series
with a total value of P3,000,000.00. Upon
verification that Securities Delivery Receipt
(SDR) dated March 9, 1982, Exhibit C, was the
source document of the missing securities
which were delivered to them for safekeeping,
accused Reynes crossed out with a red ink in
the said document the last two digits "82" and
the addition after them of the figure "76" on the
serial numbers A-000064 to A-000082 of the 19
treasury bills of the 795th series with a total
maturity value of P9,500,000.00. Then at the
bottom of the SDR Cabigas placed the notation
"For adjustment" and below it the date
"3/29/82." Then upon Cabigas' suggestion,
Reynes reported the incident to their branch
manager, Aurora Pigram When the DR SDUC
for March 29, 1982 was prepared, the number
of treasury bills of the 795th series stood at
1,539 pieces with a total face value of
P610,095,000.00.
The following day, Reynes prepared a draft
report for March 30, 1982 by Carrying forward
the ending balance of the treasury bills of the
795th series reflected in the DR SDUC dated
March 29, 1982. However, instead of following
the draft prepared by Reynes, Cabigas
prepared his own report-DR SDUC (Exh. "G ")
dated March 30, 1982 wherein he indicated
1,533 pieces of treasury bills of the 795th
series with a total amount of P607,095,000.00
which the latter claimed to be the number of
securities of the 795th series in his possession
at the time of the preparation of said report. At
the bottom of DR SDUC (Exh. "G") Cabigas
place the notation "Adjustment on Erroneous
Entry (incoming) dated March 9, 1982" as
legend of the asterisk (*) sign which appears
after the figure "1,533."
On May 20, 1982, a certain Rosie Chua was
found to be authenticating with the Central
Bank of the Philippines a treasury bill of the
795th series with Serial No. A-000082 in the
amount of P500,000.00. Upon investigation by
NBI agents, it was discovered that the Land
Bank of the Philippines Makati Branch
Manager, Aurora Pigram was the one who
negotiated the said treasury bill with the
Gainsbo Commodities. Further investigation
revealed that the five (5) missing treasury bills
with series numbers A-000077 to A-000081
were negotiated by Pigram with the Home
Savings Bank to secure a loan. The Land Bank
immediately sought the assistance of the NBI
in investigating the case. On May 24, 1982,
Cabigas and Reynes were investigated by NBI
agents. After the investigation, Cabigas and
Reynes were arrested for having allegedly
conspired together in falsifying the Securities
Delivery Receipt (SDR) dated March 9, 1982
(Exh. "C") and the Daily Report on
Securities/Documents under custody (DR
SDUC) Exh. G dated March 30, 1982 and for
which the corresponding informations were
filed with the Sandiganbayan. Both accused
were acquitted in Criminal Case No. 6529.
However, accused Dario Cabigas y Cacho was
convicted in Criminal Case No. 6938, while his
co-accused was acquitted therein.
In convicting accused Dario Cabigas y Cacho,
the Sandiganbayan stated in its now assailed
Decision that
In the case of Exhibit "G", the Daily
Report on Securities/Documents
Under Custody (DR SDUC) for March
30, 1982, the alleged falsification
consists of the following entries
(figures) pertaining to treasury bills:
"1,533", "607,095,000.00", "1,533 and
607,095,000.00 "marked on the
document as Exhibit G-1, and the
legend of the asterisk (*) sign at the
bottom portion reading, "Adjustment on
erroneous entry (incoming) dated
3/09/82" marked as Exhibit G-2. The
numbers "1,533" and "607,095,000.00"
represent the volume and the total
face/maturity value, respectively, of the
treasury bills supposedly in the custody
of the Securities Section as of March
30, 1982. Those entries were
falsifications, the prosecution
maintains, because the correct number
of treasury bills deposited with the
Securities Section as of that date was
1,539 valued at P610,095,000.00; that
the said figures were altered to "1,533
and 607,095,000.00," respectively, to
conceal the loss or disappearance of 6
treasury bills worth P3,000,000.00, and
that the footnote at the bottom portion
of the document (Exh. G-2) was written
to attribute the reduction in the number
of treasury bills from "1,539" to "1,533"
to mistake or error in the entries in the
Securities Delivery Receipt of March 9,
1982 (Exh. C).
The discrepancy in the figures is
indeed apparent. In the DR SDUC for
March 29, 1982 (Exh. F), the ending
balance on the number of treasury bills
at the close of office hours on that day
was 1,539 pieces with a total
face/maturity value of
P610,095,000.00 (Exh. F-1).
Accordingly, the beginning balance on
the number of the same treasury bills
on the following day, March 30, 1982,
must also be 1,539 pieces with a total
face/Maturity value of
P610,095,000.00. But as it was made
to appear in the DR SDUC for March
30, 1982 (Exhs. G and G-1), the
beginning and ending balances on the
number and value of treasury bills for
that date were 1,533 pieces and
P607,095,000.00 maturity value. 1a vvphi 1
The question now is, who caused the
alterations and what was caused the
alteration and what was the purpose
behind them.
xxx xxx xxx
By changing the original figures in the
draft of the DR SDUC from "1,539" and
"610" to "1,533" and "607" respectively,
and causing Reynes to type the final
copy of the DR SDUC on the basis of
the corrected draft Cabigas caused the
document to show that the treasury
bills in their custody as of March 30,
1982 were 1,533 pieces with a total
face/maturity value of
P607,095,000.00. By placing, likewise,
an asterisk (*) sign after the figure
"1,533" and writing the words
"Adjustment on erroneous entry
(incoming) dated 3/09/82" as legend of
the asterisk (*) sign, Cabigas caused to
make it appear that the discrepancy of
6 treasury bills valued at
P3,000,000.00 was due to error in the
entries in the Securities Delivery
Receipt of March 9, 1982(Exh. C).
Considering that the said SDR of
March 9, 1982 (Exh. C) did not contain
any error but reflected the number of
securities received by them on that
day, it is obvious that Cabigas made
the alterations in Exhibit G and the
misleading footnote (Exh. G-2) in order
to suppress, hide or conceal the fact
that the 6 treasury bills comprising the
discrepancy were lost while in their
custody.
The alterations amounted to
falsification of Exhibit G, a public or
official document, under paragraph No.
4, Article 171, of the Revised Penal
Code, by making untruthful statements
in a narration of facts. As Securities
Custodian, Cabigas was under
obligation to disclose in the said
document the correct number and total
maturity value of the securities under
his official custody as of March 30,
1982.
It is a settled doctrine that in falsification by an
employee under par. No. 4 of Article 171, which
reads-"by making untruthful statements in a
narration of facts,"-the following elements must
concur-
(a) That the offender makes in a
document untruthful statements in a
narration of facts;
(b) That he has a legal obligation to
disclose the truth of the facts narrated
by him;
(c) That the facts narrated by the
offender are absolutely false; and
(d) That the perversion of truth in the
narration of facts was made with the
wrongful intent of injuring a third
person.
Herein petitioner contends that the foregoing
elements are not present in the case at bar.
The correction of the figure from 1,539 to 1,533
pieces to conform to the actual number of
treasury under custody is not falsification
because it was made to speak the truth (US vs.
Mateo, 25 Phil. 324). The placing of an asterisk
(*) sign after the figure "1,533" and writing the
words, "Adjustment on erroneous entry
(incoming) dated 3/09/82" as legend of the
asterisk sign, contrary to the ruling of the
respondent court, was not effected to hide or
conceal the fact that the missing 6 treasury bills
were lost. It would be far more difficult to detect
or discover the loss if there was no asterisk or
footnote in the DR SDUC Exh. G. In fact, the
evidence discloses that immediately upon
discovery of the loss on March 29, 1982,
petitioner reported the matter to his immediate
 supervisor, Estela L. Espiritu and Branch
Manager of the Securities Section, Aurora
Pigram. This shows good faith and lack of
motive on the part of petitioner to conceal the
said loss.
Petitioner further argues that the Daily Report
on Securities/Documents under Custody (DR
SDUC) is a form purely devised and adopted
by him. This form was never required, neither
was it introduced nor prescribed by the Land
Bank. Petitioner, therefore, was not under
"legal obligation" to disclose in the DR SDUC
or SDR, the correct number and total maturity
value of the securities under their official
custody as of a given date. It is purely optional
on the part of petitioner to use the said forms.
The Honorable Solicitor General recommends
that the accused be acquitted because —
There is nothing to show the DR SDUC dated
March 30, 1982, Exh. G, for the alleged
falsification of which petitioner was convicted in
Criminal Case No. 6938 is a form the
submission of which was or is required by law.
In the petition for review, petitioner points out
that as testified by him the form was not an
official form of the Land Bank. The form was his
own initiative adopted "for our own
convenience and also for reference purposes."
Petitioner therefore, was not under legal
obligation to disclose or reveal the truth by said
DR SDUC. In the absence of such obligation
and of the alleged wrongful intent, defendant
cannot be legally convicted of the crime of
falsification of public document with which he is
charged. (People vs. Quasha, 93 Phil. 333).
WHEREFORE, on ground of reasonable doubt, the
decision of the Sandiganbayan in Criminal Case No.
6938 is hereby REVERSED and another one rendered
ACQUITTING the petitioner, Dario Cabigas y Cacho.
Cost de oficio.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-
Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
(4) G.R. No. L-33254 & G.R. No. L-33253 January 20,
1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
LICERIO P. SENDAYDIEGO, JUAN SAMSON and
ANASTACIO QUIRIMIT, defendants. JUAN
SAMSON and defendant-appellant.
PROVINCE OF PANGASINAN, offended party-
appellee,
vs.
HEIRS OF LICERIO P. SENDAYDIEGO, defendants-
appellants. *
Norberto J. Quisumbing for appellant Sendaydiego.
Donato & Rillera for appellant Samson.
Office of the Solicitor General for appellee.
AQUINO, J.:
In these three cases of malversation through
falsification, the prosecution's theory is that in 1969
Licerio P. Sendaydiego, the provincial treasurer of
Pangasinan, in conspiracy with Juan Samson y
Galvan, an employee of a lumber and hardware store
in Dagupan City, and with Anastacio Quirimit, the
provincial auditor, as an accomplice, used six (6)
forged provincial vouchers in order to embezzle from
the road and bridge fund the total sum of P57,048.23.
The provincial voucher in these cases has several
parts. In the upper part with the legend "ARTICLE OR
SERVICE" the nature of the obligation incurred is
indicated. That part is supposed to be signed by two
officials of the provincial engineer's office and by the
governor's representative.
The middle part of the voucher contains five numbered
printed paragraphs. Paragraph 1 is a certificate to be
signed by the creditor. It is stated therein that the
creditor vouches that the expenses "were actually and
necessarily incurred". In the instant cases paragraph 1
was not signed presumably because it is not relevant
to the purchase of materials for public works projects.
Paragraph 2 is a certification that the expenses are
correct and have been lawfully incurred. It is signed by
the provincial engineer.
Paragraph 3 contains these words: "Approved for pre-
audit and payment, appropriations and funds being
available therefore." This is signed by the provincial
treasurer.
Paragraph 4 is a certification which, as filed up in
Exhibit K, Voucher No. 10724 dated February 28,
1969, reads:
I certify that this voucher has been pre-
audited and same may be paid in the
amount of sixteen thought seven
hundred twenty-seven and 52/100
(P16,727.52) in cash or in check,
provided there is sufficient fund cover
the payment.
This is signed by the auditor.
Paragraph 5 is a certification signed by the provincial
treasurer that the account mentioned in the provincial
engineer's certification "was paid in the amount and on
the date shown below and is chargeable as shown in
the summary hereof. ... ." It may be noted that the
provincial treasurer signs two part of the voucher.
Following paragraph 5, and as referred to therein, is the
receipt of the signed by the creditor. As accomplished
in Exhibit K, the receipt reads (it was signed according
to the prosecution by Juan Samson, a point which is
disputed by him):
 Received this 31st day of March, 1969,
from L P. Sendaydiego, Province of
Pangasinan the sum of seven hundred
twenty-seven pesos & 52/100
(16,727.52) in full payment of the
above stated account, which I hereby
certify to be correct. Paid by Check No.
.................................
CARRIED CONSTR. SUPPLY CO. By:
(Sgd.) JUAN SAMSON
According to the prosecution, Samson also signed on
the left margin of the six vouchers below the stamped
words: "Presented to Prov. Treasurer. By Juan
Samson."
Voucher No. 10724 (Exh. K). — This Provincial
voucher, dated February 28, 1969, evidences the
payment of PI 6,727.52 to the Carried Construction
Supply Co. of Dagupan City for lumber and hardware
materials supposedly used in the repair of the bridge in
Barrio Libertad at the Umingan-Tayug road in
Pangasinan along the Nueva Ecija boundary (Exh. K).
The voucher makes reference to invoice No. 3327 and
other supporting papers.
The falsity of that provincial voucher is proven by the
following intances:
(a) That there was no project for the repair of the bridge
at Barrio Libertad (P. 1; Exh. Z).
(b) That the amount of P16,727.52 was never received
by the Carried Construction Supply Co The alleged
official receipt No. 3025 of the company dated March,
1969 (Exh. K-6) is forged.
(c) That the lumber and materials mentioned in Exhibit
K were never delivered by the company to the
provincial government
(d) That in the provincial voucher, Exhibit K, and in the
supporting requisition and issue voucher (RIV) No.
2206 dated January 29, 1969 (Exh. A), covering the
same lumber and hardware ma the signatures of the
following office were forged: Salvador F. Oropilla senior
civil engineer; Rodolfo P. Mencias, supervising civil
engineer Victoriano M. Sevilleja, acting provincial
engineer, and Ricardo B. Probincias, chief of
equipment of the governor's office. These four office
denied that their signatures in the two vouchers,
Exhibits A and B, are their genuine signatures.
(e) That the imprint of the rubber stamp on Exhibits A
and B, containing the words "Approved: For and By
Authority of the Governor (signed) Ricardo B.
Primicias, Chief of Equipment", is not the imprint of the
genuine rubber stamp used in Primicias office.
(f) That charge invoice No. 3327 of the Carried
Construction Supply Co. dated February 18, 1969,
containing a description and the prices of the lumber
and hardware material (Exh. B), is fake because,
according to Ambrosio Jabanes, the company's
assistant manager, the company's invoice No. 3327
was issued to the Mountain Agricultural College (Exh.
II-1). Oropilla denied that his alleged signature on
Exhibit B is his signature.
(g) That three other documents, supporting the
provincial voucher (Exh. K), were also forged. Those
documents are the taxpayer's cate dated February 10,
1969 (Exh. C) stating that no tax is due on the goods
sold in the fake invoice No. 3327 and the two
certificates as to the samples of lumber allegedly
purchased from the Carried Construction Supply Co.,
(Exh. D and E). Narciso P. Martinez, a district forester,
denied that his signatures in Exhibits D and E are his
signatures.
(h) That Angelo C. Manuel the checker of the provincial
auditor's office, denied that his signature on the left
margin is his signature (Exh. A-10).
The forged character of provincial voucher No. 10724
(Exh. K) is incontrovertible.
Other five forged voucher. — Five other provincial
vouchers evidencing supposed payments of certain
amounts to the Carried Construction Supply Co. for
lumber and hardware materials supposingly used in the
repair of other bridges were also falsified. These five
vouchers are the following:
(1) Voucher No. 11995 dated April 29,
1969 evidencing the payment of
P14,571.81 for number and hardware
materials allegedly used in the repair of
Bayaoas bridge at the Urbiztondo-
Pasibi Road (Exh. O).
(2) Voucher No. 11869 dated April 15,
1969 evidencing the payment of
P5,187.28 'or lumber and hardware
materials allegedly used in the repair of
the Panganiban bridge at the
UminganTayug Road (Exh. P)
(3) Voucher No. 11870 dated April 28,
1969 evidencing the payment of
P6,290.60 for lumber and hardware
materials allegedly used in the repair of
the Cabatuan bridge at the Umingan-
Guimba Road (Exh. Q).
(4) Voucher No. 11871 dated April 15,
1969 evidencing the payment of
P9,769.64 for lumber and hardware
materials allegedly used in the repair of
the Casabar bridge at the Binalonan-
San Manuel Road (Exh. R).
(5) Voucher No. 11872 dated April 15,
1969 evidencing the Payment of
P4,501.38 for lumber and hardware
materials allegedly used in the repair of
the Baracbac bridge at the Umingan-
Guimba Road (Exh. S).
As in the case of voucher No. 10724 (Exh. K), Oropilla,
Mencias, and Primicias declared that their signatures
in the said five vouchers are not their genuine
signatures. Samson, who hand-carried the said
vouchers for processing, did not turn over to the
provincial auditor's office the papers supporting the
said vouchers after the vouchers had been pre-
audited. Hence, those supporting papers could not be
presented in evidence.
Jabanes, the aforementioned assistant manager of the
Carried Construction Supply Co., testified that the
lumber and hardware materials mentioned in the five
vouchers were never delivered by his company to the
provincial government. The charge invoices mentioned
in the said vouchers were cancelled invoices issued to
the Mountain Agricultural College. The projected
repairs of the bridges were fictitious.
The company's cashier testified that the company
never received the payments for the lumber and
hardware materials. The receipts evidencing payments
(Exh. K-6, KK to KK-4 are fake official receipts. The
cashier produced in court the genuine official receipts
(Exh. LL to LL-7) bearing the serial numbers of the fake
receipts. The genuine receipts do not refer to
transactions with the provincial government.
Samson played a stellar role in the processing of the
six vouchers. He used to be an employee of the pro
treasurer's office. He resigned and worked with several
firms doing business with the provincial government. In
1969 he was the collector of the Carried Construction
Supply Co. He represented that firm in its dealings with
the offices of the governor, provincial auditor, provincial
engineer and provincial treasurer. He was personally
known to those provincial officials and the employees
of their offices (21-22 Sendaydiego's brief).
The six (6) forged provincial vouchers, with their
respective supporting papers, were hand-carried by
Samson. He delivered the papers to Carmencita
Castillo, the ledger clerk in the provincial engineer's
office, for recording and for her signature (Ekh. DD).
Thereafter, Samson brought the papers to the
provincial treasurer's office. Marcelo Crusade, a
laborer in that office who performed the chore of
recording the vouchers and payrolls, recorded
Vouchers Nos. 11869, 11871 and 11872 (Exh. P, R
and S). Crusadas initials appear on the upper lefthand
corner of the said vouchers with the date 4/17/69.
Samson signed on the left margin of the vouchers to
indicate that he presented them to the provincial t r's
office. Crusade said that after Samson had presented
the said papers to him, Samson brought them to
Ricardo Baraan, the book-keeper of the provincial
treasurer's office for processing and for the latter's
signature (Exh. WW).
From Baraan's office, Samson hand-carried the
vouchers to the provincial auditor's office. He asked
Virginia Cruz, a clerk to record the same (Exh. CC).
Afterwards, Samson asked Donato Rosete the
assistant provincial treasurer, to initialled the voucher
After Rosete had initialled the vouchers, Samson went
to the provincial treasurer's office where the amounts
covered by the voucher were paid by Sendaydiego to
him in cash (instead of by check) as representative of
the Carried Construction Supply Co. (Exh. EE). He
received the payments on March 31 and April 29 and
28 (four payments on that date) as shown on the face
of the vouchers.
The signature of Sendaydiego and Quirimit, the
auditor, on the said six vouchers are admittedly
authentic. Sendaydiego signed the vouchers ahead of
Rosete, his assistant. Sendaydiego's defense is that he
signed the vouchers in the honest belief that the
signatures therein of the provincial office concerned
were genuine because the voucher had been pre-
audited and approved by the auditor.
Samson denied the authenticity of his two signatures
on each of the six vouchers showing that he received
from Sendaydiego the amounts covered thereby as
representative of the lumber and hardware firm (Exh.
OO to TT) and that he presented the vouchers to the
provincial s treasurer 's office (Exh. 6-12 — Samson).
Sendaydiego testified that Samson's signatures are
genuine.
In connection with the six vouchers, Sendaydiego,
Samson and Quirimit were charged with malversation
through falsification in three docketed as follows:
1. Criminal Case No. 23349 involving
provincial voucher No. 10724 dated
February 28, 1969 in the sum of
P16,7Z7.52 (Exh. X), L-33252.
2. Criminal Case No. 23350 involving
provincial vouchers Nos. 11869,
11870, 11871 dated April 15 (two
dates) 28 and 15, 1969 for the
respective amounts of P5,187.28,
P6,290.60, P9,769-64 and P4,501.38
(four vouchers, Exh. P, Q, R and S),
now L-33253.
3. Criminal Case No. 23351 involving
provincial voucher No. 11955 dated
April 29, 1969 in the sum of P14,571.81
(Exh. O), now L-33254.
After trial the lower court acquitted the auditor, Quirimit
and found Sendaydiego and Samnson guilty of
malversation through falsification of public or official
documents imposing each of the following penalties:
(1) In Criminal Case No. 23349, an
indeterminate sentence of twelve
years, ten months and twenty-one-
days, as minimum, to eighteen years,
two months and twenty-one days
of reclusion temporal, as maximum,
and a fine of P16,727.52 and to
indemnify solidarity the provincial
government of Pangasinan in the same
amount;
(2) In Criminal Case No. 23350, the
penalty of reclusion perpetua and a
fine of P29,748.90 and to indemnify
solidarily the provincial government of
Pangasinan in the same amount; and
(3) In Criminal Case No. 23351, an
indeterminate sentence of twelve
years, ten months and twenty-one
days, as minimum, to eighteen year
two months and twenty-one days
of reclusion temporal as maximum ,
and a fine of P14,571.81 and to
indemnify solidarity the provincial
government of Pangasinan in the same
amount.
Sendaydiego and Samson appealed to this Court.
Sendaydiego died on October 5, 1976. His appeal as
to his criminal liability was dismissed. Death
extinguished his criminal liability remained. The
resolution of July 8, 1977 dismissing Sendaydiego's
appeal read s follows:
The death of appellant Sendaydiego
during the pendency of his appeal or
before the judgment of conviction
rendered against him by the lower court
became final and executory
extinguished his criminal
liability meaning his obligation to serve
the personal or imprisonment penalties
and his liability to pay the fines or
pecuniary penalties (Art. 89[1],
Revised Penal Code; 1 Viada, Codigo
Penal, 4th Ed., 565).
The claim of complainant Province of
Pangasinan for the civil
liability survived Sendaydiego because
his death occurred after final judgment
was rendered by the Court of First
Instance of Pangasinan, which
convicted him of three complex crimes
of malversation through falsification
and ordered him to indemnify the
Province in the total sum of P61,048.23
(should be P57,048.23).
The civil action for the civil liability is
deemed impliedly instituted with the
criminal action in the absence of
express waiver or its reservation in a
separate action (Sec. 1, Rule 111 of the
Rules of court). The civil action for the
civil liability is separate and distinct
from the criminal action (People and
Manuel vs. Coloma, 105 Phil. 1287;
Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of
money and the defendant dies before
final judgment in the Court of First
Instance, it shall be dismissed to be
prosecuted in the manner especially
provided' in Rule 87 of the Rules of
Court (Sec. 21, Rule 3 of the Rules of
Court).
The implication is that, if the defendant
dies after a money judgment had been
rendered against him by the Court of
First Instance, the action survives him.
It may be continued on appeal (Torrijos
vs. Court of Appeals, L-40336, October
24, 1975; 67 SCRA 394).
The accountable public officer may still
be civilly liable for the funds improperly
disbursed although he has no criminal
liability (U S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66
Phil. 583).
In view of the foregoing,
notwithstanding the dismissal of the
appeal of the deceased Sendaydiego
insofar as his criminal liability is
concerned, the Court Resolved to
continue exercising appellate
jurisdiction over his possible civil
liability for the money claims of the
Province of Pangasinan arising from
the alleged criminal acts complained of,
as if no criminal case had been
instituted against him, thus making
applicable, in determining his civil
liability, Article 30 of the Civil Code
(Note: The lower court had issued an
order of attachment against him on
January 13, 1970 for the sum of
P36,487 and in the brief for said
appellant, there is no specific
assignment of error affecting the civil
liability fixed by the trial court.) and, for
that purpose, his counsel is directed to
inform this Court within ten (10) days of
the names and addresses of the
decedent's heirs or whether or not his
estate is under administration and has
a duly appointed judicial administrator.
Said heirs or administrator will be
substituted for the deceased insofar as
the civil action for the civil liability is
concerned (Secs. 16 and 17, Rule 3,
Rules of Court). According to
Sendaydiego's brief, he had a wife and
ten children named Arturo, Licerio, Jr.,
Prospero, Regulo, Eduardo, Cesar,
Nola, Aida, Wilfredo and Manolo
(deceased).
The title of this case should be
amended to show its civil aspect by
adding thereto the following. Province
of Pangasinan vs. Heirs of Licerio P.
Sendaydiego.
Sendaydiego's appeal will be resolved only for the
purpose of showing his criminal liability which is the
basis of the civil liability for which his estate would be
liable for which his estate would be liable.
Sendaydiedo's appeal; civil liability of his estate. — In
view of Sendaydiego's death, it is not necessary to
resolve his first two assignments of error, wherein he
assails the imposition of reclusion perpetua as a cruel
and unusual penalty and wherein it is argued that there
is no complex crime of malversation through
falsification committed by negligence.
In the third assignment of error, it is contended that the
trial court erred in allowing private prosecutors Millora
and Urbiztondo to prosecute the case thereby
allegledly subjecting the accused to proceedings
marked by undue publicity, pre-judgment, bias and
political self-interest.
Atty. Vicente D. Millora, a senior member of the
provincial board actually handled the prosecution of the
case from the preliminary investigation, which started
on June 5, 1969, up to the termination of the trial on
July 29, 1970.
At the commencement of the preliminary investigation,
the counsel for the accused auditor inquired whether
Atty. Millora was authorized by the provincial board to
act as private prosecutor in representation of the
province of Pangasinan, the offended party. Atty.
Millora replied that there was a board resolution
designating him as a private prosecutor.
The acting provincial commander, who filed the
complaints manifested to the trial court that he had
authorized Atty. Millora to act as private prosecutor (4-
8 tsn June 5, 1969).
Another defense counsel filed a written motion to inhibit
Millora and the others as private prosecutors. The
lower court denied the motion in its order of June 18,
1969 (p. 40, Record of Criminal Case No. 23350).
After the termination of the p investigation conducted
by the lower court, the provincial fiscal of Pangasinan
and the city final of Dagupan City filed three
informations against the accused all dated November
4, 1969.
At the commencement of the trial on February 23, 1970
the city fiscal, an assistant provincial fiscal and Atty.
Millora, the private prosecutor, appeared for the
prosecution. The city fiscal moved "that the private
prosecutor (Millora) be authorized to conduct the
examination subject to our (the fiscal's) control and
supervision". The trial court granted the motion (7 tsn).
At the hearing on April 23, 1970 the same city fiscal
moved that Atty. Urbiztondo be authorized to examine
the prosecution witnesses under his supervision and
control The trial court granted the motion (155 tsn).
The record shows that at every hearing the provincial
fiscal, the city fiscal or an assistant fiscal were present
together with the private prosecutor.
Under the foregoing circumstances, we believe that
there was substantial compliance with the rule that the
criminal action should be "prosecuted under the
direction and control of the fiscal" and that "the
provincial fiscal shall represent the province" in any
court (Sec.4, Rule 110, Rules of Court; sec. 1683,
Revised Administrative Code).
The observation of Sendaydiego's counsel, that the
imposition of reclusion perpetua "could have been the
result of the undue publicity, prejudgment, bias and
political interest which attended the proceedings ", is
not well-founded. The trial court's decision dispels any
doubt as to its impartiality. The evidence in the three
cases is mainly documentary. The unassailable
probative value of the documents involved rather than
bias and prejudice, was the decisive factor on which
the trial court anchored the judgment of conviction.
Moreover, as already adverted to, Sendaydiego's
death had rendered moot the issue as to the propriety
of the imposition of reclusion perpetua. And, as will be
shown later, reclusion perpetua cannot be imposed in
these cases because the crimes committed were not
complex.
The other seven assigmments of error made by
Sendaydiego's counsel refer to the trial court's
conclusion that Sendaydiego and Samson are guilty
beyond reasonable doubt of malversation through
falsification or, specifically, that the provincial
treasurer, in signing the six vouchers, evinced "malice
or fraud and that there must have been connivance
between" the two.
Several lances indicate that Sendaydiego conspired
with Samson. Donato N. Rosete, the assistant
provincial treasurer, testified that, contrary to the usual
procedure, he affixed his initial to paragraph 3 of the
vouchers after Sendaydiego had signed it. Rosete
adhered to that unusual procedure because the
interested party, Samson who hand-carried the
vouchers, approached Rosete after he (Samson) had
conferred with the provincial treasurer and Samson told
Rosete to initial the voucher because it was areglado
na (already settled) since the treasurer had already
signed the voucher (54 tsn July 3, 1969).
Rosete's testimony and affidavit confute appellant
Sendaydiego's contention that the trial court erred in
finding that he signed the questioned vouchers before
Rosete had placed his initial in them. After the treasurer
had signed the voucher, Rosete's duty to initial it was
only ministerial (75 tsn July 3, 1969).
The bookkeeper in the treasurer's office testified that
he indicated in the vouchers that the amounts covered
thereby should be paid in cash. That indication was
made by means of the symbol "A-1-1" placed at the
bottom of the vouchers under the column "Account
Number". The bookkeeper was in. instructed by
Samson to place that symbol Samson told him that he
(Samson) had an understanding with Treausrer
Sendaydiego that the payment should be made in cas.
There were instances when the treasurer insisted on
payment by check to creditors other than Juan
Samson.
The cash payments were made to Samson in the inner
office of the provincial treasurer where the cashier was
summoned to make the cash payments (11-12 ton July
9, 1969; p. 11, Exh. EE). As noted by the trial court, it
was unusual that the payments should be made in the
treasurer's office when that was a ministerial chore of
the cashier.
The cash payments were made to Samson even if
Samson had no power of attorney from the Carried
Construction Supply Co. authorizing him to receive the
payments. The space in the vouchers for the signature
of the witness, who should be present when the
payments were received, was blank. The treasurer did
not bother to have a witness to attest to the payments
or to require the exhibition of Samson's residence
certificate.
Another apt observation of the trial court is that the
forged character of the six vouchers would have been
unmasked by the supposed creditor, Carried
Construction Supply Co., if the payments had been
made by means of checks. The company on receiving
the checks would have returned them to the treasurer
because it knew that there was no reason to make any
payments at all. The trial court said that the cash
payments prove Sendaydiego's collusion with Samson.
Sendaydiego's counsel assails the lower court's finding
that there was a conspiracy between the provincial and
Samson as shown by the fact that the amounts covered
by the vouchers were paid to Samson by the cashier in
the treasurer's inner office. That point was testified to
by Rosete, the assistant provincial treasurer.
The cashier, Napoleon Ulanday, would have been the
beet witness on how and where the payments were
made. However, Ulanday died before the preliminary
investigation was started. On May 27, 1969, after the
anomalies were unearthed, he wrote a letter to the
provincial , stating that he paid to Samson the amounts
covered by five vouchers in the of Salazar K. Misal and
Josefina E. Pulido (Exh. 13).
Rosete was in a position to state that the cash
payments were made to Samson in the treasurers
inner office because his table was near the main door
of the treasurers office or was about fifteen meters
away (18 tsn). Rosete always knew when the cashier
went to the treasurers office because the cashier was
oned by means of a buzzer (long buzz), and when the
cashier came out of the treasurer's office, he would be
holding the voucher (12-13 tsn).
Sendaydiego's counsel that no gross negligence can
be imputed to the treasurer (malversation is a crime
which can be committed by means of dolo or culpa and
the penalty in either case is the same). This argument
does not deserve serious consideration because the
facts proven by the prosecution show that he had a
tieup with Samson and that he acted maliciously in
signing the six questioned vouchers.
The last contention put forward for Sendaydiego is that,
because the trial court acquitted the auditor, then the
treasurer's exoneration follows as a matter of course.
We see no merit in that contention because the
evidence for the prosecution against Sendaydiego is
not the same as its evidence against the auditor. For
that reason the auditor was charged only as an
accomplice, whereas, the treasurer was charged as a
principal. The auditor based his defense on the
undeniable fact that the treasurer had approved the six
vouchers "for pre-audit and payment" before they were
passed upon by the auditor. In short, the auditor was
misled by the treasurer's certification which the auditor
apparently assumed to have been made in good faith
when in truth it was made in bad faith.
We are convinced after a minutiose examination of the
documentary and oral evidence and an unprejudiced
consideration of the arguments of Sendaydiego's
counsel that his criminal liability was established
beyond reasonable doubt and, therefore, the civil
liability fo his estate for the amounts malversed was
duly substantial.
Samson's appeal. — Samson's brief has no statement
of facts. He contends that the trial court erred in
disregarding the expert testimony that his signatures
on the vouchers are not his signature; in finding that he
forged the vouchers and received the proceeds
thereof, and in relying on circumstantial evidence as
proof of conspiracy.
As a preliminary issue, Samson argues that Judge Eloy
B. Bello should have inhibited himself "in fairness to the
accused, in the interest of justice, and as a gesture
of delivadeza" because he had conducted the
preliminary investigation.
Our searching study of the recrod fails to sustain
Samson's insinuation that he was prejudiced by the
fact that Judge, who conducted the preliminary
investigation, was the one who tried the case and
convicted him. Judge Bello tried the case fairly. His
conduct of the trial does not show that he had already
prejudged their guilt.
Section 13, Rule 112 of the Rules of court, in allowing
a Court of First Instance to conduct a preliminary
investigation, does not disqualify it from trying the case
after it had found probable cause and after the fiscal,
as directed by the Court, had filed the corresponding
information. The rule assumes that the Judge, who
conducted the preliminary investigation, could
impartially try the case on the merits.
We cannot assume that judges as a rule are
opinionated and narrow-minded insomuch that they
would invariably be iron-bound by their findings at the
preliminary investigation.
The case of a Judge of the Court of First Instance, who
conducts a preliminary investigation and then tries the
case on the merits, is similar to a situation where an
inferior court conducts a preliminary investigation of a
grave or less grave offense falling within the concurrent
jurisdiction of the Court of First Instance and tghe
inferior court. In such a case, the inferior court after
terminating the preliminary investigation is not
obligated (por delivadeza) to remand the case to the
Court of First Instance for trial. The inferior court has
the option to try the case on the merits (People vs.
Palmon, 86 Phil. 350; Natividad vs. Robles, 87 Phil.
834; People vsw. Colicio, 88 Phil. 196). The
assumption is that the inferior court can try the case
without any ingrained bias or undue prejudice.
Samson sought to prove, through Lieutenant Colonel
Jose G. Fernandez, retired chief of the Constabulary
crime laboratory, a handwriting expert, that his
signatures on the vouchers are not his signatures.
Fernandez found that the questioned signatures and
the alleged genuine signatures (exemplars) of Samson
have fundamental differences. The expert concluded
that the questioned signatures and the exemplar
signatures of Samson were not written by one and the
same person (Exh. 20).
After examining the questioned and genuine
signatures and analysing the evidence and contentions
of the parties, we find that the expert is correct in
declaring that (as admitted by the trial court) there are
radical differences between the questioned and
authentic signatures.
But the expert is in error in concluding that Samson did
not forge the questioned signatures or in implying that
Samson had no hand in the writing thereof.
The truth is that Samson used two forms of signature.
His supposed genuine signatures found in his
residence certificates, income tax returns and the
genuine office receipt of the Carried Construction
Supply Co. are "in an arcade form or rounded form of
writing". The surname Samson is encircled.
On the other hand, the questioned signatures used in
Samson's transactions with the provincial government
are in angular form; his surname is not encircled, and
the questioned signatures terminate in angular and
horizontal strokes.
Samson was consistent in his fakeries. Knowing that
the six vouchers evidenced fictitious transactions, he
used therein his fake signature, or the signature which
is different from his signature in genuine documents.
He used his forged signatures in the six fake official
receipts of the Carried Construction Supply Co., stating
that the amounts covered by the six vouchers were
received by him (Exh. K-6, KK to KK-4). the expert
admitted that a person may have two forms of
signature (186 tsn July 16, 1970).
Signatures may be deliberately disguised with the
dishonest intention of denying the same as and when
necessary (Mehta, Identification of Handwriting and
Cross Examination of Experts, pp. 4th Ed., 1970, p.
224; Harrison, Suspect Documents 418-419).
Sendaydiego himself testified that the questioned
signatures of Samson in the six vouchers were
Samson's signatures (94-99 tsn July 31, 1969).
Fernandez, the handwriting expert, declared that the
questioned signatures of Samson in the vouchers were
written by only one person (264-265 tsn July 16, 1970).
The evidence conclusively proves that Samson, as the
representative or collector of the supposed creditor,
Carried Construction Supply Co., hand-carried the
vouchers in question to the offices of the provincial
engineer, treasurer and auditor and then back to the
treasurer's office for payment. He actually received the
cash payments. Under those circumstances, Samson
is presumed to be the forger of the vouchers.
The rule is that if a person had in his possession a
falsified document and be made use of it (uttered it),
taking advantage of it and profiting thereby, the
presumption is that he is the material author of the
falsification. This is especially true if the use or uttering
of the forged documents was so closely connected in
time with the forgery that the user or possessor may be
proven to have the capacity of committing the forgery,
or to have close connection with the forgers, and
therefore, had complicity in the forgery. (U.S. vs.
Castillo, 6 Phil., 453; People vs. De Lara, 45 Phil. 754;
People vs. Domingo, 49 Phil. 28; People vs. Astudillo,
60 Phil. 338 People vs. Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who
is found in possession of a forged document and who
used or uttered it is presumed to be the forger (Alarcon
vs. Court of Appeals, L-21846, March 31, 1967, 19
SCRA 688; People vs.Caragao, L-28258, December
27, 1969, 30 SCRA 993).
Samson's use of one form of signature for his crooked
transactions with the provincial government and
another form of signatures of his valid transactions or
papers shows the deviousness of the falsifications
perpetrated in these cases. (Note that Sendaydiego
signed the certification in the first voucher, Exhibit K,
stating that proceeds thereof were paid to
Samson but Sendaydiego did not sign the same
certification in the other five forged vouchers, Exhibits
O, P, Q, R and S).
As to the question of conspiracy, the statement of
Samson's on page 19 of his brief, that "the trial court
made absolutely no finding of any supposed
conspiracy' between Samson and Sendaydiego, is not
correct.
We have already noted that the trial court explicitly
stated that the circumstance that Sendaydiego signed
the six vouchers ahead of his assistant shows that
there was "malice or fraud" on the part of Sendaydiego
and that there was conivance between Samson and
Sendaydiego when the proceeds of the vouchers were
paid to Samson in Sendaydiego's inner office, instead
of in the cashier's office (p. 23, 26, Decision, Appendix
to Samson's brief). The trial court said that the fact that
Sendaydiego allowed payment in cash shows "his
collission with Samson (Ibid, p. 26).
Samson's contention that the trial court merely
conjectured that he had received the proceeds of the
vouchers is not well taken. The trial court's finding on
that point is based on very strong circumstantial
evidence (assuming that it was not proven that Samson
signed the vouchers).
Samson vehemently argues that there is no evidence
that the total sum of P57,048. 23 paid under the six
vouchers "was really misappropriated". He asserts that
the six vouchers are genuine (although he contends
that his signatures thereon are forgeries) and that there
is no proof that the amounts covered thereby were not
paid for the construction materials shown in the six
vouchers were never delivered by the company (Exh.
HH).
These contentions appear to be untenable in thelight of
the declaration of Jabanes, the assistant manager of
Carried Construction Supply Co., the alleged supplier,
that the materials shown in the six vouchers were never
delivered by the company (Exh. HH).
And Leticia Sevilleja (wife of the provincial engineer),
who was employed as cashier of the carried
Construction Supply Co., denied that Samson turned
over to the company the proceeds of the six vouchers
which he was supposed to have collected for the
company from Sendaydiego. The six vouchers appear
to be fake principally because they evidence fictitious
sales of construction materials.
Under the said circumstances, it cannot be contended
that there was no malversation after Sendaydiego
admtte that Samson acknowledged in the six vouchers
that he received from Treasurer Sendaydiego the total
sum of P57,048.23.
The assertion of Samson's counsel on pgae 29 of his
brief, that the finding as to his guilt is based on a shaky
foundation or is predicated on circumstances which
wre not proven, is not correct.
Recapitulations. — In resume, it appears that the
provincial treasurer wants to base his exculpation on
his belief that in the six vouchers the signatures of
Samson and the officials in the provincial engineer's
office appeared to be genuine and on the fact that the
auditor had approved the vouchers. The tresurer
claimed that he acted in good faith in approving the
payments of the proceeds of the vouchers to Samson
as the representative of the supplier, Carried
Construction Co.
On the other hand, Samson, by impugning his
signatures in the vouchers, denied that he received the
said amounts from the cashier of the treasurer's office.
These conflicting versions of the treasurer and Samson
have to be resolved in the light of the inexpugnable fact
that Samson had hand-carried the voucehrs and
followed up their processing in the offices of the
provicial government the construction materials
described in the six vouchers and denied having
received from Samson the prices of the alleged sales.
The result is the Samson's denial of his signatures in
the six vouchers and in the six receipts (Exh. K-6 and
KK to KK-4) and the provicial treasurer's pretension of
having acted in good faith or having committed an
honest mistake have to be disbelieved.
The unavoidable conclusion is that Sendaydiego and
Samson were in cahoots to defraud the provincial
government and to camouflage the defraudation by
means of the six vouchers which have some genuine
features and which appear to be extrinsically authentic
but which were intrinsically fake.
Penalties. — The trial court and the assumed that three
complex crimes of malversation through falsification of
public documents were committed in this case. That
assumption is wrong.
The crimes committed in these three cases are not
complex. Separate crimes of falsification and
malversation were committed. These are not cases
where the execution of a single act constitutes two
grave or less grave felonies or where the falsification
was used as a means to commit malversation.
In the six vouchers the falsification was used
to conceal the malversation. It is settled that if the
falsification was resorted to for the purpose of hiding
the malversation, the falsification and malversation are
separate offenses (People vs. Cid, 66 Phil 354; People
vs. Villanueva, 58 Phil. 671; People vs. Geralde 52
Phil. 1000; People vs. Regis, 67 Phil. 43).
In the Regis case, supra where the modus operandi is
similar to the instant cases, the municipal treasurer
made it appear in two official payrolls dated April .30
and May 2, 1931 that some persons worked as
laborers in a certain street project at Pinamungahan,
Cebu. In that way, the two amounts covered by the
payrolls, P473.70 and P271.60, were appropriated and
taken from the municipal funds. As a matter of fact, no
such work was done in the said street project and the
persons mentioned in both payrolls had not performed
any labor.
It was held in the Regis case, that the falsification and
malversation did not constitute a complex crime
because the falsifications were not necessary means
for the co on of the malversations. Each falsification
and each malversation constituted independent
offenses which must be punished separately.
The municipal treasurer was convicted of two
falsifications and two malversations. Four distinct
penalties were imposed.
In the instant cases, the provincial , as the custodian
than of the money forming part of the road and bridge
could have malversed or misappropriated it without
falsifiying any voucher. The falsification was used as a
device to prevent detection of the malversation.
The falsifications cannot be regarded as constituting
one continuing offense impelled by a single criminal
impulse.
Each falsification of a voucher constitutes one crime.
The falsification of six vouchers constitutes six
separate or distinct offenses (People vs. Madrigal-
Gonzales, 117 Phil. 956).
And each misappropriation as evidenced by a
provincial voucher constitutes a separate crimes of
malversation were committed. Appellant Samson is a
co-principal in each of the said twelve offenses.
As already stated, he is presumed to be the author of
the falsification because he was in possession of the
forged vouchers and he used them in order to receive
public monies from the provincial treasurer.
He is a co-principal in the six crimes of malversation
because he conspired with the provincial treasurer in
committing those offenses. The trial court correctly
ruled that a private person conspiring with an
accountable public officer in committing malversation is
also guilty of malversation (People vs. Rodis, 105 Phil.
1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato and
Lustre, 37 Phil. 359; U.S. vs. Dowdell, 11 Phil. 4;
People vs. Caluag, 94 Phil. 457).
Note that a different rule prevails with respect to a
stranger taking part in the commission of parricide or
qualified theft. In such cases, the stranger is not guilty
of parricide or qualfied theft but only of murder or
homicide, as the case may be, and simple theft, by
reason of paragraph 3, article 62 of the Revised Penal
Code (People vs. Patricio, 46 Phil. 245).
Falsification of a public document committed by a
private person is punished in article 172(1) of the
Revised Penal Code by prision correccional in its
medium and maximum periods and a fine of not more
than P5,000.
For the malversation of the sum of P5,187.28 and
P4,501.38, respectively covered by vouchers Nos.
11869 and 11872 (Exh. P and S), the penalty provided
in paragraph 2 of article of the Revised Penal Code
is prision mayorminimum and medium.
For the malversation of the sums of P6,290.60
andP9,769.64, respectively covered by vouchers Nos.
1187 and11871 (Exh. Q and R) the penalty provided in
paragraph 3 of article 217 is prision mayor maximum
to reclusion temporal minimum.
For the malversation of the sums of P16,727.52 and
10995 (Exh. K and O), the penalty provided in
paragraph 4 of article 217 is reclusion
temporal medium and maximum.
In each of the malversation cases, a fine equal to the
amount malversed should be added to the
imprisonment penalty.
In the twelve cases the penalty should be imposed in
the medium peiod since there are no modifying
circumstances (Arts. 64[1] and 685, Revised Penal
Code). Samson is entitled to an indeterminate
sentence.
WHEREFORE, Samson is convicted of six crimes of
falsification of a public document and six crimes of
malversation.
In lieu of the penalties imposed by the trial court, he is
sentenced to the following penalties:
For each of the six falsification of the vouchers (Exh. K,
O, P, Q, R and S), Samson is sentenced to an
indeterminate penalty of two (2) years of prison
correccional minimum, as minimum, to four (4) years
of prision correccionalmedium, as maximum, and to
pay a fine of three thousand pesos.
For the malversation of the sum of P16,727.52 covered
by voucher No. 10724 (Exh. K), Samson is sentenced
to an indeterminate penalty of twelve (12) years
of prision mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as
maximum; to pay a fine in the amount of P16,727.52,
and to indemnify the province of Pangasinan in the
same amount (Criminal Case NO. 23349, L-33252).
For the malversation of the sum of P14,571.81 covered
by voucher No. 11995 (Exh. O), Samson is sentenced
to an indeterminate penalty of twelve (12) years
of prision mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as
maximum; to pay a fine in the sum of P14,571.81, and
to indemnify the province of Pangasinan in the same
amount (Criminal Case No. 23351, L-33254).
For the malversation of the sum of P6,290.60 covered
by voucher No. 11870 (Exh. Q), Samson is sentenced
to an indertiminate penalty of nine (9) years of prision
mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a
fine of P6,290.60, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No.
23350, L-33253).
For the malversation of the sum of P9,769.64 covered
by voucher No. 11871 (Exh. R), Samson is sentenced
to an indeterminate penalty of nine (9) years of prision
mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a
fine of P9,769.64, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No.
23350, L-33253).
For the malversation of the sum of P5,187.28, covered
by voucher No. 11869 (Exh. P), Samson is sentenced
to an indeterminate penalty of five (5) years of prision
correccional maximum, as minimum, to eight (8)
of prision mayor minimum, as maximum; to pay a fine
of P5,187.28, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No.
23350, L-33253).
For the malversation of the sum of P4,501.38 covered
by voucher no. 11872 (Exh. S), Samson is sentenced
to an indeterminate penalty of five (5) years of prision
correccional maximum, as minimum, to eight (8) years
of prision mayor minimum, as maximum; to pay a fine
of P4,501.38, and to indemnify the province of
Pangasinan in the same amount (Criminal Case No.
23350, L-33253).
In the service of the twelve penalties meted to Samson,
the threefold limit provided for in article 70 of the
Revised Penal Code should be observed (People vs.
Escares, 102 Phil. 677), meaning that the maximum
penalty that he should serve is three times the
indeterminate sentence of twelve (12) years to
seventeen (17) years, the severest penalty imposed on
him, or thirty-six (36) years to fifty-one (51) years (see
People vs. Peñas, 68 Phil. 533).
The maximum duration of his sentences should not
exceed forty (40) years (Penultimate par. of art. 70;
People vs. Alisub, 69 Phil. 362; People vs. Concepcion,
59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).
The estate of the late Licerio P. Sendaydiego is
ordered to indemnify the province of Pangasinan in the
sum of P57,048.23.
Samson and the said estate are sojidarily liable for the
said indemnity (Art. 110, Revised Penal Code).
Samson should pay one-half of the costs.
SO ORDERED.
Antonio, Concepcion, Jr., and Santos, JJ., concur.
Fernando, J., took no part.
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-
appellant Juan Samson guilty of six separate crimes
each of falsification and malversation as elucidated in
the very well studied and ably prepared main opinion
of our distinguished colleague, Mr. Justice Aquino, and
while I further agree that said appellant and the estate
of the deceased Licerio P. Sendaydiego are lointtv and
solidarity liable to the Province of Pangasinan for the
amounts stated ir. the dispositive portion of the
decision herein, I have my own legal basis for holding
that the estate of Sendaydiego is indeed liable for the,
said amount&
To start with, I find it difficult to share the view that
"notwithstanding the dismissal of the appeal of the
deceased Sendaydiego (he died during the pendency
of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved
only for the purpose of showing his liability which is the
basis of the civil liability for which his estate is liable." It
seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the
accused therein of criminal liability because of death or
any other cause not amounting to a finding that he had
not committed the act complaint of and at the same
nine holding that he or his estate has in civil liability
based on his criminal liability. It is to me clearly obvious
that the dismiss of an appml due to death of the
appellant, from a judgment of conviction by a trial court
does not result in the affirmance of sruch conviction
contrary to the general rule when an appeal in a case
is dismissed but, on the contrary, it amounts to an
acquittal of the appellant based on the constitutionally
mandated presumption of innocence in his favor that
can be overcome only by a finding of guilt, something
that his death prevents the court from making. In a
sense, the death of an accused-appellant has the effect
of his total absolution by God from any earthly
responsibility for the offense as such, a divine act of
clemency no human court can reverse, qualify, much
less disregard. It is an inherent inalienable human right
of every individual not to be subject to imputation of
criminal liability in any sense, unless his guilt of the
crime charged against him has been duly proven
beyond reasonable doubt in a duly held criminal
proceeding. The intervention of death of the accused in
any case is an injunction by fate itself that no criminal
liability whatsoever should be imposed on him, not only
because from the very nature of the situation, it is
impossible to do so but also because it would be a
juridical absurdity to contemplate such a legal concept.
In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability
resulting from criminal liability under Artide 100 of the
Revised Penal Code would have no basis unless
criminal responsibih"ly is fixed or exists. It has been
said that civil liabilitv under this provision "is rooted in
the criminal liability". 1 In this connection and
adjectively, Section 1 of Rule 111 stipulates that "when
a criminal action is instituted, the civil action for
recovery of civil liability arising from the offense
charged is impliedly instituted with the criminal action,
etc." But it must be emphasized that these legal
precepts refer exclusively to the civil liability
consequent of the offense in its juridical essence as a
crime, it being elementary on our legal system that the
same act my give rise to civil responsibility independent
of that resulting from the commission of the act as a
crime.
Thus it is entirely possible for one to be fee from civil
ability directly rooted in the act viewed as a violation of
the penal law and still be liable civilly for it considered
otherwise as an infringement of a right based on a
created by contract or by laws other than the criminal
law. A consistent host of jurisprudence, too to the
bench and bar to need particular citation hem exists
upholding the right of a party aggrieved by an act in
nature to indemnity, restitution or reparation,
notwithstanding the absence or failure of the usual
prosecution, in view of the provisions of the pertinent
articles of the Civil Code on Human Relations and
Section 2 of Rule III. Stated the same act or got Of facts
can be the subject of obligations arise at the same time
thru the different modes contemplated in Article 1157
of the Civil Code providing that "obligations arise from
(1) lave, (2) contracts; (3) quasi-contracts; (4) acts or
omissions punished by law, and (5) quasi-delicts."
Thus, that an act or omission is punished by law,
thereby making the actor civilly liable therefor, does not
exclude simultaneous liability of the for the same act
viewed also as one giving rise to an obligation under
the another law, and/or under a contract, quasi-
contract or quasi-delict, with the sole qualification that
the aggrieved party cannot recover damages more
than once for the same act or omission. (See Art. 2177,
Civil Code.)
I am confident that the points I have just discussed are
beyond debate. And as I see it my learned colleagues
in the majority and I are agreed that in the light of the
legal Principles I have stated, there can be no doubt
that the estate of Sendaydiego could be held liable for
the acts of the d that can be proven to have damaged
the Province of Pangasinan in spite of the of
Sendaydiego's appeal by reason of his death. Our
possible disagreement relates only to the procedural
aspect of the matter.
The main opinion justifies the imposition of civil liability
upon said estate within this appeal proceedings,
thereby sing with the filing of a separate civil action for
the In my view, the dismissal of Sendaydiego's appeal
amounts, as I have said to his acquittal This acquittal
to my mind is different juridically from one based on
liable doubt bemuse as I have only intimated earlier, it
is a total absolution by fate itself which carries with it y,
exemption from or extinction of the civil liability as if the
Court had hold that the act from which the civil (action)
might arise did not exist (Section 2 (e), Rule 111.) But
this is not to say that the state is already exonerated
altogether from another kind of civil liability for
indemnity, restitution or reparation, for under the
unbroken line of precedents I have already referred to,
the pertinent provisions on Human Relations of the
Civil Code, particularly Article 30, come into play, for
under this cited provision, the total absolution of
Sendaydiego based on his death becomes virtually
immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal
offense without the need of any criminal proceeding to
prove the commission of the crime as such, that is,
without having to prove the criminal liability of the
defendant so long as his act causign damage or
prejudice to the offended party is proven by a
preponderance of evidence. This article provides,
"when a seperate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings, are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise
be sufficient to prove the act complained of."
My reading of the existing jurisprudence is that the civil
liability not based on the act as crime has to be
prosecuted in a te civil action and not within the same
criminal proceedings wherein the accused has been
acquitted or the case against him is terminated with
exonerative consequence. If there is any jurisprudence
to the contrary, it is still isolated and is not binding
precedent. Worse, in my opinion, it is based on what I
consider to be the erroneous premise that Article 29 of
the Civil Code does not mean literally what it says.
Textually, this article states:
When the accused in a criminal
prosecution is acquitted on the ground
that his guilt has not been beyond
reasonable doubt, a civil action for
damages for the same act or omission
may be instituted. Such action requires
 only a preponderance of evidence.
Upon motion of the defendant, the
court may require the plaintiff to file a
bond to answer for damages in case
the complaint should be found to be
malicious.
If in a criminal case the judgment of
acquittal is based upon reasonable
doubt, the court shall so declare. In the
absence of any declaration to that
effect, it may be inferred from the text
of the decision whether or not the
acquittal is due to that ground.
Definitely and unequivocally, what it authorizes is that
"a civil action for damages for the same act or omission
may be instituted." It does not say that the civil action
joined with the criminal action, as provided for in
Section 1 of Rule 111, shall survive and be the one
continued. I reiterate that what is left to the offended
party after the death of an accused before conviction is
the right to institute a civil action for damages for the
same act or omission pursuant to Articles 29 and 30 of
the Civil Code and Sections 2 and 3 (c) of Rule 111 of
the Rules of Court.
All these notwithstanding, for the purposes of the
instant case, I am willing to take the position that since
the point I am pressing on is more or less procedural
or remedial in nature, and perhaps, the failure of the
parties concerned to seriously object to the procedure
pursued in the main opinion could be a sufficient
excuse for not following what I feel is the proper way of
dealing with the civil liability incurred by the estate of
the deceased Sendaydiego, hence my concurrence, in
the qualified sense implicit in this separate opinion, in
the dispositive portion of the decision herein.
May I add here that the foregoing reasons explain why
I have always insisted that when appeals in criminal
cases before us have to be dismissed by reason of the
death of the appellant, it is not proper to qualify such
dismissal as limited to that of the criminal liability of the
appellant. It is my humble view that the dismissal
should be unqualified and that the offended parties
concerned should be left to pursue their remedies, if
they so desire, in the appropriate separate civil action
contemplated both in the Civil Code and in Rule 111,
as explained above. I admit this view might entail the
institution of what is virtually a repetitive proceeding,
but I cannot see any way of avoiding what the
unequivocal language of the pertinent legal provisions
mandate, unless I make myself a party to judicial
legislation, which I believe it is not constitutionally
permissible for me to do, no matter how practical the
procedure might be.
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-
appellant Juan Samson guilty of six separate crimes
each of falsification and malversation as elucidated in
the very well studied and ably prepared main opinion
of our distinguished colleague, Mr. Justice Aquino, and
while I further agree that said appellant and the estate
of the deceased Licerio P. Sendaydiego are lointtv and
solidarity liable to the Province of Pangasinan for the
amounts stated ir. the dispositive portion of the
decision herein, I have my own legal basis for holding
that the estate of Sendaydiego is indeed liable for the,
said amount&
To start with, I find it difficult to share the view that
"notwithstanding the dismissal of the appeal of the
deceased Sendaydiego (he died during the pendency
of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved
only for the purpose of showing his liability which is the
basis of the civil liability for which his estate is liable." It
seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the
accused therein of criminal liability because of death or
any other cause not amounting to a finding that he had
not committed the act complaint of and at the same
nine holding that he or his estate has in civil liability
based on his criminal liability. It is to me clearly obvious
that the dismiss of an appml due to death of the
appellant, from a judgment of conviction by a trial court
does not result in the affirmance of sruch conviction
contrary to the general rule when an appeal in a case
is dismissed but, on the contrary, it amounts to an
acquittal of the appellant based on the constitutionally
mandated presumption of innocence in his favor that
can be overcome only by a finding of guilt, something
that his death prevents the court from making. In a
sense, the death of an accused-appellant has the effect
of his total absolution by God from any earthly
responsibility for the offense as such, a divine act of
clemency no human court can reverse, qualify, much
less disregard. It is an inherent inalienable human right
of every individual not to be subject to imputation of
criminal liability in any sense, unless his guilt of the
crime charged against him has been duly proven
beyond reasonable doubt in a duly held criminal
proceeding. The intervention of death of the accused in
any case is an injunction by fate itself that no criminal
liability whatsoever should be imposed on him, not only
because from the very nature of the situation, it is
impossible to do so but also because it would be a
juridical absurdity to contemplate such a legal concept.
In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability
resulting from criminal liability under Artide 100 of the
Revised Penal Code would have no basis unless
criminal responsibih"ly is fixed or exists. It has been
said that civil liabilitv under this provision "is rooted in
the criminal liability". 1 In this connection and
adjectively, Section 1 of Rule 111 stipulates that "when
a criminal action is instituted, the civil action for
recovery of civil liability arising from the offense
charged is impliedly instituted with the criminal action,
etc." But it must be emphasized that these legal
precepts refer exclusively to the civil liability
consequent of the offense in its juridical essence as a
crime, it being elementary on our legal system that the
same act my give rise to civil responsibility independent
of that resulting from the commission of the act as a
crime.
Thus it is entirely possible for one to be fee from civil
ability directly rooted in the act viewed as a violation of
the penal law and still be liable civilly for it considered
otherwise as an infringement of a right based on a
created by contract or by laws other than the criminal
law. A consistent host of jurisprudence, too to the
bench and bar to need particular citation hem exists
upholding the right of a party aggrieved by an act in
nature to indemnity, restitution or reparation,
notwithstanding the absence or failure of the usual
prosecution, in view of the provisions of the pertinent
articles of the Civil Code on Human Relations and
Section 2 of Rule III. Stated the same act or got Of facts
can be the subject of obligations arise at the same time
thru the different modes contemplated in Article 1157
of the Civil Code providing that "obligations arise from
(1) lave, (2) contracts; (3) quasi-contracts; (4) acts or
omissions punished by law, and (5) quasi-delicts."
Thus, that an act or omission is punished by law,
thereby making the actor civilly liable therefor, does not
exclude simultaneous liability of the for the same act
viewed also as one giving rise to an obligation under
the another law, and/or under a contract, quasi-
contract or quasi-delict, with the sole qualification that
the aggrieved party cannot recover damages more
than once for the same act or omission. (See Art. 2177,
Civil Code.)
I am confident that the points I have just discussed are
beyond debate. And as I see it my learned colleagues
in the majority and I are agreed that in the light of the
legal Principles I have stated, there can be no doubt
that the estate of Sendaydiego could be held liable for
the acts of the d that can be proven to have damaged
the Province of Pangasinan in spite of the of
Sendaydiego's appeal by reason of his death. Our
possible disagreement relates only to the procedural
aspect of the matter.
The main opinion justifies the imposition of civil liability
upon said estate within this appeal proceedings,
thereby sing with the filing of a separate civil action for
the In my view, the dismissal of Sendaydiego's appeal
amounts, as I have said to his acquittal This acquittal
to my mind is different juridically from one based on
liable doubt bemuse as I have only intimated earlier, it
is a total absolution by fate itself which carries with it y,
exemption from or extinction of the civil liability as if the
Court had hold that the act from which the civil (action)
might arise did not exist (Section 2 (e), Rule 111.) But
this is not to say that the state is already exonerated
altogether from another kind of civil liability for
indemnity, restitution or reparation, for under the
unbroken line of precedents I have already referred to,
the pertinent provisions on Human Relations of the
Civil Code, particularly Article 30, come into play, for
under this cited provision, the total absolution of
Sendaydiego based on his death becomes virtually
immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal
offense without the need of any criminal proceeding to
prove the commission of the crime as such, that is,
without having to prove the criminal liability of the
defendant so long as his act causign damage or
prejudice to the offended party is proven by a
preponderance of evidence. This article provides,
"when a seperate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings, are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise
be sufficient to prove the act complained of."
My reading of the existing jurisprudence is that the civil
liability not based on the act as crime has to be
prosecuted in a te civil action and not within the same
criminal proceedings wherein the accused has been
acquitted or the case against him is terminated with
exonerative consequence. If there is any jurisprudence
to the contrary, it is still isolated and is not binding
precedent. Worse, in my opinion, it is based on what I
consider to be the erroneous premise that Article 29 of
the Civil Code does not mean literally what it says.
Textually, this article states:
When the accused in a criminal
prosecution is acquitted on the ground
that his guilt has not been beyond
reasonable doubt, a civil action for
damages for the same act or omission
may be instituted. Such action requires
only a preponderance of evidence.
Upon motion of the defendant, the
court may require the plaintiff to file a
bond to answer for damages in case
the complaint should be found to be
malicious.
If in a criminal case the judgment of
acquittal is based upon reasonable
doubt, the court shall so declare. In the
absence of any declaration to that
effect, it may be inferred from the text
of the decision whether or not the
acquittal is due to that ground.
Definitely and unequivocally, what it authorizes is that
"a civil action for damages for the same act or omission
may be instituted." It does not say that the civil action
joined with the criminal action, as provided for in
Section 1 of Rule 111, shall survive and be the one
continued. I reiterate that what is left to the offended
party after the death of an accused before conviction is
the right to institute a civil action for damages for the
same act or omission pursuant to Articles 29 and 30 of
the Civil Code and Sections 2 and 3 (c) of Rule 111 of
the Rules of Court.
All these notwithstanding, for the purposes of the
instant case, I am willing to take the position that since
the point I am pressing on is more or less procedural
or remedial in nature, and perhaps, the failure of the
parties concerned to seriously object to the procedure
pursued in the main opinion could be a sufficient
excuse for not following what I feel is the proper way of
dealing with the civil liability incurred by the estate of
the deceased Sendaydiego, hence my concurrence, in
the qualified sense implicit in this separate opinion, in
the dispositive portion of the decision herein.
May I add here that the foregoing reasons explain why
I have always insisted that when appeals in criminal
cases before us have to be dismissed by reason of the
death of the appellant, it is not proper to qualify such
dismissal as limited to that of the criminal liability of the
appellant. It is my humble view that the dismissal
should be unqualified and that the offended parties
concerned should be left to pursue their remedies, if
they so desire, in the appropriate separate civil action
contemplated both in the Civil Code and in Rule 111,
as explained above. I admit this view might entail the
institution of what is virtually a repetitive proceeding,
but I cannot see any way of avoiding what the
unequivocal language of the pertinent legal provisions
mandate, unless I make myself a party to judicial
legislation, which I believe it is not constitutionally
permissible for me to do, no matter how practical the
procedure might be.
(5) G.R. Nos. 5426 and 5427 March 7, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LINO SUMANGIL, defendant-appellant.
Isauro Gabaldon, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
These are two separate proceedings against the same
defendant for two separate offenses, in each of which
the accused was convicted and sentenced to fourteen
years eight months and one day of cadena temporal,
together with the accessory penalties prescribed by
law, and in each of which separate appeal was taken
to this court.
For reason of convenience, and especially on account
of the recommendation of clemency hereinafter set out,
the separate appeals in these cases are taken up
together and decided in a single opinion.
The information in case No. 5426 charges the
defendant with the commission of the crime of
falsification of a public document, committed as
follows:
On or about the 16th day of May, of the year
1908, the said defendant, being the municipal
treasurer of Cuyapo, maliciously and criminally
abused his office by issuing an official
document as a voucher for certain expenses,
in which was set forth a payment of P3.50
made to Tomas Daprosa for the transportation,
from Paniqui to Cuyapo, of certain boxes
belonging to the municipality, when the sum
actually paid was P0.60 and not that
hereinbefore stated, making such false
statement of facts for the purpose of
appropriating the balance. The act was
committed in the municipality of Cuyapo,
Province of Nueva Ecija, P. I., in violation of the
law.
The information in case No. 5427 charges the
defendant with the commission of the crime of
falsification of public document, committed as follows:
On or about the 19th day of May, of the year
1908, the said defendant, being the municipal
treasurer of Cuyapo, maliciously and criminally
abused his office by issuing an official voucher
for expenses in which was set forth a payment
of P1.50 made to Vicente Defiesta, for the
transportation of these cases of oil belonging to
the municipality from Paniqui to Cuyapo, this
not being the true amount paid, which was
P0.50, making such false statement of facts for
the purpose of appropriating the balance. The
act took place in the municipality of Cuyapo,
Province of Nueva Ecija, Philippine Islands,
contrary to law.
The evidence of record in both fully sustains the
findings of fact by the trial court and establishes the
guilt of the defendant of the crime with which he was
charged in each case beyond the peradventure of
doubt. We find no error in the proceedings in either
case prejudicial to the substantial interests of the
accused, and the judgments of conviction and the
sentences imposed in both cases should, therefore, be
affirmed, with the costs of this instance against the
appellant.
Under the provisions of article 2 of the Penal Code, and
in view of what seems to us to be the excessive penalty
("taking into consideration the degree of malice and the
injury caused by the crime" of which defendant was
convicted in each case), which it was the duty of the
court below, under strict application of the provisions of
the code, to impose in both cases, and which it now
becomes our duty to affirm, we deem it proper to invite
the attention of the Chief Executive to the nature and
character of the two separate offenses committed by
the accused and the severe penalties necessarily
imposed upon him upon conviction thereof, for such
action as shall be deemed proper in the premises. So
ordered.
Arellano, C.J., Torres, Mapa, Johnson and Moreland,
JJ., concur.
(6) G.R. No. 82197 March 13, 1989
MANUEL L. SIQUIAN petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, and THE
COURT OF APPEALS, respondents.
Cortes & Reyna Law Firm for petitioner.
The Solicitor General for respondents.
CORTES, J.:
The information charging petitioner Manuel L. Siquian,
the then municipal mayor of Angadanan, Isabela, of the
crime of falsification of public document under Art. 171,
p. 4 of the Revised Penal Code filed by Second
Assistant Provincial Fiscal before Branch XX of the
Regional Trial Court of Cauayan, Isabela reads as
follows:
That on or about the lst day of July, 1975, in the
Municipality of Angadanan, Province of Isabela, and
within the preliminary jurisdiction of this Honorable
court, the accused Manuel L. Siquian, being then the
Municipal Mayor of Angadanan, Isabela, taking
advantage of his position as such Municipal Mayor did
then and there wilfully, unlawfully and feloniously
prepare and, sign a false document, knowing it to be
false, to wit. An official communication to the Civil
Service Commissioner, dated July 1, 1975, which is
required by law in order to support the appointment of
a certain Jesusa B. Carreon to the position of clerk in
the Office of the Municipal Secretary which (sic) he
appointed as such by stating and making it appear in
said document that there was such a position existing
and that funds therefore were available. When in truth
and in fact, as said accused well-know (sic), there was
no such position or item and no funds were available
for said position in the Fiscal Budget of Angadanan for
1975-76, nor was there any special ordinance creating
said position and appropriating the necessary funds
therefor.
xxx
[Rollo, pp. 23-24.]
Upon arraignment, petitioner pleaded not guilty to the
offense charged and the trial of the case ensued. The
facts as found by the Regional Trial Court (RTC) are as
follows:
It appears from the evidence that sometime in June
1975, Jesusa Carreon, 20 years old, single and a
resident of Ilagan, Isabela, went to the accused Manuel
L. Siquian, Mayor of the Municipality of Angadanan,
Province of Isabela, to apply for employment in the
office of the Mayor. Earlier, she and her friends went to
the Municipal Hall of Angadanan to ask information if
there was any vacancy. When she was informed that
there was, she went to see the accused in his house.
The accused must have agreed to appoint her because
he accompanied her to the office of the Municipal
Secretary, Emilio Valenzuela. The latter, however, was
not there. Even so, the accused told Jesusa Carreon to
report for work the following day and that she should
be included in the budget. The accused then
accompanied her to the Office of the Municipal
Treasurer, Calo Battung the treasurer agreed that she
could report for work.
One week after, Jesusa Carreon went alone to the
Office of the Municipal Secretary. He was there. When
she went to the accused, she was told to go back to the
Municipal Secretary to work for her appointment
papers.
She was appointed clerk to the Municipal Secretary in
the Office of the Municipal Secretary, on July 1, 1975
by the accused.
xxx
Accompanying her appointment is the certification,
among others, of the availability of funds CS Form No.
203) dated July 1, 1975, issued by the accused Manuel
L. Siquian, pursuant to the requirements of
Memorandum Circular No. 5, Series of 1975,
addressed to the Commissioner of Civil Service, Manila
(Exh. "C").
xxx
Jesusa Carreon took her oath of Office (Exh. "A-l") on
July 1, 1975, and promptly began to work on the same
day. Her monthly salary was P 120.00. She rendered
services for the months of July, August, September,
October, November and December 1975 (Exhibits "B",
"B-l" to "B-5"). She was not, however, paid. As early as
October 1975, she went to the Municipal Treasurer to
receive her salary, but she was told that there was no
money yet. In November 1975, she went to see the
accused, but the latter told her to see the treasurer.
She went to the treasurer who told her that there was
no money. because of this, she went to the
Sangguniang Panlalawigan at the Provincial Capitol in
Ilagan, Isabela, to ask (sic) information regarding her
unpaid salaries. She was interviewed by Atty. Efren
Ambrosia Provincial Administrator. Atty. Ambrosio
asked her if she had complete appointment papers.
hereafter, she filed her verified complaint dated April
20, 1976, against the accused. Her complaint is
addressed to Governor Faustino N. Dy (Exhibit "G" and
"G-1").
It also appears from the evidence that the Municipal
council of Angadanan, Isabela, failed to enact the
annual budget for the municipality for the Fiscal Year
1975-1976 (Exhs. "H", "H-l", and "H-2"). Accordingly,
and pursuant to PD No. 477, the annual budget for the
previous Fiscal Year 1974-1975, was deemed re-
enacted (Exh. "H- l"). Thus, the Municipal Plantilla of
Personnel for the Fiscal Year 1975-1976 is the same
as the Plantilla of Personnel for the Fiscal Year 1975-
1976. No supplemental budget was enacted by the
municipal council of Angadanan.
In the Plantilla of Personnel for 1974-1975, which was
deemed re-enacted for the Fiscal Year 1975-1976,
there was no new item or appropriation for the position
of clerk in the Office of the Municipal Secretary of
Angadanan, Isabela. The new position of clerk in the
office of the Municipal Council appearing in the
Municipal Plantilla for Personnel (Exhibit "H-2") for
1974- 1975, was filled up as early as October 16, 1974
by the accused when he appointed Clarita G. Ramirez
to that position (Exhibits "J" and "J-2"). With respect to
the new position of a Clerk to the office of the Municipal
Mayor in the Plantilla for 1974-1975, it was already
filled-up by the appointment of Miss Marivic A. Tallod
on June 16, 1975, by the accused (Exhibits "K" and "K-
4"). As early as June 28, 1974, the same position was
held by Miss Felicidad Visitacion who was appointed
by the accused, but she resigned (Exhs. "K" and "K-l").
xxx
[Rollo, pp. 26, 28, 29-30.]
After trial, the Court found the petitioner guilty beyond
reasonable doubt of the crime charged and decreed:
WHEREFORE, finding the accused Manuel L. Siquian
guilty beyond reasonable doubt of the crime of
falsification of public document as charged in the
information, the Court hereby sentences said accused
to suffer an indeterminate penalty of from FIVE (5)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY
of prision correctional (sic) as minimum to SEVEN
YEARS of prision mayor as maximum and to pay a fine
of THREE THOUSAND (P 3,000.00) PESOS.
SO ORDERED. [Rollo, p. 35.]
On appeal, the respondent Court of Appeals ruled as
follows:
WHEREFORE, the decision appealed from is in
accordance with law and the evidence and is hereby
therefore affirmed. Costs against the accused-
appellant.
SO ORDERED. [Rollo, p. 42.]
Hence, this petition for review seeking reversal of the
CA decision and the acquittal of petitioner Manuel L.
Siquian. Petitioner contends that the respondent court
has decided a question of substance not in accord with
law and jurisprudence when it affirmed the decision of
the trial court convicting him of the crime of falsification
despite the following
A. The evidence on record which consists of the
testimony of the prosecution's principal witness, shows
the absence of criminal intent on the part of the
accused.
B. There is no evidence that the accused took
advantage of his position as Municipal Mayor when he
made the allegedly falsified certification.
C. The statement that "Funds for the position are
available" is not a narration of facts but a conclusion of
law.
D. The petitioner was deprived of his right to due
process of law when the trial court proceeded with the
trial in his absence despite a pending petition for
change of venue with the Supreme Court. [Rollo, p. 13.]
Petitioner's arguments, however, are bereft of any
merit.
The offense of falsification by a public officer under
Article 171 of the Revised Penal Code is committed by
"any public officer, employee or notary who, taking
advantage of his official position, shall falsify a
document by committing any of the following acts: . . .
4. Making untruthful statements in a narration of fact; .
. .' It is settled that in this fourth kind of falsification, the
following requisites must concur:
(a) That the offender makes in a document untruthful
statements in a narration of facts;
(b) hat he has a legal obligation to disclose the truth of
the facts narrated by him; and
(c) That the facts narrated by the offender
are absolutely false Cabigas v. People, G.R. No.
67472, July 3, 1987, 152 SCRA 18.
All these requisites had been fully met in the case at
bar. Petitioner, a public officer, being then the mayor of
the municipality of Angadanan, Isabela, made an
untruthful statement in the narration of facts contained
in the certification which he issued in connection with
the appointment of complainant Jesusa Carreon. The
certification, having been issued by a public official in
the exercise of the function of his office is a public
document [U.S. v. Asensi, 34 Phil. 765 (1915)]. It is
immaterial whether or not the Civil Service
Commissioner to whom the certification was
addressed received the document issued by petitioner.
Since the certification was prepared by petitioner in
accordance with the standard forms prescribed by the
government (specifically the Civil Service Commission)
pursuant to law, the certification was invested with the
character of a public document [People v.
Asensi, supra citing U.S. v. Vy Guico, 12 Phil. 209
(1908)] falsification of which is punishable under Article
171 of the Revised Penal Code. Here, falsification of
such document was committed when the petitioner
stated that funds were available for the position to
which Jesusa Carreon was appointed when he knew
that, in reality, the position itself did not even exist and
no funds had been appropriated therefor.
Petitioner's stance that the certification which he issued
contained no narration of facts but rather a conclusion
of law is not meritorious. The respondent court,
upholding the Solicitor General's arguments, correctly
ruled as follows:
Conclusion of law" is defined as a proposition not
arrived at by any process of natural reasoning from a
fact or combination of facts stated but by the
application of the artificial rules of law to the facts
pleaded [Levins v. Rovegno, 71 Cal. 273, 12 p. 161;
Black's Law Dict., p. 362].
From the above-cited definition, it can be deduced that
the certification by the appellant that 'funds for the
position are available' does not require the application
of the artificial rules of law. To certify that funds are
available for the position what one should do was (sic)
to refer to the budget and plantilla of personnel of the
applicable fiscal year and ascertain if such item exists
and funds are allocated therefor.
In the present case, despite the presence of the
records which shows that there is no position and funds
therefor referred to in the certification, the appellant,
fully aware of the data provided by the records, certified
falsely that "funds for the position are available" [Rollo,
p. 41).
It is undisputed that the Municipal Council of
Angadanan failed to enact the annual budget of the
municipality for the Fiscal Year 1975-1976 and
therefore, the annual budget for the last fiscal year,
1974-1975, was deemed re-enacted under P.D. No.
477. In the Municipal Plantilla of Personnel (Exh. "B-2")
accompanying the Annual Budget for the Municipality
of Angadanan, Isabela for the Fiscal Year 1974-1975,
there is no such position as Clerk to the Municipal
Secretary in the Office of the Municipal Secretary, the
position to which Jesusa Carreon was appointed.
Accordingly, there is no appropriation made in the
Annual Budget for the Fiscal Year 1974-1975 for such
position, thus rendering petitioner's statement in his
certification utterly false. The requisite of absolute
falsity of the statement made in the document is met
when there exists not even an iota of colorable truth in
what is declared in the narration of facts [U.S. v. Bayot,
10 Phil. 518 (1908)], as in this case. From the
foregoing, it can be seen that the first and third
requirements laid down in
the Cabigas case, supra, are fully satisfied.
The second element of the offense is likewise present.
Under the civil service rules and regulations,
specifically the Guidelines in the Preparation of
Appointment for Original Appointment (Exhs. "D" and
"D-3"), a certification of the availability of funds for the
position to be filled up is required to be signed by the
head of office or any officer who has been delegated
the authority to sign. As an officer authorized by law to
issue this certification which is designated as Civil
Service Form No. 203, as revised, the petitioner has a
legal obligation to disclose the truth of the facts
narrated by him in said certification which includes
information as to the availability of the funds for the
position being filled up.
Contrary to petitioner's claim, the existence of a
wrongful intent to injure a third person is not necessary
when the falsified document is a public document. This
has already been authoritatively decreed in the 1955
case of People v. Po Giok To [96 Phil. 913 (1955)]. The
Court in the aforementioned case explicitly stated that
wrongful intent on the part of the accused to injure a
third person is not an essential element of the crime of
falsification of public document. The rationale for this
principal distinction between falsification of public and
private documents has been stated by the Court in this
wise: "In the falsification of public or official documents,
whether by public officials or private persons, it is
unnecessary that there be present the Idea of gain or
the intent to injure a third person, for the reason that, in
contradistinction to private documents, the principal
thing punished is the violation of the public faith and the
destruction of truth as therein solemnly proclaimed"
[People v. Po Giok To, supra at 918, citing People v.
Pacana, 47 Phil. 48 (1924)]. In falsification of public
documents therefore, the controlling consideration is
the public character of a document and the existence
of any prejudice caused to third persons or, at least,
the intent to cause such damage becomes immaterial
[People v. Pacana, supra].
Petitioner's plea for acquittal on the ground that the
evidence for the prosecution shows the absence of
criminal intent on his part must be denied. While this
Court has declared good faith as a valid defense to
falsification of public documents by making untruthful
statements in a narration of facts [U.S. v. San Jose, 7
Phil. 604 (1907)], such defense cannot serve to
exonerate the petitioner since the element of good faith
has not clearly been shown to exist in the case at bar.
Under the applicable law at the time, petitioner, as
municipal mayor of Angadanan, Isabela presides at all
meetings of the municipal council [Section 2621 (d),
Revised Administrative Code] and signs all ordinances
and resolutions passed by the municipal council
[Section 2624 (c), Revised Administrative Code]. He
was thus aware that (1) for failure to enact a budget for
the Fiscal Year 1975-1976, Ordinance No. V of the
Municipal Council of Angadanan, Isabela which was
the Municipal Annual Budget of Angadanan, Isabela for
Fiscal Year 1974-1975 was re-enacted and (2) that
under the Municipal Plantilla of Personnel for that fiscal
year, there were no funds appropriated for the position
of clerk to the municipal secretary. His knowledge of
these facts is shown by the fact that he even affixed his
signature in attestation to the correctness of these
documents; i.e. Ordinance No. V and Municipal
Plantilla of Personnel. [See Exhs. "H-1" and "H-2",
Folder of Exhibits, pp. 27-32]. He cannot claim good
faith in issuing a certification of the availability of funds
for the questioned position since at the time he issued
such certification on July 1, 1975, the fiscal year 1975-
1976 had already commenced and no new ordinance
creating the new position to which he appointed Jesusa
Carreon had been enacted by the municipal council.
In view of the foregoing considerations, petitioner must
be held criminally liable for his act of issuing the
absolutely false certification as to the availability of
funds for the subject position. The law considers his act
criminal since it amounts to an untruthful statement in
a narration of facts in a public document [Article 171
(4), Revised Penal Code]. Criminal intent and the will
to commit a crime are presumed to exist on the part of
the person who executes an act which the law
punishes, unless the contrary shall appear [United
States v. Apostol, 14 Phil. 92 (1909)]. In this case, the
presumption that petitioner committed the act with
criminal intention, which arose from proof of his
commission of the unlawful act, stands unrebutted.
Petitioner's claim that there was no showing that he
took advantage of his official position in falsifying the
document should likewise be rejected. This essential
element of falsification of a public document by public
officer requires that the offender "abuse his office or
use the influences prestige or ascendancy which his
office gives him, in committing the crime" [U.S. v.
Rodriguez, 19 Phil. 150 (1911)]. Abuse of public office
is considered present when the offender falsifies a
document in connection with the duties of his office
which consist of either making or preparing or
otherwise intervening in the preparation of a document
[U.S. v. Inosanto 20 Phil. 376 (1911); People v.
Santiago Uy, 101 Phil. 159 (1957)], as in the case of
petitioner who was charged with the duty of issuing the
certification necessary for the appointment of Jesusa
Carreon.
Finally, the alleged denial of due process of law
committed by the trial court when it proceeded with the
trial of the case in the absence of the petitioner despite
a pending petition for change of venue with the
Supreme Court is totally unfounded. A careful and
thorough review of the record reveals that petitioner
had been afforded due process when the trial court, in
view of the absence of petitioner, granted continuances
to enable the defense to present its evidence although
the prosecution had rested its case as early as
December 7, 1978. [See Original Records, p. 253, et
seq.]
It is a basic postulate in law that what is repugnant to
due process is not lack of previous notice but absolute
lack of opportunity to be heard [Tajonera v. Lamaroza,
G.R. Nos. L-48097 & 49035, December 19, 1981, 110
SCRA 438]. Hence, this Court laid down this criterion
to determine whether an accused in a criminal case
has been properly accorded due process of law:
. . . (I)f an accused has been heard in a
court of competent jurisdiction and
proceeded against under the orderly
processes of law, and only punished
after inquiry and investigation, upon
notice to him, with an opportunity to be
heard, and a judgment awarded within
the authority of a constitutional law,
then he has had due process of law. . .
. [People v. Muit G.R. No. L-48875,
October 21, 1982, 117 SCRA 696 citing
People v. Castillo, 776 Phil. 73 (1946);
Emphasis supplied.]
Thus, there is no denial of due process when an
accused is afforded the chance to present evidence on
his behalf but due to his repeated, unjustifiable failure
to appear at the hearings, the trial court ordered the
case to be deemed submitted upon the evidence
presented by the prosecution. For under such
circumstances, he will be deemed to have waived his
right to be present during the trial [Section 1 (c), Rule
115 of the Revised Rules of Court] and his right to
adduce evidence on his behalf [People v. Angco, 103
Phil. 33 (1958).]
It is true that he filed a petition for change of venue with
the Supreme Court. However, on the date set for the
hearing of the petitioner's urgent motion to suspend the
proceedings in the trial court due to the pendency of
the petition for change of venue, he also failed to
appear [See Order dated January 18, 1985, Original
Records, p. 428]. In fact, Atty. Romeo Calixto, one of
the counsel for the petitioner, manifested before the
trial court that he was - withdrawing as counsel for his
client for the reason that he has lost contact with the
latter who already went abroad [See Original Records,
p. 435]. Hence, the trial court cannot be faulted for
rendering its decision on the basis solely of the
evidence presented by the prosecution.
WHEREFORE, the appealed decision being in
conformity with law and settled jurisprudence, the
same is AFFIRMED and the instant petition is hereby
DENIED.
SO ORDERED.
Fernan, C.J., Feliciano and Bidin, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J.:, concurring.
I agree with the precedent rulings applied by the Court
to the facts as found by both the trial court and the
Court of Appeals. I believe, however, that a too literal
application of the rules may blur the line between
deliberate intent to commit a crime and the unwitting
commission, through negligence, of an act which would
otherwise be criminal if intentionally committed.
It is a well-known fact that many top officials both
national and local, usually rely on the initials of lower
echelon employees on such routine matters as prior
compliance with regular procedures. When a
government executive sees the required initials below
his typewritten name, he confidently affixes his
signature to certifications, clearances, and approvals of
permits or licenses. He is technically guilty of
falsification if what he signed turns out to be false but
should we require him to personally go over every step
and procedure which he ordinarily leaves to
subordinates? In this case, of course, there is evidence
that the accused was aware that the position to which
Carreon was appointed is non-existent.
There is likewise an indication in this case that the
petitioner could not present evidence in his defense
because he was in the United States hiding from
political enemies. However, his counsel was here and
his main plea was for change of venue. If the venue
had been changed, there would have been
presentation of evidence. I agree with the ponente that
the due process argument has not been presented
adequately, sufficient to reverse the findings of both the
trial court and the appellate court.
Separate Opinions
GUTIERREZ, JR., J.:, concurring.
I agree with the precedent rulings applied by the Court
to the facts as found by both the trial court and the
Court of Appeals. I believe, however, that a too literal
application of the rules may blur the line between
deliberate intent to commit a crime and the unwitting
commission, through negligence, of an act which would
otherwise be criminal if intentionally committed.
It is a well-known fact that many top officials both
national and local, usually rely on the initials of lower
echelon employees on such routine matters as prior
compliance with regular procedures. When a
government executive sees the required initials below
his typewritten name, he confidently affixes his
signature to certifications, clearances, and approvals of
permits or licenses. He is technically guilty of
falsification if what he signed turns out to be false but
should we require him to personally go over every step
and procedure which he ordinarily leaves to
subordinates? In this case, of course, there is evidence
that the accused was aware that the position to which
Carreon was appointed is non-existent.
There is likewise an indication in this case that the
petitioner could not present evidence in his defense
because he was in the United States hiding from
political enemies. However, his counsel was here and
his main plea was for change of venue. If the venue
had been changed, there would have been
presentation of evidence. I agree with the ponente that
the due process argument has not been presented
adequately, sufficient to reverse the findings of both the
trial court and the appellate court.
(7) G.R. No. 31012 September 10, 1932
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
ESTELA ROMUALDEZ and LUIS
MABUNAY, defendants-appellants.
Courtney Whitney, Vicente Nepomuceno and Julio
Llorente for appellant Romualdez.
Vicente J. Francisco and Claro M. Recto for appellant
Mabunay.
Attorney-General Jaranilla for appellee.
VICKERS, J.:
This is an appeal from the following decision of the
Honorable E. P. Revilla, Judge of the Court of First
Instance of Manila:
Estela Romualdez and Luis Mabunay are
charged with the crime of falsification of public
and official documents, committed, according
to the information, as follows:
That in or about the month of February,
1927, in the City of Manila, Philippine
Islands, the accused Estela
Romualdez, who, by appointment of
the Supreme Court of the Philippine
Islands, was then taking part in the
discharge of public functions as
secretary to the Honorable Norberto
Romualdez, one of the Justices of the
Supreme Court, and by reason of said
duty had under her care the
compositions and other papers and
documents having reference to the
examinations for the admission of
candidates to the bar held in the
months of August and September,
1926, which were then kept in the
archives of the said court,
confabulating with her coaccused, Luis
Mabunay, and acting in common
accord with him, who was then one of
the candidates who took the said Bar
Examinations, willfully, illegally, and
criminally extracted from the said
archives of the Supreme Court certain
public and official documents, to wit:
the compositions, which were written,
prepared and submitted by the
accused, Luis Mabunay in that
examination. Once in possession of the
same, the said accused Estela
Romualdez and Luis Mabunay,
conspiring together and acting in
common accord, willfully, illegally, and
criminally erased the grade of fifty-eight
(58%) given by the correctors Alfonso
Felix and M. Guevara to the
composition in Remedial Law, which
was written and prepared by the
accused Luis Mabunay, and in its place
wrote sixty-four (64%); and also erased
the grade of sixty-three (63%) given by
correctors Jeronimo Samson and
Amado del Rosario to the composition
in Civil Law written and prepared by the
said Luis Mabunay, and in its place
wrote seventy-three (73%), and by
means of these alterations the said
accused Estela Romualdez and Luis
Mabunay were able to change the
relative merits of those compositions,
thereby attributing to the said
correctors, statements and
declarations contrary to what they
really made, and the accused Estela
Romualdez and Luis Mabunay thus
succeeded by means of falsifications
made by them in the aforesaid public
and official documents in making it
appear that Luis Mabunay obtained the
general average required by the rules
of the Supreme Court, and in securing
the latter's admission to the practice of
law, as in fact he was admitted, to the
great prejudice of the public.
Upon arraignment the accused pleaded not
guilty.
Both the prosecution and the defense
produced an abundance of evidence, oral and
documentary, the presentation of which
consumed considerable of the court's time.
UNDISPUTED FACTS
There is no question whatsoever as to the
following facts which are not disputed either by
the prosecution or by the defense:
The accused Estela Romualdez was appointed
upon the recommendation of Justice Norberto
Romualdez of the Supreme Court of the
Philippine Islands as his secretary on
November 1, 1921, and continued as such until
September 15, 1928.
The accused Luis Mabunay was one of the
candidates duly admitted to the bar
examinations held in 1926.
The clerk of the Supreme Court, Mr. Vicente
Albert, who was appointed to that office on July
11, 1912, acts every year as the secretary ex
oficio of the examination committee for
admission to the bar.
The Supreme Court of the Philippine Islands
designated Justice Norberto Romualdez as
chairman of the examination committee for
admission to the bar in the year 1926, and upon
recommendation of Clerk Vicente Albert, he
appointed the following as members of the
examination committee, with their respective
subjects: Attorney Francisco Ortigas, Civil Law;
Judge Vicente Nepomuceno, Mercantile Law;
Attorney Godofredo Reyes, Criminal Law;
Judge Jose Abreu, Remedial Law; Attorney C.
A. DeWitt, International Law; Attorney-General
Delfin Jaranilla, Political Law; and Attorney
Carlos Ledesma, Legal Ethics.
Upon recommendation also of clerk of court Mr.
Vicente Albert, a committee of correctors was
appointed, composed of the following
attorneys: Amado del Rosario, Assistant
Director of Civil Service, and Jeronimo
Samson, deputy clerk of the Supreme Court, as
correctors in Civil Law; Rafael Amparo,
Secretary of Justice Johnson, and Fulgencio
Vega, Secretary of Justice Malcolm, as
correctors in Mercantile Law; Cecilio Apostol,
Assistant City Fiscal, and Remo, of the Bureau
of Audits, as correctors in Penal Law; Marciano
Guevara, of the Bureau of Audits and Alfonso
Felix, Assistant City Fiscal, as correctors in
Remedial law; Juan Lantin, of the Executive
Bureau, and the accused Estela Romualdez,
as correctors in Political Law; Rufino Luna, of
the Executive Bureau, and Zoilo Castrillo, of
the Bureau of Lands, as correctors in
International Law; and Anatalio Mañalac, of the
Bureau of Lands, and Jeronimo Samson as
correctors in Legal Ethics. On account of
illness, Mr. Remo was substituted by Jeronimo
Samson as corrector in Penal Law. All said
 correctors were designated by clerk of court
Albert with the approval of the chairman of the
examination committee.
The work of the members of the examination
committee was limited to the preparation of the
questions in their respective subjects and of a
memorandum or note of the articles, legal
provisions and jurisprudence showing the
sources from which the questions were taken.
The work of reviewing and grading the
compositions was entrusted to the correctors
designated for each subject. Each corrector
was furnished with this note or memorandum,
and a set of rules, patterned after those of the
Civil Service, was prepared by corrector
Amado del Rosario to guide the correctors in
grading the examination papers.
The correctors worked separately in reviewing
and grading the papers on the subject assigned
to them, noting the grades given to each
answer, not on the composition, but in a
separate note book, which were later checked
with the grades given by the other corrector in
the same subject, for the purpose of
determining the general average to be given to
the composition.
The report of the examination committee on the
final result of the bar examination for the year
1926 was submitted, under date of March 2,
1927, to the Supreme Court and was published
on the fifth of said month. In the list of
successful candidates (Exhibit C-5) there
appeared the name of candidate Luis Mabunay
with a general average of 75%. The grades of
Mabunay in each subject, according to the list
Exhibit C-2, which was prepared after the
publication of the result of the examination, are:
73 in Civil Law, 77 in Mercantile Law, 69 in
Penal Law, 76 in Political Law, 86 in
International Law, 64 in Remedial Law, 80 in
Legal Ethics and Practical Exercises. However,
a later revision of the composition of Luis
Mabunay showed that the grades of seventy-
three (73 in Civil Law (Exhibit B-1), and sixty-
four (64) in Remedial Law (Exhibit B-2) had
been written on the first page of said
compositions after striking out the grades of
sixty-three (63) therefore given to the
composition in Civil Law, Exhibit B-1, and fifty-
eight (58) theretofore given to the composition
in Remedial Law, Exhibit B-2. The investigation
of this irregularity by the City Fiscal of Manila
led to the filing of the information in this case.
Admission of the accused Estela Romualdez
Before the prosecuting attorney had finished
presenting his evidence tending to show the
identity of the person who altered the grades
appearing on the first pages of the
compositions Exhibits-B-1 and B-2, the
accused Estela Romualdez spontaneously and
with the conformity of her attorneys made of
record an admission as follows (p. 395, s. n.):
"In Exhibit B-1 the words seventy-
three and the figures 73% inclosed in
parenthesis are in my regular
handwriting, and in Exhibit B-2 the
words sixty-four and the figures 64%
inclosed in parenthesis appearing in
said composition are also in my regular
handwriting."
Authority of the accused Estela Romualdez to alter or
change the grades
In view of the admission made by the accused
Estela Romualdez that she was the person
who wrote on the compositions Exhibits B-1
and B-2 the words and figures alleged to have
been falsified, it now appears that the burden
of establishing the authority under which said
changes and alterations were made is on the
accused. On this point the evidence for the
defense tended to show that the accused
Estela Romualdez, both in her capacity as
private secretary of the chairman of the
examination committee and as corrector and at
the same time supervisor of the correctors, was
authorized by said chairman to revise the
compositions already reviewed by the other
correctors and to change the grades given by
them.
Justice Romualdez, testifying as a witness for
the defense, said that he considered the
accused Estela Romualdez and Deputy Clerk
Samson as supervisors of the correctors; and
explaining the powers of the former he said
(page 721, s. n.):
"As such supervisor I think there was
on occasion when I gave her to
understand that in order to do justice to
the compositions, she could review the
compositions already graded by the
other correctors; provided, I want to
add, that the new revision was done in
order to do justice to the compositions
and before the names of the
candidates were known."
Referring to the alterations made by the
accused Estela Romualdez to the grades given
by the corresponding correctors to
compositions Exhibits B-1 and B-2, this same
witness testified that said alterations were
made within the limits of the powers he had
given to said accused (pages 723, 726, s. n.).
For her part the accused Estela Romualdez,
testifying as a witness in her own behalf, said
that the chairman of the examining committee,
gave her to understand that she "was
authorized to correct any composition in any
subject" in the bar examinations of the year
1926 and that she had never corrected any
composition after the name of the
corresponding candidate was identified (pages
782, 783, s. n.). She denied having known Luis
Mabunay, and said that the first time she saw
him was on the first day of the trial of this case
(page 783, s. n.).
Contention of the Prosecuting Attorney
 The contention of the prosecuting attorney with
respect to the accused Estela Romualdez may
be summarized in two following propositions:
1st — that Justice Romualdez, as chairman of
the examination committee, did not have
authority to delegate to his secretary, the
accused Estela Romualdez, the power to
revise compositions in subjects in which she
was not a corrector and which had already
been graded by the other correctors, and much
less the power to alter or change the grades
given to and written on said compositions; 2nd
— that granting that the chairman of the
examination committee had such authority, the
accused Estela Romualdez did not exercise
the same in the manner prescribed by said
chairman, namely, in order to do justice to the
compositions and on the condition that the
revision and the changes of grades should be
made before the names of the candidates, to
whom the compositions belonged, were
known.
In support of the first proposition, the
prosecuting attorneys maintains that Justice
Romualdez was appointed by the Supreme
Court as chairman of the bar examination
committee of the year 1926, so that he would
supervise the examinations in accordance with
law and the rules, and that precisely, in
accordance with the rules the chairman can not
by himself exercise the individual powers of the
committee, among which were the powers to
review, and to change or alter the grades given
to the compositions.
As to the second proposition, the prosecuting
attorney maintains that the evidence adduced
by the prosecution, specially the testimony of
the Deputy Clerk Samson, shows that the
accused Estela Romualdez made the changes
in the grades given by the correctors to
compositions Exhibits B-1 and B-2, in order to
favor the accused Luis Mabunay, to whom she
knew said compositions belonged, thus
violating the conditions imposed upon her by
the chairman of the examination committee
when she was given said authority.
As to the accused Luis Mabunay, the
prosecuting attorney also maintains that the
evidence for the prosecution shows that he was
in connivance with the accused Estela
Romualdez in the alteration by the latter of his
grades in Civil Law and Remedial Law for the
purpose of raising to 75% the general average
of 72.8 which he had obtained.
Theory of the Defense
In reply to the contention of the prosecuting
attorney, the defense argues that the power of
supervision given by Justice Romualdez to his
secretary, the accused Estela Romualdez, is
not contrary to law, rules or precedents. This
assertion is based on the testimony of said
Justice that the appointment of a committee of
attorneys in accordance with section 2 of the
rules had not been followed by the Supreme
Court for a number of years prior to 1926, and
that when said court designated Justice
Romualdez as chairman of the examination
committee without designating the examiners,
it left that function to said chairman, and
conferred upon him ample powers to do what
in his judgment was most in line with justice
and the law, and that no Court of First Instance
has jurisdiction to determine the propriety or
illegality of the procedure employed by the
chairman of the examination committee, or of
the powers conferred by him upon his
secretary, inasmuch as said chairman was
responsible only to the Supreme Court for his
acts.
The defense also claims that the accused
Estela Romualdez could not have known to
whom compositions Exhibits B-1 and B-2
belonged at the time of making the alteration of
the grades appearing on the first pages thereof,
because, according to the testimony of said
accused, corroborated by that of Catalina
Pons, who was one of those who helped in the
preparation of the list of candidates Exhibit C-
1, the envelopes containing the names and the
identification numbers of the candidates were
opened just one day before the publication of
the result of the examination, and that in order
to finish this work and to place the names of the
candidates on said list, they had to work
continuously from 8 o'clock in the morning until
8 o'clock in the evening on the day prior to the
publication of the result of the examinations.
Considerations on the evidence and contentions of
both parties
Upon an examination of the testimony of
Justice Romualdez, as a witness for the
defense, the court finds that the accused Estela
Romualdez, as secretary of the chairman of the
examination committee, and Jeronimo
Samson, as deputy clerk of the Supreme Court
were considered by said chairman not only as
correctors in the subjects assigned to them but
also as supervisors of the correctors (page
721, s. n.), both of them with equal powers and
authority so that neither could consider himself
superior to the other (page 727, s. n.). It
appears, however, that while the chairman of
the committee gave his secretary, the accused
Estela Romualdez, to understand that she
"was authorized to revise the compositions
already graded by the other correctors
provided the new revisions were made for the
purpose of doing justice to the compositions
and that the same were mad before the names
of the candidates were known" (pages 721,
722, s. n.), he did not do the same with respect
to Deputy Clerk Jeronimo Samson, to whom he
said nothing about this matter (page 768, s. n.).
It also appears that the accused Estela
Romualdez had never informed the chairman
of the committee about the corrections or
alterations made by her in compositions
Exhibits B-1 and B-2; neither did the latter
examine said compositions to determine
whether or not their merits justified the changes
so made, and he only knew of said changes
upon the filing of the information against his
said secretary (page 728, s. n.). For her part,
she made no report to the chairman of the
examination committee of any error or injustice
committed by any corrector, and she only told
him during the progress of the work of grading
the papers that they were being graded very
strictly and that "she feared that some injustice
might be committed" (page 729, s. n.), and for
that reason Justice Romualdez told his
secretary, Estela Romualdez, that "should a
case of the kind come to her knowledge, she
should take special notice of the same in order
to do justice," that is to say, if any person
should bring to her attention any such case in
which, in her opinion, some injustice had been
committed, she was authorized to put things in
order (page 781, s. n.), and the revision in such
cases was left to the judgment of his secretary
(page 780, s. n.).
The powers conferred in the manner above
stated, by Justice Romualdez as chairman of
the examination committee upon his secretary,
Estela Romualdez, gave her so ample a
discretionary power of supervision that in its
exercise she should act independently, not only
of the correctors and of her cosupervisor
Jeronimo Samson, but also of the examination
committee. Now, granting that Justice
Romualdez, as a chairman of the committee
appointed by the Supreme Court to conduct the
bar examinations of 1926, was authorized to
confer such power of supervision upon his
secretary Estela Romualdez, in what manner
did she exercise that power when she made
the changes in the compositions in question?
The accused Estela Romualdez who,
according to her own admission, made the
alterations of the grades originally given by the
correctors to compositions of Exhibits B-1 and
B-2, is the only person who could give an
account of and explain the circumstances
under which said alterations were made. But
said accused, testifying as a witness in her own
behalf, was not able to explain how and under
what circumstances she made those
alterations. When pressed by the fiscal during
the cross-examination to state the
circumstances under which she came across
those compositions Exhibits B-1 and B-2 the
accused Estela Romualdez said: "If I were to
make any statement with reference to the
circumstances under which I came across
these compositions, you would compel me to
tell a lie, because I do not really remember"
(page 823, s. n.). Neither does the accused
remember why she did not put her initials under
or at the side of those alterations she made on
compositions Exhibits B-1 and B-2, limiting
herself to say, when she saw the other
compositions (Exhibits 3-1, X, X-1 and X-2)
bearing her initials which were exhibited to her
by the fiscal, that she placed her initials on said
compositions because she graded them as
corrector, and she did not put her initials on
compositions Exhibits B-1 and B-2 because
she revised them in her capacity as supervisor
(pages 824- 832, s. n.). She also said, that, as
corrector, she had instructions to put her initials
when writing the original grade on any
composition, but as supervisor "she was under
no obligation" to put her initials (page 830, s.
n.) and that the chairman of the examination
committee "has not gone into such minor
details" (page 831, s. n.). Upon being
questioned by the fiscal as to why she wrote
the altered grade on composition Exhibit B-2 on
the same line and immediately before the
initials of the correctors she said: "Because on
that occasion it pleased me to do so" (page
836, s. n.). Neither does the accused
remember whether or not she exercised her
supervisory authority with respect to the other
five compositions forming part of those marked
as Exhibits B-1 and B-2 (page 840, s. n.); and
when asked by the fiscal for an explanation as
to why the increase given by her to the grades
originally given to said compositions had the
effect of raising the general average of the
compositions of the same candidate to 75%,
the accused answered that "the fiscal ought to
know that in this life there are happy
coincidences" (page 848, s. n.). With these
answers and others appearing in her
testimony, the accused instead of giving a
satisfactory explanation of her conduct, has
demonstrated that with the encouragement
given by Justice Romualdez to the effect that
the new revision of the compositions was left to
her discretion (page 780, s. n.) she assumed
that the powers exercised by her in the bar
examinations of 1926 were such that she could
revise any composition in any subject already
graded and increase or decrease the grades
given by the correctors; in other words, that she
could, at her pleasure, do or undo the work
done by the correctors without the necessity of
accounting to anybody for it (page 834, s. n.),
or of keeping a note or memorandum of the
compositions so revised and the alteration of
the grades.
The evidence, however, shows that Justice
Romualdez himself in reviewing, in his capacity
as chairman of the examination committee, the
compositions of the candidates who filed
motions for reconsideration of the grades given
them, after the publication of the result of the
examinations, performed his work with such
diligence and zeal that he noted in a
memorandum book (Exhibit F) not only the
grades given to each answer of the candidate,
but also the total grade obtained by the
candidate in the revision, together with such
other data which would explain the increase of
the grades of this or that candidate.
The court is loath to believe that Justice
Romualdez had given his secretary to
understand that she had such unlimited
powers, or that the Supreme Court in
designating said Justice as chairman of the bar
examination committee of the year 1926,
authorizing him to confer such powers upon his
secretary, because it is an undisputed fact that
his designation was made so that he should
conduct the examinations in accordance with
law and the rules.
But, even granting that when the accused
Estela Romualdez altered the grades given by
the correctors to compositions Exhibits B-1 and
B-2 she acted in the exercise of the powers
conferred upon her by the chairman of the
examination committee, is there any ground in
support of her claim that she made those
alterations only to do justice to the
compositions, and without knowing the name of
the candidate to whom they belonged?
Without giving any weight to the testimony of
the witness for the prosecution, Juan Villaflor,
which, according to the defense is not worthy
of credit because of the contradictions and
inconsistencies therein noted, the record
contains other evidence establishing certain
facts from which such knowledge can be
inferred.
It has been proved that after the revision and
grading of all the compositions numbering over
8,000, a list, Exhibit C-1, was prepared in
pencil. This list was prepared with the
intervention of the said Jeronimo Samson and
Josephine Stevens, assisted by Catalina Pons,
Juan Villaflor and the accused Estela
Romualdez. However, before the preparation
of this list, sometime during the first day of
February, 1927, the sealed envelopes
containing the identification numbers attached
to each composition were opened. Said
numbers were written either on the upper part
of each envelope or on the first page of the
composition, and that work lasted several days
(pages 162, 163, s. n.). In the list Exhibit C-1
the numbers of the candidates contained in the
envelopes attached to the compositions were
first written (page 166, s. n.), and then the
grades in each subject, followed by the general
average (pages 71, 184, s. n.), leaving in the
blank the space intended for the names (page
166, s. n.). Deputy Clerk Samson wrote on an
adding machine the grades in each
composition as they were read out by one of
the helpers, and then the corresponding
general average as computed by him (page 71,
s. n.), and, at the same time, Josephine
Stevens wrote said grades in the space
corresponding to each subject (page 188, s.
n.). The roll of paper used by Deputy Clerk
Samson on the adding machine was presented
as Exhibit C-6.
After the list Exhibit C-1 containing the grades
in each subject and the general average of
each candidate, who was theretofore known by
his identification number only, was prepared,
the envelopes containing the names
corresponding to the identification numbers
written on said list were taken from the safe of
the office of the clerk, and the names of the
candidates were inserted in said list by those
who assisted in the preparation thereof (pages
166, 167, s. n.) among whom was the accused
Estela Romualdez, who admitted, upon cross-
examination, having written many of the names
appearing on several pages of said list (pages
859-861, s. n.). After said list Exhibit C-1 was
prepared the examination committee submitted
to the Supreme Court a report recommending
the admission to the bar and not only for those
candidates with a general average of 75% or
more, but also of those who had obtained a
general average of 70 or more but below 75%,
and said automatic increase was ordered noted
on said list Exhibit C-1. However, this
recommendation was not approved by the
Supreme Court on the ground that said
automatic increase was arbitrary (pages 73,
74, s. n.), and for that reason the clerk of court,
Mr. Albert, instructed his deputy, Mr. Samson,
to prepare another list containing only the
names of the candidates who had originally
obtained a general average of 75% without
having obtained less than 60% in any subject,
and in pursuance thereof the typewritten list
Exhibit C-5 was prepared (page 77, s. n.),
which was approved by the Supreme Court and
published on March 5, 1927. In this list Luis
Mabunay is included with an average of 75%.
Eight or ten days after the publication of the
result of the examinations the list Exhibit C-2
was prepared in the same form as Exhibit C-1
taking the grades directly from the
compositions; while one of the helpers read
them, Deputy Clerk Samson listed them on the
adding machine and computed the general
average of each candidate. The roll of paper
used by Deputy Samson on this occasion was
also presented and marked as Exhibit C-7.
Both rolls, Exhibits C-6 and C-7, as well as the
lists Exhibits C-1 and C-2, were kept in the
office of Justice Romualdez and were only
taken out when the investigation of the
irregularities in the examinations of 1926 was
commenced (page 81, s. n.). And only in the
course of that investigation it was discovered
that the grades of candidate Luis Mabunay,
identified with number 898 in roll Exhibit C-6
and in the list Exhibit C-1, which had been
prepared simultaneously, did not agree,
because, while roll Exhibit C-6 shows that the
grade in Civil Law of candidate No. 898 is 63,
the list Exhibit C-1 shows that the grade of the
same candidate is 73; and while roll Exhibit C-
6 shows that the grade of candidate No. 898
was 58 (in Remedial Law), his grade in the list
Exhibit C-1 is 64 (in the same subject), a
difference also being noted between the
general average of candidate No. 898 in Exhibit
C-6, which is 72.8%, and his general average
on Exhibit C-1, which is 75% (pages 73, 74, s.
n.). This discovery led to the revision of the
compositions of Luis Mabunay in the
examinations of 1926, which were united to his
personal record (Exhibit B), which showed that
the grades given to, and written by the
respective correctors on the compositions of
said candidate in Civil Law Exhibit B-1 and
Remedial Law Exhibit B-2 had been altered,
and further, that the grades that appeared on
said compositions before the alterations were
identical with those that appeared on the roll,
Exhibit C-6. An ocular inspection of page 29 of
said Exhibit C-1 shows at first glance that the
numbers 73, 64, and 75 in the columns
corresponding to Civil Law, Remedial Law and
General Average, respectively, were written
after erasing with rubber what was there
originally written. It may also be noted, upon an
examination of the alterations appearing on the
first pages of compositions Exhibits B-1 and B-
 2, that the grades originally written by the
correctors, authenticated by their initials, had
been stricken out in such a way that it is difficult
to make out said original grades, leaving,
however, intact, the initials of the correctors.
From these facts it is inferred: First, that the
person who erased and altered the grades
written by the correctors on the first pages of
compositions Exhibits B-1 and B-2 wished to
make it appear that said alterations had been
made by the correctors themselves; second,
that said alterations were made after the
grades written by the correctors had been
noted on the adding machine in roll Exhibit C-6
and on the list Exhibit C-1 which were prepared
simultaneously; third, that after said alterations
had been made, and in order that the grades
so altered should agree with the grades already
written on the list Exhibit C-1, the grades in Civil
Law and Remedial Law were erased with
rubber, and in place thereof were written the
grades now appearing in said compositions.
The accused Estela Romualdez having
admitted that she was the author of such
alterations, the only logical inference from her
admission and the facts above set out, is that
she was also the person who erased not only
the grades originally written by the correctors
on the compositions Exhibits B-1 and B-2 but
also those appearing in the columns
corresponding to Civil Law and Remedial Law
on the list Exhibit C-1, and the same person
who wrote the grades now appearing in said
columns, and which agree with those written by
her on compositions Exhibits B-1 and B-2.
Now, if the accused Estela Romualdez erased
in the manner stated the grades originally
written, and substituted for them the grades
now appearing in said compositions Exhibits B-
1 and B-2 as well as in the columns
corresponding to Civil Law and Remedial Law
in the list Exhibit C-1, it cannot be doubted that
in making such erasures and alterations she
not only acted with the intent of concealing her
identity, but she also knew the number and the
name of the candidate to whom said
composition belonged, because at that time the
numbers and the names of the candidates
were already written on the list Exhibit C-1, and
that list was kept in the office of Justice
Romualdez (page 83, s. n.), were she had
complete and absolute control as private
secretary and supervisor of the examinations.
Participation of the accused Luis Mabunay
Discarding the testimony of witness Juan
Villaflor in which he says that one Luis
Mabunay called up the accused Estela
Romualdez on the telephone a few days before
the publication of the results of the
examinations, there is, indeed, no direct proof
in the record showing the participation of the
accused Luis Mabunay. However, there is
other evidence for the prosecution establishing
certain facts which show strong indications that
he operated in the act before or at the time of
its execution by his coaccused. It has been
proved beyond a reasonable doubt that the
accused Luis Mabunay was one of the
candidates who took the bar examinations in
1926; that the general average obtained by
him, according to the computation appearing
on the roll Exhibit C-6 of the adding machine
and that originally written in the list Exhibit C-1
was 72.8%; that after the Supreme Court
denied the recommendation of the examination
committee that all grades from and between
70% and 75% be automatically raised to 75%,
his name, nevertheless, appeared in the list of
successful candidates which was published on
March 5, 1927 (Exhibit C-5), and that said
inclusion was due to the increase of these
grades in Civil Law (Exhibit B-1) and Remedial
Law (Exhibit B-2), which was made by his
coaccused by erasing and altering the grades
theretofore given by the correctors.
It is true that the accused Estela Romualdez, in
her desire to show that she had no motive
whatsoever for favoring his coaccused Luis
Mabunay, testified that she did not know him
and that the first time she saw him was on the
first day of the trial of this case. However, in
view of her inability to explain why precisely the
compositions of said Luis Mabunay had been
benefited by the revision, and in view of the
admission of Justice Romualdez that the power
to revise conferred upon Estela Romualdez
could be exercised by her in the compositions
already graded by the correctors in all cases of
injustice which came to her knowledge, or
which might be brought to her attention (page
781, s. n.), her testimony lacks foundation,
because it is absurd to believe that her revision
of the compositions of her coaccused Luis
Mabunay was due only and solely to a happy
coincidence.
Furthermore, the accused Mabunay made no
effort to contradict the evidence for the
prosecution with reference to his withdrawal of
the amount of P600 from his savings account
in the Philippine Trust Company on the second
day of March, 1927, or three days before the
publication of the result of the examinations
(Exhibit I) which, when correlated with the
deposit of the sum of P400 made by the
accused Estela Romualdez in her current
account (Exhibit H) with the Bank of the
Philippine Islands on the seventh day of said
March, 1927, may, perhaps, give an
explanation of the motive of said accused for
increasing the grades of Mabunay with just the
necessary points to reach the lowest passing
general average. It is also true that Estela
Romualdez testified that said amount had been
sent to her by her cousin named Prisca
Magpayo Redona from the province for the
purchase of merchandise for sale at the latter's
store (page 791, s. n.), but the testimony in that
respect was not corroborated either by her said
cousin, or by any other persons mentioned by
her as the bearers of said amount, or by the
corresponding check or postal money order, as
she had done when referring other deposits in
the bank.
Conclusion
 In view of the foregoing considerations, the
court finds that the allegations of the
information are sufficiently supported by the
evidence and that the accused, Estela
Romualdez and Luis Mabunay are guilty
beyond a reasonable doubt; the former as
principal and the latter as accomplice, of the
crime of falsification of official documents with
which they are charged and, therefore, a
judgment is rendered sentencing Estela
Romualdez, who was a Government employee
at the time of the commission of the crime, to
suffer, in accordance with article 300 of the
Penal Code, as amended by section 1 of Act
No. 2712, six years and one day of prision
mayor with the accessory penalties of the law,
to pay a fine of 1,000 pesetas, without
subsidiary imprisonment in view of the nature
of the penalty, and also to suffer the penalty of
perpetual disqualification from public office;
and her coaccused Luis Mabunay, who was a
private individual with respect to said
examination, to suffer, under the provisions of
article 301 as amended by section 2 of Act No.
2712 and article 67 of the Penal Code, the
penalty of four months and one day of arresto
mayor, with the accessory penalties of the law,
and to pay a fine of 250 pesetas, with
subsidiary imprisonment in case of insolvency,
and each to pay one-half part of the costs.
The appellant Estela Romualdez through her attorneys
makes the following assignments of error:
I. The trial court erred in finding the accused,
Estela Romualdez, guilty of the crime of
"falsification of public and official documents"
and in sentencing her to suffer imprisonment
without due process of law, contrary to section
3, Act of Congress of August 29, 1916, entitled
"An Act to Declare the Purpose of the People
of the United States as to the future Political
Status of the People of the Philippine Islands,
and to Provide a More Autonomous
Government for those Islands".
II. The trial court erred in not finding, that the
accused, Estela Romualdez, was fully
authorized to make the alterations she in fact
made on the composition papers of Luis
Mabunay, Exhibits B-1 and B-2 of the
Government, and in denying full credit to the
uncontradicted testimony of Mr. Justice
Norberto Romualdez, chairman of the bar
examining committee for the year 1926,
concerning the authority granted her.
III. The trial court erred in failing to extend to
the accused Estela Romualdez a fair and
impartial trial.
The attorneys for the appellant Luis Mabunay allege
that the trial court committed the following errors:
I. The trial court erred in not crediting the
uncontradicted testimony of Justice
Romualdez with reference to his authority as
chairman of the bar examination committee of
the year 1926, to confer upon the accused
Estela Romualdez, the powers he in fact
conferred upon her, in connection with said
examination.
II. It also erred in not crediting the
uncontradicted testimony of Justice
Romualdez as to the fact that he, as chairman
of the bar examination committee of 1926,
really and truly conferred upon the accused
Estela Romualdez the powers which she
exercised in that examination.
III. It also erred in concluding that the accused
Estela Romualdez did not exercise the powers
conferred upon her by the chairman of the bar
examination committee of 1926, within the
limits fixed by said chairman, to wit: that the
new revision and grading of the compositions
be made in order to do justice thereto, and
before the names of the corresponding
candidates were known.
IV. It likewise erred in concluding that the
accused Estela Romualdez changed the
general average and the grades of candidate
Luis Mabunay in Civil Law and Remedial law
on the list Exhibit C-1.
V. The lower court erred in not admitting the
expert testimony of Wm. J. Rhode, Felicisimo
Feria, and Claro M. Recto, as well as Exhibits
26 and 27, containing the opinion of said
lawyers as to the grades to which said
compositions Exhibits B-1 and B-2 were justly
entitled.
VI. It also erred in not concluding that Jeronimo
Samson used the same powers exercised by
the accused in the bar examination of 1926.
VII. Granting that the accused Estela
Romualdez knew that compositions Exhibits B-
1 and B-2 belonged to her coaccused Luis
Mabunay when she reviewed and regraded
them, the court erred in concluding that said act
constitutes the offense charged in the
information.
VIII. Granting that Justice Romualdez, as
chairman of the bar examination committee of
1926, was not authorized by the Supreme
Court to confer upon Estela Romualdez the
powers which she exercised in that
examination, the court erred in concluding that
she altered the grades of said compositions
willfully and feloniously.
IX. The lower court also erred in concluding
that Estela Romualdez intended to conceal her
identity when she revised and regraded
compositions Exhibits B-1 and B-2.
X. It also erred in concluding that the accused
Estela Romualdez, in exercising her powers as
supervisor of the correctors in said bar
examinations, revised compositions Exhibits B-
1 and B-2 only, in order to regrade them.
XI. It also erred in suggesting that her motive,
in revising and regrading said compositions
 Exhibits B-1 and B-2, was the fact that she had
received from her coaccused Luis Mabunay the
sum of P400.
XII. Granting that the accused Estela
Romualdez committed the offense of
falsification with which she is charged, the
lower court erred in concluding that Luis
Mabunay participated in its commission.
In addition to the usual brief for each of the accused,
the attorneys for the appellants filed a joint
memorandum on July 10, 1929. The Attorney-General
filed a brief on behalf of the People of the Philippine
Islands and a reply to the memorandum for the
defense.
The court at that time consisted of nine members, one
of whom, Justice Romualdez, was disqualified to sit in
this case. Upon a consideration of the case on its
merits, four justices were in favor of affirming the
decision of the trial court and the same number were in
favor of acquitting the defendants. The court being
unable to reach a decision in the usual course, an
attempt was made on February 11, 1930 to break the
deadlock, as is evidenced by the following resolution:
The court having under consideration again the
case of People vs. Romualdez, et al., No.
31012, those participating being all the
members of the court, except Mr. Justice
Romualdez, who was disqualified, it was
moved that following precedents elsewhere,
particularly in the United States Supreme
Court, to the effect that when there is an equal
division in the court and there is no prospect of
a change in the vote the judgment appealed
from stand affirmed, and in accordance with the
action taken in the case of Nacionalista
Party vs.Municipal Board of Manila, No. 21265
— the judgment in the case at bar be affirmed.
Mr. Chief Justice Avanceña and Messrs.
Justices Malcolm, Ostrand, and Johns voted in
favor of the motion. Messrs. Justices Johnson,
Street, Villamor, and Villa-Real voted against
the motion. Mr. Justice Johnson based his
dissent on the peculiar statutory provisions in
force in the Philippine Islands. For want of a
majority, the motion was lost.
The court thereupon directed that the clerk
retain the record in the case until the further
order of the court.
On January 12, 1931 Luis Mabunay filed a motion
praying that the case against him be considered
separately and he be absolved from the complaint. This
motion was denied by the court. He renewed his motion
on August 1, 1931. This motion was also denied on the
ground that no severance had been asked for in the
lower court, and for the further reason that there was a
prospect that the membership of the court would soon
be increased.
The membership of the court was finally increased to
eleven, and due to the death or retirement of three
justices only six of the former members remained. On
June 23, 1932 Courtney Whitney as attorney for Estela
Romualdez filed a petition praying that this case be set
for a rehearing before the court as newly constituted.
This motion was granted. On July 2, 1932 he filed a
motion for the dismissal of the information, alleging that
because of the inability of the court to reach a
determination from the facts as to the guilt or innocence
of the defendant-appellant Estela Romualdez, she had
been denied her right to a speedy trial. This motion was
denied.
After a reargument of the case, the attorney for Estela
Romualdez filed an additional memorandum, to which
the Attorney-General filed a reply.
Under the first assignment of error, the attorneys for
Estela Romualdez maintain that even if the lower
court's findings of fact be justified by the evidence of
record, "they fail to sustain that any criminal offense,
recognized under the laws of the Philippine Islands,
has been committed." They contend that the
appointment of the committee of attorneys by Justice
Romualdez to read and grade the examination papers
was not warranted by law, and that therefore the
alteration by the defendant Estela Romualdez, under
the circumstances alleged in the information, of the
grades in question did not constitute a crime.
The testimony of Justice Romualdez, who was a
witness for the defense, completely refutes this
contention. He testified that the bar examining
committee was composed of two groups of attorneys:
Those that were appointed to prepare the questions,
and those that were appointed to grade the papers. He
further testified that the court was informed of the way
in which the examination was conducted and that it
approved thereof. There were more than a thousand
candidates and some eight thousand papers.
According to the contention of appellant's attorneys
only the seven attorneys appointed to prepare the
questions or the court itself could lawfully grade these
papers. Such a contention is clearly untenable. The
attorneys that prepared the questions did not intervene
in the grading of the papers, but they prepared a key to
the questions, which served the other group of
attorneys, the readers or "correctors", as a guide in
grading the papers. The intervention of the "correctors"
was just as legal as that of the attorneys that prepared
the questions, and the intervention of the two groups of
attorneys was perfectly regular and valid.
It is also contended that the examination papers which
the defendant Estela Romualdez altered were not
public or official documents. That contention is likewise
without merit. As stated by her attorneys, the
examination of candidates for admission to the bar is a
judicial function. It cannot therefore be maintained with
any show of reason that the papers submitted by the
candidates in the course of the examination were not
public and official documents, or that the alteration,
under the circumstances alleged in the information, of
the grades given to such papers by the "correctors"
was not a crime. (In re Del Rosario, 52 Phil., 399,
where this court refers to the falsification of his
examination papers as "falsification of public
documents"; People vs. Castro and Doe, 54 Phil., 41,
where the conviction of Castro for the falsification of his
examination papers was affirmed.)
In accordance with the established practice of the court
to have one of its members each year make all the
necessary arrangements for the bar examination, the
Chief Justice in 1926 designated Justice Romualdez
for that purpose, and in pursuance thereof he
appointed one group of attorneys to prepare the
questions and another group to grade the papers. If
any of these attorneys were designated by the clerk of
the court, it was with the advice and consent and on
the authority of Justice Romualdez.
The phrase "falsification of a document" is not used in
articles 300 and 301 of the Penal code in the ordinary
acceptation of the words. It has a technical meaning,
and according to article 300 may be committed in the
following eight ways:
1. By counterfeiting or imitating any
handwriting, signature, or rubric.
2. By causing it to appear that persons have
participated in any act or proceeding when they
did not in fact so participate.
3. By attributing to persons who have
participated in an act or proceeding statements
other than those in fact made by them.
4. By making untruthful statements in a
narration of facts.
5. By altering true dates.
6. By making any alteration or intercalation in a
genuine document which changes its meaning.
7. By issuing in authenticated form a document
purporting to be a copy of an original document
when no such original exists, or by including in
such a copy a statement contrary to, or
different from, that of the genuine original.
8. By intercalating any instrument or note
relative to the issuance thereof in a protocol,
registry or official book.
The acts of the accused are covered by paragraphs 2,
3, and 6. She made the alterations in the grades in
such a way as to make it appear that the "correctors"
had participated therein, because she blotted out the
grades of the "correctors" and wrote new and
increased grades opposite their initials, without
indicating by her own initials that she had made the
alterations. She in that way attributed to the
"correctors" statements other than those in fact made
by them. Her only explanation of why she altered the
grades in that way was that it pleased her to do so.
A decision in point has just come to hand. It is reported
in 180 N. E., 725, and is referred to in the American Bar
Association Journal for August, 1932, p. 497. A bill was
presented in the Massachusetts Senate prohibiting the
marking of the examination papers of applicants for
admission to the bar by any person not a member of
the board of bar examiners. The Senate wished to
know whether such a bill, if enacted, would be an
unconstitutional interference with the functions of the
Judicial Department, and asked the Justices of the
Supreme Judicial Court for an advisory opinion. They
replied that such a law would be unconstitutional. In the
course of the opinion they said: "If the judicial
department decides that the marking of the written
examinations may be performed by competent persons
not members of the board but acting under the direction
of such members, that pertains directly to the
ascertainment of the qualifications of applicants. It is a
definite attribute of the judicial department and not an
immaterial incident." It was also stated that the plan of
employing assistants to aid the bar examiners in
marking the papers had been approved by the
Supreme Judicial Court.
In the second assignment of error, the attorney for
Estela Romualdez maintains that the trial court erred in
not finding that she was fully authorized to make the
alterations she in fact made on the examination papers
of Luis Mabunay, Exhibits B-1 and B-2, and in denying
full credit to the uncontradicted testimony of Justice
Norberto Romualdez, chairman of the bar examining
committee for the year 1926, concerning the authority
granted her.
In the first place, we find it difficult to believe that
Justice Romualdez ever gave the accused the
authority which she claims to have received; and in the
second place, even if it be assumed that he gave her
the alleged authority, she did not exercise it in
accordance with the terms thereof.
The defense would have us believe that Justice
Romualdez regarded his secretary, Estela Romualdez,
and the deputy clerk, Jeronimo Samson, who were
themselves "correctors" as supervisors of the other
"correctors", and that he authorized Estela Romualdez
to revise any grade to correct an injustice, without
consulting or notifying the other supervisor, Samson, or
the "correctors' who had graded the paper, without
requiring her to initial the alteration, or to make any
record thereof or any report to him or to anybody else.
Justice Romualdez was designated by the Chief
Justice to conduct the examination in accordance with
the law and the Rules of Court. He himself had no such
authority as he is alleged to have given his secretary.
He is presumed to have discharged his duties in
accordance with the law, and it is inconceivable that he
would without any warrant of law give or attempt to give
his secretary the unlimited authority which she claims
to have received, thereby enabling her to alter at will
any grade or any paper, without making any record
thereof or any report to anybody. The mere statement
of such a claim shows that it is preposterous.
No such authority was given to Samson, who according
to Justice Romualdez was regarded by him as a
supervisor of equal rank with Estela Romualdez.
Samson was never notified that he was regarded as a
supervisor, and he never acted in that capacity.
Let us notice how this unlimited authority is alleged to
have been granted to the accused Estela Romualdez.
It was not in writing or evidenced by any memorandum.
It was not even a positive statement. Justice
Romualdez testified that he believed that on a certain
occasion he gave his secretary to understand that if a
case should be brought to her attention she might
revise any grade to prevent an injustice, so long as she
did not know the name of the candidate to whom the
paper belonged. When asked where she was when the
pretended authority was given to her, the accused
could not remember.
There was according to the theory of the defense
nothing to prevent Samson from revising the revision
of Estela Romualdez, because she did not initial the
changes made by her, and he was supposed to be a
supervisor of equal rank.
If it be admitted for the sake of argument that the
accused Estela Romualdez was given the authority
which she claims to have received, nevertheless she
was not authorized to change the grades now in
question, because when she made the changes she
already knew that the papers belonged to her
coaccused Luis Mabunay. The evidence fully
sustaining that conclusion is carefully set forth by the
trial court, and it is unnecessary for us to review it. The
testimony of Justice Romualdez to the effect that the
accused acted within the authority granted her in
changing the grades in question was a mere
expression of opinion. It was clearly inadmissible and
not binding on the court. The accused Estela
Romualdez did not even attempt to explain under what
circumstances she raised the grades of her coaccused
so as to enable him to obtain the necessary general
average of 75 per cent. She did not confer with the
"correctors" who had graded the papers in question.
She di not attempt to explain how she arrived at the
increased grades, or how she came to revise the
grades in question, how she happened to pick these
two papers out of eight thousand. She could not point
to any other grades that had been altered by her.
Under the second assignment of error the attorney for
Estela Romualdez also alleges that she freely and
voluntarily admitted from the start of the trial of her case
that the alterations had been made by her, and
concludes therefrom that she acted in good faith. We
cannot agree either with the statement of fact or the
conclusion. The accused Estela Romualdez did not
admit that the alterations were made by her until after
the prosecuting attorney had presented three hundred
and fifty pages of testimony and announced his
readiness to prove by three handwriting experts that
the alterations were in the handwriting of the accused.
The evidence shows that before the trial defendant's
attorney from the fiscal's office a photograph that had
been made for the purpose of comparing a specimen
of defendant's handwriting and that of the altered
grades. The fact that the defendant Estela Romualdez
made the alterations under the circumstances which
we have mentioned, when she already knew that the
papers belonged to Mabunay, disproves any
contention that she acted in good faith.
In the case of the United States vs. Ballesteros (25
Phil., 634), this court said:
When the unlawful acts charged against an
accused are established by competent
evidence, criminal intent may be and will be
presumed, unless such intent is rebutted by the
introduction of evidence sufficient to overcome
this presumption, and satisfactorily disclosing
the absence of such criminal intent.
The third assignment of error made by the appellant
Estela Romualdez is that the trial court erred in failing
to extend to her a fair and impartial trial. We shall not
waste much time on this assignment of error, which is
utterly without merit. The record itself completely
refutes any such contention. If the learned trial judge
erred, it was in permitting the attorneys for the
defendants too great latitude in arguing their
objections. Arguments four and five pages long were
incorporated into the stenographic record of the
evidence. The record shows a most unjustifiable attack
on the good faith of the fiscal and a persistent effort to
embarrass him in presenting his evidence against the
accused.
The appellant Luis Mabunay makes twelve
assignments of error. They are for the most part
embraced in the assignments of error of his coaccused
which we have already considered. These remain only
his fifth, eleventh, and twelfth assignments of error. In
his fifth assignment of error it is alleged that the lower
court erred in not admitting the expert testimony of
attorneys Wm. J. Rhode, Felicisimo Feria, and Claro
M. Recto, and in rejecting Exhibits 26 and 27, which
contain the opinion of said attorneys as to the correct
grades which the examination papers Exhibits B-1 and
B-2 deserved.
The lower court sustained the objection to the
admission of the testimony of these three attorneys on
the ground that it was not the best evidence, and
suggested that the defense might call the members of
the examining committee that prepared the questions
in Remedial Law and Civil Law and the key thereto.
The attorneys for the defense did not see fit to adopt
the suggestion of the court. It is not true therefore that
the lower court deprived the accused of an opportunity
of showing that the examination papers in question
deserved the increased grades which the defendant
Estela Romualdez gave them. The attorneys that
prepared the questions and the key to the answers
were certainly the persons best qualified to decide
whether or not the questions were correctly answered.
The opinion of other attorneys, who had nothing to do
with the examination, would only lead to confusion. We
find no merit in this assignment of error.
The eleventh assignment of error is that the trial court
erred in insinuating that the motive of the accused
Estela Romualdez in reviewing and regrading the
examination papers Exhibits B-1 and B-2 was the fact
that she had received four hundred pesos from her co-
accused Luis Mabunay.
The twelfth assignment of error is that if it be assumed
that the accused Estela Romualdez committed the
crime of falsification imputed to her in the information,
the court erred in concluding that the accused Luis
Mabunay participated in its commission.
For the sake of convenience we shall consider these
two assignments of error together.
In the first place we should like to say that there is no
evidence to show that Estela Romualdez ever
reviewed the examination papers of her coaccused. So
far as the evidence shows, she merely raised his
grades in two subjects, thus giving him by "a happy
coincidence", to use her own words, a passing mark.
She could not or would not enlighten the court as to
why she raised the grades of Luis Mabunay so as to
enable him to be admitted to the bar. As already stated,
the record does not show that she raised the grades of
any other candidate.
The evidence shows that Luis Mabunay had failed in
two previous examinations, and that he failed in the
examination in question, receiving a general average
of only 72.8%. The bar examining committee
recommended that not only those having the required
general average of 75 per cent be admitted, but also
that those who had received between 70 and 75 per
cent. This is referred to in the record as "an automatic
increase". It was not automatic but arbitrary, and was
disapproved by the Supreme Court, and the committee
was directed to prepare a new list and to include
therein only those who had obtained a general average
of 75 per cent. The name of Luis Mabunay was
included in the new list submitted three days later,
notwithstanding the fact that he had obtained a general
average of only 72.8 per cent, precisely because Estela
Romualdez had in the meantime raised the grades now
in question so that he appeared to have obtained the
general average required for admission to the bar.
The evidence shows that on March 2, 1927 Luis
Mabunay withdrew P600 from the Philippine Trust Co.,
and that on March 7, 1927 Estela Romualdez
deposited P510 in the Bank of the Philippine Islands.
Luis Mabunay did not testify, and he did not present
any evidence to show for what purpose he withdrew
P600 from the bank immediately after the first list was
disapproved.
In the case of United States vs. Tria (17 Phil., 303,
307), Justice Moreland speaking for the court said:
An accused person sometimes owes a duty to
himself if not to the State. If he does not
perform that duty he may not always expect the
State to perform it for him. If he fails to meet the
obligation which he owes to himself, when to
meet it is the easiest of easy things, he is hardy
indeed if he demand and expect the same full
and wide consideration which the State
voluntarily gives to those who by reasonable
effort seek to help themselves. This is
particularly so when he not only declines to
help himself but actively conceals from the
State the very means by which it may assist
him.
In the famous case of the Commonwealth vs. Webster
(5 Cushing, 295, 316), Chief Justice Shaw laid down
the following rule:
When pretty stringent proof of circumstances is
produced, tending to support the charge, and it
is apparent that the accused is so situated that
he could offer evidence of all the facts and
circumstances as they existed, and show, if
such was the truth, that the suspicious
circumstances can be accounted for
consistency with his innocence, and he fails to
offer such proof, the natural conclusion is, that
the proof, if produced, instead of rebutting,
would tend to sustain the charge. But this is to
be cautiously applied, and only in cases where
it is manifest that proofs are in the power of the
accused, not accessible to the prosecution.
Estela Romualdez showed that of the sum of P510
P100 was paid to her by her mother and only P10 by
her brother, but she could not satisfactorily prove
where the remaining P400 came from. She said it was
sent to her by her cousin, Prisca Magpayo Redona, for
the purchase of goods, but she could not name the
person that brought the money to her, or explain why
she deposited it in the bank. She did not attempt to
show that she had paid it out by means of checks for
the purchase of goods for her cousin. She did not call
her cousin as a witness.
An accused person runs the risk of an
inference against him because of failure to
produce evidence. The inference, unless the
failure to produce evidence is explained away,
is that the tenor of the specific unproduced
evidence would not support the party's case.
(U. S. vs. Sarikala, 37 Phil., 486.)
In the case just cited the court quoted with approval the
following rules as stated by Dean Wigmore in his work
on Evidence, Vol. IV, p. 3148:
The failure to produce evidence, in general,
other than his own testimony, is open to
inference against a party accused, with the
same limitations applicable to civil parties. Here
the effect of the burden of proof has sometimes
tended to confuse. It is true that the burden is
on the prosecution, and that the accused is not
required by any rule of law to produce
evidence; but nevertheless he runs the risk of
an inference from nonproduction. This seeming
paradox, which has been already sufficiently
noticed in treating of the general principle, has
misled a few courts to deny that any inference
may be drawn.
The alterations in the grades made by Estela
Romualdez were made for the sole use and benefit of
her coaccused Luis Mabunay. They were made willfully
and illegally, and after the Supreme Court had rejected
those candidates that had received less than 75 per
cent. The alterations were therefore made after
Mabunay had failed, and he withdrew the money after
he had time to learn from his coaccused that he had
failed. It was under those circumstances incumbent
upon the accused Mabunay to present evidence to
show for what purpose he withdrew the six hundred
pesos from the bank. As this court said in the case
of Worcester vs. Ocampo (22 Phil., 42):
When the circumstances in proof tend to fix the
liability on a party who has it in his power to
offer evidence of all the facts as they existed
and rebut the inferences which the
circumstances in proof tend to establish, and
he fails to offer such proof, the natural
conclusion is that the proof, if produced,
instead of rebutting would support the
inferences against him, and the court is justified
in acting upon that conclusion.
The case of In re Del Rosario (52 Phil., 399), is directly
on point. Felipe del Rosario failed for the third time in
the bar examination of 1926. He then filed a motion for
the revision of his grades, based on an alleged mistake
in computation. This motion was granted, and he was
admitted to the bar. It was subsequently found that
alterations had been made in his examination papers,
and he and Juan Villaflor were prosecuted for the
falsification of a public document. Villaflor assumed full
responsibility for the commission of the crime, and
testified that Del Rosario did not know anything about
the making of the alterations. The trial court acquitted
Del Rosario, but upon a view of the case for the
purpose of taking disciplinary actin against him Justice
Malcolm, speaking for the court in banc, said:
It is asking a great deal of the members of the
court to have them believe that Felipe del
Rosario was totally unaware of the illegal
machinations culminating in the falsification of
public documents, of which he was the sole
beneficiary.
The attorney's certificate of Felipe del Rosario was
cancelled.
In the case of People vs. Bella Bautista (53 Phil., 158),
the accused was charged with the falsification of a
public document. The evidence showed that in the
Register of Attorneys the name of an attorney had been
erased, and that the accused had written his own name
in that space, although he had not admitted to the bar.
The accused contended that he wrote his name in the
register under the direction of an employee of the court,
and that he acted in good faith. He was convicted, and
on appeal the decision was affirmed. This court in its
decision said: "The trial court suggests in the opinion
that the offense committed required the participation of
some unfaithful employee of the court. But this fact, as
the court found, did not lessen the criminal
responsibility of the appellant."
It is alleged in the information that the accused
conspired together and acted in common accord in the
commission of the crime. As the Attorney-General
says, a conspiracy can seldom be proved except by
circumstantial evidence, but once it is proved, the acts
of one of the conspirators are the acts of all. (U.
S. vs. Ipil., 27 Phil., 530.)
The existence of the assent of minds which is
involved in a conspiracy may be, and, from the
secrecy of the crime, usually must be, inferred
by the jury from proof of facts and
circumstances which, taken together,
apparently indicate that they are merely parts
of some complete whole. If it is proved that two
or more persons aimed by their acts towards
the accomplishment of the same unlawful
object, each doing a part so that their acts,
though apparently independent, were in fact
connected and cooperative, indicating a
closeness of personal association and a
concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among them
to concert means is proved. Evidence of actual
participation, rather than of passive
acquiescence, is desirable. But proof of
acquiescence in, or consent to, the actions of
others is relevant to show the criminal intention
of the passive party, and generally the smallest
degree of consent or collusion among parties
lets in the act or words of one against the
others. (Underhill on Criminal Evidence, pp.
795, 796.)
For the foregoing reasons, we find that the conclusions
of the trial court are fully justified by the evidence.
As the accused Estela Romualdez took advantage of
her official position in committing the crime, the trial
court found her guilty of a violation of article 300 of the
Penal Code, as amended by Act No. 2712, and
sentenced her to suffer six years and one day of prision
mayor, and the accessory penalties provided by law, to
pay a fine of 1,000 pesetas, and to suffer perpetual
disqualification to hold any public office.
The penalty provided by the Penal Code is prision
mayor in full extent, or from six years and one day to
twelve years, and the penalty under the Revised Penal
Code being the same, and there being no aggravating
or mitigating circumstance present in the commission
of the crime, the penalty should be imposed in the
medium degree, which is from eight years and one day
to ten years. The penalty imposed on the appellant
Estela Romualdez is therefore increased to eight years
and one day of prision mayor.
The trial court found the defendant Luis Mabunay guilty
as an accomplice under article 301 of the Penal Code,
the crime not being connected with the performance of
his duties as an employee of the Government, and
sentenced him to suffer four months and one day
of arresto mayor, and the accessory penalties provided
by law, and to pay a fine of 250 pesetas, with
subsidiary imprisonment in case of insolvency. The
defendants were each sentenced to pay one-half of the
costs.
We find that the lower court erred in holding that Luis
Mabunay was merely an accomplice. He was a
conspirator and coprincipal of Estela Romualdez. The
penalty provided by article 301 of the Penal Code, as
amended by Act No. 2712, is prision correccional in the
maximum degree, but that has been changed by the
Revised Penal Code toprision correccional in the
medium and maximum degrees, and the medium
degree of that penalty is from three years, six months,
and twenty-one days to four years, nine months and
ten days. The prison sentence of Luis Mabunay is
therefore increased to three years, six months, and
twenty- one days of prision correccional.
The decision of the trial court is modified as
hereinabove stated. In all other respects it is affirmed,
with the costs against the appellants.
Ostrand, Abad Santos, Hull, Imperial and Butte, JJ.,
concur.
Separate Opinions
AVANCEÑA, C.J., concurring:
I agree with the majority opinion. My vote regarding the
defendant, Estela Romualdez, is based on the ground
that she did not act under authority alleged to have
been given her by Justice Norberto Romualdez. She
made the alteration after the candidates' names were
already known. She did not act in the interests of
justice, inasmuch as among the compositions of 1,056
candidates she examined those of her coaccused Luis
Mabunay only, and she failed to show or to allege that
before examining his compositions she had reasons for
believing that Mabunay's case was meritorious.
MALCOLM, J., concurring:
I concur with the comprehensive opinion of the majority
in its principal features, but more especially am I in
accord with the views expressed by the Chief Justice.
My position will bear a word of explanation.
The charge is that of falsification of a public document
by the accused Estela Romualdez, secretary to Justice
Romualdez, acting in conspiracy with Luis Mabunay, a
candidate in the 1926 bar examinations, by altering the
grades of the candidate so that it was feloniously made
to appear that he had passed the bar examinations.
The finding was of guilt in a decision by the trial judge,
concerned almost entirely with questions of fact.
Speaking to these questions, since this case should be
considered exactly in the same manner as any other
case, these findings are entitled to our most respectful
consideration. Not desiring to enlarge upon the
findings, it is only necessary to observe that the
changes made in the papers of the candidate Mabunay
have been admitted by the accused Estela Romualdez
to have been made by her in her ordinary handwriting.
Added to this we have the testimony of Justice
Romualdez as follows: "As supervisor, I believe that
there were occasions when I made her understand that
in order to do justice to the candidates, she could revise
papers already graded by the other correctors,
provided that the new revision was made before the
name of the candidate concerned was known." In this
connection it has been demonstrated beyond civil by a
series of damaging and fatal circumstances that during
the three-day interval between the making of the first
report of the bar examinations and the second report
when the names of the candidates were known, the
accused Estela Romualdez made changes in the
grades of Luis Mabunay in express contravention of the
authority alleged to have been given her by Justice
Romualdez and in bad faith. Not alone were the
erasures on the papers made in a manner difficult to be
deciphered, leaving below the erasures the initials of
the readers; not alone did the accused fail to place her
own initials over the changes; not alone was there no
attempt to show why the grades were increased to give
exactly a general average of 75 per cent, but there are
two other circumstances entirely inconsistent with
innocence. The first is that two of the readers, namely,
Jeronimo Samson, the deputy clerk of court, and Estela
Romualdez were supposed to have identical authority,
yet Samson never understood that he had any right to
change grades without the knowledge of the readers in
the particular subject; when Samson acted as a
substitute reader, changes were made with the
knowledge and consent of the other reader and
Samson placed his initials under the new grades. The
second question is how Estela Romualdez could
remember having made erasures in the grades in two
papers out of eight thousand to the advantage of one
candidate out of more than one thousand, but could not
recall any other similar incident and could not offer any
explanation of why the grades of the one candidate
merited an increase. I am, therefore, constrained to
conclude that the findings of fact, along the line above
indicated, made in the trial court and here confirmed by
other judges who have minutely examined the record,
must be taken as conclusively established.
The legal features of the case offer no particular
difficulties. Articles 300 and 301 of the old Penal Code
were violated. Examination papers leading to
admission to the bar constitute a part of judicial
proceedings and are in the nature of public documents.
These documents were altered and their meaning
changed to permit a candidate in the bar examinations
illegally to be admitted at the bar.
A number of cases growing out of the bar scandal of
1926 have reached this court and have resulted in
convictions. Basically there is no difference in fact and
in law between the principles governing those cases
and the principles governing the case before us. If the
accused in those cases merited punishment, the
accused Estela Romualdez and Luis Mabunay are
equally guilty.
STREET, J., dissenting:
It is the opinion of the undersigned that the acts
imputed to Estela Romualdez do not constitute the
crime of falsification of a public document, and with
respect to Luis Mabunay there is no proof connecting
him in any way whatever with the acts of Romualdez.
As a preliminary to the demonstration of these
conclusions it appears desirable to give few words of
explanation to show how the situation arose with which
the court is here confronted.
Under the American occupation, prior to the year 1921,
high school graduates were eligible to take the course
in law in any accredited law in the Philippine Islands. In
that year, however, the court decided to require two
years of college work as a prerequisite to matriculation
in a law school, thereby materially raising the standard
of education of lawyers. But inorder not to affect
adversely the rights of those who were already
qualifying under the prior rule, the requirement for two
years of college work was made effective beginning
with the examinations in 1927. It resulted that 1926 was
the last year in which examinations could be taken
under the old rule, and there were nearly 1,100
candidates who presented themselves for examination
in that year.
It has been the usage of this court to place the bar
examinations for each year in the hands of a member
of the court designated by the Chief Justice; and it is
made the duty of this member to appoint the examiners
and to superintend the giving of the examinations. In
the year 1926 Justice Norberto Romualdez was named
to conduct the examinations, and he appointed the
requisite number of members of the bar to prepare the
questions in the several subjects of examination. In
view of the great number of papers to be read in that
year, it was quite evident that able lawyers could not be
expected to read so many papers, as the work, as
could be foreseen, would undoubtedly have taken up
months of their time. Justice Romualdez, therefore,
upon the suggestion of our clerk, decided to adopt the
plan followed in the Bureau of Civil Service, which is,
to appoint readers (referred to in the record as
"correctors") to read and grade the examination papers
in conformity with the written guides prepared by the
examiners. These readers (as we shall call them) were
qualified lawyers chosen from the Government service,
chiefly from the personnel of the Supreme Court and of
the Bureau of Justice.
The reading of the papers occupied a period of about
six months, and the report presented by the examiners
was not finally passed upon by the court until March 5,
1927. The questions in the examination in Civil Law
were prepared by Francisco Ortigas, and the questions
in Remedial Law were prepared by Judge J. C. Abreu.
The two readers primarily chosen to read and grade the
papers in Civil Law were Jeronimo Samson and Amado
del Rosario, and the readers in Remedial Law were
Alfonso Felix and Marciano Guevara.
As Justice Romualdez had general charge of the
examinations, his niece, Estela Romualdez, who was
also his secretary and who had been admitted to the
bar in 1925, was selected as one of the readers. In
addition to her duties as mere reader, Justice
Romualdez confided to her the custody of the
examination papers and other apparatus of
examination, which were kept under key in his office
when not in issue. Samson was at this time a deputy
clerk of this court, and because of his official position
he and Miss Romualdez were charged with the
supervision of the clerical work connected with the
examinations.
In the conduct of the bar examinations it is important
that the examiner or reader of papers should have no
knowledge of the personality of the author of any
composition when the same is read and graded, and a
device had been adopted in the clerk's office which was
supposed to accomplish this end. This was that the
name of the candidate was not permitted to appear on
the composition. Instead, there was assigned in the
clerk's office a number to each candidate, and this
number was written on the outside of small envelope
affixed to the composition when it was turned in by the
candidate. Sealed within the same envelope was a
small slip of paper containing the corresponding name
of the candidate. A record of the names and numbers
was also kept in the clerk's office. Every step in the
reading, grading, and collating of the examination
papers was therefore supposedly taken before the
names of the different candidates were known.
When the work of the various readers in this case had
been collated in the latter part of February, but before
the names of the various candidates had yet been
written in the list showing the results, the committee of
the bar examiners was called together. Upon
assembling the committee found that the percentage of
candidates passing was exceedingly low, being around
ten per centum of the total number of candidates. This
result was no doubt partly due to the hasty way in which
a great number of immature candidates had rushed in
the hope of being admitted to the bar before the
standards of the examination were raised, and in part
also doubtless to the fact that the readers had applied
the straight-edge pretty firmly in judging the grades.
The committee of the bar examiners therefore thought
it proper to suggest to the court the propriety of
admitting all the candidates who had made as much as
70 per centum, and a recommendation to this effect
was submitted to the court. With this suggestion the
court did not agree, and a new list had to be made up,
showing as passing the names only of those who had
made the requisite average of 75 per centum in all
subjects without falling below 60 per centum in any.
Among the candidates in these examinations was the
accused Luis Mabunay, to whom, at the examinations,
was assigned number 898. In the list submitted by the
bar examiners recommending that all be admitted who
had made a general average of 70, Luis Mabunay
appeared as receiving 72.8 per centum; and when the
court decided that the passing grade could not be
lowered, the result was naturally fatal to him as a
candidate. But in the list later submitted to the court
containing only the names of those who had made an
average of 75 the same Luis Mabunay appeared as
having received the requisite per cent. Upon the
showing his name was therefore passed as a
successful candidate.
The explanation is that, in the interval between the
submission of the first recommendation of the bar
examiners and the submission of the later list, the
grades corresponding to Luis Mabunay were raised by
Miss Romualdez in an amount sufficient to give him a
general average of 75 per centum. In this connection it
appears that in the subject of Civil Law Jeronimo
Samson and Amado del Rosario had assigned to Luis
Mabunay 63 per centum as the value of his
composition in that subject, and this number was
written on the composition cover and accredited by the
initials of the two examiners. This credit was raised by
Miss Romualdez to 73. Likewise in Remedial Law the
readers Alfonso Felix and Marciano Guevara had given
58 as the value of the paper. This credit was changed
by Miss Romualdez to 64. In effecting these changes
Miss Romualdez in each case obliterated the original
grades by the use of pen and ink, and wrote thereunder
in her own hand "73" and "64" in words and figures.
She did not sign her name to this alteration but left
intact the initials of the original graders. No attempt was
made by her to imitate the script used by the graders,
and the making of these changes was admitted by her.
Justice Romualdez, testifying as a witness in the case,
stated that he authorized Miss Romualdez, upon
finding any error made by the readers, to correct it,
provided that this should be done before the names of
the candidates should be known. Miss Romualdez
testified that the changes effected by her in the papers
of her coaccused were made under this authority.
Furthermore, at the trial of the case, she offered to
prove by three able lawyers of the Manila bar that the
grades actually assigned by her to the papers referred
to were fully merited by the answers given. The trial
court refused to admit this testimony, and there is
nothing before us to show whether the changes made
were in conformity with the merit of the papers or not.
The case for the prosecution supposes that the
changes above referred to were made by Miss
Romualdez in bad faith and that she was corrupted by
Luis Mabunay to make the changes in his papers for
the purpose of securing his successful completion of
the examinations when in fact he had failed. In this
connection proof was submitted showing that on March
7, 1927, Luis Mabunay withdrew from his savings
account in the Philippine Trust Co. the sum of P600,
and that on March 7, 1927, Miss Romualdez deposited
a sum of money to her credit in the Bank of the
Philippine Islands, among the items of which deposit
was the sum of P400.
It appears that there are two persons bearing the name
of Luis Mabunay in the City of Manila. The individual
who was candidate in the bar examinations of 1926,
and who is one of the two accused in this case, was, at
the time with which we are here concerned, assistant Upon this point we quote textually from the transcript of
chief of the administrative division of the Executive the proceedings in the lower court:
Bureau. The other Luis Mabunay was, at the same
time, a clerk in the law office of Vicente Romualdez, FISCAL GUEVARA. We have never doubted
who is a brother of Miguel Romualdez, father of the the veracity of the witness.
accused Estela Romualdez. In the early stages of this
prosecution confusion existed concerning these two xxx xxx xxx
individuals. So much so that the fiscal, when this
proceeding was begun, was under the impression that
FISCAL GUEVARA. On the other hand, as we
the Luis Mabunay who was joined as codefendant in
have already stated, we do not doubt the
this case was the Luis Mabunay who was employed in
veracity of the witness in this case.
the office of Vicente Romualdez. On the other hand
Estela Romualdez says that prior to his appearance in
court, she had never seen her codefendant Luis But it is said that the authority granted by Justice
Mabunay and had never known that there was such a Romualdez contemplated a revision of the grades in
person in existence. This point of the confusion over good faith and was coupled with the condition that the
these two individuals has a bearing on the case against revision to be effected by her should be accomplished
Luis Mabunay, but is not otherwise important. before the names of the candidates should be known.
But the fact that the authority may have been coupled
with this condition could not alter the character of the
An incident connected with the examinations now
authority. She was made judge of the conditions under
under consideration is found in certain corrections
which the revision should be entered upon, as well as
made by our then deputy clerk, Jeronimo Samson, in
judge of the extent of the revision, and the violation of
the grades given by a reader named Remo who was
her by Justice Romualdez' directions on these points
relieved from duty as a reader. Samson has the
could not have the effect of obliterating the authority.
complete confidence of the court, and nobody has
However gross may have been her delinquency the
called in question the good faith of his work throughout.
offense could be nothing more than an abuse of
Well, after Remo was relieved, Samson took the
authority.
papers in hand that Remo had already graded and in a
number of cases changed his grades in precisely the
same way in which Miss Romualdez changed the two In the course of these proceedings the evidence has
papers of Luis Mabunay. In some of these corrections been thoroughly combed by the prosecution to
Samson did not append his own initials, and although discover indications that Miss Romualdez acted in bad
in one of the corrections made by Miss Romualdez the faith. Thus it is said that bad faith is shown in
obliteration of the original grade was more complete circumstances such as these: That she did not affix her
than in the case of the grades obliterated by Samson, initials to her corrections; that she used black ink to
the manner of correction was substantially the same. obliterate the grade that had been altered, and that she
confessed her inability to recall the exact
considerations which led her to increase the grades
The dominating question in the case against Miss
allowed by the original reader. All these considerations,
Romualdez is, in our opinion, whether Justice
and others equally trivial, as it seems to us, come with
Romualdez gave her authority to revise the grades in
very poor grace from a court that had refused to permit
the two papers marked "898". If that authority was in
the accused to prove by the testimony of experts that
fact given, no case of falsification is made out against
the examination papers whose grades were altered by
this accused; for, although she may have abused the
her were in fact entitled at least to the grades which she
authority and increased the grades in question for a
affixed to them, if not more. What circumstance could
corrupt purpose, her delinquency would have the
possibly show more effectually the good faith of Miss
character of an abuse of authority only. That this
Romualdez in increasing the grades than the fact, if it
authority was given we do not entertain the slightest
be a fact, that the papers merited the higher grades
doubt, and the reason for crediting Justice Romualdez'
given by her to the candidate. But the merit of the
statement on this point rests not only upon his
grades must remain, by the action of the court in this
character but upon the circumstances under which that
case, like the location of the grave of Moses, forever
statement was made in court. Of course a person will
unknown; and this long drawn-out litigation will shed no
sometimes testify falsely or distort the truth for the
light upon what seems to the undersigned to be the
purpose of assisting another; but experience shows
most vital question with which the court should have
that the most powerful motive which operates upon
concerned itself, namely, whether the grades assigned
people as witnesses is the motive of self-protection.
by Miss Romualdez to two of the papers of Luis
When the testimony of Justice Romualdez was
Mabunay were right or wrong. One of the reasons
delivered in court, the full extent of the irregularities
suggested for sustaining the objection against the
attendant upon the examination of 1926 were generally
proffered testimony of experts to show the propriety of
known; and the slightest consideration of self-interest
the grades given is that the court itself could judge of
would have indicated to Justice Romualdez that he
the true value of the papers without the assistance of
would do himself a service by not testifying as a
expert testimony, but no attempt had been made by the
witness. However, in the face of all these
prosecution or by the court to demonstrate from the
considerations, Justice Romualdez, in the interest of
papers themselves that the grades assigned to them
truth, did not hesitate to go into court and state that he
by Miss Romualdez were unmerited. Why should the
in fact gave his niece authority to revise the grades.
court concern itself so meticulously with the
and what necessity can there be for us to debate the
circumstances indicative of possible bad faith when the
question of the truthfulness of Justice Romualdez when
grades raised are before us, affording the best
the fiscal who prosecuted this case more than once
evidence of their character.
stated in open court that he had never doubted the
veracity of the witness in this case?
In United States vs. Michelena (4 Phil., 492), it was
held by this court that a person who makes a false
statement in a certificate of merit in an application for
an examination by the Civil Service Board cannot be
convicted of the falsification of a public document, but
of an offense punishable by arresto mayor under
article 311 of the Penal Code. This decision was
repeated in United States vs. Dumandan (8 Phil., 61).
These decisions apparently attracted the attention of
our lawmakers as indicating that the penalties affixed
by the Spanish Code to certain offenses against the
Civil Service were too light; and on August 26, 1907,
the Philippine Commission adopted a law now
incorporated in section 2674 of the Administrative
Code. One of the provisions of this section punishes
any person who shall falsely rate, grade, estimate, or
report upon the examination or standing of any person
examined by the Bureau of Civil Service. But that
provision is limited to Civil Service examinations, and
cannot be applied to bar examinations. Therefore,
when confronted with the irregularity, or supposed
irregularity, presented in this case, the fiscal's office
was unable to proceed with the prosecution under
section 2674 of the Administrative Code, and was
compelled to fall back upon article 300 of the Penal
Code which deals with the falsification of public
documents.
The suggestion contained in the opinion of the court to
the effect that Justice Romualdez had no authority to
authorize Miss Romualdez to revise grades is in our
opinion wholly untenable. He had as much authority to
authorize her to revise grades as he had to authorize
her to read and grade papers in the first place, there
being no difference whatever in point of principle
between the two acts. Now, the alteration of a grade by
one authorized to revise is on exactly the same footing
in law, under No. 6 of article 300 of the Penal Code, as
the giving of a false grade, under No. 4 of the same
article, by one who is authorized to grade. Does the
court mean to suggest by this decision that the
assigning of an untrue grade in bad faith by any reader
authorized to grade examination papers constitutes a
falsification of a public document? Legal literature does
not furnish the slightest hint that would afford a basis
for such a ruling. But this would be no more untenable
than the conclusion reached by the court in this case
that the alteration of a grade in bad faith by a person
authorized to revise constitutes falsification of the
document. A person charged with the duty of grading
or revising examination papers exercises a power
involving judgment and discretion. Such duty is
evidently of a quasi-judicial nature; and a violation of
such duty constitutes an abuse of authority rather than
the falsification of a public document. And if the law in
its present state, as thus interpreted, should appear to
be inadequate, the Legislature might safely be relied
upon to extend to bar examiners and readers the
provisions already applicable to examiners under the
Civil Service Law. This court is not called upon to
legislate, and it should not distort the severe provisions
relating to falsification for the purpose of covering
delinquencies not fairly included therein.
With respect to the connection of Luis Mabunay with
this case, we do not hesitate emphatically to say that,
in our opinion, there is no item of proof connecting this
accused with the irregularity imputed to Miss
Romualdez. It is true that Luis Mabunay was the
person whose interests were primarily served by Miss
Romualdez in raising the grades above mentioned;
and if there were independent proof connecting him
with the offense, the fact that his interests were so
served would supply the explanation of the acts
committed. But in the absence of adequate proof, this
circumstance supplies no basis upon which to convict
him. The only fact supposedly pointing to him as the
guilty suborner of Estela Romualdez is that he drew out
six hundred pesos from a savings account on March 2,
1927; but there is no proof that any of this money ever
reached Miss Romualdez or that he was ever in
communication with her in any way.
The fact that Luis Mabunay did not testify as a witness
in his own behalf cannot be used as an affirmative
admission, and the logical propriety of his assumed
guilt is no substitute for proof. It is true that some
authority can be cited for the proposition, always
guardedly advanced, that where there is some
evidence, showing an incriminatory fact, and the
accused is in a position to dissipate the inference
drawn from that evidence, his failure to do so may be
used as an admission of the injurious inference. But the
application of that rule presupposes the existence of
some incriminatory evidence; and in this case, to the
mind of the undersigned, there is no proof, even weak,
connecting this accused with the offense charged.
To present in a few words the legal basis of this dissent,
we are unable to agree with the court in extending the
concept of falsification to cover an abuse of authority
on the part of a reviser of examination papers, a person
who is clothed with a discretion in appraising the work
revised. The circumstance that the cases against
Felipe del Rosario and Jose Bautista should be cited
as authority in the opinion of the court merely shows
that there is no legal warrant in past jurisprudence for
the decision now made; for the acts of falsification in
those cases were not done by an examiner, reader, or
reviser, but by the individual who was prosecuted or by
some unauthorized individual acting at his instance.
Moreover, the falsifications there accomplished were
effected after the examinations had been concluded
and the documents falsified had been committed to the
archives of the court.
In the infancy of jurisprudence a sentiment had its birth
in the mind of some jurist-poet which is still thought fit
to be inscribed over the Temple of Justice: Fiat Justitia
Ruat Coelum. The decision of the court in this case is
a reminder that junctures sometimes occur in human
affairs when even courts of last resort are constrained
to ignore the suggestion expressed in this motto.
Fortunately such occasions are rare; and we are
unable to see any necessity in the present case
requiring a departure from accepted doctrines.
For the reasons stated we dissent from the decision in
this case.
Villa-real and Villamor, JJ., concur.
RESOLUTION
October 5, 1932
VICKERS, J.:
The attorney for the appellant Estela Romualdez
submits in support of his motion for reconsideration the
following propositions:
First Proposition
The court has erred in finding defendant guilty
of falsification of public and official documents
in view of the authority to revise the
examination papers extended by Mr. Justice
Romualdez.
Second Proposition
The court has erred in finding with respect to
Mr. Justice Romualdez that "he himself had no
such authority as is alleged to have been given
his secretary," in view of the inconsistency of
such finding with its other findings.
Third Proposition
The court has erred in not extending any
consideration to the question as to the true
merit of the examination papers of Luis
Mabunay Exhibits B-1 and B-2.
Fourth Proposition
The court has erred in finding as a fact that "the
accused Estela Romualdez did not admit that
the alterations were made by her until after the
prosecuting attorney had presented 350 pages
of testimony and announced his readiness to
prove by three handwriting experts that the
alterations were in the handwriting of the
accused."
Fifth Proposition
The court has erred in finding as a fact that the
defendant "when she made the changes
already knew that the papers belonged to her
co-accused, Luis Mabunay."
Sixth Proposition
The court has erred in finding the existence of
a conspiracy between defendants, Estela
Romualdez and Luis Mabunay.
Seventh Proposition
The court has erred in ignoring the statutory
provisions of section 16 of the Code of Civil
Procedure, prescribing the manner of
conducting bar examinations.
Eighth Proposition
The court has erred in failing to recognize the
right of defendant at least to the benefit of a
reasonable doubt and by its judgment it has
apparently nullified the principle that a person
accused of crime is presumed innocent until his
guilt is established beyond a reasonable doubt.
Ninth Proposition
The court has erred in failing to extend to the
defendant her constitutional and statutory right
to a speedy trial.
Tenth Proposition
During the period from the time this cause was
submitted on appeal to this Honorable Court,
defendant has suffered punishment neither
ordained, recognized nor authorized by any law
on our statute books.
Eleventh Proposition
The court has erred in imposing upon the
defendant a sentence of punishment above
and beyond such as is authorized under our
Revised Penal Code.
The first ten propositions raise the questions which
were discussed in the arguments and duly considered
in the decision of this case. No reason has been
adduced that would justify us in changing our decision.
In support of his eleventh proposition, the attorney for
the appellant points out that the penalty of perpetual
disqualification from public office is not included in
article 171 of the Revised Penal Code, which
corresponds to article 300 of the Penal Code. He
overlooks the fact, however, that the penalty of prision
mayor under the Revised Penal Code, as well as under
the Penal Code, carries with it certain accessory
penalties.
The penalty provided in article 300 of the Penal Code,
as amended by section 1 of Act No. 2712, for a public
officer or employee or notary, who by taking advantage
of his official position shall be guilty of the falsification
of a document, is prision mayor and a fine in a sum not
less than 250 and more than 12,500 pesetas, and in
addition thereto perpetual disqualification from any
public office.
Article 61 of the Penal Code provides that the penalties
of prision mayor, prision correccional, and arresto
mayor shall carry with them suspension of the right to
hold public office and the right of suffrage during the
term of the sentence.
Article 42 of the Revised Penal Code provides that the
penalty of prision mayor shall carry with it that of
temporary absolute disqualification and that of
perpetual special disqualification from the right of
suffrage which the offender shall suffer although
pardoned as to the principal penalty, unless the same
shall have seen expressly remitted in the pardon.
According to article 32 of the Revised Penal Code, the
perpetual or the temporary special disqualification for
the exercise of the right of suffrage shall deprive the
offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to
vote in any popular election for any public office or to
be elected to such office. Moreover, the offender shall
not be permitted to hold any public office during the
period of his disqualification.
In other words article 42 of the Revised Penal Code
perpetually disqualifies the offender from the right of
suffrage, and article 32 provides that the offender shall
not be permitted to hold any public office during the
period of his disqualification; whereas under article 300
of the Penal Code the offender is perpetually
disqualified from holding public office, but under article
61 his right of suffrage is only suspended during the
term of the sentence. Under both the Penal Code and
the Revised Penal Code the offender is perpetually
disqualified from holding public office. The provisions
of the Revised Penal Code are, therefore, not favorable
to the appellant.
For the foregoing reasons, the motion of the appellant
Estela Romualdez is denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull,
Imperial and Butte, JJ., concur.
STREET, J., dissenting:
I adhere to my views expressed in my dissenting
opinion in the main case.
Villamor and Villa-Real, JJ., dissent.
RESOLUTION
October 5, 1932
VICKERS, J.:
On September 22, 1932, the attorney for the appellant
Estela Romualdez filed a motion for a new trial on the
following grounds:
(a) That the defendant-appellant Estela
Romualdez, has just discovered new evidence
material to the defense in this case, which
could not have been discovered and produced
at the trial below with reasonable diligence;
(b) That the judgment of this court is contrary
to law.
Affidavits of Godofredo Reyes and of appellant's
attorney are attached to the motion. The evidence
which the appellant wishes to present is the testimony
of Godofredo Reyes, who was a member of the bar
examination committee in 1926.
After considering the motion and the affidavits
presented in support thereof, we find that it is without
merit. In the first place the evidence which it is
proposed to present is not newly discovered evidence
within the technical meaning of that phrase, and in the
second place this evidence, if admitted, would not
affect the result of this case.
In the case of United States vs. Luzon (4 Phil., 343)
and United States vs. Quijano (11 Phil., 368), it was
held that a motion for a new trial, based upon newly
discovered evidence, will not be granted unless the
following conditions exist: (1) The evidence must have
been discovered since the trial; (2) it must be such that
with the use of reasonable diligence on part of the
defendant it could not have been secured at the former
trial; (3) it must be material, and not merely collateral,
or cumulative, or corroborative, or impeaching; (4) it
must be such as ought to produce a different result on
the merits of another trial; and (5) it must go to the
merits and not rest on a merely technical defense.
For the foregoing reasons, the appellant's motion for a
new trial is denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull,
Imperial and Butte, JJ., concur.
STREET, J., concurring:
While not questioning the propriety of the resolution I
adhere to the views expressed in the dissenting opinion
in the main case.
Villamor and Villa-Real, JJ., concur.
RESOLUTION
October 5, 1932
VICKERS, J.:
The appellant Luis Mabunay asks for the
reconsideration of the decision of this court of
September 10, 1932 for the following reasons:
(1) The court relied on mere suspicion and conjecture
in convicting Mabunay.
(2) From the fact that the accused Mabunay did not
testify at the trial of this case, nothing against his
innocence should be inferred.
The motion for reconsideration raises only questions
which have been carefully considered and decided,
and it is unnecessary to restate our findings and
conclusions.
The attorney for the appellant calls attention to the
Spanish text of section 59 of General Orders No. 58
reading as follows:
En todas las causas criminales las pruebas
admitidas deberan ser concluyentes para
demostrar el hecho que se trata de probar. Al
querellante correspondera proponer y practicar
las pruebas que demuestren la culpabilidad, y
debera ser presentada la prueba mas
concluyente de que sea susceptible la causa.
This does not seem to us an exact translation of the
original of this section in English, which should prevail.
It is as follows:
In all criminal prosecutions the evidence
admitted must be relevant to the fact at issue,
the burden of proof of guilt shall be upon the
prosecution, and the best evidence must be
produced of which the case is susceptible.
With respect to the second ground of the motion for
reconsideration, based upon paragraph 3 of section 15
of General Orders No. 58 which provides that the
neglect or refusal of a defendant to be a witness shall
not in any manner prejudice or be used against him, it
is sufficient to refer to the decision in question. The
attorney for the appellant appears to make no
distinction between the failure of the defendant to
testify and explain a certain fact and the failure of the
defendant to present any other witness in explanation
of that fact.
After having elected not to testify in his own behalf or
to present any other witness to explain for what
purpose he withdrew the money in question from the
Philippine Trust Company, the appellant Mabunay,
now that he has been convicted by the lower court and
his conviction has been affirmed by this court, prays
that he be granted a new trial in order that he may
testify himself and present other witnesses to testify as
to that fact. The appellant is clearly not entitled to a new
trial for such reason.
For the foregoing reasons, the motion of the appellant,
Luis Mabunay is hereby denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull,
Imperial and Butte, JJ., concur.
Street, Villamor and Villa-Real, JJ., dissent.
(8) G.R. No. 186030 March 21, 2012
NORMA DELOS REYES VDA. DEL PRADO,
EULOGIA R. DEL PRADO, NORMITA R. DEL
PRADO and RODELIA R. DEL PRADO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
Before us is a petition for review on certiorari under
Rule 45 of the Rules of Court, which seeks to assail
and set aside the following issuances of the Court of
Appeals (CA) in the case docketed as CA-G.R. CR No.
31225 and entitled "Norma Delos Reyes Vda. Del
Prado, Eulogia R. Del Prado, Normita R. Del Prado and
Rodelia R. Del Prado v. People of the Philippines":
1) the Decision1 dated September 15, 2008
affirming with modification the decision and
order of the Regional Trial Court (RTC), Branch
38, Lingayen, Pangasinan in Criminal Case No.
L-8015; and
2) the Resolution2 dated January 6, 2009
denying the motion for reconsideration of the
Decision of September 15, 2008.
The Factual Antecedents
This petition stems from an Information for falsification
under Article 172, in relation to Article 171(4), of the
Revised Penal Code filed against herein petitioners
Norma Delos Reyes Vda. Del Prado (Norma), Normita
Del Prado (Normita), Eulogia Del Prado (Eulogia) and
Rodelia3 Del Prado (Rodelia) with the Municipal Trial
Court (MTC) of Lingayen, Pangasinan, allegedly
committed as follows:
That on or about the 19th day of July, 1991, in the
[M]unicipality of Lingayen, [P]rovince of Pangasinan,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring,
confederating and mutually helping one another, did
then and there wil[l]fully, unlawfully and feloniously
falsified, execute[d] and cause[d] the preparation of the
DEED OF SUCCESSION, by stating and making it
appear in said document that they were the only heirs
of the late Rafael del Prado, when in truth and in fact,
all the accused well knew, that Ma. Corazon Del Prado-
Lim is also an heir who is entitled to inherit from the late
Rafael Del Prado, and all the accused deliberately
used the DEED OF SUCCESSION to claim ownership
and possession of the land mentioned in the DEED OF
SUCCESSION to the exclusion of the complainant Ma.
Corazon Del Prado-Lim to her damage and prejudice.
Contrary to Art. 172 in relation to Art. 171, par. 4 of the
Revised Penal Code.4
Upon arraignment, the accused therein entered their
plea of "not guilty". After pre-trial conference, trial on
the merits ensued.
The prosecution claimed that Ma. Corazon Del Prado-
Lim (Corazon), private complainant in the criminal
case, was the daughter of the late Rafael Del Prado
(Rafael) by his marriage to Daisy Cragin (Daisy). After
Daisy died in 1956, the late Rafael married Norma with
whom he had five children, namely: Rafael, Jr.,
Antonio, Eulogia, Normita and Rodelia.
The late Rafael died on July 12, 1978. On October 29,
1979, Corazon, as a daughter of the late Rafael, and
Norma, as the late Rafael’s surviving spouse and
representative of their five minor children, executed a
"Deed of Extra-Judicial Partition of the Estate of Rafael
Del Prado" to cover the distribution of several
properties owned by the late Rafael, including the
parcel of land covered by Original Certificate of Title
(OCT) No. P-22848, measuring 17,624 square meters,
more or less, and situated at Libsong, Lingayen,
Pangasinan.
Per agreement of the heirs, Corazon was to get a
3,000-square meter portion of the land covered by OCT
No. P-22848. This right of Corazon was also affirmed
in the Deed of Exchange dated October 15, 1982 and
Confirmation of Subdivision which she executed with
Norma.
Corazon, however, later discovered that her right over
the subject parcel of land was never registered by
Norma, contrary to the latter’s undertaking. The
petitioners instead executed on July 19, 1991 a Deed
of Succession wherein they, together with Rafael, Jr.
and Antonio, partitioned and adjudicated unto
themselves the property covered by OCT No. P-22848,
to the exclusion of Corazon. The deed was notarized
by Loreto L. Fernando (Loreto), and provides in part:
WHEREAS, on the 12[th] day of July 1978, RAFAEL
DEL PRADO[,] SR., died intestate in the City of
Dagupan, leaving certain parcel of land, and more
particularly described and bounded to wit:
ORIGINAL CERTIFICATE OF TITLE NO. P-22848
"A certain parcel of land (Lot No. 5518, Cad-373-D)
Lingayen Cadastre, situated in Poblacion, Lingayen,
Pangasinan, Island of Luzon. Bounded on the NE., by
Lots Nos. 5522, 5515; and 6287; on the SE., by Lots
Nos. 5516, 5517, 55 and Road; on the SW., by Road,
and Lots Nos. 5521, 5510, and 5520; and on the NW.,
by Road; x x x containing an area of SEVENTEEN
THOUSAND SIX HUNDRED TWENTY-FOUR
(17,624) Square Meters, more or less. Covered by
Psd-307996 (LRC), consisting of two lots. Lot No.
5510-A and Lot 5518-B."
WHEREAS, the parties hereto are the only heirs of the
decedent, the first name, is the surviving spouse and
the rest are the children of the decedent;
xxx
NOW, THEREFORE, for and in consideration of the
premises and invoking the provisions of Rule 74, Sec.
1 of the Rules of Court, the parties hereto do by these
presents, agree to divide and partition the entire estate
above[-]described and accordingly adjudicate, as they
do hereby adjudicate the same among themselves,
herein below specified to wit:
x x x5
By virtue of the said Deed of Succession, OCT No. P-
22848 was cancelled and several new titles were
issued under the names of Corazon’s co-heirs. When
Corazon discovered this, she filed a criminal complaint
against now petitioners Norma, Eulogia, Normita and
Rodelia. Antonio and Rafael, Jr. had both died before
the filing of said complaint.
Among the witnesses presented during the trial was
Loreto, who confirmed that upon the request of Norma
and Antonio, he prepared and notarized the deed of
succession. He claimed that the petitioners appeared
and signed the document before him.
For their defense, the petitioners denied having signed
the Deed of Succession, or having appeared before
notary public Loreto. They also claimed that Corazon
was not a daughter, but a niece, of the late Rafael.
Norma claimed that she only later knew that a deed of
succession was prepared by her son Antonio, although
she admitted having executed a deed of real estate
mortgage in favor of mortgagee Prudential Bank over
portions of the subject parcel of land already covered
by the new titles.
The Ruling of the MTC
The MTC rejected for being unsubstantiated the
petitioners’ denial of any participation in the execution
of the deed of succession, further noting that they
benefited from the property after its transfer in their
names. Thus, on August 9, 2006, the court rendered its
decision6 finding petitioners Norma, Eulogia, Normita
and Rodelia guilty beyond reasonable doubt of the
crime charged, sentencing them to suffer an
indeterminate penalty of four months and one day of
arresto mayor as minimum to two years and four
months and one day of prision correccional as
maximum. They were also ordered to pay a fine of
₱5,000.00 each, with subsidiary imprisonment in case
of non-payment of fine.
Considering the minority of Rodelia at the time of the
commission of the crime, she was sentenced to suffer
the penalty of four months of arresto mayor, plus
payment of fine of ₱5,000.00, with subsidiary
imprisonment in case of non-payment.
All the petitioners were ordered to indemnify Corazon
in the amount of ₱10,000.00 as attorney’s fees, and to
pay the costs of suit.
Unsatisfied with the MTC’s ruling, the petitioners filed
a motion for new trial on the grounds of alleged gross
error of law, irregularities during the trial, and new and
material evidence. To prove that they did not intend to
exclude Corazon from the estate of the late Rafael, the
petitioners cited their recognition of Corazon’s right to
the estate in the deed of extra-judicial partition,
confirmation of subdivision, deed of exchange, joint
affidavit and petition for guardianship of minors Rafael,
Jr., Eulogia, Antonio and Normita, which they had
earlier executed.7 Again, the petitioners denied having
signed the deed of succession, and instead insisted
that their signatures in the deed were forged.
The motion was denied by the MTC via a
resolution8 dated December 21, 2006, prompting the
filing of an appeal with the RTC.
The Ruling of the RTC
On August 10, 2007, the RTC rendered its
decision9 affirming the MTC’s decision, with
modification in that the case against Rodelia was
dismissed in view of her minority at the time of the
commission of the crime. The decretal portion of the
decision reads:
WHEREFORE, premises considered, the appealed
Decision of the Municipal Trial Court of Lingayen,
Pangasinan dated August 9, 2006 is hereby
AFFIRMED, but modified as to accused Rodelia R. Del
Prado as the case against her is hereby DISMISSED
on account of her minority at the time of the
commission of the offense.
SO ORDERED.10
A motion for reconsideration was denied for lack of
merit by the RTC via its resolution11 dated October 31,
2007. Hence, Norma, Eulogia and Normita filed a
petition for review with the CA.
The Ruling of the CA
On September 15, 2008, the CA rendered its
decision12 dismissing the petition and affirming the
RTC’s ruling, with modification as to the imposable
penalty under the Indeterminate Sentence Law. The
decretal portion of the decision reads:
WHEREFORE, premises considered, the appeal is
DISMISSED. The appealed Decision dated August 10,
2007 and Order dated October 31, 2007 of the
Regional Trial Court, Branch 38, Pangasinan, in Crim.
Case No. L-8015 are AFFIRMED with MODIFICATION
that appellants Norma delos Reyes Vda. Del Prado,
Eulogia R. Del Prado and Normita R. Del Prado are
hereby sentenced to suffer an indeterminate penalty of
one (1) year and one (1) day of arresto mayor, as
minimum, to three (3) years, six (6) months and twenty-
one (21) days of prision correccional, as maximum.
SO ORDERED.13
The motion for reconsideration filed by the petitioners
was denied by the CA in its resolution14 dated January
6, 2009. Feeling aggrieved, the petitioners appealed
from the decision and resolution of the CA to this Court,
through a petition for review on certiorari15 under Rule
45 of the Rules of Court.
The Present Petition
The petitioners present the following assignment of
errors to support their petition:
A. WITH DUE RESPECT, THE LOWER
COURT CLEARLY ERRED IN FINDING THAT
COMPLAINANT MA. CORAZON DEL
PRADO-LIM WAS EXCLUDED AS AN HEIR
OF THE LATE RAFAEL DEL PRADO.
B. WITH DUE RESPECT, THE LOWER
COURT CLEARLY ERRED IN NOT
APPRECIATING THE FACT THAT IN
SEVERAL DOCUMENTS/INSTRUMENTS
EXECUTED BY THE PETITIONERS WITH
THE PARTICIPATION OF COMPLAINANT
MS. CORAZON DEL PRADO-LIM, SHE WAS
SPECIFICALLY NAMED AS AN HEIR WITH
CORRESPONDING SHARES/INHERITANCE
IN THE ESTATE OF THE LATE RAFAEL DEL
PRADO.
C. WITH DUE RESPECT, THE LOWER
COURT CLEARLY ERRED IN FAILING TO
APPRECIATE THE GOOD FAITH OF THE
PETITIONERS WHICH NEGATES THE
COMMISSION OF THE OFFENSE OF
FALSIFICATION ON THEIR PART.
D. WITH DUE RESPECT, THE LOWER
COURT CLEARLY ERRED IN CONVICTING
THE PETITIONERS WITHOUT ANY
FACTUAL AND LEGAL BASIS, THE
PRESUMPTION OF INNOCENCE OF THE
PETITIONERS NOT HAVING BEEN
OVERCOME BY THE PROSECUTION’S
EVIDENCE.
E. WITH DUE RESPECT [THE LOWER
COURT ERRED] IN NOT HOLDING THAT
THE CASE IS PURELY CIVIL ONE[,] NOT
CRIMINAL.16
To support their assigned errors, the petitioners invoke
the existence and contents of the several documents
which they had presented before the MTC, including
the deed of extrajudicial partition of the estate of Rafael
Del Prado dated October 29, 1979, confirmation of
subdivision, deed of exchange and petition in the
guardianship proceedings for the minor Del Prado
children filed by Norma, in which documents they claim
to have indicated and confirmed that Corazon is also
an heir of the late Rafael. Given these documents, the
petitioners insist that they cannot be charged with
falsification for having excluded Corazon as an heir of
their decedent.
In sum, the issue for this Court’s resolution is whether
or not the CA erred in affirming the petitioners’
conviction for falsification, notwithstanding the said
petitioners’ defense that they never intended to
exclude private complainant Corazon from the estate
of the late Rafael.
This Court’s Ruling
The petition is bound to fail.
Only questions of law may be raised in petitions for
review on certiorari under Rule 45 of the Rules of
Court.
First, the questions being raised by the petitioners refer
to factual matters that are not proper subjects of a
petition for review under Rule 45. Settled is the rule that
in a petition for review under Rule 45, only questions of
law may be raised. It is not this Court’s function to
analyze or weigh all over again evidence already
considered in the proceedings below, our jurisdiction
being limited to reviewing only errors of law that may
have been committed by the lower court. The
resolution of factual issues is the function of the lower
courts, whose findings on these matters are received
with respect. A question of law which we may pass
upon must not involve an examination of the probative
value of the evidence presented by the litigants. 17 This
is clear under Section 1, Rule 45 of the Rules of Court,
as amended, which provides:
Section 1. Filing of petition with Supreme Court. – A
party desiring to appeal by certiorari from a judgment,
final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court or other courts, whenever
authorized by law, may file with the Supreme Court a
verified petition for review on certiorari. The petition
may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise
only questions of law, which must be distinctly set forth.
The petitioner may seek the same provisional remedies
by verified motion filed in the same action or
proceeding at any time during its pendency. (Emphasis
supplied)
The distinction between a question of law and a
question of fact is settled. There is a question of law
when the doubt or difference arises as to what the law
is on a certain state of facts. Such a question does not
involve an examination of the probative value of the
evidence presented by the litigants or any of them. On
the other hand, there is a question of fact when the
doubt arises as to the truth or falsehood of the alleged
facts or when the query necessarily invites calibration
of the whole evidence, considering mainly the
credibility of witnesses, existence and relevancy of
specific surrounding circumstances, their relation to
one another and to the whole, and the probabilities of
the situation.18
Contrary to these rules, the petitioners ask us to review
the lower courts’ factual finding on Carmen’s exclusion
in the subject deed of succession, to reconsider its
contents and those of the other documentary evidence
which they have submitted with the court a quo, all of
which involve questions of fact rather than questions of
law. In their assignment of errors, petitioners even fully
question the factual basis for the courts’ finding of their
guilt. However, as we have explained in Medina v.
Asistio, Jr.:19
Petitioners’ allegation that the Court of Appeals
"grossly disregarded" their Exhibits "A", "B", "C", "D"
and "E", in effect, asks us to re-examine all the
[evidence] already presented and evaluated – as well
as the findings of fact made – by the Court of Appeals.
Thus, in Sotto v. Teves (86 SCRA 154 [1978]), [w]e
held that the appreciation of evidence is within the
domain of the Court of Appeals because its findings of
fact are not reviewable by this Court (Manlapaz v. CA,
147 SCRA 236 [1987]; Knecht v. CA, 158 SCRA 80
[1988] and a long line of cases).
It is not the function of this Court to analyze or weigh
such evidence all over again. Our jurisdiction is limited
to reviewing errors of law that may have been
committed by the lower court. (Nicolas[,] et al., v. CA,
154 SCRA 635 [1987]; Tiongco v. de la Merced, 58
SCRA 89 [1974]).
There are recognized exceptions to this rule on
questions of law as subjects of petitions for review, to
wit: (1) when the findings are grounded entirely on
speculation, surmises or conjectures, (2) when the
inference made is manifestly mistaken, absurd or
impossible, (3) when there is grave abuse of discretion,
(4) when the judgment is based on misapprehension of
facts, (5) when the findings of fact are conflicting, (6)
when in making its findings, the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee, (7)
when the CA’s findings are contrary to those by the trial
court, (8) when the findings are conclusions without
citation of specific evidence on which they are based,
(9) when the acts set forth in the petition as well as in
the petitioner’s main and reply briefs are not disputed
by the respondent, (10) when the findings of fact are
premised on the supposed absence of evidence and
contradicted by the evidence on record, or (11) when
the CA manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered,
would justify a different conclusion.20 After a
consideration of the petitioners’ arguments, this Court
holds that the present appeal does not fall under any of
these exceptions.
There can be no good faith on the part of the petitioners
since they knew of the untruthful character of
statements contained in their deed of succession.
Even granting that the present petition may be
admitted, we find no cogent reason to reverse the CA
decision appealed from, considering that the elements
of the crime of falsification under Art. 171, par. 4 of the
Revised Penal Code, in relation to Art. 172 thereof,
were duly proved during the proceedings below. Said
elements are as follows:
(a) The offender makes in a public document
untruthful statements in a narration of facts;
(b) The offender has a legal obligation to
disclose the truth of the facts narrated by him;
and
(c) The facts narrated by the offender are
absolutely false.21
These elements are based on the provisions of Art.
172, in relation to Art. 171, par. 4, of the Revised Penal
Code, which reads:
Art. 171. Falsification by public officer, employee or
notary or ecclesiastical minister. – The penalty of
prision mayor and a fine not to exceed ₱5,000 pesos
shall be imposed upon any public officer, employee, or
notary who, taking advantage of his official position,
shall falsify a document by committing any of the
following acts:
xxx
4. Making untruthful statements in narration of facts;
xxx
Art. 172. Falsification by private individual and use of
falsified documents. – The penalty of prision
correccional in its medium and maximum periods and
a fine of not more than ₱5,000 pesos shall be imposed
upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article
in any public or official document or letter of exchange
or any other kind of commercial document; and
2. Any person who, to the damage of a third party, or
with the intent to cause such damage, shall in any
private document commit any of the acts of falsification
enumerated in the next preceding article.
xxx
The material document claimed to be falsified in this
case is the Deed of Succession dated July 19, 1991,
the presentation of which before the Register of Deeds
and other government agencies allowed the
cancellation of OCT No. P-22848, and the issuance of
several new titles in its stead. The first and third
elements were committed by the inclusion in the
subject deed of the clause that states, "(w)hereas, the
parties hereto are the only heirs of the decedent, the
first name, is the surviving spouse and the rest are the
children of the decedent." 22 The untruthfulness of said
statement is clear from the several other documents
upon which, ironically, the petitioners anchor their
defense, such as the deed of extrajudicial partition
dated October 29, 1979, the parties’ confirmation of
subdivision, deed of exchange and Norma’s petition for
guardianship of her then minor children. Specifically
mentioned in these documents is the fact that Corazon
is also a daughter, thus an heir, of the late Rafael.
The obligation of the petitioners to speak only the truth
in their deed of succession is clear, taking into account
the very nature of the document falsified. The deed,
which was transformed into a public document upon
acknowledgement before a notary public, required only
truthful statements from the petitioners. It was a legal
requirement to effect the cancellation of the original
certificate of title and the issuance of new titles by the
Register of Deeds. The false statement made in the
deed greatly affected the indefeasibility normally
accorded to titles over properties brought under the
coverage of land registration, to the injury of Corazon
who was deprived of her right as a landowner, and the
clear prejudice of third persons who would rely on the
land titles issued on the basis of the deed.
We cannot subscribe to the petitioners’ claim of good
faith because several documents prove that they knew
of the untruthful character of their statement in the deed
of succession. The petitioners’ alleged good faith is
disputed by their prior confirmation and recognition of
Corazon’s right as an heir, because despite knowledge
of said fact, they included in the deed a statement to
the contrary. The wrongful intent to injure Corazon is
clear from their execution of the deed, showing a desire
to appropriate only unto themselves the subject parcel
of land. Corazon was unduly deprived of what was due
her not only under the provisions of the law on
succession, but also under contracts that she had
previously executed with the petitioners. 1âw phi1
WHEREFORE, premises considered, the petition for
review on certiorari is hereby DENIED. The Decision
dated September 15, 2008 and Resolution dated
January 6, 2009 of the Court of Appeals in CA-G.R. CR
No. 31225 are hereby AFFIRMED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
(9) G.R. Nos. 174730-37 February 9, 2011
ROSALIO S. GALEOS, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 174845-52
PAULINO S. ONG, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions at bar seek to reverse and
set aside the Decision1 promulgated on August 18,
2005 by the Sandiganbayan convicting petitioners
Paulino S. Ong (Ong) of eight counts and Rosalio S.
Galeos (Galeos) of four counts of falsification of public
documents under Article 171, paragraph 4 of
the Revised Penal Code, as amended.
The facts are as follows:
Ong was appointed Officer-in-Charge (OIC)-Mayor of
the Municipality of Naga, Cebu on April 16, 1986. He
was elected Mayor of the same municipality in 1988
and served as such until 1998.2
On June 1, 1994, Ong extended permanent
appointments to Galeos and Federico T. Rivera
(Rivera) for the positions of Construction and
Maintenance Man and Plumber I, respectively, in the
Office of the Municipal Engineer.3 Prior to their
permanent appointment, Galeos and Rivera were
casual employees of the municipal government.
In their individual Statement of Assets, Liabilities and
Net Worth (SALN) for the year 1993, Galeos answered
"No" to the question: "To the best of your knowledge,
are you related within the fourth degree of
consanguinity or of affinity to anyone working in the
government?" while Rivera indicated "n/a" on the
space for the list of the names of relatives referred to in
the said query.4 The boxes for "Yes" and "No" to the
said query were left in blank by Galeos in his 1994 and
1995 SALN.5 Rivera in his 1995 SALN answered "No"
to the question on relatives in government.6 In their
1996 SALN, both Galeos and Rivera also did not fill up
the boxes indicating their answers to the same
query.7Ong’s signature appears in all the foregoing
documents as the person who administered the oath
when Galeos and Rivera executed the foregoing
documents.
In a letter-certification dated June 1, 1994 addressed
to Ms. Benita O. Santos, Regional Director, Civil
Service Commission (CSC), Regional Office 7, Cebu
City, it was attested that:
This is to certify that pursuant to the provisions of R.A.
7160, otherwise known as the Local Government Code
of 1991, all restrictions/requirements relative to
creation of positions, hiring and issuance of
appointments, Section 325 on the limitations for
personal services in the total/supplemental
appropriation of a local government unit; salary rates;
abolition and creation of positions, etc.; Section 76,
organizational structure and staffing pattern; Section
79 on nepotism; Section 80, posting of vacancy and
personnel selection board; Section 81 on
compensation, etc. have been duly complied with in the
issuance of this appointment.
This is to certify further that the faithful observance of
these restrictions/requirements was made in
accordance with the requirements of the Civil Service
Commission before the appointment was submitted for
review and action.8(Emphasis supplied.)
The above certification was signed by Ong and HR
Officer-Designate Editha C. Garcia.
On October 1, 1998, the members of the Sangguniang
Bayan of Naga, Cebu filed a letter-complaint9 before
the Office of the Ombudsman (OMB)-Visayas against
Ong (then incumbent Vice-Mayor of Naga), Galeos and
Rivera for dishonesty, nepotism, violation of the Code
of Conduct and Ethical Standards for Public Officials
and Employeesand Anti-Graft and Corrupt Practices
Act, and for the crime of falsification of public
documents.
On August 11, 2000, Ombudsman Aniano Desierto
approved the recommendation of OIC-Deputy
Ombudsman for the Visayas that criminal charges be
filed against Ong, Galeos and Rivera for falsification of
public documents under Article 171 of the Revised
Penal Code, as amended, in connection with the
Certification dated June 1, 1994 issued by Ong and the
false statements in the 1993, 1995 and 1996 SALN of
Rivera and the 1993, 1994, 1995 and 1996 SALN of
Galeos.10
On August 16, 2000, the following Informations 11 were
filed against the petitioners:
Criminal Case No. 26181
That on or about the 14th day of February, 1994, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal
Mayor and Construction and Maintenance Man of the
Office of the Municipal Engineer, Municipality of Naga,
Cebu, in such capacity and committing the offense in
relation to office, conniving and confederating together
and mutually helping with each other, with deliberate
intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document,
consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and
Financial Connections and Identification of Relatives In
the Government Service, as of December
31, 1993, filed by accused Rosalio S. Galeos and
subscribed and sworn to before accused Paulino
S. Ong, wherein accused made it appear therein that
they are not related within the fourth degree of
consanguinity or affinity thereby making untruthful
statements in a narration of facts, when in truth and in
fact, accused very well k[n]ew that they are related with
each other, since accused Rosalio S. Galeos is related
to accused Paulino S. Ong within the fourth degree of
consanguinity, the mother of accused Rosalio S.
Galeos [being] the sister of the mother of accused
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26182
That on or about the 15th day of February 1994, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal
Mayor and Plumber I of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity
and committing the offense in relation to office,
conniving and confederating together and mutually
helping with each other, with deliberate intent, with
intent to falsify, did then and there willfully, unlawfully
and feloniously falsify a public document, consisting of
a Sworn Statement of Assets and Liabilities, Disclosure
of Business Interests and Financial Connections and
Identification of Relatives In the Government Service
as of December 31, 1993, filed by accused Federico
T. Rivera and subscribed and sworn to before accused
Paulino S. Ong, wherein accused Federico T. Rivera
made it appear therein that he has no relatives within
the fourth degree of consanguinity or affinity working in
the government, thereby making untruthful statements
in a narration of facts, when in truth and in fact, as
accused very well knew that they are related with each
other, since accused Federico T. Rivera is related to
accused Paulino S. Ong within the fourth degree of
affinity, the mother of Federico T. Rivera’s wife being
the sister of the mother of Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26183
That on or about the 1st day of February, 1996, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal
Mayor and Construction and Maintenance Man of the
Office of the Municipal Engineer, Municipality of Naga,
Cebu, in such capacity and committing the offense in
relation to office, conniving and confederating together
and mutually helping with each other, with deliberate
intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document,
consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and
Financial Connections and Identification of Relatives In
the Government Service, as of December 31, 1995,
filed by accused Rosalio S. Galeos and subscribed
and sworn to before accused Paulino S. Ong, wherein
accused made it appear therein that they are not
related within the fourth degree of consanguinity or
affinity thereby making false statements in a narration
of facts, when in truth and in fact, as accused very well
k[n]ew that they are related with each other, since
accused Rosalio S. Galeos is related to accused
Paulino S. Ong within the fourth degree of
consanguinity, the mother of accused Rosalio S.
Galeos being the sister of the mother of accused
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26184
That on or about the 1st day of February 1996, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal
Mayor and Plumber I of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity
and committing the offense in relation to office,
conniving and confederating together and mutually
helping with each other, with deliberate intent, with
intent to falsify, did then and there willfully, unlawfully
and feloniously falsify a public document, consisting of
a Sworn Statement of Assets and Liabilities, Disclosure
of Business Interests and Financial Connections and
Identification of Relatives In The Government Service,
[a]s of December 31, 1995, filed by accused Federico
T. Rivera and subscribed and sworn to before accused
Paulino S. Ong, wherein accused Federico
T. Rivera made it appear therein that he has no
relatives within the fourth degree of consanguinity or
affinity working in the government, thereby making
untruthful statements in a narration of facts, when in
truth and in fact, as accused very well knew that they
are related with each other, since accused Federico T.
Rivera is related to accused Paulino S. Ong within the
fourth degree of affinity, the mother of Federico T.
Rivera’s wife being the sister of the mother of Paulino
S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26185
That on or about the 5th day of February 1997, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal
Mayor and Plumber I of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity
and committing the offense in relation to office,
conniving and confederating together and mutually
helping with each other, with deliberate intent, with
intent to falsify, did then and there willfully, unlawfully
and feloniously falsify a public document, consisting of
a Sworn Statement of Assets and Liabilities, Disclosure
of Business Interests and Financial Connections and
Identification of Relatives In The Government Service,
[a]s of December 31, 1996, filed by accused Federico
T. Rivera and subscribed and sworn to before accused
Paulino S. Ong, wherein accused Federico T. Rivera
made it appear therein that he has no relatives within
the fourth degree of consanguinity or affinity working in
the government, thereby making untruthful statements
in a narration of facts, when in truth and in fact, as
accused very well knew that they are related with each
other, since accused Federico T. Rivera is related to
accused Paulino S. Ong within the fourth degree of
affinity, the mother of Federico T. Rivera’s wife being
the sister of the mother of Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26186
That on or about the 3rd day of March, 1995, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal
Mayor and Construction and Maintenance Man of the
Office of the Municipal Engineer, Municipality of Naga,
Cebu, in such capacity and committing the offense in
relation to office, conniving and confederating together
and mutually helping with each other, with deliberate
intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document,
consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and
Financial Connections and Identification of Relatives In
the Government Services, as of December 31, 1994,
filed by accused Rosalio S. Galeos and subscribed
and sworn to before accused Paulino S. Ong, wherein
accused made it appear therein that they are not
related within the fourth degree of consanguinity or
affinity thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused
very well k[n]ew that they are related with each other,
since accused Rosalio S. Galeos is related to accused
Paulino S. Ong, within the fourth degree of
consanguinity, the mother of accused Rosalio S.
Galeos being the sister of the mother of accused
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26187
That on or about the 11th day of March, 1997, in the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal
Mayor and Construction and Maintenance Man of the
Office of the Municipal Engineer, Municipality of Naga,
Cebu, in such capacity and committing the offense in
relation to office, conniving and confederating, together
and mutually helping with each other, with deliberate
intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document,
consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and
Financial Connections and Identification of Relatives In
the Government Service, as of December 31, 1996,
filed by accused Rosalio S. Galeos and subscribed
and sworn to before accused Paulino S. Ong, wherein
accused made it appear therein that they are not
related within the fourth degree of consanguinity or
affinity thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused
very well k[n]ew that they are related with each other,
since accused Rosalio S. Galeos is related to accused
Paulino S. Ong within the fourth degree of
consanguinity, the mother of accused Rosalio S.
Galeos being the sister of the mother of accused
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26188
That on or about the 1st day of June, 1994, at the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named accused, a public officer, being the
former Mayor of the Municipality of Naga, Cebu, in
such capacity and committing the offense in relation to
office, with deliberate intent, with intent to falsify, did
then and there willfully, unlawfully and feloniously
falsify a public document, consisting of
a Certification in the form of a letter addressed to Mrs.
Benita O. Santos, then Regional Director of the Civil
Service Commission (CSC)-Region VII, Cebu City
dated June 1, 1994, a requirement in the approval of
an appointment, certifying therein that there was a
faithful compliance of the requirement/restriction
provided under the Civil Service Laws and Rules in the
appointment of Rosalio S. Galeos, as Construction and
Maintenance Man of the Office of the Municipal
Engineer, Naga, Cebu, thereby making untruthful
statements in a narration of facts, when in truth and in
fact as accused very well knew that the appointment of
Rosalio S. Galeos was nepotic being made in violation
of the Civil Service Rules and Laws on Nepotism, as
Rosalio S. Galeos is related to accused within the
fourth degree of consanguinity, since the mother of
Rosalio S. Galeos is the sister of the mother of
accused, which Certification caused the approval of the
appointment of Rosalio S. Galeos, to the detriment of
public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26189
That on or about the 1st day of June, 1994, at the
Municipality of Naga, Province of Cebu, Philippines,
and within the jurisdiction of this Honorable Court,
above-named accused, a public officer, being the
former Mayor of the Municipality of Naga, Cebu, in
such capacity and committing the offense in relation to
office, with deliberate intent, with intent to falsify, did
then and there willfully, unlawfully and feloniously
falsify a public document, consisting of
a Certification in the form of a letter addressed to Mrs.
Benita O. Santos, then Regional Director of the Civil
Service Commission (CSC), Region VII, Cebu City,
dated June 1, 1994, a requirement in the approval of
an appointment, certifying therein that there was a
faithful compliance of the requirement/restriction
provided under the Civil Service Laws and Rules in the
appointment of Federico T. Rivera, a Plumber I of the
Office of the Municipal Engineer, Naga, Cebu, thereby
making untruthful statements in a narration of facts,
when in truth and in fact as accused very well knew that
the appointment of Federico T. Rivera was nepotic
being made in violation of the Civil Service Rules and
Laws on Nepotism, as Federico T. Rivera is related to
accused within the fourth degree of affinity, since the
mother of Federico T. Rivera’s wife is the sister of the
mother of accused, which certification caused the
approval of the appointment of Federico T. Rivera, to
the detriment of public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Under the Joint Stipulation of Facts submitted to the
court a quo, the accused made the following
admissions: (1) Ong was the Municipal Mayor of Cebu
at all times relevant to these cases; (2) Ong is related
to Galeos, within the fourth degree of consanguinity as
his mother is the sister of Galeos’ mother, and to Rivera
within the fourth degree of affinity as his mother is the
sister of the mother of Rivera’s wife; and (3) Galeos
and Rivera were employed as Construction and
Maintenance Man and Plumber I, respectively, in the
Municipal Government of Naga, Cebu at all times
relevant to these cases. Ong likewise admitted the
genuineness and due execution of the documentary
exhibits presented by the prosecutor (copies of SALNs
and Certification dated June 1, 1994) except for Exhibit
"H" (Certification dated June 1, 1994 offered by the
prosecution as "allegedly supporting the appointment
of Rosalio S. Galeos"12).13
As lone witness for the prosecution, Esperidion R.
Canoneo testified that he has been a resident of
Pangdan, Naga, Cebu since 1930 and claimed to be
friends with Ong, Galeos and Rivera. He knows the
mother of Galeos, Pining Suarez or Peñaranda
Suarez. But when the prosecutor mentioned "Bining
Suarez," Canoneo stated that Bining Suarez is the
mother of Galeos and that Bining Suarez is the same
person as "Bernardita Suarez." Ong is related to
Galeos because Ong’s mother, Conchita Suarez, and
Galeos’ mother, Bernardita Suarez, are sisters. As to
Rivera, his wife Kensiana,14 is the daughter of
Mercedes Suarez who is also a sister of Conchita
Suarez. He knew the Suarez sisters because they were
the neighbors of his grandmother whom he frequently
visited when he was still studying.15
Both Galeos and Rivera testified that they only
provided the entries in their SALN but did not
personally fill up the forms as these were already filled
up by "people in the municipal hall" when they signed
them.
Galeos, when shown his 1993 SALN,16 confirmed his
signature thereon. When he was asked if he
understood the question "To the best of your
knowledge, are you related within the fourth degree of
consanguinity or affinity to anyone working in the
government?" he answered in the negative. He
claimed that the "X" mark corresponding to the answer
"No" to said question, as well as the other entries in his
SALN, were already filled up when he signed it. When
shown his SALN for the years 1994, 1995 and 1996,
Galeos reiterated that they were already filled up and
he was only made to sign them by an employee of the
municipal hall whom he only remembers by face. He
also admitted that he carefully read the documents and
all the entries therein were explained to him before he
affixed his signature on the document. However, when
asked whether he understands the term "fourth degree
of consanguinity or affinity" stated in the SALNs, he
answered in the negative.17
Rivera testified that he was not aware that his wife was
a close relative of the Municipal Mayor because when
he asked her, the latter told him that Ong was a distant
relative of hers. Rivera added that it was not Ong who
first appointed him as a casual employee but Ong’s
predecessor, Mayor Vicente Mendiola.18
On the part of Ong, he testified that at the time he was
serving as Municipal Mayor of Naga, he did not know
that he and Galeos are relatives, as in fact there are
several persons with the surname "Galeos" in the
municipality. He signed Galeos’ 1993 SALN when it
was presented to him by Galeos at his office. There
were many of them who brought such documents and
he would administer their oaths on what were written
on their SALN, among them were Galeos and Rivera.
He came to know of the defect in the employment of
Galeos when the case was filed by his "political enemy"
in the Ombudsman just after he was elected Vice-
Mayor in 1998. As to Rivera, Ong claimed that he
knows him as a casual employee of the previous
administration. As successor of the former mayor, he
had to re-appoint these casual employees and he
delegated this matter to his subordinates. He
maintained that his family was not very close to their
other relatives because when he was not yet Mayor, he
was doing business in Cebu and Manila. When queried
by the court if he had known his relatives while he was
campaigning considering that in the provinces even
relatives within the 6th and 7th degree are still regarded
as close relatives especially among politicians, Ong
insisted that his style of campaigning was based only
on his performance of duties and that he did not go
from house to house. Ong admitted that he had been a
resident of Naga, Cebu since birth. He could no longer
recall those SALN of most of the employees whose
oaths he had administered. He admitted that he was
the one who appointed Galeos and Rivera to their
permanent positions and signed their official
appointment (Civil Service Form No. 33) but he was not
aware at that time that he was related to them. It was
only after the filing of the case that he came to know
the wife of Rivera. As to the qualifications of these
appointees, he no longer inquired about it and their
appointments were no longer submitted to the
Selection Board. When the appointment forms for
Galeos and Rivera were brought to his office, the
accompanying documents were attached thereto. Ong,
however, admitted that before the permanent
appointment is approved by the CSC, he issues a
certification to the effect that all requirements of law
and the CSC have been complied with.19
On August 18, 2005, the Sandiganbayan promulgated
the assailed Decision convicting Ong, Galeos and
Rivera, as follows:
WHEREFORE, judgment is hereby rendered on the
following:
In Criminal Case No. 26181, judgment is hereby
rendered finding accused Paulino S. Ong and Rosalio
S. Galeos GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26182, judgment is hereby
rendered finding accused Paulino S. Ong and Federico
T. Rivera GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26183, judgment is hereby
rendered finding accused Paulino S. Ong and Rosalio
S. Galeos GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00). 1 auu phil
In Criminal Case No. 26184, judgment is hereby
rendered finding accused Paulino S. Ong and Federico
T. Rivera GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26185, judgment is hereby
rendered finding accused Paulino S. Ong and Federico
T. Rivera GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26186, judgment is hereby
rendered finding accused Paulino S. Ong and Rosalio
S. Galeos GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26187, judgment is hereby
rendered finding accused Paulino S. Ong and Rosalio
S. Galeos GUILTY beyond reasonable doubt of the
crime of Falsification of Public Document as defined in
and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, are
hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR
(4) MONTHS, and ONE (1) DAY OF Prision
Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26188, judgment is hereby
rendered finding accused Paulino S. Ong NOT GUILTY
for Violation of Article 171 of the Revised Penal Code
for failure of the Prosecution to prove his guilt beyond
reasonable doubt; and
In Criminal Case No. 26189, judgment is hereby
rendered finding accused Paulino S. Ong GUILTY
beyond reasonable doubt for Falsification of Public
Document as defined in and penalized by Article 171
of the Revised Penal Code and, there being no
modifying circumstances, is hereby sentenced to suffer
an indeterminate penalty of imprisonment from TWO
(2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of
Prision Correccional medium as the minimum penalty
to EIGHT (8) YEARS and ONE (1) DAY of Prision
Mayor medium as the maximum penalty and to pay a
FINE of FIVE THOUSAND PESOS (P5,000.00).
SO ORDERED.20
In its Resolution21 dated August 28, 2006, the
Sandiganbayan denied the motions for reconsideration
of Ong and Galeos. However, in view of the death of
Rivera on August 22, 2003 before the promulgation of
the decision, the cases (Criminal Case Nos. 26182,
26184 and 26185) against him were dismissed.
In G.R. Nos. 174730-37, Galeos contends that the
Sandiganbayan erred when:
1) . . . IT HELD THAT THE SUBJECT
DOCUMENTARY EVIDENCE CONTAINED
UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS.
2) . . . IT DID NOT CONSIDER PETITIONER’S
VALID DEFENSE OF GOOD FAITH AND
 LACK OF INTENT TO COMMIT THE CRIMES
IMPUTED.
3) . . . IT GAVE FULL CREDENCE TO THE
TESTIMONY OF THE SOLE WITNESS FOR
THE PROSECUTION.22
In support of his assigned errors, Galeos argues that
he did not make untruthful or false statements in his
SALN since a "statement" requires a positive averment
and thus silence or non-disclosure cannot be
considered one. And even if they are considered
statements, Galeos contends that they were not made
in a "narration of facts" and the least they could be
considered are "conclusions of law." He also argues
that the prosecution failed to adduce any evidence to
support the finding that he was aware of their
relationship at the time of the execution of the SALN.
With the presence of good faith, Galeos avers that the
fourth element of the crime – the perversion of truth in
the narration of facts was made with the wrongful intent
of injuring a third person – is missing. He also faults the
Sandiganbayan for its heavy reliance on the
uncorroborated testimony of the prosecution’s sole
witness despite the fact that there are aspects in his
testimony that do not inspire belief.
On the other hand, in G.R. Nos. 174845-52, Ong
argues that the Sandiganbayan erred when:
(a)
. . . IT HELD THAT THE SUBJECT
DOCUMENTARY EVIDENCE CONTAINED
UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS.
(b)
IN CRIMINAL CASES NOS. 26181-26187, [IT
HELD] THAT A PERSON MERELY
ADMINISTERING THE OATH IN A After a thorough review, we find the petitions
DOCUMENT IS GUILTY OF THE CRIME OF
FALSIFICATION BY MAKING UNTRUTHFUL
STATEMENTS IN A NARRATION OF FACTS.
(c)
. . . IN CRIMINAL CASE NO. 26189, … IT
INFER[R]ED, DESPITE THE COMPLETE
ABSENCE OF ANY RELEVANT AND
MATERIAL EVIDENCE, THAT
RESPONDENT’S EXHIBIT "I" (OR
PETITIONER’S EXHIBIT "8") REFERS TO OR
SUPPORTS THE APPOINTMENT OF
FEDERICO T. RIVERA.23
Ong similarly argues that the subject SALN do not
contain any untruthful statements containing a
narration of facts and that there was no wrongful intent
of injuring a third person at the time of the execution of
the documents. He contends that he cannot be held
liable for falsification for merely administering the oath
in a document since it is not among the legal
obligations of an officer administering the oath to certify
the truthfulness and/or veracity of the contents of the
document. Neither can he be made liable for
falsification regarding the letter-certification he issued
since there was no evidence adduced that it was made
to support Rivera’s appointment.
In the Joint Memorandum filed by the Ombudsman
through the Office of the Special Prosecutor of the
Sandiganbayan, it was pointed out that Galeos
categorically admitted during his testimony that before
affixing his signature on the subject SALN, he carefully
read its contents and the entries therein have been
explained to him. Moreover, the admission made by
Ong during the pre-trial under the joint stipulation of
facts indicated no qualification at all that he became
aware of his relationship with Galeos and Rivera only
after the execution of the subject documents. The
defense of lack of knowledge of a particular fact in
issue, being a state of mind and therefore self-serving,
it can be legally assumed that the admission of that
particular fact without qualification reckons from the
time the imputed act, to which the particular fact
relates, was committed. As to mistaken reliance on the
testimony of prosecution witness, the analysis and
findings in the assailed decision do not show that such
testimony was even taken into consideration in arriving
at the conviction of petitioners.24
With respect to Ong’s liability as conspirator in the
execution of the SALN containing untruthful
statements, the Special Prosecutor argues that as a
general rule, it is not the duty of the administering
officer to ascertain the truth of the statements found in
a document. The reason for this is that the
administering officer has no way of knowing if the facts
stated therein are indeed truthful. However, when the
facts laid out in the document directly involves the
administering officer, then he has an opportunity to
know of their truth or falsity. When an administering
officer nevertheless administers the oath despite the
false contents of the document, which are known to him
to be false, he is liable, not because he violated his duty
as an administering officer, but because he participated
in the falsification of a document.25
unmeritorious.
Petitioners were charged with falsification of public
document under Article 171, paragraph 4 of
the Revised Penal Code, as amended, which states:
Art. 171. Falsification by public officer, employee or
notary or ecclesiastic minister. — The penalty of prision
mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary
who, taking advantage of his official position, shall
falsify a document by committing any of the following
acts:
1. Counterfeiting or imitating any handwriting,
signature or rubric;
2. Causing it to appear that persons have
participated in any act or proceeding when they
did not in fact so participate;
3. Attributing to persons who have participated
in an act or proceeding statements other than
those in fact made by them;
4. Making untruthful statements in a
narration of facts;
 x x x x (Emphasis and italics supplied.)
The elements of falsification in the above provision are
as follows:
(a) the offender makes in a public document
untruthful statements in a narration of facts;
(b) he has a legal obligation to disclose the
truth of the facts narrated by him; and
(c) the facts narrated by him are absolutely
false.26
In addition to the afore-cited elements, it must also be
proven that the public officer or employee had taken
advantage of his official position in making the
falsification. In falsification of public document, the
offender is considered to have taken advantage of his
official position when (1) he has the duty to make or
prepare or otherwise to intervene in the preparation of
a document; or (2) he has the official custody of the
document which he falsifies.27Likewise, in falsification
of public or official documents, it is not necessary that
there be present the idea of gain or the intent to injure
a third person because in the falsification of a public
document, what is punished is the violation of the
public faith and the destruction of the truth as therein
solemnly proclaimed.28
Falsification of Public Document
by making untruthful statements
concerning relatives in the
government service
All the elements of falsification of public documents by
making untruthful statements have been established
by the prosecution.
Petitioners argue that the statements "they are not
related within the fourth civil degree of consanguinity or
affinity" and "that Section 79 of the Local Government
Code has been complied with in the issuance of the
appointments" are not a narration of facts but a
conclusion of law, as both require the application of the
rules on relationship under the law of succession.
Thus, they cite People v. Tugbang29 where it was held
that "a statement expressing an erroneous conclusion
of law cannot be considered a falsification." Likewise,
in People v. Yanza,30 it was held that when defendant
certified that she was eligible for the position, she
practically wrote a conclusion of law, which turned out
to be incorrect or erroneous; hence, she may not be
declared guilty of falsification because the law violated
pertains to narration of facts.
We disagree.
A conclusion of law is a determination by a judge or
ruling authority regarding the law that applies in a
particular case. It is opposed to a finding of fact, which
interprets the factual circumstances to which the law is
to be applied.31A narration of facts is merely an account
or description of the particulars of an event or
occurrence.32 We have held that a certification by
accused officials in the Statement of Time Elapsed and
Work Accomplished qualifies as a narration of facts as
contemplated under Article 171 (4) of the Revised
Penal Code, as it consisted not only of figures and
numbers but also words were used therein giving an
account of the status of the flood control project.33
In this case, the required disclosure or identification of
relatives "within the fourth civil degree of consanguinity
or affinity" in the SALN involves merely a description of
such relationship; it does not call for an application of
law in a particular set of facts. On the other hand,
Articles 963 to 967 of the Civil Code simply explain the
concept of proximity of relationship and what constitute
direct and collateral lines in relation to the rules on
succession. The question of whether or not persons
are related to each other by consanguinity or affinity
within the fourth degree is one of fact. Contrary to
petitioners’ assertion, statements concerning
relationship may be proved as to its truth or falsity, and
thus do not amount to expression of opinion. When a
government employee is required to disclose his
relatives in the government service, such information
elicited therefore qualifies as a narration of facts
contemplated under Article 171 (4) of the Revised
Penal Code, as amended. Further, it bears to stress
that the untruthful statements on relationship have no
relevance to the employee’s eligibility for the position
but pertains rather to prohibition or restriction imposed
by law on the appointing power.
Since petitioner Galeos answered "No" to the question
in his 1993 SALN if he has relatives in the government
service within the fourth degree of consanguinity, he
made an untruthful statement therein as in fact he was
related to Ong, who was then the municipal mayor,
within the fourth degree of consanguinity, he and Ong
being first cousins (their mothers are sisters). As to his
1994, 1995 and 1996 SALN, Galeos left in blank the
boxes for the answer to the similar query. In Dela Cruz
v. Mudlong,34 it was held that one is guilty of falsification
in the accomplishment of his information and personal
data sheet if he withholds material facts which would
have affected the approval of his appointment and/or
promotion to a government position. By withholding
information on his relative/s in the government service
as required in the SALN, Galeos was guilty of
falsification considering that the disclosure of such
relationship with then Municipal Mayor Ong would have
resulted in the disapproval of his permanent
appointment pursuant to Article 168 (j) (Appointments),
Rule XXII of the Rules and Regulations Implementing
the Local Government Code of 1991 (R.A. No. 7160),
which provides:
No person shall be appointed in the local government
career service if he is related within the fourth civil
degree of consanguinity or affinity to the appointing
power or recommending authority.
Section 7 (e), Rule V of the Implementing Rules of
Book V, Executive Order No. 292 otherwise known as
the Administrative Code of 1987, provides that the
CSC shall disapprove the appointment of a person who
"has been issued such appointment in violation of
existing Civil Service Law, rules and regulations."
Among the prohibited appointments enumerated in
CSC Memorandum Circular No. 38, series of 1993 are
appointments in the LGUs of persons who are related
to the appointing or recommending authority within the
fourth civil degree of consanguinity.35
The Omnibus Rules on Appointments and Other
Personnel Actions (CSC Memorandum Circular No.
40, series of 1998 dated December 14, 1998) contain
a similar prohibition under Rule XIII, Section 9:
SEC. 9. No appointment in the national, provincial, city
or municipal governments or any branch or
instrumentality thereof, including government owned or
controlled corporations with original charters shall be
made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau
or office or of the person exercising immediate
supervision over the appointee.
Unless otherwise provided by law, the word "relative"
and the members of the family referred to are those
related within the third degree either of consanguinity
or of affinity.
In the local government career service, the prohibition
extends to the relatives of the appointing or
recommending authority, within the fourth civil degree
of consanguinity or affinity.
xxxx
The nepotism rule covers all kinds of appointments
whether original, promotional, transfer and
reemployment regardless of status including casuals
and contractuals except consultants. (Emphasis
supplied.)
The second element is likewise present. "Legal
obligation" means that there is a law requiring the
disclosure of the truth of the facts
narrated.36 Permanent employees employed by local
government units are required to file the following: (a)
sworn statement of assets, liabilities and net worth
(SALN); (b) lists of relatives within the fourth civil
degree of consanguinity or affinity in government
service; (c) financial and business interests; and (d)
personal data sheets as required by law.37 A similar
requirement is imposed by Section 8 (B) of Republic
Act No. 6713 otherwise known as the Code of Conduct
and Ethical Standards for Public Officials and
Employees, thus:
(B) Identification and disclosure of relatives 38. – It shall
be the duty of every public official or employee to
identify and disclose to the best of his knowledge and
information, his relatives in the Government in the form,
manner and frequency prescribed by the Civil Service
Commission.
Section 11 of the same law penalizes the violation of
the above provision, either with imprisonment or fine,
and, in the discretion of the court of competent
jurisdiction, disqualification to hold public office. Such
violation if proven in a proper administrative proceeding
shall also be sufficient cause for removal or dismissal
of a public official or employee, even if no criminal
prosecution is instituted against him.
The evidence on record clearly showed that Galeos’
negative answer reflected in his SALN is absolutely
false. During the trial, both Ong and Galeos admitted
the fact that they are first cousins but denied having
knowledge of such relationship at the time the subject
documents were executed. The Sandiganbayan
correctly rejected their defense of being unaware that
they are related within the fourth degree of
consanguinity. Given the Filipino cultural trait of valuing
strong kinship and extended family ties, it was unlikely
for Galeos who had been working for several years in
the municipal government, not to have known of his
close blood relation to Ong who was a prominent public
figure having ran and won in the local elections four
times (three terms as Mayor and as Vice-Mayor in the
1998 elections), after serving as OIC Mayor of the
same municipality in 1986 until 1988.
The same thing can be said of Ong, whose
unbelievable claim that he had no knowledge that a first
cousin (Galeos) was working in the municipal
government and appointed by him to a permanent
position during his incumbency, was correctly
disregarded by the Sandiganbayan. It was simply
unthinkable that as a resident of Naga, Cebu since birth
and a politician at that, he was all the time unaware that
he himself appointed to permanent positions the son of
his mother’s sister (Galeos) and the husband of his first
cousin (Rivera). Indeed, the reality of local politics and
Filipino culture renders his defense of good faith (lack
of knowledge of their relationship) unavailing. Despite
his knowledge of the falsity of the statement in the
subject SALN, Ong still administered the oath to
Galeos and Rivera who made the false statement
under oath. The Sandiganbayan thus did not err in
finding that Ong connived with Galeos and Rivera in
making it appear in their SALN that they have no
relative within the fourth degree of
consanguinity/affinity in the government service.
Conspiracy need not be shown by direct proof of an
agreement of the parties to commit the crime,39 as it
can be inferred from the acts of the accused which
clearly manifest a concurrence of wills, a common
intent or design to commit a crime.40 In this case, Ong
administered the oaths to Galeos and Rivera in the
subject SALN not just once, but three times, a clear
manifestation that he concurred with the making of the
untruthful statement therein concerning relatives in the
government service.
Falsification by making
untruthful statements
in the Certification re:
compliance with the
prohibition on nepotism
As chief executive and the proper appointing authority,
Ong is deemed to have issued the certification
recommending to the CSC approval of Galeos’
appointment although he admitted only the authenticity
and due execution of Exhibit "I". Since Ong was duty
bound to observe the prohibition on nepotistic
appointments, his certification stating compliance with
Section 7941 of R.A. No. 7160 constitutes a solemn
affirmation of the fact that the appointee is not related
to him within the fourth civil degree of consanguinity or
affinity. Having executed the certification despite his
knowledge that he and Rivera were related to each
other within the fourth degree of affinity, as in fact
Rivera was his cousin-in-law because the mother of
Rivera’s wife is the sister of Ong’s mother, Ong was
guilty of falsification of public document by making
untruthful statement in a narration of facts. He also took
advantage of his official position as the appointing
authority who, under the Civil Service rules, is required
to issue such certification.
The importance of the certification submitted to the (k) "Relatives" refers to any and all
CSC by the proper appointing authority in the local persons related to a public official or
government unit, regarding compliance with the employee within the fourth civil degree
prohibition against nepotism under R.A. No. 7160 of consanguinity or affinity, including
cannot be overemphasized. Under Section 67, Book V, bilas, inso and balae.
Chapter 10 of the Administrative Code of 1987, a head
of office or appointing official who issues an 40
People v. Lenantud, G.R. No. 128629,
appointment or employs any person in violation of Civil February 22, 2001, 352 SCRA 549, 563.
Service Law and Rules or who commits fraud, deceit
or intentional misrepresentation of material facts 41
Sec. 79. Limitation on Appointments. - No
concerning other civil service matters, or anyone who person shall be appointed in the career service
violates, refuses or neglects to comply with any of such of the local government if he is related within
provisions or rules, may be held criminally liable. In the fourth civil degree of consanguinity or
Civil Service Commission v. Dacoycoy,42 we held that affinity to the appointing or recommending
mere issuance of appointment in favor of a relative authority.
within the third degree of consanguinity or affinity is
sufficient to constitute a violation of the law. Although
herein petitioners were prosecuted for the criminal
offense of falsification of public document, it becomes
obvious that the requirement of disclosure of (10) G.R. No. 168437 January 8, 2009
relationship to the appointing power in the local
government units simply aims to ensure strict LAURINIO GOMA and NATALIO
enforcement of the prohibition against nepotism. 1avvphil
UMALE, Complainant,
vs.
Relevant then is our pronouncement in Dacoycoy: THE COURT OF APPEALS, PEOPLE OF THE
PHILIPPINES, and SANGGUNIAN MEMBER
MANUEL G. TORRALBA, Respondent.
Nepotism is one pernicious evil impeding the civil
service and the efficiency of its personnel. In
Debulgado, we stressed that "[T]the basic purpose or DECISION
objective of the prohibition against nepotism also
strongly indicates that the prohibition was intended to VELASCO, JR., J.:
be a comprehensive one." "The Court was unwilling to
restrict and limit the scope of the prohibition which is The Case
textually very broad and comprehensive." If not within
the exceptions, it is a form of corruption that must be Appealed, via this Petition for Review on Certiorari
nipped in the bud or abated whenever or wherever it under Rule 45, is the Decision1 dated June 6, 2005 of
raises its ugly head. As we said in an earlier case "what the Court of Appeals (CA) in CA-G.R. CR No. 27963,
we need now is not only to punish the wrongdoers or affirming the July 28, 2003 Decision2 of the Regional
reward the ‘outstanding’ civil servants, but also to plug Trial Court (RTC), Branch 26 in Santa Cruz, Laguna in
the hidden gaps and potholes of corruption as well as Criminal Case No. SC-6712. The RTC convicted
to insist on strict compliance with existing legal petitioners of the crime of falsification of public
procedures in order to abate any occasion for graft or document under Article 171 of the Revised Penal Code
circumvention of the law."43 (Emphasis supplied.) (RPC).

The prosecution having established with moral The Facts

certainty the guilt of petitioners for falsification of public
documents under Article 171 (4) of the Revised Penal On the basis of the affidavit-complaint of Manuel
Code, as amended, we find no legal ground to reverse Torralba and two other members of the Sangguniang
petitioners’ conviction. Barangay of Brgy. Cabanbanan, Pagsanjan, Laguna,
the Office of the Ombudsman for Luzon filed with the
WHEREFORE, the petitions are DENIED. The RTC in Sta. Cruz, Laguna an Information for
Decision dated August 18, 2005 of the Sandiganbayan falsification of public document under Art. 171(2) of the
in Criminal Case Nos. 26181-26187 and 26189 is RPC against petitioners Laurinio Goma and Natalio
AFFIRMED. Umale.3 Specifically, the complaint alleged that
Laurinio and Natalio, as barangay chairperson and
With costs against the petitioners. secretary, respectively, falsified a barangay resolution
dated September 24, 1995, allocating the amount of
SO ORDERED. PhP 18,000 as disbursement for a seminar for the two
officials. The indicting information, docketed as Crim.
MARTIN S. VILLARAMA, JR. Case No. SC-6712 and raffled to Branch 26 of the Sta.
Associate Justice Cruz RTC, alleged as follows:

WE CONCUR: That on or about September 24, 1995 in Barangay

Cabanban [sic], Pagsanjan, Laguna, Philippines and
within the jurisdiction of this Honorable Court, the
Footnotes
above-named accused LAURINIO GOMA and
NATALIO A. UMALI, both public officials, being the
38
Sec. 3. x x x Barangay Chairman and Barangay Secretary,
respectively, taking advantage of their official positions
xxxx and committing the offense in relation to their office, in
connivance and conspiracy with each other, did then
and there, willfully, unlawfully and feloniously falsify a
Resolution dated September 24, 1995, an official
document, by indicating therein that aforesaid
Resolution was passed on motion of Kagawad Renato
Dizon, seconded by Kagawad Recaredo C. Dela Cruz
and unanimously approved by those present in the
meeting held on September 24, 1995 at 2:00 P.M.,
when in truth and in fact no meeting was held as no
quorum was mustered, to the damage and prejudice of
public interest.
CONTRARY TO LAW.4
When arraigned, both Laurinio and Natalio, assisted by
counsel, pleaded not guilty to the above charge. Pre-
trial and trial then ensued.
The prosecution presented the three complaining
witnesses,5 who testified that, for lack of quorum, no
actual session of the sanggunian of Brgy. Cabanbanan
took place on September 24, 1995, the day the
disputed resolution was allegedly passed. On that day,
according to the three, they went to
the barangay health center to attend a pre-scheduled
session which, however, did not push through as, apart
from them, only one other member, i.e., Laurinio,
came. But they later got wind of the existence of
subject Resolution No. T-95 (Res. T-95) dated
September 24, 1995, in which it was made to appear
that all the sanggunian members attended the session
of September 24, 1995 and unanimously approved,
upon motion of kagawad Renato Dizon, duly seconded
by kagawad Ricaredo dela Cruz, the allocation of PhP
18,000 to defray the expenses of two officials who
would attend a seminar in Zamboanga. On the face of
the resolution appears the signature of Natalio and
Laurinio, in their respective capacities as barangay
secretary and chairperson. It also bore the official seal
of the barangay.
On October 15, 1995, the sanggunian held a special
session during which it passed a resolution therein
stating that no session was held on September 24,
1995.6
In their defense, Natalio and Laurinio, while admitting
having affixed their signatures on the adverted falsified
resolution, alleged that said resolution was nothing
more than a mere proposal or a draft which Natalio, as
was the practice, prepared and signed a week before
the scheduled September 24, 1995. They also alleged
that the same resolution was not the enabling
instrument for the release of the seminar funds.
The Ruling of the RTC
After trial, the RTC rendered on July 28, 2003
judgment, finding both Laurinio and Natalio guilty as
charged and, accordingly, sentenced them, thus:
WHEREFORE, this Court finds both accused Laurinio
Goma and Natalio A. Umali guilty beyond reasonable
doubt as principals in the felony of falsification of public
document punishable under Section [sic] 171 of the
Revised Penal Code and there being neither
aggravating nor mitigating circumstance, hereby
imposes upon each of said accused the penalty of four
(4) years and two (2) months of prision correccional, as
minimum, to eight (8) years, and two (2) months of
prision mayor, as maximum.
Costs against both accused.
SO ORDERED.7
The RTC found Res. T-95 to have all the appearance
of a complete and "true and genuine document,"
sealed and signed by the Sanggunian secretary. 8 And
for reasons set out in its decision, the trial court
dismissed, as incredulous, the defense’s theory, and
the arguments propping it, about the subject resolution
being just a mere proposal.
The Ruling of the CA
From the RTC decision, Laurinio and Natalio appealed
to the CA, their recourse docketed as CA-G.R. CR No.
27963, raising three issues, to wit: (a) whether Res. T-
95 is a public document; (b) whether they violated Art.
171(2) of the RPC; and (c) whether the penalty
imposed is proper. Answering all three issues in the
affirmative, the CA, by its Decision dated June 6, 2005,
affirmed that of the trial court, disposing as follows:
WHEREFORE, the 28 July 2003 Decision of Branch
26, Regional Trial Court of Santa Cruz, Laguna finding
accused-appellants Laurinio Goma and Natalio A.
Umali guilty beyond reasonable doubt of the crime of
falsification of public document under Article 171(2) of
the Revised Penal Code and sentencing them to suffer
the penalty of four (4) years and two (2) months
of prision correctional [sic], as minimum, to eight (8)
years, and two (2) months of prision mayor, as
maximum, is AFFIRMED. Costs against appellants.
SO ORDERED.9
Petitioners are now before this Court raising the very
same issues they earlier invoked before the CA, the
first two of which may be reduced into the following
proposition: Whether Res. T-95 may be characterized
as a public document to bring the case, and render
petitioners liable on the basis of the evidence adduced,
under Art. 171(2) of the RPC.
The Court’s Ruling
The petition is bereft of merit.
As a preliminary consideration, petitioners, in this
recourse, merely highlight and discuss their defense
that the subject resolution is a mere draft or proposed
resolution not acted upon by the sanggunian for lack of
quorum on September 24, 1995, and that they never
had any criminal intent when they signed such
proposed resolution. They deny having affixed the
barangay official seal on the subject resolution.
Subject Resolution a Public Document
Under Sec. 19(a) of Rule 132, Revised Rules on
Evidence, public documents include "[t]he written
official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a
foreign country." Verily, resolutions and ordinances
of sanggunians, be they of the sanggunian
panlalawigan, panlungsod, bayan, or barangay, come
within the pale of the above provision, such issuances
being their written official acts in the exercise of their
legislative authority. As a matter of common practice,
an action appropriating money for some public purpose
or creating liability takes the form of an ordinance or
resolution.
Black defines a public document as "a document of
public interest issued or published by a political body
or otherwise connected with public business." 10 The
term is also described as a document in the execution
of which a person in authority or notary public takes
part.11 There can be no denying that the public money-
disbursing and seemingly genuine Res. T-95, in the
preparation of which petitioners, in their official
capacity, had a hand, is, in context, a public document
in a criminal prosecution for falsification of public
document. And it bears to stress that in falsification
under Art. 171(2) of the RPC, it is not necessary that
there be a genuine document; it is enough that the
document fabricated or simulated has the appearance
of a true and genuine document or of apparent legal
efficacy.12
Petitioners Guilty of Falsification
At the outset, it must be emphasized that the Court
usually defers to factual findings of the trial court, more
so when such findings receive a confirmatory nod from
the appellate court. We explained in one case:
The rule is that the findings of fact of the trial court, its
calibration of the testimonies of the witnesses and its
assessment of the probative weight thereof, as well as
its conclusions anchored on said findings, are
accorded high respect if not conclusive effect. This is
more true if such findings were affirmed by the
appellate court. When the trial court’s findings have
been affirmed by the appellate court, said findings are
generally binding upon this Court.13
And this factual determination, as a matter of long and
sound appellate practice, deserves great weight and
shall not be disturbed on appeal, except only for the
most convincing reasons,14 such as when that
determination is clearly without evidentiary support on
record15 or when the judgment is based on
misapprehension of facts or overlooked certain
relevant facts which, if properly considered, would
justify a different conclusion.16 This is as it should be
since it is not the function of the Court under Rule 45 of
the Rules of Court to evaluate and weigh all over again
the evidence presented or the premises supportive of
the factual holdings of lower courts.17
The case disposition of the CA and the factual and
logical premises holding it together commend
themselves for concurrence. Its inculpatory findings on
the guilt of petitioners for falsification under Art. 171(2)
of the RPC, confirmatory of those of the trial court, are
amply supported by the evidence on record, consisting
mainly of the testimony of the complaining witnesses
and a copy of the subject resolution.
Art. 171(2) of the RPC provides as follows:
ART. 171. Falsification by public officer, employee; or
notary or ecclesiastical minister.—The penalty
of prision mayor and a fine not to exceed 5,000 pesos
shall be imposed upon any public officer, employee, or
notary who, taking advantage of his official position,
shall falsify a document by committing any of the
following acts:
xxxx
(2) Causing it to appear that persons have participated
in any act or proceeding when they did not in fact so
participate.
The elements of the crime of falsification of public
documents, as above defined and penalized, are:
1. That the offender is a public officer,
employee, or notary public.
2. That he takes advantage of his official
position.
3. That he falsifies a document by causing it to
appear that persons have participated in any
act or proceeding.
4. That such person or persons did not in fact
so participate in the proceeding.18
The first two elements clearly obtain, petitioners, during
the period material, being local government elected
officials who, by reason of their position, certified, as
Natalio did, as to the holding of a barangay session and
falsely attested, as Laurinio did, as to the veracity of a
resolution supposedly taken up therein. The other two
elements are likewise present. As correctly observed
by the CA:
x x x [Petitioners] made it appear in the Barangay
resolution dated 24 September 1995 that all members
of the Sangguniang Barangay deliberated upon and
unanimously approved the questioned resolution,
when in fact no such deliberation and approval
occurred. The non-participation of the members of the
Sangguniang Barangay in the passage of the
resolution was established by the 15 October 1995
resolution issued by 7 of the 8 members of the
Sangguniang Barangay denying that the challenged
resolution was passed upon and approved by the
council.19
Petitioners’ bid to pass off the resolution in question as
a mere proposal or a draft cannot be accorded merit in
the light of the manner they worded and made it
appear. Consider the following apt observations of the
trial court:
Barangay Resolution No. T-95 does not appear to be a
proposed resolution in all aspects x x x
xxxx
b) the opening paragraph unequivocally states
that the contents thereof were copied from the
minutes of the ordinary session of
Sanggunian held on September 24, 1995
meeting, at 2:00 o’clock pm;
c) it announces all the names of the members
of the Sanggunian who attended the session
during which said resolution [was] passed;
 d) it bears the resolution number, not the
proposed resolution number;
e) the title clearly states that the Sanggunian
had already approved the allocation of
P18,000.00 for two (2) barangay officials x x x;
f) it made mention that Kagawad Renato M.
Dizon made the motion, duly seconded by
Kagawad [Ricaredo] C. de la Cruz, for the
passing of said resolution; and
g) accused Natalio A. Umali, in his official
capacity as Barangay Kalihim, certified said
resolution as true and correct, and accused
Laurinio A. Goma, Punong Barangay, attested
to the truthfulness of said resolution.20
Indeed, the contents and appearance of Res. T- 95
argue against the very idea of its being merely a
proposal or a draft barangay enactment. Res ipsa
loquitur. A draft resolution would not be numbered or
be carrying certificatory and attestative signatures, let
alone impressed with the dry seal of the barangay. It
would not also include such particulars as the
attendance of all members of the sanggunian and the
identity of the moving and
seconding kagawads relative to the passage of the
resolution, for such details are not certain; unless they
have been rehearsed or planned beforehand. But the
notion that a plan had been arranged by the
sanggunian as a body would be negated by
subsequent development which saw the approval of a
resolution dated October 15, 1995 duly signed by
seven kagawads virtually trashing Res. T-95 as a
falsity. The sequence of events would readily show that
petitioners falsified the subject resolution, but only to
be exposed by private complainants.
Petitioners’ allegation that kagawad Torralba was the
one who affixed the seal or that he harbored ill-feelings
towards them strikes this Court as a mere afterthought,
absent convincing evidence to support the imputation.
Finally, petitioners urge their acquittal on the theory
that they did not benefit from, or that the public was not
prejudiced by, the resolution in question, it not having
been used to obtain the PhP 18,000 seminar funds.
The argument holds no water. Falsification of a public
document is consummated upon the execution of the
false document. And criminal intent is presumed upon
the execution of the criminal act. Erring public officers’
failure to attain their objectives, if that really be the
case, is not determinative of their guilt or innocence.
The simulation of a public document, done in a manner
so as to give it the appearance of a true and genuine
instrument, thus, leading others to errors as to its
authenticity, constitutes the crime of falsification.21
In fine, the element of gain or benefit on the part of the
offender or prejudice to a third party as a result of the
falsification, or tarnishing of a document’s integrity, is
not essential to maintain a charge for falsification of
public documents.22 What is punished in falsification of
public document is principally the undermining of the
public faith and the destruction of truth as solemnly
proclaimed therein. In this particular crime, therefore,
the controlling consideration lies in the public character
of a document; and the existence of any prejudice
caused to third persons or, at least, the intent to cause
such damage becomes immaterial.23
Third Issue: Imposed Penalty Proper
Finally, the penalty imposed by the RTC, as affirmed
by the CA, is proper. Art. 171 of the RPC provides for
a single divisible penalty of prision mayor to public
officers or employees who, taking advantage of their
official positions, shall cause it to appear that persons
have participated in any act or proceeding when they
did not in fact participate. And where neither
aggravating nor mitigating circumstance attended the
execution of the offense, as here, the imposable
penalty is, according to Art. 64 of the RPC, that of the
medium period provided. The medium period
for prision mayor is from eight (8) years and one (1)
day to ten (10) years.
Applying the Indeterminate Sentence Law, the penalty
imposable would be that of a degree lower than the
medium period of prision mayor as minimum, and the
maximum is any period included in the medium period
of prision mayor. The degree lower than the medium
period of prision mayor is the medium period of prision
correccionalwhich ranges from two (2) years, four (4)
months, and one (1) day to four (4) years and two (2)
months.
The penalty of four (4) years and two (2) months
of prision correccional, as minimum, to eight (8) years
and two (2) months of prision mayor, as maximum,
thus imposed on petitioners is well within the
authorized imposable range, and is, therefore, proper.
WHEREFORE, the instant appeal is DENIED for lack
of merit. Accordingly, the appealed CA Decision dated
June 6, 2005 in CA-G.R. CR No. 27963 is
hereby AFFIRMED IN TOTO.
No pronouncement as to costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Assciate Justice
WE CONCUR:
(11) G.R. No. 154886. July 28, 2005
LUDWIG H. ADAZA, Petitioners,
vs.
SANDIGANBAYAN (the First DIVISION composed
of Justices GREGORIO S. ONG, CATALINO R.
CASTANEDA, JR. and FRANCISCO H. VILLARUZ,
JR. and THE PEOPLE OF THE PHILIPPINES
represented by SPECIAL PROSECUTION
OFFICE, Respondents.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for certiorari under Rule
65 of the Rules of Court assailing the June 19, 2002
Decision1 and July 3, 2002 Resolution2 of the
Sandiganbayan finding petitioner Ludwig H. Adaza
(petitioner) guilty beyond reasonable doubt of
Falsification of Public Document penalized under
Article 172, in relation to Article 171, paragraph 1 of the
Revised Penal Code and denying his motion for
reconsideration, respectively.
Culled from the records of the case are the following
facts:
Sometime in 1996, the Department of Public Works
and Highways (DPWH) of the 1st District of
Zamboanga del Norte awarded to the Parents and
Teachers Association (PTA) of Manawan National
High School (MNHS) in Manawan, Jose Dalman,
Zamboanga del Norte a contract for the construction of
a school building consisting of two classrooms at an
agreed consideration of ₱111,319.50.3 Petitioner at
that time was municipal mayor of Jose Dalman.
The project was completed on June 24, 1997 per
Certificate of Completion and Turnover for
Custody4 issued by the DPWH, but the PTA failed to
receive the last installment payment therefor in the
amount of ₱20,847.17.5
Upon verification with the DPWH, PTA President Felix
Mejorada (Mejorada) was informed by Hazel
Peñaranda (Peñaranda), Cashier II of the 1st
Engineering District of Zamboanga del Norte, that the
check for ₱20,847.17 had been released to petitioner. 6
Mejorada thereupon went to the Office of the Auditor of
the DPWH and requested that he be furnished with
certified true copies of the relevant documents
pertaining to the contract, including the disbursement
voucher and the corresponding check representing the
last payment made by the DPWH for the project.7
Confronted with Disbursement Voucher No. B-
10197073098 issued by the DPWH, 1st Engineering
District, Sta. Isabel, Dipolog City, in the amount of
P20,847.17 for payment to him as PTA President,
approved by District Engineer Jesus T. Estimo,
Mejorada detected that the signature above his printed
name thereon acknowledging receipt of the check from
Releasing Officer-Cashier Peñaranda was not his. And
he noticed that petitioner’s signature was affixed on the
voucher.9
Upon perusal of DBP Check No. 000071866810 dated
July 18, 1997 issued to payee "PTA Pres. By: Felix
Mejorada" and drawn by OIC Assistant District
Engineer Jesus G. Sy and District Engineer Estimo,
Mejorada noticed that there were two signatures at the
dorsal portion thereof, his forged signature and another
which he found to be that of Aristela Adaza (Aristela),
wife of petitioner.11
Asked by Mejorada to explain the circumstances
behind the release of the check, Peñaranda related
that one afternoon in July 1997, petitioner approached
her and inquired whether the check for the final
installment payment on the contract was already
prepared, to which she replied that the check was
ready but that it could not be released without claimant
Mejorada affixing his signature on the disbursement
voucher. Peñaranda further related that petitioner
offered to take the disbursement voucher and have it
signed by Mejorada, hence, she handed it to petitioner
but kept the check in her custody; and when petitioner
returned the voucher to Peñaranda later that day, the
check already bore a signature purporting to be that of
Mejorada.12
Continuing, Peñaranda related that petitioner
thereupon requested that the corresponding check be
given to him in behalf of Mejorada.13 In order to
exculpate herself from any liability, Peñaranda asked
petitioner to sign the voucher before releasing the
check. Petitioner obliged by affixing his signature on
the space below the purported signature of Mejorada.
Peñaranda then released the check to petitioner.
The check was allegedly encashed by Aristela on July
22, 1997.14
Mejorada was later to claim that on November 2, 1997,
petitioner went to his house informing him, in the
presence of his brother Rotchel Mejorada and his
nephew Anecito Mejorada, that he would be paid within
the week. No payment was, however, made.15
On December 16, 1997, Mejorada repaired to the
National Bureau of Investigation (NBI), Dipolog City
where he filed a complaint against petitioner and his
wife Aristela, and executed a Sworn Statement.16
On January 6, 1998, Peñaranda likewise executed a
Sworn Statement17 before the NBI.
The complaint, for falsification of public document, was
forwarded to the Office of the Ombudsman where it
was docketed as Case No. OMB-MIN-98-0096. During
the pendency of the preliminary investigation,
Mejorada executed an Affidavit of Desistance18 dated
May 8, 1998 alleging that his and the PTA’s claims had
been paid in full by the spouses Adaza and requesting
that the cases against them be dismissed or
considered withdrawn.
Petitioner and Aristela subsequently filed their Joint
Counter-Affidavit19 dated May 28, 1998, stating that
Mejorada’s claim had already been paid in full and that
they had not in any way benefited from the proceeds of
the subject disbursement voucher and check as the
proceeds thereof were actually paid to the laborers who
constructed the school building pursuant to the
contract. They likewise stated that there was only "a
communication gap" between them and Mejorada and
that "after the records have been reconciled and
verified, Mejorada was convinced that the money in
question had been paid to the laborers."
On July 31, 1998, the Office of the Ombudsman issued
a Resolution20 finding probable cause against
petitioner and Aristela. The dispositive portion of the
Resolution reads, quoted verbatim:
WHEREFORE, premises considered, this Office finds
probable cause to conclude that the crimes (sic) of
Falsification of Public Document are (sic) probably
committed [by] Mayor Ludwig Adaza and another crime
of Falsification of Public Document was probably
committed by respondents (sic) Mayor and his co-
respondent wife. Accordingly, let the appropriate
Informations be filed in court.
SO RESOLVED.21
On even date, petitioner was charged in two
Informations filed before the Sandiganbayan. The
inculpatory portion of the first, docketed as Criminal
Case No. 24854, reads as follows:
That sometime on or about 18 July 1997, or shortly
subsequent thereto, in Dipolog City, Philippines and
within the jurisdiction of this Honorable Court, the
accused Ludwig Adaza, a public officer being then the
Mayor with salary grade 27 of Jose Dalman,
Zamboanga del Norte, while in the performance of his
official duties, committing the offense in relation to his
official function and taking advantage of his public
position, did there and then, wilfully, unlawfully and
feloniously, falsify a public document,
namely Disbursement Voucher No. B-1019707309 of
the DPWH 1st Engineering District, Dipolog City,
by counterfeiting therein the signature of Felix
Mejorada when in truth and in fact, as the accused well
knew, Felix Mejorada did not affix his signature on the
document and did not authorize the accused to affix
Mejorada’s signature therein.
CONTRARY TO LAW.22 (Underscoring supplied)
Petitioner was charged together with Aristela in the
second Information, docketed as Criminal Case No.
24853, the inculpatory portion of which reads:
That sometime on or about 18 July 1997, or shortly
subsequent thereto, in Dipolog City, Philippines and
within the jurisdiction of this Honorable Court, the
accused Ludwig Adaza, a public officer being then the
Mayor with salary grade 27 of Jose Dalman,
Zamboanga del Norte, while in the performance of his
official duties, committing the offense in relation to his
official function and taking advantage of his public
position, conspiring, cooperating and confederating
with accused Aristela Adaza, did there and then,
wilfully, unlawfully and feloniously, falsify a public
document, namely DPB Check No.
0000718668 issued by the DPWH 1st Engineering
District, Dipolog City, by counterfeiting therein the
signature of indorsement of Felix Mejorada when in
truth and in fact, as the accused well knew, Felix
Mejorada did not affix his signature on the document
and did not authorize the accused to affix Mejorada’s
signature therein.
On arraignment, petitioner and Aristela, duly assisted
by counsel, pleaded not guilty28 to the charges,
whereupon trial commenced.
By Decision of June 19, 2002, the Sandiganbayan
found petitioner guilty in the first case, and acquitted
him and his wife Aristela in the second case for
insufficiency of evidence.
Petitioner filed on June 28, 2002 a Motion for
Reconsideration29 of the decision which was denied by
Resolution of July 3, 2002, the Sandiganbayan holding
that the same was pro forma as it was not properly set
for hearing in accordance with the Rules of Court.
Petitioner filed an Urgent Motion for
Reconsideration30 of the July 3, 2002 Sandiganbayan
Resolution and attached thereto a Notice31 setting his
June 28, 2002 Motion for Reconsideration for hearing.
By Resolution32 of August 21, 2002, the
Sandiganbayan denied petitioner’s Urgent Motion for
lack of merit.
On August 23, 2002, a Bench Warrant of Arrest 33 was
issued by the Sandiganbayan against petitioner for
execution of judgment.
Hence, petitioner’s present petition
for certiorari34 faulting the Sandiganbayan to have
committed grave abuse of discretion:
1
. . . BY CONSIDERING THE MOTION FOR
RECONSIDERATION OF ITS DECISION AS PRO
FORMA
2
. . . BY ALLOWING BALD TECHNICALITY TO
PREVAIL OVER THE MERITS OF THE MOTION FOR
RECONSIDERATION THUS IGNORING SECTION 6
OF RULE 1 OF THE REVISED RULES AND THE
APPROPRIATELY APPLICABLE JURISPRUDENCE
3

CONTRARY TO LAW.23 (Underscoring supplied) . . . BY IGNORING THE MERITS OF THE MOTION

FOR RECONSIDERATION AND BY CONVICTING
After petitioner and his co-accused wife Aristela posted THE ACCUSED/PETITIONER WHEN THERE IS
their respective bail bonds for their provisional liberty, ABSOLUTELY NO EVIDENCE WHATSOEVER FOR
Mejorada filed an Affidavit of Confirmation24 dated CONVICTING THE ACCUSED/PETITIONER
October 28, 1998 affirming the truth and veracity of the BEYOND A REASONABLE DOUBT35 (Underscoring
contents of his Affidavit of Desistance dated May 22, supplied)
1998 and further alleging that he believed that there
was no crime of falsification committed. On October 29, 2002, the law office of Atty. Felipe
Antonio B. Remollo entered its appearance for
Mejorada subsequently filed still another Affidavit of petitioner.36 On even date, petitioner filed a
Confirmation25 dated November 9, 1998 reiterating his Supplement37 to the petition raising the following
allegations in the Affidavit of Confirmation dated additional arguments:
October 28, 1998.
I
Petitioner and Aristela later filed a Motion for
Reconsideration26 dated November 9, 1998 of the July WITH ALL DUE RESPECT, THE HONORABLE
31, 1998 Resolution of the Office of the Ombudsman RESPONDENT SANDIGANBAYAN HAS NO
finding probable cause against them, which motion was JURISDICTION OVER THE OFFENSE
denied by Resolution27 of December 10, 1998. CHARGED OF FALSIFICATION OF PUBLIC
DOCUMENTS UNDER ARTICLE 172 PARAGRAPH 1
IN RELATION TO ARTICLE 171 PARAGRAPH 1 OF
THE REVISED PENAL CODE AGAINST THE
ACCUSED (FORMER) MUNICIPAL MAYOR (WITH
SALARY GRADE 27) WHO DID NOT TAKE
ADVANTAGE OF HIS OFFICIAL POSITION IN THE
ALLEGED COMMISSION OF THE CRIME AS RULED
BY THE SANDIGANBAYAN. SUCH BEING THE
CASE, THE ALLEGED OFFENSE WAS NOT
COMMITTED IN RELATION TO THE OFFICE OF
THE MUNICIPAL MAYOR WHICH IS OUTSIDE THE
JURISDICTION OF THE SANDIGANBAYAN.
II
THE RIGHT OF THE ACCUSED TO "A COMPETENT
AND INDEPENDENT" COUNSEL IS ENSHRINED IN
THE 1987 CONSTITUTION. THIS RIGHT SHOULD
BE UPHELD AT ALL TIMES AND SHOULD NOT BE
OUTWEIGHT (sic) OR DISLODGED BY WHATEVER
GROSS PROCEDURAL LAPSES IN SUCCESSION
THAT DEFENSE COUNSEL MAY HAVE
COMMITTED TANTAMOUNT TO DENIAL OF DUE
PROCESS IN THE INTEREST OF SUBSTANTIVE
JUSTICE.
III
THE PETITION WAS FILED WITH A STRONG
SENSE OF URGENCY IN THE LIGHT OF THE FACT
THAT PUBLIC RESPONDENT SANDIGANBAYAN
ORDERED THE IMMEDIATE ARREST OF THE
ACCUSED IN ITS AUGUST 21, 2002 RESOLUTION
(SUBJECT OF HEREIN PETITION
FOR CERTIORARI) ON THE THEORY THAT THE
ORDER OF CONVICTION OF THE ACCUSED
PETITIONER HAS BECOME FINAL BY SHEER
TECHNICALITY THAT ON (sic) THE ACCUSED’S
MOTION FOR RECONSIDERATION DID NOT BEAR
A NOTICE OF HEARING.38 (Emphasis and
underscoring supplied)
Petitioner’s counsel of record Homobono A. Adaza
later withdrew his appearance.39
The Office of the Special Prosecutor has filed its
Comment40 on the petition, to which petitioner filed his
Reply41reiterating his arguments raised in his
Supplement to the petition.
On the issue of jurisdiction, Section 4 of Republic Act
No. 8249 (An Act Further Defining the Jurisdiction of
the Sandiganbayan, Amending for the Purpose
Presidential Decree No. 1606, As Amended, Providing
Funds Therefor, and for Other Purposes) provides:
Sec. 4. Jurisdiction. - The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
A. Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials
occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise
classified as Grade ‘27’ and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other city
department heads;
(b) City mayor, vice-mayors, members of the
sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of superior superintendent or higher;
(f) City and provincial prosecutors and their assistants,
and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
(2) Members of Congress and officials thereof
classified as Grade ‘27’ and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as
Grade ‘27’ and higher under the Compensation and
Position Classification Act of 1989.
B. Other offenses or felonies whether simple or
complexed with other crimes committed by the public
officials and employees mentioned in subsection a of
this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986.
xxx (Emphasis and underscoring supplied)
For an offense to fall under the exclusive original
jurisdiction of the Sandiganbayan, the following
requisites must concur: (1) the offense committed is a
violation of (a) R.A. 3019, as amended (the Anti-Graft
and Corrupt Practices Act), (b) R.A. 1379 (the law on
ill-gotten wealth), (c) Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code (the law on bribery),
(d) Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986 (sequestration cases), or (e) other offenses or
felonies whether simple or complexed with other
crimes; (2) the offender committing the offensesin
items (a), (b), (c) and (e) is a public official or
employee42 holding any of the positions enumerated in
paragraph A of Section 4; and (3) the offense
committed is in relation to the office.43
Discussion shall be limited to the first case, subject of
the present petition.
The charge against petitioner falls under above-quoted
Section 4, paragraph B of R.A. 8249. It is undisputed
that at the time the alleged crime was committed, he
was the municipal mayor of Jose Dalman, a position
corresponding to salary grade 27 under the Local
Government Code of 1991,44 which fact was properly
alleged in the information. It is thus imperative to
determine whether the offense, as charged, may be
considered as having been committed "in relation to
office" as this phrase is employed in the above-quoted
provision of R.A. 8249. For, for the Sandiganbayan to
have exclusive jurisdiction, it is essential that the facts
showing the intimate relation between the office of the
offender and the discharge of official duties be alleged
in the information.45
In Montilla v. Hilario,46 this Court held that for an
offense to be committed in relation to the office, the
relation between the crime and the office must
be direct and not accidental, such that the offense
cannot exist without the office.
People v. Montejo,47 by way of exception, enunciated
the principle that although public office is not an
element of the offense charged, as long as the offense
charged in the information is intimately connected
with the office of the offender and perpetrated while he
was in the performance, though improper or
irregular, of his official functions, the accused is held to
have been indicted for an offense committed in relation
to his office.
These rulings were reiterated in Sanchez v.
Demetriou,48 Republic v. Asuncion,49 Cunanan v.
Arceo,50 People v. Magallanes,51 Alarilla v.
Sandiganbayan and Soller v. Sandiganbayan.53
52
That the jurisdiction of a court is determined by the
allegations in the complaint or information, and not by
the evidence presented by the parties at the trial, 54 is
settled.
As early as 1954, we pronounced that "the factor that
characterizes the charge is the actual recital of the
facts." "The real nature of the criminal charge is
determined not from the caption or preamble of the
information nor from the specification of the provision
of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in
the complaint or information." 55 (Emphasis and
underscoring supplied)
It does not thus suffice to merely allege in the
information that the crime charged was committed by
the offender in relation to his office or that he took
advantage of his position as these are conclusions of
law.56 The specific factual allegations in the information
that would indicate the close intimacy between the
discharge of the offender’s official duties and the
commission of the offense charged, in order to qualify
the crime as having been committed in relation to
public office,57 are controlling.
It bears noting that in Montejo,58 where this Court held
that the allegations in the information for murder were
sufficient to bring the case squarely within the meaning
of an offense committed in relation to the accused’s
public office, the phrase "committed in relation to public
office" does not even appear in the information, which
only underscores the fact that said phrase is not what
determines the jurisdiction of the Sandiganbayan. Thus
the information in said case read:
Leroy S. Brown, City Mayor of Basilan City, as such,
has organized groups of police patrol and civilian
commandoes consisting of regular policemen and xxx
special policemen appointed and provided by him with
pistols and high power guns and then established a
camp xxx at Tipo-tipo which is under his command xxx
supervision and control where his co-defendants were
stationed, entertained criminal complaints and
conducted the corresponding investigations as well as
assumed the authority to arrest and detain persons
without due process of law and without bringing them
to the proper court and that in line with this set-up
established by said Mayor of Basilan City as such, and
acting upon his orders, his co-defendants arrested and
maltreated Awalin Tebag who died in consequence
thereof.
In Alarilla,59 apart from the phrase "in relation to and
taking advantage of his official functions," the
information alleged specific factual allegations showing
how the therein petitioner committed the crime of grave
threats as a consequence of his office as municipal
mayor, which allegations led this Court to conclude that
the crime charged was intimately connected with the
discharge of his official functions. Thus it read:
That on or about October 13, 1982, in Meycauayan,
Bulacan, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer,
being then the Municipal Mayor of Meycauayan,
Bulacan, committing the crime herein charged in
relation to and taking advantage of his official functions,
did then and there wilfully, unlawfully and feloniously
level and aim a .45 caliber pistol at and threaten to kill
one Simeon G. Legaspi, during a public hearing about
the pollution from the operations of the Giant Achievers
Enterprises Plastic Factory and after the said
complainant rendered a privilege speech critical of the
abuses and excesses of the administration of said
accused.
Although herein petitioner was described in the
information as "a public officer being then the Mayor
with salary grade 27 of Jose Dalman, Zamboanga del
Norte," there was no allegation showing that the act of
falsification of public document attributed to him was
intimately connected to the duties of his office as mayor
to bring the case within the jurisdiction of the
Sandiganbayan. Neither was there any allegation to
show how he made use of his position as mayor to
facilitate the commission of the crimes charged. The
information merely alleges that petitioner falsified the
disbursement voucher by counterfeiting therein the
signature of Mejorada. For the purpose of determining
jurisdiction, it is this allegation that is controlling, not the
evidence presented by the prosecution during the trial.
In Bartolome v. People60 where the therein accused
was charged with falsification of official document, the
information alleged as follows:
That on or about the 12th day of January, 1977, in the
City of Manila, Philippines, and within the jurisdiction of
this Honorable Court, accused Rolando Bartolome y
Perez, a public officer having been duly appointed and
qualified as Senior Labor Regulation Officer and Chief
of the Labor Regulations Section, Ministry of Labor,
National Capital Region, Manila, conspiring and
conniving with the other accused Elino Coronel y
Santos, also a public officer having been duly
appointed and qualified as Labor Regulation Officer of
the same office, taking advantage of their
officialpositions, did then and there wilfully, unlawfully
and feloniously prepare and falsify an official
document, to wit: the CS Personal Data Sheet (Civil
Service Form No. 212) which bears the Residence
Certificate No. A-9086374 issued at Manila on January
12, 1977, by making it appear in said document that
accused Rolando Bartolome y Perez had taken and
passed the ‘Career Service (Professional Qualifying
Examination)’ on ‘May 2, 1976’ with a rating of ‘73.35%
in Manila’ and that he was a ‘4th Year AB’ student at
the Far Eastern University (FEU), when in truth and in
fact, as both accused well knew, accused Rolando
Bartolome y Perez had not taken and passed the same
nor was he a ‘4th Year AB’ student, thereby making
untruthful statements in a narration of facts.
(Underscoring supplied)
This Court held:
In the instant case, there is no showing that the alleged
falsification was committed by the accused, if at all, as
a consequence of, and while they were discharging,
official functions. The information does not allege that
there was an intimate connection between the
discharge of official duties and the commission of the
offense. xxx
Clearly therefore, as the alleged falsification was not an
offense committed in relation to the office of the
accused, it did not come under the jurisdiction of the
Sandiganbayan. It follows that all its acts in the instant
case are null and void ab initio.61 (Underscoring
supplied)
As for petitioner’s assertion that the Sandiganbayan
has no jurisdiction over the offense of falsification
under Article 172 in relation to Article 171 of the
Revised Penal Code, to buttress which he argues that
the offender under Article 172, paragraph 1 is not
supposed to be a public official who takes advantage
of his position, thus equating the requirement of "taking
advantage of one’s public position" as stated in the
aforementioned provisions of the Revised Penal Code
with the prerequisite "in relation to one’s office" for the
acquisition of jurisdiction of the Sandiganbayan as
provided for in R.A. 8249, the same must be
discredited.
Article 171 reads:
ART. 171. Falsification by public officer, employee or
notary or ecclesiastic minister. – The penalty of prision
mayorand a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary
who, taking advantage of his official position, shall
falsify a document by committing any of the following
acts:
1. Counterfeiting or imitating any handwriting,
signature or rubric;
2. Causing it to appear that persons have participated
in any act or proceeding when they did not in fact so
participate;
3. Attributing to persons who have participated in an
act or proceeding statements other than those in fact
made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine
document which changes its meaning;
7. Issuing in an authenticated form a document
purporting to be a copy of an original document when
no such original exists, or including in such copy a
statement contrary to, or different from, that of the
genuine original; or
8. Intercalating any instrument or note relative to the
issuance thereof in a protocol, registry, or official book.
xxx
On the other hand, Article 172, paragraph 1 reads:
ART. 172. Falsification by private individuals and use
of falsified documents. – The penalty of prision
correccional in its medium and maximum periods and
a fine of not more than 5,000 pesos shall be imposed
upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article
in any public or official document or letter of exchange
or any other kind of commercial document; xxx
The offender under Article 172 must be a private
individual or maybe a public officer, employee or notary
public who does not "take advantage of his official
position."62 Under Article 171, an essential element of
the crime is that the act of falsification must be
committed by a public officer, employee or notary who
"takes advantage of his official position."
The offender "takes advantage of his official position"
in falsifying a document when (1) he has the duty to
make or to prepare or otherwise intervene in the
preparation of the document; or (2) he has the official
custody of the document which he falsifies.63
It is thus apparent that for purposes of acquisition of
jurisdiction by the Sandiganbayan, the requirement
imposed by R.A. 8249 that the offense be "committed
in relation" to the offender’s office is entirely distinct
from the concept of "taking advantage of one’s
position" as provided under Articles 171 and 172 of the
Revised Penal Code.
R.A. 8249 mandates that for as long as the offender’s
public office is intimately connected with the offense
charged or is used to facilitate the commission of said
offense and the same is properly alleged in the
information, the Sandiganbayan acquires
jurisdiction.64 Indeed, the law specifically states that the
Sandiganbayan has jurisdiction over all "other offenses
or felonies whether simple or complexed with other
crimes committed by the public officials and employees
mentioned in subsection a of Section 4 in relation to
their office." Public office, it bears reiterating, need not
be an element of the offense charged.
On the other hand, the element of "taking advantage of
one’s position" under the Revised Penal Code
becomes relevant only in the present case, not for the
purpose of determining whether the Sandiganbayan
has jurisdiction, but for purposes of determining
whether petitioner, if he is held to be liable at all, would
be legally responsible under Article 171 or Article 172.
While the Sandiganbayan is declared bereft of
jurisdiction over the criminal case filed against
petitioner, the prosecution is not precluded from filing
the appropriate charge against him before the proper
court.
In light of the foregoing, further discussion on the other
issues raised has become unnecessary.
WHEREFORE, the petition is GRANTED. The
Decision dated June 19, 2002 and Resolution dated
July 3, 2002 of the Sandiganbayan are SET ASIDE and
declared NULL and VOID for lack of jurisdiction.
No pronouncement as to costs.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Corona,
and Garcia, JJ., concur.
(12) G.R. No. 133472 December 5, 2000
CONSOLACION A. LUMANCAS and YOLANDO O.
URIARTE, petitioners,
vs.
VIRGINIA B. INTAS, respondent.
DECISION
BELLOSILLO, J.:
CONSOLACION A. LUMANCAS and YOLANDO O.
URIARTE seek in this petition for review the reversal of
the Amended Resolution of the Office of the
Ombudsman dated 16 August 1996 finding them
administratively liable for falsification, dishonesty and
grave misconduct, and consequently ordering their
dismissal from the service, as well as its Order dated
12 February 1998 denying their Motions for
Reconsideration.
Petitioners were regular employees of the Philippine
Postal Corporation in Tandag, Surigao del Sur. They
were charged by their co-employee Virginia B. Intas,
respondent herein, for making false entries in their
respective Personal Data Sheets (PDS, [CSC Form
212]) regarding their educational attainment, resulting
in their promotion to higher positions to the prejudice of
other postal employees who had been in the service for
a longer period.
As found by the Office of the
Ombudsman, Consolacion A. Lumancas' original
1
appointment as mail sorter with the Bureau of Posts
showed that her highest educational attainment was
Fourth Year Pharmacy.2 Her official Transcript of
Records from the International Harvardian University
(IHU), Davao City, showed that she took up Bachelor
of Science in Commerce (BSC), Major in Management,
from 1974 to 1978 when she graduated and was issued
Special Order No. 5-276 dated 6 November 1978.
Lumancas' answers however in her three (3) PDS
accomplished in 1989, 1991 and 1993 were
inconsistent. In her PDS accomplished in
19893 Lumancas stated that she finished Bachelor of
Science in Pharmacy4 from 1970 to 1975 at the Centro
Escolar University. In her PDS accomplished in
19915 she stated that she obtained her BS Pharmacy at
the Centro Escolar University in 1974 and had her post
graduate studies at the IHU in 1978.6 In her PDS
accomplished in 19937 Lumancas stated that she
graduated with the degree of Bachelor of Science in
Commerce, Major in Management, at the IHU from
1970-1974 inclusive.8 In filling up her PDS for 1989
however she stated that she studied at the Centro
Escolar University from 1970 to 1975. When requested
to submit the academic records of herein petitioner
Consolacion A. Lumancas, the IHU submitted several
records but the original of her Special Order was not
among them. According to Severina O. Villarin, Chief,
Higher Education Division, Region XI, Lumancas'
name could not be found in the IHU enrollment list filed
with her office (Higher Education Division), Region XI,
from school years 1974-75 to 1978-79, meaning, that
she had not enrolled with the school during those
terms.
When directed to answer, Lumancas denied the
allegations. She averred that while it was true that in
her 3 February 1989 appointment she indicated that
her highest educational attainment was Fourth Year
Pharmacy, despite her allegedly having finished
Bachelor of Science in Commerce in 1978 at the IHU,
this was because at that time she had not yet received
her Transcript of Records and Special Order from the
IHU, so that she was not sure whether she had passed
all her subjects. Since her position did not require her
to be a graduate of Bachelor of Science in Commerce,
she did not bother to check whether she graduated
from the course.
Lumancas also claimed that her Special Order was
authentic considering that even the copy attached to
the complaint9 was supposedly checked and verified
against the original and was in fact certified by
Severina O. Villarin, Chief, Higher Education Division,
Region XI, Commission on Higher Education (CHED).
Lumancas admitted that there were mistakes in the
entries made in her 1989 and 1993 PDS but denied
making any mistake in 1991. She averred that there
was no malice nor intent on her part to falsify the entries
in her PDS and that she was just in a hurry to fill these
up.10
As regards petitioner Yolando O. Uriarte, the Office of
the Ombudsman found that he and a certain Mario L.
Julve11also acquired falsified Transcripts of Records
and Special Orders from the IHU as the Bureau of
Higher Education of DECS in Manila through Director
III Diosdada C. Boiser denied that her Office issued
Special Orders to them.12Petitioners Lumancas and
Uriarte, together with Mario L. Julve, had since been
promoted one (1) rank higher on the bases of the
questioned documents presented as part of their
credentials.13
On her part, Yolando O. Uriarte asserted that he
finished his Bachelor of Science in Commerce, Major
in Management, at the IHU in 196814 and that his
Transcript of Records and Special Order were issued
on the basis of his completion of the academic
requirements for the course. He also claimed that his
Transcript of Records and Special Order No. (B) 5-
0035 were authentic as these were checked and
verified by the same Severina O. Villarin of CHED. He
also insisted that his promotion was based on his
qualifications considering that he was with the postal
service since 1975 without any derogatory record and
was even cited several times for his outstanding
performance.15
On 31 July 1995, in reply to a query from the Office of
the Ombudsman dated 11 July 1995, Severina O.
Villarin informed the Office16 that she had conducted an
investigation and discovered that the clerk who
prepared Uriarte’s certifications relied only on
photocopies of the Special Orders purportedly issued
to the IHU by the Bureau of Higher Education, Manila,
in favor of Uriarte. However, the Bureau denied having
issued the Special Orders, thus she herself had
ordered the cancellation of the certifications for being
spurious.17
As regards the case of Lumancas, the IHU was
requested to submit her academic records;
consequently, several records were submitted but the
original of the Special Order was not among them.
Villarin further declared that Lumancas’ name could not
be found in the IHU enrollment list filed with their office
from school years 1974-75 to 1978-79, meaning, that
she had not enrolled during those terms.18
Petitioners Lumancas and Uriarte moved for a formal
hearing but the Office of the Ombudsman denied their
motion on the ground that it was apparently intended
merely to delay the proceedings.19 It noted that the
motion praying for a formal hearing was filed only on 3
July 1996, or more than nine (9) months after the
parties failed to appear for the preliminary conference
on 18 September 1995,20 and after they failed to submit
their memorandum despite an order 21 dated 6 October
1995 from the Office of the Ombudsman granting their
motion for extension of time to submit their
memorandum.22
After evaluating the evidence, the Office of the
Ombudsman issued the Amended Resolution of 16
August 1996,23released 17 January 1997, finding
Lumancas and Uriarte guilty as charged and dismissed
them from the service without prejudice to their right to
appeal as provided under Sec. 27, RA 6770.24
On 6 February 1997 and 7 February 1997 respondents
Lumancas and Uriarte, now herein petitioners, filed
their respective motions for reconsideration insisting on
a formal hearing, which the Office of the Ombudsman
finally granted. Thereafter, hearings were held on 14-
17 April 199725 after which the Office of the
Ombudsman conclusively held that despite the burning
of the records of the DECS Regional Office XI in 1991,
other records at the DECS-CHED did not show that
Lumancas and Uriarte had been enrolled at the IHU
during the years they allegedly took their respective
courses as stated in their respective PDS.26
On 12 February 1998 Lumancas’ and Uriarte’s Motions
for Reconsideration were denied by the Office of the
Ombudsman; hence, this petition for review.
Section 27 of RA 677027 provides in part that "(f)indings
of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive."
According to the Office of the Ombudsman-Mindanao,
the evidence sustains the conclusion that Lumancas
and Uriarte are not college graduates, and that their
contention that the Special Orders issued in their favor
are authentic, banking on the certification issued by
Severina O. Villarin, Chief, BHE, Regional Office XI, is
without merit. In fact, upon verification by the same
office from the Bureau of Higher Education, Manila, the
same BHE Regional Office XI, through Villarin herself,
cancelled the certification it previously issued and
notified this Office that the Special Orders issued in
favor of Uriarte and Julve were spurious.28
An examination of the records of the DECS, as verified
by CHED officers during the hearings, particularly Form
19,29failed to disclose that petitioners’ names were
among the list of students enrolled in the IHU during
their alleged period of study. In the case of Uriarte,
although his Transcript of Records reflects that he was
enrolled in the second semester of 1964-65 and the
summer thereafter, and received grades for subjects
taken during those terms, his name was not included in
the list of students submitted by the IHU to DECS. The
same is true with Lumancas, whose name could not be
found among the DECS records for the first and second
semesters of schoolyears 1976-78 although her
Transcript of Records shows that she was enrolled for
that period and in fact received grades for subjects
taken during those semesters.
Laura Geronilla, Assistant Registrar of the IHU,
claimed that the omissions were unavoidable in the
preparation of Form 19 by hand. But this testimony
alone cannot overturn the fact that there exists no
records at the DECS of Lumancas' or Uriarte’s
enrollment at the IHU. Strangely, the omission did not
happen just once, but repeated many times over
involving several semesters and to students enrolled in
different school years. Hence, there can only be one
conclusion - that petitioners were never reported to
DECS as students of the IHU because indeed they
were never enrolled thereat.
In her certification dated 14 September 199430 Laura
Geronilla stated that according to available academic
records, Yolando O. Uriarte was indeed a graduate of
the IHU the school year 1967-68 with the degree of
Bachelor of Science in Commerce (BSC), Major in
Management, and that his Form 19 "had already been
resubmitted to DECSRO XI for the issuance of a
corrective Special Order due to the accidental
omission/exclusion of his name in the DECS microfilm
files despite its vivid inclusion in the original paper copy
submitted." Petitioners however failed to submit a copy
of such original paper or the DECS microfilm wherein
Uriarte’s name was allegedly missing, nor presented
evidence that such request had been favorably acted
upon by the DECS.
It may also be noted that on 20 November
198131 Geronilla issued another certification in favor of
Uriarte certifying that he had "completed all the
requirements for the degree of Bachelor of Science in
Commerce (BSC), Major in Management, as of March
1979. This is to certify further that his application for
graduation has been forwarded to the DECS Regional
Office for the issuance of his Special Order." 32 However,
Uriarte’s Special Order which was allegedly issued by
the DECS is dated 8 January 1969. If Uriarte had
actually graduated in 1968, what was the purpose of
this 1981 certification? On the other hand, if Uriarte
actually completed all the requirements for graduation
only in March 1979, then why was he issued a Special
Order which antedated the day when he became
qualified to be a graduate of the school?
Quite obviously, neither Lumancas nor Uriarte is a
graduate of a four (4)-year course and thus is not
qualified to be promoted to a higher position. The use
of false documents attesting that they are college
graduates when in truth and in fact they are not, makes
them administratively liable for dishonesty through the
use of falsified documents.
The elements of "use of falsified documents," which is
a crime under Art. 172 of the Revised Penal Code, are:
(a) That the offender knew that a document was
falsified by another person; (b) That the false document
is embraced in Art. 171 or in any of subdivisions 1 or 2
of Art. 172; (c) That he used such document (not in
judicial proceedings); and, (d) That the use of the false
document caused damage to another or at least it was
used with intent to cause such damage. The fact that
they used the false certifications in support of this
promotion resulted in prejudice to other applicants
genuinely qualified for the position. In this connection,
we refer to the Court’s observation in Diaz v. People33
As correctly observed by the trial court, 'It is also quite
significant to note in this score that the accused in his
defense failed to present any corroborating piece of
evidence which will show that he was indeed enrolled
in the Philippine Harvardian Colleges x x x x If he had
enrolled as a student during this period of time and he
was positive that the transcript of records issued to him
and in his possession is genuine and valid, it could
have been easy for him to introduce corroborating
evidence, i.e., the testimony of any of his classmates
or teachers in the different subjects that he took to
support his claim that he studied and passed these
collegiate courses at the said school. But this he failed
to do despite all the opportunities open to him and in
the face of damning evidence all showing that he had
not really enrolled in this school x x x x'34
Finally, petitioners’ act of falsifying their Personal Data
Sheets (PDS) to reflect that they are graduates of BSC,
Major in Management, from the IHU when in truth and
in fact they are not, is a ground for disciplinary action.
Lumancas made different and inconsistent entries in
her 1989, 1991 and 1993 PDS. Likewise, Uriarte made
conflicting entries in his PDS of February 198735 and
March 1990.36 As responsible public servants who are
due for promotion, petitioners are expected to be noble
exemplars and should be models of good morals. Their
repeated acts of dishonesty are repugnant to the
established code of conduct and ethical standards
required of public officials and employees.37
As regular members of the career service, they are
bound by the Civil Service Law and Rules. Chapter 7,
1âwphi 1
Sec. 46, Book V, of EO 29238 provides "x x x x b) The
following shall be grounds for disciplinary action: (1)
Dishonesty x x x x (2) Misconduct x x x x (13)
Falsification of official document x x x x" It should be
emphasized that this is an administrative case, not a
criminal case; thus, petitioners’ argument that they
were not charged with the proper offense under
the Revised Penal Code is unimportant. Any of the
above charges may be cited as grounds to subject
them to disciplinary action.
All the elements of falsification through the making of
untruthful statements in a narration of facts are present:
(a) That the offender makes in a document statements
in a narration of facts; (b) That he has a legal obligation
to disclose the truth of the facts narrated by him; (c)
That the facts narrated by the offender are absolutely
false; and, (d) That the perversion of truth in the
narration of facts was made with the wrongful intent of
injuring a third person. In People v. Po Giok To39 the
Court held that "in the falsification of public or official
documents, whether by public officials or by private
persons, it is unnecessary that there be present the
idea of gain or the intent to injure a third person, for the
reason that, in contradistinction to private documents,
the principal thing punished is the violation of the public
faith and the destruction of the truth as therein solemnly
proclaimed." Hence, the last requisite need not be
present. Also, petitioners themselves have affirmed in
their petition that their Personal Data Sheets were not
sworn to before any administering officer 40 thereby
taking their case away from the confines of perjury.
Nonetheless, they argue that they have no legal
obligation to disclose the truth in their PDS since these
are not official documents. We disagree. In Inting v.
Tanodbayan41 the Court held that "the accomplishment
of the Personal Data Sheet being a requirement under
the Civil Service Rules and Regulations in connection
with employment in the government, the making of an
untruthful statement therein was, therefore, intimately
connected with such employment x x x x"42 The filing of
a Personal Data Sheet is required in connection with
the promotion to a higher position and contenders for
promotion have the legal obligation to disclose the
truth. Otherwise, enhancing their qualifications by
means of false statements will prejudice other qualified
aspirants to the same position.
The Court notes that it is not uncommon for employees
to do everything in their power to better their lot in order
to survive the nation’s worsening economic crisis.
However, let this case serve as a stern warning to all
who may be tempted to do the same that dishonesty
and disrespect for the law, however motivated, will
never be countenanced by this Court.
WHEREFORE, the petition is dismissed for lack of
merit and the Amended Resolution of the Office of the
Ombudsman dated 16 August 1996 dismissing
petitioners Consolation A. Lumancas and Yolando O.
Uriarte from the service, as well as its Order dated 12
February 1998 denying reconsideration, is AFFIRMED.
Costs against petitioners.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ.,
concur.
Footnotes
4In the 1989 Form, the entry appears as follows
for the College Level: Name of
School/College/University: Centro Escolar
University; Degree/Units Earned: BS Pharm IV;
Inclusive Date of Attendance: 1970-1975;
thereby indicating that she finished only her
fourth year of BS Pharmacy. No entry for the
Post Graduate Level.
6In the 1991 Form, the entry appears as follows
for the College Level: Name of
School/College/University: Centro Escolar
University; Degree/Units Earned: BS Pharm IV;
Inclusive Date of Attendance: 1974; which is
inconsistent with the 1989 form. Again, for the
Post Graduate Level, the entry appears as
follows: Name of School/College/University:
International Harvardian University;
Degree/Units Earned: BSC IV; Inclusive Date
of Attendance: 1978; thereby indicating that in
1978 she finished only her fourth year of BS
Commerce; which is inconsistent with the 1993
Form.
8In the 1993 Form, the entry appears as follows
for the College Level: Name of
School/College/University: International
Harvardian University; Degree/Units Earned:
BSC Mgnt. grad.; Inclusive Date of Attendance:
1970-1974; which is inconsistent with the 1989
and 1991 Forms.
11At the time of this appeal by certiorari,
Mariano Julve, one of the original respondents,
had already been found guilty by the Civil
Service Commission in its Resolution No. 95-
3793, dated 23 June 1995, on the same
charges of dishonesty, falsification and grave
misconduct and had been dismissed from
service, hence making the Ombudsman
resolution moot and academic insofar as Julve
is concerned.
13Id., p. 17. Boiser’s letter addressed to the
Postmaster II dated 9 August 1994 states as
follows:
Sir:
With reference to your request of July
14, 1994, please be informed that the
name of MARIO L. JULVE is not
included in Special Order (B) No. 5-
0299, s. 1978, for the BSC course
issued to INTERNATIONAL
HARVARDIAN UNIVERSITY, Davao
City; neither does the name of
YOLANDO A. URIARTE in Special
Order (B) No. 5-0035. S. 1969.
Special Order (B) No. 5-276, s. 1978,
supposedly issued in favor of
CONSOLACION H. ALAAN, same
course and school, was not issued by
this Office x x x x
(sgd) DIOSDADA C. BOISER
Director III
Id., p. 263. In a telegram received by the
20
Office of the Ombudsman-Mindanao on 6
September 1995, complainant Intas stated that
she found the evidences submitted to be
sufficient and waived her right to appear in the
preliminary conference.
23Rollo, p. 41. Prior to its amendment, the
Resolution included Julve among the
respondents found to be guilty of the charges
and dismissed from service. The amendment
dismissing the instant case against Julve was
a necessary consequence of CSC Resolution
No. 95-3793 dated 23 June 1995.
24The case was decided by the Office of the
Ombudsman on 16 August 1996 and the
amended resolution approved by the
Ombudsman on 17 January 1997, before the
portion of Sec. 27 of RA 6770, providing for
"appeals of all administrative disciplinary
cases, orders, directives, or decisions of the
Office of the Ombudsman to be appealed to the
Supreme Court by filing a petition for certiorari
within ten (10) days from receipt of the written
notice of the order, directive or decision or
denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court,"
was declared unconstitutional in the case of
Fabian v. Desierto, G.R. No. 129742, 16
September 1998, 295 SCRA 470. The present
appeal by certiorari was filed with the Supreme
Court on 7 May 1998 before the promulgation
of A.M. No. 99-2-02-SC on 9 February 1999
holding that "any appeal by way of petition for
review from a decision or final resolution or
order of the Ombudsman in administrative
cases, or special civil action relative to such
decision, resolution or order filed with the Court
after 15 March 1999 shall no longer be referred
to the Court of Appeals, but must be forthwith
DENIED or DISMISSED, respectively."
29The Form 19 contains the names of the
students, the subjects taken up and their
grades in those subjects submitted by schools
to the DECS every semester. It is the basis of
the Special Order issued by DECS to show that
the student has completed a four (4)-year
course.
(13) G.R. Nos. L-49483-86 March 30, 1981
SALUD P. BERADIO, petitioner,
vs.
THE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DE CASTRO, J.:
By petition for review on certiorari, Salud P. Beradio,
an election registrar of the COMELEC in Rosales,
Pangasinan, who was convicted on four (4) counts of
the crime of falsification of public or official documents
of the seven (7) separate informations filed against her
for making false entries in her daily time records,
elevates to the Court, the decision 1 of the Court of
Appeals in CA-G. R. No. 20319 to 20322 promulgated
on September 18, 1978, affirming in toto the judgment
of conviction rendered on July 30, 1976 by the Circuit
Criminal Court, Third Judicial District, Dagupan City.
The dispositive portion of the decision of the lower
court reads as follows:
FOR THE FOREGOING
DISCUSSION, and with the
prosecution not having established by
proof beyond reasonable doubt the
guilt of the herein accused and for
insufficiency of evidence or the lack of
it, the Court hereby finds. as it so holds,
accussed Salud P. Beradio NOT
GUILTY of the charges in Criminal
cases Nos. CCC-0258, CCC-0259,
and CCC-0263; consequently, she is
hereby acquitted therefrom with costs
de oficio; and decreeing the bail bonds
posted for her provisional release in
these cases cancelled and discharged.
On the other hand, however, the Court
so finds and holds accused Salud P.
Beradio GUILTY beyond reasonable
doubt of the crime of falsification of
public or official document as charged
in Criminal Case No. CCC-0260 as to
entry on July 13, 1973 only, Criminal
Case No. CCC-0261; Criminal Case
No. CCC-0262 as to entry on May 28,
1973 only, and Criminal Case No.
CCC-0264, defined and penalized
under Article 17 1, paragraph 4, of the
Revised Penal Code, and absent any
aggravating or mitigating circumstance
and applying the Indeterminate
Sentence Act, hereby accordingly
sentences said Salud P. Beradio to
serve an indeterminate prison term in
the following manner, to wit:
a) In Criminal Case No. CCC-0260 —
a prison term of from TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY
of prision correccional as minimum, to
EIGHT (8) YEARS and ONE (1) DAY
of prision mayor as maximum, with the
accessories of the law, to pay a fine of
TWO THOUSAND PESOS (P2,000)
but without subsidiary imprisonment in
case of insolvency and, to pay the cost;
b) In Criminal Case No. CCC-0261 —
a prison term of from TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY
of prision correccional as minimum, to
EIGHT (8) YEARS of prision mayor, as
maximum, with the accessories of the
law, to pay a fine of TWO THOUSAND
PESOS (P2,000) without subsidiary
imprisonment in case of insolvency,
and to pay the cost;
c) In Criminal Case No. CCC-0262 - a
prison term of from TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY
of prision correcional, as minimum, to
EIGHT (8) YEARS and ONE (1) DAY
of prision mayor, as maximum, with the
accessories of the law, to pay a fine of
TWO THOUSAND PESOS (P2,000)
without subsidiary imprisonment in
case of insolvency, and to pay the cost.
d) In Criminal Case No. CCC-026-1 —
a prison term of from TWO (2) YEARS,
FOUR(4) MONTHS and ONE (1) DAY
of prision correccional as minimum to
EIGHT (8) YEARS and 0NE (1) DAY
of prision mayor, as maximum, with the
accessories of the law, to pay fine of
TWO THOUSAND PESOS (P2.000)
without subsidiary imprisonment in
case of insolvency, and to pay the cost.
The penalties herein imposed shall be
served successively with the maximum
duration of the sentences not to exceed
threefold the length of tune
corresponding to one penalty imposed
upon tier in accordance with Article 70
of the Revised Penal Code.
As to charges of falsification on July 12,
1973 in Criminal Case No. CCC-0260,
and on May 30, 1973, the Court finds
no sufficient Evidence to hold the
accused liable. Consequently, the
accused is hereby absolved therefrom.
The facts pertinent to the specified dates of falsification
as found by the Court of Appeals are as follows:
... On the following particular dates, as
reflected in her daily time records
(Exhs. "D" to "H"), BERADIO reported
her attendance in office and actual
hours of work performed as:
On
1) 7 1
M : 2
ar 3 :
ch 5 0
15 a 0
, . n
19 m .
73 . ;
1 5
: :
0 0
0 0
p p
. .
m m
. .
 t 0 0
o 0 0
p p
2) 7 1 . .
M : 2 m m
ar 3 : . .
ch 0 0 t
23 a 0 o
, . n
19 m ; 6) 8 1
73 . Ju : 2
ly 0 :
1 5 13 0 0
: : ,1 a 0
0 0 97 . n
0 0 3 m ;
p p .
. .
m m 1 5
. . : :
t 0 0
o 0 0
p p
3) 7 1 . .
M : 2 m m
ay 4 : . .
28 5 0 t
, a 0
o
19 . n
73 m ;
. The veracity of the foregoing reports
were negated by the following:
1 5
: :
1) On March l5, 1973, BERADIO
0 0
appeared as counsel for the applicants
0 0 at the initial hearing and reception of
p p
evidence in land Registration Case No.
. .
19-R before the Court of First Instance
m m
of Pangasinan, Branch XIV, Rosales, in
. .
both morning and afternoon sessions
t
(Exhs. "K", "K-1" and "K-2").
o
4) 7 1 2) In the morning of March 23, 1973,
Ju : 2 BERADIO appeared as counsel for the
ne 3 : petitioner in the hearing of Special
6, 0 0 Proceedings No. 24-R (summary
19 a 0 settlement of the estate of Vicente Oria,
73 . n Court of First Instance of Pangasinan,
m ; Branch XIV, at Resales, which was
. called first in open court and later, in
chambers (Exhs. "M" and M-1 ").
1 5
: :
0 0 3) On May 28, 1973, in the same case,
0 0 Sp. Proc. No. 24-R, BERADIO again
p p appeared as counsel for the petitioner
. . in the same court which held sessions
m m from 8:45 to 11:45 (Exh. "M").
. .
t 4) In the morning of June 6, 1973,
o BERADIO appeared as counsel for the
defendant in CAR Case No. 19882-.TP
5) 7 1 '73, entitled "Pepito Felipe vs. Ismael
Ju : 2 Pontes and Camilo Tamce before CAR
ne 3 : Branch 11 in Tayug, Pangasinan (Exh.
22 5 0 "J"). Minutes of the pre-trial conference
, a 0 which the appellant attended are
19 . n manifest in the pre-trial order that was
73 m ; dictated in open court (Exh. "J-1").
.
1 5 5) In the morning of June 22, 1973,
: : Beradio appeared in Sp. Proc. No. 24-
 R before the Court of First Instance of
Pangasinan, Branch XIV at Rosales
(Exh. "M").
6) In the morning of July 13, 1973,
Beradio appeared as counsel for
plaintiff at the pre-trial conference of
Civil Case No. 137R, "Venancia Diaz
vs. Armando Ordonio" before Branch
XIV of the Court of First Instance of
Pangasinan (Exhs. "L" to "I-3").
It is thus clear that while in the six
abovementioned dates, BERADIO
made it appear in her daily time records
that she was in her office and
performed her work on the dates and
hours she specified, the facts were that
she was elsewhere attending court
sessions. 2
From the said decision of the Court of Appeals and the
denial of her motion for reconsideration on November
28, 1978, Salud Beradio filed the instant petition for
review on certiorari to the Court. We asked the Solicitor
General to comment on the petition and thereafter, We
resolved to give due course to said petition it appearing
that the issues raised are, in the main questions of law
rendered novel by the peculiar circumstances of the
case. Thus, he raised the following legal issues:
I the COMELEC, sometime in September, 1973, an
WHETHER THE CONVICTION OF
THE PETITIONER TAKEN IN THE
LIGHT OF THE PROVISION OF
ARTICLE 171, PARAGRAPH 4, OF
THE REVISED PENAL CODE IS
LEGAL AND PROPER.
II
WHETHER THE PETITIONER
COULD STILL BE LEGALLY AND
PROPERLY PROSECUTED FOR AN
OFFENSE WHERE SHE WAS NO
LONGER A PUBLIC OFFICIAL
III
WHETHER PETITIONER !S UNDER
LEGAL OBLIGATION TO FILL UP
AND SUBMIT TIME RECORD.
IV
ASSUMING THAT SHE IS, DO THE
STATEMENTS THEREIN
REFLECTED IN HER TIME RECORD
BEAR ANY' COLOR OF TRUTH'.
V 12, 1972 in Criminal Case CCC-0258; 2) September 4,
WHETHER DAMAGE TO THE
GOVERNMENT IN FALSIFICATION
OF PUBLIC OR OFFICIAL
DOCUMENT IS TOTALLY OF NO
MOMENT.
VI
IT FAILED TO HOLD THAT. UNDER
THE ESTABLISHED FACTS, THE
CONSTITUTION, THE LAW AND
WELL-SETTLED JURISPRUDENCE,
PETITIONER IS ENTITLED TO
ACQUITTAL ON THE GROUND OF
REASONABLE DOUBT.
Salud P. Beradio, petitioner, is a lady-lawyer appointed
as an election registrar of the Commission on Elections
(COMELEC) on February 1, 1964 (Exhibits A and A-1).
In 1972 and 1973, she was stationed in Resales,
Pangasinan, as Chief of Office, Office of the Election
Registrar, COMELEC holding office beside the
municipal building from 8:00 a.m. to 12:00 noon and
from 1:00 o'clock to 5:00 o'clock in the afternoon. As
the nature of her job was field work, she was required
to fill up and submit to the COMELEC's main office in
Manila her daily time records after having been
counter-signed by her provincial supervisor. 3
On March 29, 1973, the COMELEC by resolution
(Exhibits 1 and 1-A, CCC-0261) granted her request for
permission to appear as counsel for her cousins and
cousins-in-law in the case before the Court of Agrarian
Relations in Rosales, Pangasinan. 4
During her assignment as Election Registrar of
Rosales, Pangasinan, one Raymundo Valdez filed with
administrative complaint charging her of unauthorized
practice of law. On the other hand, Salud Beradio
tendered her resignation as Election Registrar of
Rosales, Pangasinan, which, by COMELEC resolution
(Exhibit B) of October 25, 1973, was accepted and
made to retroact on the close of office hours on
September 30, 1973. She was duly granted clearance
by all the offices of the COMELEC, and she received
her retirement benefits under the law.
Raymundo Valdez made an inquiry with the COMELEC
on the status of his administrative case against Salud
P. Beradio, and upon being informed of her separation
from the service, he initiated the filing of criminal
charges against Salud Beradio on grounds of
falsification of daily time records defined and penalized
under Article 17 1, paragraph 4 of the Revised Penal
Code as falsification of public documents. In the Office
of the Provincial Fiscal of Pangasinan where he lodged
the criminal charges, Jose Peralta, and his wife Paz de
Guzman-Peralta, trial attorney of Agrarian Legal
Assistance (DAR) submitted affidavits in support of the
charges against Salud P. Beradio.
On August 4, 1975, the Provincial Fiscal of Pangasinan
filed seven (7) separate informations all dated July 7,
1975 with the Circuit Criminal Court, Third Judicial
District, Dagupan City, charging Salud P. Beradio with
falsification of public or official documents for making
false entries in her daily time .records on: 1) October
1973 in Criminal Case CCC-0259; 3) July 12 and 13,
1973 in Criminal Case CCC-0260; 4) June 6 and 22,
1973 in Criminal Case CCC-0261; 5) May 28 and 30,
1973 in Criminal Case CCC-0262; 6) April 3, 1973 in
Criminal Case CCC-0263; and 7) March 15 and 23,
1973 in Criminal Case CCC-0264 that she submitted to
the Commission on Election in Manila. 5 The separate
informations allege that petitioner was absent the
whole day on the days mentioned therein but to the
"damage and prejudice of the National Government,"
she made it appear in her time records that she was
not so absent from the office, when in fact she well
knew that on such date or time she was in the Court of
First Instance of Pangasinan, Branch XIV, Resales,
Pangasinan, appearing in her cases .
While petitioner raised the above-quoted legal issues
which, to Us, point to the more basic issues inherent in
acts mala in se as contra distinguished from mala
prohibita, We narrowed down these issues, for proper
disposition of the instant case, into whether or not the
alleged acts of falsification of public documents
imputed against the petitioner were tainted with
criminal intent (dolo), and whether or not the act of
alleged false narration of facts in the daily time record
bears, under the law, some semblance of colorable
truth. This We did in full considerations of the peculiar
circumstances which render the instant case novel in
some respects, worthy of pronouncements from this
Court.
At the outset, it must be emphasized that for a
conviction of the offense of falsification of public or
official documents, defined and penalized under Article
171, paragraph 4 of the Revised Penal Code, the
requisite elements thereof must be clearly established,
namely: 1) the offender makes in a document false
statements in a narration of facts; 2) he has a legal
obligation to disclose the truth of the facts narrated by
him; 3) the facts narrated by him are absolutely false,
and 4) the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third
person. 6
Of weight in Our criminal justice system is the principle
that the essence of an offense is the wrongful intent
(dolo), without which it cannot exist. 7 Actus non facit
reum nisi mens set rea, the act itself does not make a
man guilty unless his intentions were so. Article 3 of the
Revised Penal Code clearly indicates that malice or
criminal intent (dolo) in some form is an essential
requisite of all crimes and offenses defined in the Code,
except in those cases where the element required is
negligence (culpa).
On one point, however, the claim of the petitioner that
she is not under strict obligation to keep and submit a
time record is not at all empty with justification. While it
is true, as held by the respondent court, 8 that the
obligation to disclose the literal truth in filling up the
daily time record is required of all officers and
employees in the civil service of the government in
accordance with Civil Service Rule XV, Executive
Order No. 5, Series of 1909, this vague provision,
however, is rendered clear by Section 4, Rule XV of the
Civil Service Rule, dated December 3, 1962, later
Memorandum Circular No. II, Series of 1965 which
exempt from requirements of keeping and submitting
the daily time records three categories of public
officers, namely: 1) Presidential appointees; 2) chiefs
and assistant chiefs of agencies; and 3) officers in the
three branches of the government. Clearly thus,
petitioner as Chief of theOffice, Office ofElection
Registrar, COMELEC in the municipality of Rosales,
Pangasinan exercising supervision over four (4)
subordinate employess, would fall under the third
category aforementioned. An Election Registrar of the
municipality performing the powers, dutied ,
responsibilities of the COMELEC, a constitutional
body, in the conduct of national or local election,
referenda, and plebiscites, in aparticular voting district
may be regarded as an officer who rank higher thab
such chiefs or assistant chiefs of agencies although he
may not be a presidential appointee. Notwithstan ding
such an exemption, if the election registrars of the
various municipalities all throughout the country, who
occassionaly work more than ordinary eight-hours on
the last day of the registration or on lection day, are
keeping and submitting the daily time records to the
main office in Manila, it may be only to the sake of
adminstrative procedural convenience or as a matter of
practice, but by reason of strict legal obligation.
On the main point, assuming, however, that petitioner
is under strict legal obligation to keep and submit the
daily time records, We are definitely inclined to the view
that the alleged false entries made in the time records
on the specified dates contained in the information do
not constitute falsification for having been made with
no malice or deliberate intent. Noteworthy is the fact
that petitioner consistently did not dispute, but admitted
in all candor her appearances in six (6) different ways,
on March 15, March 23, May 28, June 22, July 13,, all
in 1973 before the Court of First Instance, Branch XIV,
Rosales, Pangasinan, in the aforementiones cases,
claiming that she did not reflect this absences in her
daily time records because they were for few minute-
duration, the longest was on March 15, 1973 being for
forty-five (45) minutes; they could be absorbed within
the allowed coffee breaks of 30 minutes in the morning
and in the afternoon; that as Chief of Office, and all
Election Registrars of the COMELEC for that matter,
she is allowed to have one (1) day leave during week
days provided she worked on a Saturday: and that her
brief absences did not in any way interfere with or
interrupt her official duties as an Election Registrar.
Above all, petitioner categorically emphasized that her
appearances in court were duly authorized by the
COMELEC, which in certain instances were as counsel
de oficio, and no remuneration whatsoever from her
clients was received by her,
Finding that the justifications claimed by Beradio as
unavailing, the Court of Appeals ruled that her various
appearances in court were not on official business, and
the permission granted her by the COMELEC was to
appear in behalf of her relatives, and she was still
obligated to reflect in her daily time records only the
hours when she was actually in the office. 9
We are not convinced. The Court of First Instance,
Branch XIV, in Rosales, Pangasinan, is only two (2)
meters from her own office as Election Registrar in the
said municipality. She had standing authority to act as
de oficio counsel given by the COMELEC evidently in
furtherance of the free legal aid service program of the
Integrated Bar, and an Identical policy of the
Government itself, 10 especially as COMELEC lawyers,
before any election had been held during the regime of
martial law, did not have much office work to keep them
busy. This state of virtual absence of electoral activities
is what prompted COMELEC to authorize its lawyers to
take active part in the free legal aid program above
adverted to, if to do so would not unduly interfere with
their work. In recognition of the long standing policy of
the COMELEC in response to the legal aid program of
the Government 11 and the "free access to the courts"
provision of the 1973 Constitution, 12 the COMELEC, by
Resolution No. 1401, 13 formally created the Legal
Assistance Office thereby constituting all COMELEC
lawyers with rank of division chief and below as
COMELEC Legal Assistance Officers. Even prior to the
formal creation of the Legal Assistance Office, the
liberal policy of the COMELEC in allowing its Election
Registrars to act as counsel in areas where there are
no lawyers available is, indeed, laudable.
Under the attendant facts and circumstances in the
instant case, no criminal intent to commit the crime with
which she is charged can be imputed against the
petitioner. In the information, it was alleged that the
petitioner was not in her office for the full office hours
from 8:00 a.m. to 12:00 noon and from 1:00 p.m. to
5:00 p.m. on the specified dates therein as she was
then busy attending her cases in court. On the contrary,
the evidence of the prosecution belies its allegation of
the wholeday absence in office as Election Registrar.
Records reveal that petitioner had stayed in court for
only 5, 30, 40 or 45 minutes a day for her appearances
therein, at no instance exceeding one (1) hours.
If petitioner filled up her daily time record for the six
days in question making it appear that she attended her
office from 8:00 a.m. to 12:00 noon and from 1:00 p.m.
to 5:00 p.m. there is more than color of truth in the entry
made. It is not shown that she did not report first to her
office as Election Registrar of Rosales, Pangasinan,
before going to the courtroom just two (2) meters away.
Petitioner thus likened her appearance to going out for
the usual coffee breaks. The comparison is not even
apt for during the while she appeared in court, she was
rendering service more, if not wholly, for the public
good, than just for her own well-being as when she
goes out for snack during the coffee-break period. The
court being only two (2) meters away from her office,
she did not even have to go so far as when one goes
out for snack. What is more, everytime she appeared
in court, she surely must have made this fact officially
of record in the court proceedings, something which is
not done with leaving the office room for coffee breaks.
In fine, the entries in petitioner's daily time records were
not absolutely false. The alleged false entry may be
said to have a color of truth, not a downright and willful
falsehood which alone would constitute falsification as
a crime. 14 As Cuello Calon stated: "La mera inexacted
tio es bastante para integrar este delito (Cuello Calon,
Derecho Penal 6th Ed. Vol. 11, p. 216, cited in People
vs. Villena, et al., 51 O.G. 5691; People vs. La Corte,
CA-G. R. No. 05818-CR; U.S. vs. Bayot, 10 Phil. 518)."
In thus preparing her daily time record the way she did,
it was evidently in her belief in her belief that she was
just making of record the fact that, as was her honest
opinion, she was entitled to receive her full pay even
for those days she appeared in court, rendering what
she felt was no less a public service, being in
furtherance of a public policy on free legal assistance.
As a lawyer, and as in officer of the court, she, for one,
aids in the administration of justice, oathbound servant
of society whose duty is not solely for the benefit of her
clients but for the public, particularly in the
administration of justice. The court a quo itself
recognize, that the COMELEC registrars, at that time,
are directed to appear as counsel de oficio when there
are no lawyers to represent the parties in litigation. 15 If
petitioner is not at all appointed as counsel de oficio
strictly in accordance with the Revised Rules of Court,
Rule 138, it is an undisputed fact, as reflected in court
records, that petitioner, true to her oath, acted as
counsel in certain cases. On this point, if one fills up his
daily time record in the belief that, on the basis of the
time so indicated therein, she is merely making an
honest claim for the pay corresponding to the time so
indicated, no intent to commit the crime of falsification
of public document can be ascribed to her. In the case
of the herein petitioner, she was only submitting a time
record she knew would be the basis for computing the
pay she honestly felt she deserved for the period
indicated. Indeed, the time record is required primarily,
if not solely, for the purpose of serving as basis for the
determination of the amount of pay an employee is
entitled to receive for a given period.
Further, on the issue of malus animus or criminal
intent, it was ruled by the court a quo, confirmed by the
respondent Court of Appeals, that in falsification of
public document, in contradistinction to private
document, the Idea of gain or the intent to injure a third
person is unnecessary, for, what is penalized is the
undermining or infringement of the public faith and the
violation of the truth as therein solemnly proclaimed,
invoking the case of People vs. Po Giok Te, 96 Phil.
918. Arguing against this ruling, petitioner cited the
case of People us. Pacana, 47 Phil. 48, which
the ponente in the instant case upheld in the case
of People vs. Motus, CA-G.R. No. 18267-CR when he
was in the Court of Appeals, that although the Idea of
gain or the intent to injure a third person is
unnecessary, htis Court emphasized that "it must,
nevertheless, be borne in mind that the change in th
epublic document must be such as to affect the
integrity of the same or change in the public document
must be such as to affect the integrity of the same or
change the effects which it would otherwise produce;
for, unless that happens, there could not exist the
essential element of the intention to commit the crime
which is required by Article 1 (now Article 3) of the
Penal Code.
We find the petitioner's stand tenable. the evident
purpose of requiring government employees to keep
time record is to show their attendance in office to work
and to be paid accordingly. Closely adhering tot he
policy of no work no pay, a daily time record is primarily,
if not solely, intended to prevent damage or loss tot he
government as would result in instances where it pays
an employee for no work done. The integrity of the daily
time record as an official document, however, remains
untarnished if the damages sought to be prevented has
not been produced. As this ponente observed in the
case of People v. Motus, supra while it is true that a
time record is an official document, it is not criminally
falsified if it does not pervert its avowed purpose as
when it does not cause damage to the government. It
may be different in the case of a public document with
continuing interest affecting the public welfare which is
naturally damaged if that document is falsified where
the truth is necessary for the safeguard and protection
of that general interest. In the instant case, the time
records have already served their purpose. They have
not caused any damage to the government or third
person because under the facts duly proven, petitioner
may be said to have rendered service in the interest of
the public, with proper permission from her superiors.
They may now even be condemned as having no more
use to require their continued safe- keeping. Public
interest has not been harmed by their contents, and
continuing faith in their verity is not affected.
As pointed out, the obligation to make entries in the
daily time records of officers and employees in the
Government service is a matter of administrative
procedural convenience in the computation of salary
for a given period, characteristically, not an outright and
strict measure of professional discipline, efficiency,
dedication, honestly and competence.
Under the proven and admitted facts, petitioner-
appellant surely is entitled to receive the pay as if she
had stayed in her office the whole period covered by
the official hours prescribed. ,She had perhaps made
herself even more useful in the general benefit of the
public than if she had remained practically Idle in her
office as Election Registrar with perhaps no work at all
to attend to, its is generally the case long before
elections take place, specially during the martial law
regime. The COMELEC must have been fully
cognizant of the legal implications of the peculiar facts
and circumstances that obtained in this case, when it
gave petitioner full clearance after she presented her
resignation when an administrative charge was filed
against her by the same complainant as in the criminal
charge. The courts, in the present criminal prosecution,
should do no less. It would be too harsh and cruel for
the courts to punish petitioner not only with
imprisonment but with general disqualification and
possible disbarment, for an act or omission which she
performed or failed to perform without any criminal
intent. Such an insignificant transgression, if ever it is
one, would not beam the scales of justice against the
petitioner, for courts must always be, as they are, the
repositories of fairness and justice. It is inconceivable
that a person who, without any attempt to conceal her
appearances in court for this is a matter always made
officially of record in the court proceedings,
emphatically, not for his own private gain, but animated
by the zeal of service not wanting in public benefit, and
as an officer of the court, petitioner could have acted
with a deliberate criminal intent. Moreover, what she
stated in her daily time record, as earlier observed, had
more than a mere color of truth to exclude such act
from the pale of the criminal offense of falsification of
public document with which she is charged.
WHEREFORE, finding the guilt of petitioner not to have
been established beyond reasonable doubt, the
judgment of conviction rendered by respondent court in
affirming that of the trial court is hereby reversed, and
petitioner, acquitted of the crime charged, with costs de
oficio.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez and
Guerrero, JJ., concur.
Melencio-Herrera, J., concurs in the result.
(14) G.R. Nos. L-55683 & 55903-04 February 22,
1982
PILAR S. LUAGUE, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
ABAD SANTOS, J.:
Certiorari to review a decision of the Court of Appeals
in CA-G.R. Nos. 22414-16 CR which affirmed the
decision of The Court of First Instance of Samar,
Branch X, convicting the petitioner of three counts of
falsification of commercial documents in Criminal
Cases Nos. 599, 600 and 601.
The facts are stated in the poorly written decision of the
Court of Appeals thus:
Iluminado Luague, a teacher clerk in
the district office of Laoang II, Northern
Samar, died at the G.B. Tan Memorial
Hospital at around 7:00 o'clock in the
evening of January 24, 1972 after he
was confined in said hospital since
January 3, 1972.
Thereafter, the then Bureau of Public
Schools sent the deceased's salary
warrants [Exhibits A (599), A (600) and
A (601)] to the Superintendent of
schools at Catarman Northern Samar
who in turn forwarded them to the
District Supervisor, Florencio
Guillermo. A payroll-warrant register
accompanied the checks.
The paychecks delivered, Florencio
Guillermo signed the payroll-warrant
registers certifying that on his official
oath, each employee whose name
appeared on the rolls had received the
salary warrant indicated opposite his
name on February 7, 1972, February
17, 1972 and February 25, 1972,
respectively, and returned the same to
Jose Figueroa, the District
Administrative Officer of Northern
Samar.
Exhibit A (599) was personally received
by Pilar S. Luague, while Exhibit A
(600) was received by Glen S. Luague.
Exhibit A (601) was received by
Edmundo Echano, a relative of
Iliuminado Luague and who claimed to
be employed in the Office of the District
Supervisor.
Florencio Guillermo claimed that upon
discovering his mistake, he asked
appellant to return the treasury
warrants issued in the name of her
husband Iluminado Luague, further
claiming that appellant promised to do
so, but actually did not. Upon the
receipt of the xerox copies from the
IBM Section of the Bureau of Public
Schools, Guillermo discovered that the
treasury warrants in question had been
encashed by appellant and Glen
Luague with different local stores at
Laoang. Exhibit A (599) was cleared on
February 22, 1972, while Exhibit A
(600) was deposited to the account of
a certain Lee and/or Nicol Chu, Jr. at
Philippine Bank of Communications;
 and Exhibit A (601) was deposited to
the account of Colgate-Palmolive
Philippines, Inc. Appellant admitted
having endorsed the treasury warrants
by means of which she was able to
encash the same.
For signing the name of her husband
Iluminado Luague as payee on three
treasury warrants for purposes of
endorsement, appellant stands
charged with the crime of Estafa thru
Falsification of Commercial Document.
[Note: The appellant was charged with
three counts of estafa thru falsification
of commercial document but was
convicted of falsification only.]
It is the petitioner's contention before Us as well as in
the Court of Appeals that she acted in good faith or had
no criminal intent when she cashed her deceased
husband's paychecks. As stated in the decision of the
Court of Appeals:
Appellant puts up the defense of good
faith in signing theme of her deceased
husband in the treasury warrants in
question.
Her version: The late Iluminado Luague
was on leave from January 3 to
February 9, 1972, as evidenced by his
approved application for sick leave. On
January 23, 1972, the Principal, Jose
Infante, while visiting Iluminado
Luague in the hospital, handed to
Luague a check representing his
differentials. Luague in turn handed
over the check to his wife, the herein
appellant, who was then present.
Before Infante left, he informed the
Luague spouses that Luague's pay
check for the second half of January
1972 had arrived and advised Mrs.
Luague to get the same from Florencio
Guillermo so that she could use it to
pay for medicine and hospital
expenses of her husband.
Iluminado Luague instructed her [his
(sic)] wife to get the check from
Florencio Guillermo. Appellant went to
the house of Guillermo in the afternoon
of January 23, 1972. Guillermo asked
her to sign the name of her husband on
the payroll warrant register and
counter-sign with her initials. Guillermo
then handed her the treasury warrant
[Exhibit A (599)].
Iluminado Luague died on January 24,
1972. From the proceeds of the
warrants they received were paid the
amount the Luague family owed the
drugstores owned by Amor
Carandang, Purisima Saba and Luz
Tan. A treasury warrant was also paid
to Edward Kam from whom they bought
construction materials for the tomb of
the deceased and to Ong Kiat store for
the payment of materials used for the
coffin of the late Iluminado Luague
which were purchased on credit.
Upon the instruction of Amor
Carandang and on her belief and upon
suggestion of Florencio Guillermo
himself that the warrants could be used
to settle their financial obligations
incurred by the hospitalization and
death of her late husband, appellant
indorsed the said treasury warrants by
signing the name of Iluminado Luague.
Heirs of deceased government
employees are entitled to whatever
unpaid salaries the deceased
employee failed to receive. Appellant
claims that it was upon this honest
belief that she endorsed the treasury
warrants of her late husband to defray
for the necessary expenses incurred
due to the latter's hospitalization,
funeral and burial.
The Court of Appeals did not reject the petitioner's
version, except in respect of the date when the first
paycheck was delivered. In affirming the decision of the
trial court, the Court of Appeals followed the simplistic
procedure of applying literally the letter of the law,
namely: there was falsification because the petitioner
"signed her husband's name in indorsing the treasury
warrants in question." The Court of Appeals failed to
take into account the following facts: That the petitioner
signed her husband's name to the checks because
they were delivered to her by no less than her
husband's district supervisor long after the husband's
death which was known to the supervisor; that she
used the proceeds of the checks to pay for the
expenses of her husband's last illness and his burial;
and that she believed that she was entitled to the
money as an advance payment for her husband's
vacation and sick leave credits the money value of
which exceeded the value of the checks. In the fight of
these circumstances, We cannot ascribe criminal intent
to the petitioner. We sustain her claim that she acted in
good faith.
During the hearing, it was brought out that the
government did not sustain any financial loss due to the
encashment of the checks because the petitioner's
husband had accumulated vacation and sick leaves
the money value of which exceeded the value of the
three paychecks and the value of the checks was
simply deducted from the money value of the leaves.
This explains why the petitioner was not convicted of
estafa but of falsification only. While we do not mean to
imply that if there is no damage there can be no
falsification, We do say that the absence of damage is
an element to be considered to determine whether or
not there is criminal intent.
We notice here the lack of compassion on the part of
the prosecuting fiscal, the trial judge, and the Court of
Appeals. Even the Solicitor General who is alert in
seeking to correct improper convictions by trial courts
has somehow misappreciated the evidence in this
case.
The accused is a poor widow who was obviously in a
state of bewilderment due to the recent death of her
husband when she cashed the paychecks. She was
also in dire need of money to settle the expenses for
her husband's last illness and his burial. A
compassionate attitude repeatedly urged by the First
Lady, Mrs. Imelda R. Marcos, would have been highly
in order under the circumstances.
WHEREFORE, the petition is hereby granted; the
decision of the Court of Appeals is reversed; the
petitioner is acquitted of the charges against her. No
costs.
SO ORDERED.
Barredo (Chairman), Aquino, Concepcion, Jr., De
Castro and Ericta, JJ., concur.
Escolin J., took no part.
On USE OF FALSIFIED DOCUMENTS
G.R. No. 73905 September 30, 1991
MICHAEL T. DAVA, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and the
INTERMEDIATE APPELLATE COURT, respondents.
KV. Faylona & Associates for petitioner.
FERNAN, C.J.:
On October 19, 1975, while driving a car along Shaw
Boulevard, Mandaluyong, Rizal, petitioner Michael T.
Dava, then holder of non-professional driver's license
No. 14744271 with official receipt No.
7023037,2 bumped pedestrians Bernadette Roxas
Clamor and Dolores E. Roxas, causing death to former
and physical injuries to the latter.
As a consequence of said incident, Dava was brought
to Mandaluyong Police headquarters where his driver's
license was confiscated by Cpl. Daniel Severino who
later submitted Dava's driver's license to the fiscal's
office in Pasig, Rizal. license was thereafter presented
as prosecution evidence in criminal case for homicide
and serious physical injuries reckless imprudence filed
against Dava in the then Court First Instance of Rizal
in Pasig.3
On April 12, 1978, Antonio Roxas, the brother of
Bernadette and the father of Dolores, saw Dava driving
a maroon Volkswagen (beetle-type) car with plate No.
AD-902 B. Knowing that Dava's driver's license was
used as an exhibit in court and that no traffic violation
receipt had been issued to Dava, Roxas sought the
help of then Minister of Defense Juan Ponce Enrile in
apprehending Dava for driving without a license. 4 The
Ministry of Defense later indorsed Roxas' request for
assistance to the Constabulary Highway Patrol Group
(CHPG).
At around 7:30 in the evening of July 21, 1978, M/Sgt.
Domingo Lising and S/Sgt. Arturo Viduya of the CHPG
saw the maroon Volkswagen car described by Roxas
parked in front of the Uniwide Department Store near
the then Nation theater in Cubao, Quezon City. When
the driver and his companion arrived, Lising and
Viduya confronted them and asked the driver for his
license. They were shown non-professional driver's
license No. 27068875 with official receipt No.
06058706 issued by Agency 2L Pampanga in the name
of Michael T. Dava. When asked about the source of
his license, Dava informed them that his officemate had
secured it for him.
Lising and Viduya invited Dava to the CHPG office in
Camp Crame, Quezon City for questioning. Dava
refused to give a statement upon the advice of his
lawyer. Lising then submitted a spot report to Col.
Maristela stating therein that "subject had violated
Section 31 of RA 4136 for false representation in the
application of a driver's license intended to be used as
a legal license."7 In his affidavit of apprehension dated
November 16, 1978, Lising stated that he was 'about to
book him for violation of Section 31 of Rep. Act 4136,
when subsequent investigation revealed that the
Driver's License above-mentioned is a Fake and a
Falsity' and therefore a case for falsification and use of
falsified documents under Section 172 of the Revised
Penal Code should be filed against Dava.8 Lising
concluded that Dava's driver's license was fake
because when he compared it with the xerox copy of
Dava's license which was attached to the record of the
criminal case in Pasig, the signatures and the dates of
birth indicated in the two licenses did "not tally." 9
Accordingly, an information for falsification of a public
document was filed against Dava in the then Court of
First Instance of Rizal, Branch V at Quezon City.10 One
of the prosecution witnesses was Caroline Vinluan of
the Angeles City branch of the Bureau of Land
Transportation (BLT). He testified that hen was then
the registrar of the said office when Dava's driver'
license was brought to him by lawyer Jose Francisco
who was interested in knowing whether it was genuine
or fake and if was issued by the Angeles City agency
of the BLT. He examine it and found out that it was
"fake or illegally issued" because form No. 2706887
was one of the fifty (50) forms which had been reported
missing from their office sometime in November, 1976
and that it was never issued to any applicant for a
license.11He added that any license that was not
included their office index card was considered as
"coming from illegal source' and "not legally issued by
any agency."12
Vinluan stated that although the form used for the
license was genuine,13 the signature of the issuing
official was fake.14 He "believed" certain persons had
been apprehended for "plasticization" of licenses
outside their office15 and that sometime November,
1976, agents of the National Bureau of Investigation
raided the house of a certain person who had in his
possession some of the forms which had been missing
from office.16 He concluded that the license was fake
because the form was issued by the central office to
the Angeles agency, the license appeared on its face
to have been issued the San Fernando, Pampanga
agency.17
Dava was convicted of the crime charged. He appealed
to then Court of Appeals18 which affirmed the lower
court's decision on January 29, 1982. Dava filed a
motion for reconsideration of the said decision
contending that the lower court had no jurisdiction to try
the case. On April 27, 1982, the Court of Appeals
reversed and set aside its decision and issued a
resolution the dispositive portion of which reads:
WHEREFORE, as prayed for, our decision is
hereby reconsidered and set aside, and
another judgment shall be entered annulling
the proceedings in the court a quo without
prejudice to the refiling of the charges with the
proper court. (Rollo, pp. 35-36.)
Consequently, the case was refiled with the Regional
Trial Court of Pampanga, Branch 47 at San Fernando
as Criminal Case No. 2422. The information for
falsification of a public document reads as follows:
That on or about the 12th day of April, 1978,
and for sometime prior thereto, in the
municipality of San Fernando, province of
Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused MICHAEL T. DAVA, a private
individual, did then and there willfully,
unlawfully and feloniously falsify or cause to be
falsified, a Non-Professional Driver's license
with Serial No. 2706887 covered by Official
Receipt No. 0605870, dated January 24, 1978,
a public document, by making it appear that the
signatories therein who are officials of the
Pampanga LTC Agency participated in the
preparation thereof, when in truth and in fact
they did not so participate and the accused
made use of the same knowing it to be falsified.
ALL CONTRARY TO LAW.
At the trial, the prosecution presented Antonio Roxas
who testified on how he saw Dava driving a car and
that, knowing that Dava's license had been confiscated
as a result of the filing of the homicide and serious
physical injuries through reckless imprudence case, he
thereafter sought the assistance of then Minister Enrile
in apprehending Dava for driving without a
license.19 For his part, Domingo Lising, who
apprehended Dava, narrated in court how he first saw
Daya driving a car along Banahaw and N. Domingo
Sts. in Quezon City until he finally confronted Dava at
the vicinity of the Araneta Coliseum and confiscated his
driver's license. As earlier stated, he conclude that the
driver's license shown to him by Dava was fake
because he noticed that, when compared with the
license attached to record of the criminal case filed
against Dava, the license confiscated bore a different
signature and date of birth.20
Daniel Severino, a sergeant of the Mandaluyong
police, testified that he investigated the traffic incident
along Shaw Boulevard on October 19, 1975 which
involved Dava and the two relatives of Antonio Roxas.
He himself confiscated Dava's no professional driver's
license No. 1474427 which he later turn over to the
fiscal's office.21
In the course of Severino's testimony, the defense
counsel informed the court that, upon a resolution of
the Court of Appeals, Dava was allowed by the lower
court having jurisdiction over Criminal Case No. 16474
to withdraw his driver's license 1474427 from the
records of said case.22 When confronted by the court,
Dava volunteered that he withdrew said license in
December, 1982 and surrendered it to the BLT
Western District Office so that he could renew his
license.23 Hence, the evidence presented before the
Court was a mere xerox copy of said license24 which
also bears a notation that Dava received original
driver's license and its receipt on December 15, 1982.25
Victor Martin, who had been the head of the San
Fernando Pampanga branch of the BLT and whose
name appears registrar thereof in official receipt No.
0605870 which was supposed to be attached to Dava's
driver's license No. 270688 admitted that the form of
the said license was genuine although he could not tell
whether its contents were likewise genuine because it
was "opened" and "spliced." 26 He asserted, however,
that since the said form "did not emanate" from his
office and "a facsimile was not printed" over his name,
said license was "not OK".27
Martin said that he was informed by the property
section of the BLT regional office that the number in the
license was one of "the numbers requisitioned by (the)
Angeles City agency."28 He affirmed that drivers license
No. 2706887 "was not issued by (their)
agency"29 although when recalled to the stand, he
admitted that the "2L" filled in the space for "Agency
Code No." on the face of license No. 2706887 referred
to the San Fernando agency.30 Martin also confirmed
the genuineness of official receipt No. 0605870
although it was his assistant who signed it for him 31 and
affirmed that the amount of P10.00 indicated therein
had been collected and received by his office.32
Lawyer Jose Francisco testified that he went to the
Angeles City office of the BLT to see its chief and
inquire about the number of driver's license issued to
Dava and whether said office had indeed issued them.
According to him, the head of the office, Caroline
Vinluan, advised him to verify from the index card in the
possession of the License Division head whether the
Angeles City agency had indeed issued Dava's
license.33 Thereafter, the officer-in-charge of the
License Division of the BLT in East Avenue, Quezon
City, Leonardo R. Medina, issued a certification dated
December 24, 1979 to the effect that non-professional
drivers license No. 2706887 in the name of Dava was
"not registered in (their) Index Card."34
Francisco also informed the court that Carolino
Vinluan, the former head of the Angeles City BLT
agency, had died on May 12, 1980.35 He offered in
evidence Vinluan's death certificate as Exh. J.
Another evidence presented by the prosecution was
the transcript of stenographic notes of the testimony of
Carolino Vinluan which was taken on January 8, 1980
at the trial of Criminal Case No. Q-10759 before the
then Court of First Instance Rizal, Branch V at Quezon
City. It was marked as Exh. K said exhibit was part of
the record of Criminal Case No. 10759 which was
transmitted to the Regional Trial Court Pampanga.36
The defense presented only one witness: Felizardo
Manalili. A friend of Dava and his former co-trainee at
the Sandoz Philippines, a pharmaceutical firm, Manalili
testified that Dava quested him to secure a driver's
license for him because he had none. Manalili went to
the San Fernando office of the Land Transportation
Commission (LTC) where he used to secure own
license. At the LTC branch office, he was
"approached"37 the fixers who roamed around the
compound. When he as them how much it would cost
to secure a driver's license, he told that it would amount
to P70 .00.38 He agreed to pay amount and gave the
fixers the personal data of Dava.39
After an hour, the fixers gave Manalili the license which
was inside a plastic jacket. (Manalili identified the
license as Exh. B.) He examined it and found out that
it looked "like a genuine and authentic driver's license"
to him. The license, which opened and unsealed, bore
a signature in the portion which showed the name
Romeo Edu and contained all the personal data of
Dava. Because it did not bear the signature of Dava
Manalili immediately gave the license to Dava and told
him to sign it immediately. Dava did so in Manalili's
presence.40
On March 22, 1984, the lower court rendered a
decision41 finding that the license in question was "fake
or spurious", that was not duly issued by any proper
government licensing age and that the accused directly
participated in the commission of the falsification or
caused said falsification. The court took into account
the facts that Dava was "in dire need' of a license
because of his work as a detailman; that he received
his genuine license from the court only on December
15, 1982, and that Dava himself personally requested
his friend, Manalili, to secure the license for him. It
arrived at the conclusion that since Dava was the
possessor or user of the fake license, he himself was
the forger or the one who caused its forgery or
falsification. The dispositive portion of the decision
reads:
IN VIEW OF THE FOREGOING, this Court
finds the accused Michael T. Dava guilty
beyond reasonable doubt, as principal of the
came of Falsification of a Public Document, as
defined and penalized under the provisions of
Article 172 of the Revised Penal Code, and
considering the absence of any mitigating or
aggravating circumstance, hereby sentences
him under the Indeterminate Sentence Law to
suffer an indeterminate imprisonment of one
(1) year and eight (8) months of prision
correecional as minimum, to four (4) years,
nine (9) months and ten (10) days of prision
correccional as maximum; and to pay a fine of
Two Thousand Five Hundred (P2,500.00)
Pesos, Philippine Currency, plus the costs of
this suit.
IT IS SO ORDERED.
Dava appealed to the then Intermediate Appellate
Court,42 which on September 30, 1985 affirmed in in
toto the decision of the trial court. On February 27,
1986, the appellate court denied Dava's motion for the
reconsideration of said decision finding that no new
grounds had been raised therein. Hence, the instant
petition for review on certiorari.
Petitioner assails herein the reliance of the courts
below on the testimony of Carolino Vinluan on the
ground that being a part of the annulled proceedings in
Criminal Case No. Q-10759, it may not be considered
as admissible in evidence as it cannot qualify as a
"testimony at a former trial" under the provisions of
Section 41, Rule 130 of the Rules of Court.
We find petitioner's contention to be meritorious. The
resolution of the then Intermediate Appellate Court in
CA-G.R. No. 24312-CR, expressly annulled the
proceedings had in Criminal Case No. Q-10759 for lack
of jurisdiction of the Quezon City court over the case.
That ruling is founded on solid jurisprudence. We had
time and again held that in the absence of proof that
the party raising the issue of lack of jurisdiction is
barred by estoppel,43 a decision rendered by a court
without jurisdiction is a total nullity.44 Being worthless in
itself, all the proceedings founded upon it are equally
worthless.45 Hence, the testimony of Vinluan is not only
inadmissible in evidence but may well be considered
as totally nonexistent.
With the testimony of the late Carolino Vinluan out of
the way, is there sufficient evidence to warrant the
conviction of petitioner for the crime charged?
The information specifically charges the petitioner with
having made it appear in his driver's license No.
2706887 that "officials of the Pampanga LTC agency
participated" in in-preparation and with having used the
said driver's license knowing that it was falsified. The
charges therefore are found on the provisions of Article
172 (1) of the Revised Penal Code which punishes any
private individual who shall commit any the falsification
enumerated in Article 171 specifically paragraph 2
thereof which penalizes the act of causing it to appear
that persons (public officials) have participated in any
act proceeding when they did not in fact so participate.
The information also charges Dava with having
knowingly used a false document under the last
paragraph of Article 172.
The evidence at hand proves that petitioner,
misrepresenting that he had no driver's license, asked
his friend, Manalili, to secure one for him. Sometime in
November, 1976, Manalili, who used to get his own
driver's license in San Fernando, Pampanga, was able
to secure petitioner's driver's license No. 2706887
through fixers at the Land Transportation Commission
(LTC) agency in said locality.46 On January 24, 1978,
petitioner renewed his license at the said office by
paying the amount of P10.00 for which he was issued
official receipt No. 0605870.47
In the renewal of drivers' license, the practice then was
simply to present an official receipt showing that at the
previous year the licensee had paid for his driver's
license to any agency of the LTC, and to pay the
renewal fee. As long as the transaction did not involve
the issuance of "another form," a driver did not have to
fill up an application form for the renewal of a license.
The said agency would then issue an official receipt
evidencing the renewal of the license but the driver's
license itself would not be changed.48
Thus. on January 24,1978, when driver's license No.
2706887 together with official receipt No.
86432149 were presented to the San Fernando LTC
agency, the personnel therein issued official-receipt
No. 0605870 in the name of petitioner. Although the
receipt was not personally signed by office registrar
Victor Martin but by his assistant, the receipt50 was
genuine and the amount indicated therein was actually
paid to and collected by the San Fernando
agency.51 The driver's license itself may not have been
issued by said agency52 but its form was likewise
genuine. However, according to Martin, it was 'not OK'
because it "did not emanate" from his office and "a
facsimile was not printed over" his name
therein.53 Moreover, according to the officer-in-charge
of the license Division of the Bureau of Land
Transportation in East Avenue, Quezon City, non-
professional driver's license No. 2706887 in the name
of Michael Dava Tolosa "is not registered" in their index
card.54
Hence, while there is no doubt that driver's license No.
2706887 was a spurious one, the evidence do not
pinpoint the petition as the actual falsifier.
Unfortunately, however, there are pieces of evidence
which prove beyond reasonable doubt at he caused the
falsification and made use of the falsified driver's
license knowing it to be so.
The elements of the crime of using a falsified document
in transaction (other than as evidence in a judicial
proceed penalized under the last paragraph of Article
172 are following: (a) the offender knew that a
document was falsified by another person; (b) the false
document is embraced in Article 171 or in any of
subdivisions Nos. 1 and 2 of Article 172; (c he used
such document (not in judicial proceedings), and (d)
the use of the false document caused damage to
another or at last it was used with intent to cause such
damage.55 Except for last, all of these elements have
been proven beyond reason doubt in this case.
It is not disputed that it was petitioner himself who
requested Manalili to get him a license. He
misrepresented to Manalili that he has not at any time
been issued a driver's license.56 Through this
misrepresentation and capitalizing on Manalili
awareness of the dire necessity of obtaining a driver's
license the shortest time possible to enable petitioner
to perform duties as detailman, petitioner was able, in
a very subtle clever manner, to induce Manalili to deal
with "fixers" in securing the subject driver's license. For
indeed, there was no way Manalili could obtain a
drivers license in so short a without having to deal with
"fixers." Thus, as petitioner calculated, Manalili, who
appeared to have been motivated by a sincere desire
to help a friend, did not hesitate to deal with three fixers
whom he knew were not employees of the LTC to
whom he paid P70.00 for the license even if the legal
fee then was only P15.00.57 As it was in truth petitioner
who induced and left Manalili with no choice but to seek
the aid of fixers, the fact that it was Manalili and not
petitioner who dealt directly with said fixers cannot
exculpate petitioner from the charge of falsification. He
is, beyond reasonable doubt, a principal by inducement
in the commission of said crime.
Petitioner cannot feign ignorance of the spurious
character of his second driver's license No. 2706887.
Having already obtained a driver's license, he knew
that it was not legally possible for him to secure another
one. Otherwise, there would have been no need for him
to misrepresent to his friend Manalili that he was not
then a holder of a driver's license. But even with this
misrepresentation, petitioner cannot even begin to
believe that Manalili would be able to secure a driver's
license through legal means in about an hour's
time.58 The patent irregularity in obtaining driver's
license No. 2706887 was more than sufficient to
arouse the suspicion of an ordinary cautious and
prudent man as to its genuineness and authenticity. In
fact, Manalili testified that he himself was surprised
when the fixer handed to him the plastic jacket of the
driver's license of Michael Dava on November 4, 1976,
a few hours after he had sought the fixer's
assistance.59 In those days, all plastic jackets
emanated from the LTC Central Office, which
accounted for the delay in the release of the license
applied for. Under these circumstances, no
"reasonable and fairminded man" would say that
petitioner did not know that his license was a fake.60
A driver's license is a public document within the
purview of Articles 171 and 172. The blank form of the
drivers license becomes a public document the
moment it is accomplished.61 Thus, when driver's
license No. 2706887 was filled up with petitioner's
personal data and the signature of the region of the
San Fernando LTC agency was affixed therein, even if
the same was simulated, the driver's license became a
public document.
The third element of use of the falsified document is
proven by the fact that when petitioner was
apprehended by Lising on April 12, 1978 it was in his
possession and it was what he presented Lising to
show that he had a license. Because he was a
detailman who did his job with the use of a car, it is
probable that from November 4, 1976 (its date of
issuance) until April 12, 1978, petitioner used driver's
license No. 2706887.
The driver's license being a public document, proof of
the fourth element of damage caused to another
person or at least an intent to cause such damage has
become immaterial. In falsification of public or official
documents, the principal thing being punished is the
violation of the public faith and the destruction of the
truth proclaimed therein.62
In his attempt at exculpation, petitioner asserts that the
following ruling in People vs. Sendaydiego,63 should be
applied in his favor:
The rule is that if a person had in his
possession a falsified document and he made
use of it (uttered it), taking advantage of it and
profiting thereby, the presumption is that he is
the material author of the falsification. This is
especially true if the use or uttering of the
forged documents was so closely connected in
time with the forgery that the user or possessor
may be proven to have the capacity of
committing the forgery, or to have close
connection with the forgers, and therefore, had
complicity in the forgery (U.S. vs. Castillo, 6
Phil. 453; People vs. De Lara, 45 PMI. 754;
People vs. Domingo, 49 Phil. 28: People vs.
Astudillo, 60 Phil. 338; People vs. Manansala,
105 Phil. 1253). In the absence of a
satisfactory explanation, one who is found in
possession of a forged document and who
used or uttered it is presumed to be the forger
(Alarcon vs. Court of Appeals, L-21846, March
31, 1967, 19 SCRA 688; People vs. Caragao,
 L-28258, December 27, 1969, 30 SCRA 993).
(Emphasis supplied.)
We agree with the petitioner that the presumption
enunciated in the Sendaydiego case is not absolute as
it is subject to the exception that the accused should
have a satisfactory explanation why he is in
possession of a false document.64 His explanation,
however, is unsatisfactory as it consists mainly in
passing the buck to his friend, Manalili. As stated
above, Manalili himself could not have acted on his
own accord without the prodding of petitioner.
We cannot help but comment on petitioner's
allegations on the role of fixers in government
agencies. To him, a fixer is a "necessary evil" who
could do things fast for the right amount. He is "not
necessarily involved in the commission of forgery or
falsification of official documents" and he shares his
fees with "insiders."65
Fixers indeed appear as undetachable fixtures in
government licensing agencies. Why they proliferate is
a sad commentary not only on our bureaucracy but
also on our own people. While not all fixers are
engaged in illegal activities for some simple serve as
"facilitators," they nonetheless provide sources for
exploitation of the unknowing common people who
transact business with the government and for
corruption of the gullible government employees. Their
unwanted presence must be dealt with accordingly and
the soonest this is undertaken by our government
agencies the better for all of us.
WHEREFORE, the decision of the respondent
appellate court is hereby affirmed. Let a copy of this
decision be served on that Department of
Transportation and Communication. Cost against the
petitioner.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ.,
concur.
On USING FICTITIOUS NAME
G.R. No. L-63817 August 28, 1984
CORAZON LEGAMIA y RIVERA, petitioner,
vs.
INTERMEDIATE APPELLATE COURT AND
PEOPLE OF THE PHILIPPINES, respondents.
Felipe O. Pascual for petitioner.
The Solicitor General for respondent Appellate Court.
ABAD SANTOS, J.:
This is an appeal by certiorari to review and reverse a
decision of the Intermediate Appellate Court.
In the defunct Court of First Instance of Manila,
Corazon Legamia was accused of using an alias in
violation of Commonwealth Act No. 142, as amended.
The information against her reads:
That on or about November 4th, 1974,
and for sometime prior and subsequent
thereto, in the City of Manila,
Philippines, the said accused did then
and there wilfully and unlawfully use
the substitute or alias name CORAZON
L. REYES, which is different from
Corazon Legamia y Rivera with which
she was christened or by which she
has been known since childhood, nor
as a pseudonym for literary purpose
and without having been previously
authorized by a competent Court to do
so; that it was discovered only on or
about November 4th, 1974. (Rollo, pp.
11-12.)
She was convicted by the trial court which sentenced
her to an indeterminate prison term of only (1) year, as
minimum, to two (2) years, as maximum; to pay a fine
a fine of
P5,000.00, with subsidiary imprisonment; and to pay
the costs. The trial court recommended, however, that
she be extended executive clemency. On appeal to the
Intermediate Appellate Court, the sentence was
affirmed in toto. Hence the instant petition.
The facts:
Corazon Legamia lived with Emilio N. Reyes for 19
years from November 8, 1955 to September 26, 1974,
when Emilio died. During their live-in arrangement they
produced a boy who was named Michael Raphael
Gabriel L. Reyes. He was born on October 18, 1971.
From the time Corazon and Emilio lived together until
the latter's death, Corazon was known as Corazon L.
Reyes; she styled herself as Mrs. Reyes; and Emilio
introduced her to friends as Mrs. Reyes.
Emilio was Branch Claim Manager Naga Branch, of the
Agricultural Credit Administration when he died. On
October 29, 1974, or shortly after Emilio's death,
Corazon filed a letter in behalf of Michael with the
Agricultural Credit Administration for death benefits.
The letter was signed "Corazon L. Reyes." The
voucher evidencing payment of Michael's claim in the
amount of P2,648.76 was also signed "Corazon L.
Reyes."
For using the name Reyes although she was not
married to Emilio, Felicisima Reyes who
was married to Emilio filed a complaint which led to
Corazon's prosecution. Parenthetically, the amount
paid to Michael is "equivalent to 2/5 of that which is due
to each legitimate child in accordance with the
provisions of the Civil Code" per advice given by Atty.
Diomedes A. Bragado of the Agricultural Credit
Administration to Felicisima. (Rollo, pp. 14-15.)
The law:
Commonwealth Act No. 142 provides in Section 1:
Section 1. Except as a pseudonym
solely for literary, cinema, television,
 radio or other entertainment purposes
and in athletic events where the use of
pseudonym is a normally accepted
practice, no person shall use any name
different from the one with which he
was registered at birth in the office of
the local civil registry, or with which he
was baptized for the first time, or in
case of an alien, with which he was
registered in the Bureau of Immigration
upon entry; or such substitute name as
may have been authorized by a
competent court: Provided, That
persons, whose births have not been
registered in any local civil registry and
who have not been baptized have one
year from the approval of this act within
which to register their names in the civil
registry of their residence. The name
shall comprise the patronymic name
and one or two surnames. (As
amended by R.A. No. 6085.)
The issue:
Did the petitioner violate the law in the light of the facts
abovestated?
The resolution:
It is not uncommon in Philippine society for a woman to
represent herself as the wife and use the name of the
man she is living with despite the fact that the man is
married to another woman. The practice, to be sure, is
not encouraged but neither is it unduly frowned upon.
A number of women can be Identified who are living
with men prominent in political, business and social
circles. The woman publicly holds herself out as the
man's wife and uses his family name blithely ignoring
the fact that he is not her husband. And yet none of the
women has been charged of violating the C.A. No. 142
because ours is not a bigoted but a tolerant and
understanding society. It is in the light of our cultural
environment that the law must be construed.
In the case at bar, Corazon had been living with Emilio
for almost 20 years. He introduced her to the public as
his wife and she assumed that role and his name
without any sinister purpose or personal material gain
in mind. She applied for benefits upon his death not for
herself but for Michael who as a boy of tender years
was under her guardianship. Surely, the lawmakers
could not have meant to criminalize what Corazon had
done especially because some of them probably had
their own Corazons.
WHEREFORE, the decision under review is hereby set
aside; the petitioner is acquitted of the charge. No
costs.
SO ORDERED.
Concepcion, Jr., Escolin and Cuevas, JJ., concur.
Makasiar (Chairman) and Guerrero, JJ., are on leave.
Separate Opinions
AQUINO, J., concurring:
I concur especially for the sake of the son. But the
practice should not be encouraged. If there is no
impediment, common-law husbands must marry their
wives.
Separate Opinions
AQUINO, J., concurring:
I concur especially for the sake of the son. But the
practice should not be encouraged. If there is no
impediment, common-law husbands must marry their
wives.
ART. 177- USURPATION
(1) G.R. No. L-9405 December 24, 1914
THE UNITED STATES, plaintiff-appellee,
vs.
ADEL HERNANDEZ, ET AL., defendants-appellants.
Lucas Paredes for appellants.
Attorney-General Avanceña for appellee.
ARELLANO, C.J.:
Adel Hernandez, in order to enjoy a girl of 15 years,
named Elena M. Santos, had a talk with the other
defendant, Juan Bautista; between them they
concocted a plan and then he proposed marriage to the
girl. She agreed and was told to come to a house, No.
104 Calle Isaac Peral, in Ermita. The girl left the school
she was attending (Meisic Intermediate) to keep the
engagement, and there Juan Bautista, under the name
of Aniceto de Castro, a fictitious name, made out that
he was a Protestant minister and before two women
who pretended to be witness he simulated the
performance of a marriage ceremony. Afterwards he
certified, issuing the suitable document, that Adel
Hernandez and Elena M. Santos "were legally united
in holy matrimony by me" (says Bautista) "in the
presence of Maxima Rambel and Manuela Agustin."
Bautista also certified, over the name of "Aniceto de
Castro, Protestant minister," that "the contracting
parties were of the age fixed by the law for contracting
it." (Exhibit A.) In the certificate the age of the girl was
set down as 20 years when she was only 15.
After the ceremony had been performed, Elena M.
Santos returned to her parents' house and did not join
Adel Hernandez. According to her, she went on thus
for several months. Both before and after the ceremony
in Calle Isaac Peral, Adel Hernandez visited her in her
house as a teacher and as such was received by the
girl's mother. But during the lesson one afternoon, her
daughter, so that the latter felt compelled to declare
that they were married, showing Exhibit A.
Convinced that they were married, the mother received
Adel Hernandez in her house, and Adel Hernandez and
Elena M. Santos lived therein as a married couple. So
they continued for two years, but Elena did not
conceive of Adel nor did they have any offspring. But
on March 1, 1912, Adel Hernandez told Elena that he
was going to enter a college in Calle Almansa to
continue his studies. Elena went to visit him in said
college twice, but the second time she did not find him
there. He had gone to the provinces. 1awphil.n et
He returned from the provinces and Elena,
accompanied by her mother, had an interview with him
and finally made an agreement of separation before a
lawyer who drew up the grounds therefor, which were
signed by both of them in a notarial instrument in the
presence of two witnesses; but when the lawyer saw
Exhibit A he then learned that it was not a genuine but
a simulated marriage.
The matter having been reported to the secret service,
the assistant chief thereof, George W. Marshall,
testified in this case that on July 1, 1913, he conducted
the investigation regarding the false marriage
certificate and Adel Hernandez told him that he had in
fact taken Elena on January 31, 1909, to the house at
No. 104 Calle Isaac Peral before Juan Bautista, and
when asked why he had not taken her to real minister
of some religion to get married, he replied that Elena's
parents were forcing him by threats to marry her, and
what he did was to reach an understanding with a
friend of his, Juan Bautista, in order to make it appear
that he had got married; he did not apply to a real
minister of religion, because his parents had not given
their consent to his marriage with the girl; that he had
lived with her some six months; that that house, No.
104 Calle Isaac Peral, belonged to his women friends
who figure as witnesses in Exhibit A. With reference to
Juan Bautista, Marshall stated that he was examined
by him, Marshall, on the afternoon of the same day,
July 1, 1913, regarding the document Exhibit A, and
Bautista told him that he had written it at the request of
Adel Hernandez, who "asked him to make out these
document so that he might have carnal intercourse with
that girl;" that he signed "Aniceto de Castro, Protestant
minister," because his friend Adel Hernandez begged
him to make out the document so that, as has been
said, "he might have complete liberty with that woman"
and to put down everything he might wish.
Adriano Herrera, who acted as interpreter in these
declarations, corroborated them and added that "Adel
Hernandez declared the document to be false, and that
he had made it out as such solely in order to deceive
the injured girl," and that Juan Bautista declared that
he was the author of the document and had made it out
in order to please his intimate friend Adel Hernandez,
"so that the latter might exercise complete liberty over
Elena M. Santos by demonstrating that they were
joined in marriage."
Hence the criminal complaint filed on July 3, 1913,
drawn up in these terms: That Adel Hernandez, by
means of false promises of marriage and availing
himself of a simulated ceremony, seduced Elena Miclat
Santos, a virgin over 12 and under 23 years, and
succeeded in having carnal intercourse and in living in
marital relations with her; that in the commission of this
crime, Juan Bautista, conspiring and confederating
with Adel Hernandez, took part as a principal through
acts of cooperation without which the crime could not
have been consummated, simulating and pretending to
be a Protestant and a minister authorized to perform
marriage ceremonies, and simulating that he was
performing a marriage ceremony between said Adel
Hernandez and Elena Miclat Santos in order thus the
more easily to deceive said injured girl and cause her
to live in marital relations, as she in fact did, with the
defendant Adel Hernandez.
The Court of First Instance of the city of Manila
sentenced Adel Hernandez, as guilty of seduction, to
four months of arresto mayor, to pay one-half of the
costs of the trial, to endow the injured girl with the sum
of P500 Philippine currency, or in case of insolvency to
the equivalent subsidiary imprisonment, and to
recognize and maintain the offspring in due time, it
there were any. It sentenced Juan Bautista, as
accomplice of the foregoing convict, to a fine of 325
pesetas, or in case of insolvency to suffer subsidiary
imprisonment according to law, and to pay the other
half of the cost. Both defendants appealed.
The first thing they allege, with respect to procedure, is
that the lower court erred in denying their petition for
the transfer of the hearing in the case to another day.
This ground of error cannot be sustained. The right of
the accused, after their plea, is to request a period of
two days at least, in order to prepare their defense.
They pleaded "not guilty," according to the record of the
case, of July 7, 1913. On the 15th next subsequent,
they acknowledged summons to appear for trial, which
was to take place on the 22d. They had sufficient time
itc- alf
to prepare their evidence, and they did not request any
time to prepare their defense until the trial had actually
commenced.
With respect to the merits of the case, it is contended
that it is erroneous to affirm that the accused Adel
Hernandez committed seduction on the person of
Elena M. Santos. But there is nothing clearer that that
this defendant, by means of deception, succeeded in
enjoying the girl — the fact is evident not only from the
testimony of witnesses, but also from documents
demonstrating the deception and by facts not denied or
controverted at the trial by the defendant himself, that
he had enjoyed the girl by living in marital relations with
her only when her mother was informed from the false
certificate of marriage, issued by a pretended
Protestant minister, that they were married. With
reference to the responsibility of the defendants, the
part of accomplice cannot be attributed to Juan
Bautista; for he was a principal; it was really he who
supplied the essential element of deception without
which there would not have existed in the present case
the crime of seduction, "cooperating in the commission
of the act by another act without which it would not have
been accomplished." (Penal Code, art. 13, No. 3.)
But furthermore, as the prosecuting attorney remarks
in this instance, he cooperated in the commission of the
act by an act that in itself constitutes another crime. He
is thus really on a par with one who cooperates in the
commission of a fraud by means of the falsification of
a document which in itself is another crime. The law
(Penal Code, art. 382) says:
Anyone who, without legal right or legitimate
cause, shall perform acts properly pertaining to
any person in authority or a public officer,
assuming an official character, shall be
punished with the penalty of prision
correccional in its minimum and medium
degree.
Without legal right Juan Bautista performed an act
properly pertaining to a person in authority, assuming
the official character of a minister of a religious sect in
order to legalize a marriage, and issuing a certificate,
signed moreover, with a false name under the
predication, in an additional signature, of being a
Protestant minister. The crime charged in the
information is, therefore, the complex one of seduction
by means of usurpation of functions Hernandez was
likewise a coprincipal by inducement to this crime
actually committed by Bautista. Marshall said that it
appeared from his investigation that Bautista made out
the marriage certificate at the instance of an intimate
friend of his called Adel Hernandez, and that the latter
admitted that he had made that request because he
wanted to live with a female cousin of his — "he
reached an understanding with an intimate friend of his
called Juan Bautista, in order to make out this
document, so as to make it appear that he had got
married" (p. 29). "I acceded to this request," said
Bautista in his turn, "and I made out the document; the
reason was because this friend of mine, Adel
Hernandez, begged me to make out the document so
that he might have complete liberty with that woman
and he asked me to put down everything I might wish."
Adriano Herrera testified that Adel Hernandez stated,
as the previous witness has said, that the document
was false and that he had made it out solely as such in
order to deceive the injured girl; and that Juan Bautista
stated that he made out this document only in order to
please Adel Hernandez who had told him of his desire
to possess Elena M. Santos.
Those who directly force or induce others to
commit a crime are considered as principals.
(Penal Code, art. 13.)
Inducement exist if the compact, the
command, or the advice is of such a nature that
without its concurrence the crime would not
have been committed. (Decision of December
2, 1902.)
Fixing of individual responsibility is only proper
when between the proposal and the acts of
each defendant there is the necessary
independence for weighing them separately,
not when there exists unity of action and mutual
assistance. (Decision of October 4, 1901.)
This being so, according to article 89 of the Penal
Code, only the penalty for the more serious crime will
be imposed, to be applied in its maximum degree,
which, in this case, is the penalty for the crime of
usurpation of functions — that is, the maximum degree
of prision correccional in its minimum and medium
degrees — two years eleven months and eleven days
to four years and two months.
Both the trial court and the prosecuting attorney in this
instance agree that the defendant Adel Hernandez
must recognize and support the offspring if in due time
any should be had. But Elena M. Santos, the injured
girl, testified in these words:
Q. How long did you and Adel live
together in your mother's house? — A.
Over two years.
Q. Did Adel Hernandez live there, sleep
there, and also eat there? — A. Yes,
sir.
Q. Did you live a life of complete marital
relations? — A. Yes, sir.
Q. Were you ever pregnant? — A. No.
sir.
Q. So you haven't any offspring? — A.
No, sir.
Q. When did you and Adel separate?
— A. The year 1912; he asked my
permission to enter a college in order to
finish his course of study. I went to the
college twice, and the second time I
went I didn't find him any more.
Q. And since then he hasn't returned to
your house? — A. No, sir. (p. 24.)
This admitted, there is no ground for decreeing the
forcible recognition of the offspring that in the year
1912 or since July 3, 1913, the date of the complaint,
the injured girl could or might have had.
On August 4 last Juan Bautista withdrew his appeal
and his withdrawal was entered on the record on the
6th next following. The appeal actually pending is
solely that of Adel Hernandez.
On the foregoing grounds, Adel Hernandez is
sentenced to two years eleven months and eleven
days of prision correccional, to endow the injured girl
with P500 Philippine currency, and to pay one-half of
the costs.
Torres, Johnson, Carson, Moreland and Araullo, JJ.,
concur.
(3) G.R. Nos. 186739-960 April 17, 2013
LEOVEGILDO R. RUZOL, Petitioner,
vs.
THE HON. SANDIGANBAYAN and the PEOPLE OF
THE PHILIPPINES, Respondents.
DECISION
VELASCO, JR., J.:
This is an appeal seeking to nullify the December 19,
2008 Decision1 of the First Division of the
Sandiganbayan in Criminal Case Nos. SB-08-CRIM-
0039 to 0259, which convicted Leovegildo R. Ruzol
(Ruzol), then Mayor of General Nakar, Quezon, of
Usurpation of Official Functions penalized under Article
177 of the Revised Penal Code (RPC).
The Facts
Ruzol was the mayor of General Nakar, Quezon from
2001 to 2004. Earlier in his term, he organized a Multi-
Sectoral Consultative Assembly composed of civil
 society groups, public officials and0042 concerned15 Jan. 2004 300 cubic m or 3,000 board Edmundo dela
stakeholders with the end in view of regulating and ft good lumber Vega
monitoring the transportation of salvaged forest
0043 Among
products within the vicinity of General Nakar. 15 Jan. 2004 600 board ft good lumber David Villareal, Jr.
those present in the organizational meeting
0044 were 15 Jan. 2004 1,050 board ft good lumber Romeo Sabiduria
Provincial Environment and Natural Resources Officer
(PENRO) Rogelio Delgado Sr. and Bishop0045 12 Jan. 2004
Julio Xavier 1,000 board ft malaruhat Nestor Astejada
Labayen, the OCD-DD of the Prelature of Infanta
0046 09 Jan. 2004 4,000 board ft good lumber Naty Orozco
Emeritus of the Catholic Church and Chairperson of (assorted sizes)
TIPAN, an environmental non-government
0047
organization that operates in the municipalities 08
of Jan. 2004 700 board ft lauan Winnie Aceboque
General Nakar, Infanta and Real in Quezon 0048province.
05 Jan. 2004 500 board ft lauan Edmundo dela
During the said assembly, the participants agreed that Vega
to regulate the salvaged forests products, the Office of
the Mayor, through Ruzol, shall issue 0049 a permit 07to Jan. 2004 4 x 5 haligi Mercy Vargas
transport after payment of the corresponding
0050 fees 06to Jan. 2004 good lumber Mario Pujeda
the municipal treasurer.2
0051 21 Oct. 2002 1,000 board ft sliced Conchita Odi
Consequently, from 2001 to 2004, two hundred twenty- lumber
one (221) permits to transport salvaged forest
0052products
21 Oct. 2002 400 board ft sliced lumber Lita Crisostomo
were issued to various recipients, of which forty-three
(43) bore the signature of Ruzol while the0053 28 Oct. 2002
remaining 450 board ft marang Agosto Astoveza
one hundred seventy-eight (178) were signed by his lumber
co-accused Guillermo T. Sabiduria (Sabiduria),
0054 then
08 Jan. 2003 300 board ft sliced lumber Edna E. Moises
municipal administrator of General Nakar.3 (assorted sizes)
0055 13 Jan. 2003 1,500 board ft sliced Dante Z. Medina
On June 2006, on the basis of the issued Permits to lumber (assorted sizes)
Transport, 221 Informations for violation of Art. 177 of
the RPC or for Usurpation of Authority 0056 16 Jan. 2003
or Official 400 board ft sliced lumber Johnny A. Astoveza
Functions were filed against Ruzol and Sabiduria, (assorted sizes)
docketed as Criminal Case Nos. SB-08-CRIM-0039 to
0057 27 Jan. 2003 7 pcs sliced lumber & 1 Sonny Leynes
0259. piece 18 roda
0058
Except for the date of commission, the description 14
of Feb. 2003 2,000 pcs trophy (wood Flordeliza Espiritu
forest product, person given the permit, and official carvings)
receipt number, the said Informations uniformly
0059 read:17 Feb. 2003 700 board ft sliced lumber Nestor Astejada
(assorted sizes)
That, on (date of commission) or sometime prior or
0060
subsequent thereto, in General Nakar, Quezon, 18 Feb. 2003
and 1,632 board ft hard wood, Arthur/ Lanie
within the jurisdiction of this Honorable Court, the kisame & sanipa Occeña
above-named accused Leovegildo R. 0061 Ruzol and 20 Feb. 2004 126 pcs lumber Lamberto
Guillermo M. Sabiduria, both public officers, being then Aumentado
the Municipal Mayor and Municipal Administrator,
respectively, of General Nakar, Quezon, 0062 taking3 March 2003 450 board ft hard wood Nestor Astoveza
advantage of their official position and committing the (assorted sizes)
offense in relation to their office, conspiring
0063 and
6 March 2003 160 pcs sliced lumber Remedios Orozco
confederating with each other did then and there (assorted sizes)
willfully, unlawfully and criminally, issue permit to
transport (description of forest product)0064 10 March 2003
to (person 1,500 board ft malaruhat Nestor Astejada
given the permit) under O.R. No. (official receipt (assorted sizes)
number) under the pretense of official 0065position and
11 March 2003 900 board ft sliced lumber Fernando Calzado
without being lawfully entitled to do so, such authority (assorted sizes)
properly belonging to the Department of Environment
and Natural Resources, to the damage and 0066prejudice
13 March 2003 1,408 board ft hard wood Nestor Astejada
of the of the government. (assorted sizes)
0067 20 March 2003 90 pcs. sliced lumber Remy Orozco
CONTRARY TO LAW.4 (assorted sizes)
0068 21 March 2003 90 pcs. sliced lumber Rene Francia
The details for each Information are as follows:5 (assorted sizes)
0069 25 March 2003 500 board ft lumber Thelma Ramia
ate of Description of Forest Person Given the Official (assorted sizes)
ommission Product Permit Receipt
0070 26 March 2003
No. 1 pc. 60 x 75 bed (narra) Roy Justo
finished product
0 Jan. 2004 1,000 board ft malaruhat/ David Villareal Jr. 1623446
marang 0071 14 April 2004 95 pcs. kalap (9 ft.); 6 pcs. Anita Solloza
post (10 ft.) & 500 pcs.
6 Jan. 2004 600 board ft lawaan Pepito Aumentado 1623463 Anahaw
5 Jan. 2004 100 pcs. malaruhat 0072
Francisco Mendoza 1708352
08 April 2004 460 board ft lumber Remy Orozco
(assorted sizes) (assorted sizes)
4 April 2004 69 pcs. sliced lumber 0108
Dindo America
08 Aug. 2003
3651101
4.8 cubic ft. Amlang Rosa Turgo
(assorted sizes) woods
3 April 2003 870 board ft hard lumber 0109
Amado Pradillada
12 Aug. 2003
3651268
788 Board ft. cut woods Maria Teresa
(assorted sizes) Adornado
4 April 2003 400 board ft lumber 0110
Romy Buendicho
25 Aug. 2003
3651237
500 board ft. assorted Romy Buendicho
(assorted sizes) lumber
4 April 2003 400 board ft rattan 0111
Emmanuel28 Aug. 2003
3651324
2 sala sets Roy Justo
Buendicho
0112 29 Aug. 2003 456 pieces good lumber Marilou Astejada
0 April 2004 1,000 board ft good lumber Mylene Moises 3651335-C
(assorted sizes)
(assorted sizes)
0113 03 Sept. 2003 5 cubic ft softwoods Rosa Turgo
0 April 2004 500 board ft sliced lumber Carlito Vargas 3651336
(assorted sizes)
(assorted sizes)
0114 05 Sept. 2003 1,000 board ft. good Agustin Vargas
8 May 2003 72 x 78 bed (narra); 3 pcs. Fely Justo 3651519
lumber (assorted sizes)
60 x 75 bed (ling manok)
0115 08 Sept. 2003 80 pcs. wood post Peter Banton
& 1 pc. 48 x 75 ed (kuling
manok) finished product 0116 09 Sept. 2003 1 forward load (soft wood) Efifania V. Astrega
2 May 2003 294 board ft lumber 0117 11 Sept. 2003
Virgilio Cuerdo 1
3650927 forward load (assorted Noling Multi
species) Purpose Corp.
3 May 2003 43 pcs. sliced lumber Amando Lareza 3651783
(assorted sizes) 0118 11 Sept. 2003 500 board ft. good lumber Agustin Vargas
4 May 2003 750 board ft good lumber 0119
Wilma Cuerdo
12 Sept. 2003
3651529
900 board ft. good lumber Nestor Astejada
(assorted sizes)
5 May 2003 440 board ft lumber Marte Cuballes 3651532
0120 15 Sept. 2003 950 board ft. Malaruhat Edna Moises
5 May 2003 214 pcs. 2x6x7 or 1,500 Anneliza Vargas 3651531
board ft finished product 0121 16 Sept. 2003 14 pcs. Panel door Roy Justo
6 May 2003 57 pcs. sliced lumber 0122 17 Sept. 2003
Danny Sanchez 546 board ft. soft woods
3651585 Mr. Marquez
(assorted sizes)
0123 19 Sept. 2003 1,600 board ft. good Decembrano
7 May 2003 400 board ft cut woods Emy Francia 3651394
lumber (assorted sizes) Sabiduria
0 May 2003 300 board ft lumber 0124 22 Sept. 2003
Daisy Cuerdo 900 board ft. good lumber
3650943 Jeffrey dela Vega
0 May 2003 1,000 board ft lumber 0125
Lea Astoveza
22 Sept. 2003
3651161
1 Jeep load hard wood Federico Marquez
(assorted sizes)
0126 25 Sept. 2003 750 board ft. Malaruhat/ Virgilio Villareal
5 June 2003 130 pcs. or 1,500 board ft Jose Noly Moises Marang
3651809
lumber cut woods
0127 03 Oct. 2003 750 board ft. Malaruhat/ Virgilio Villareal
6 June 2003 300 board ft lumber Mercy Escaraga 3651169
Marang
8 June 2003 800 board ft good lumber 0128
Dante Medena
02 Oct. 2003
3651749
60 pcs. good lumber Nestor Astorza
(assorted sizes)
4 June 2003 28 pcs. good lumber Virgilio Cuerdo 1247102
(assorted sizes) 0129 03 Oct. 2003 1,600 board ft. good Virgilio Villareal
lumber (assorted sizes)
5 June 2003 190 pcs. good lumber Dante Medina 1247205
(assorted sizes) 0130 03 Oct. 2003 400 board ft. Malaruhat Amado Pradillada
(assorted sizes)
2 July 2003 800 board ft. good lumber Dante Medina 1247221
0131 03 Oct. 2003 1 full load (soft wood) Flordeliza Espiritu
2 July 2003 105 pcs. fresh cut lumber Emmanuel Lusang 1247167
(assorted sizes) 0132 03 Oct. 2003 6,342 board ft sticks Joel Pacaiqui
4 July 2003 Assorted sizes of good 0133
Alberto dela
03Cruz
Oct. 2003
1247172
6,090 board ft sticks Joel Pacaiqui
Lumber
0134 07 Oct. 2003 900 board ft. good lumber Mylene Moises
7 July 2003 Bulukan woods Conchita Ligaya (assorted sizes)
1247175
7 July 2003 6 pcs. Haligi 0135
Jane Bulagay
13 Oct. 2003
1247173
600 board ft. Lawaan Winnie Acebaque
(assorted sizes)
1 July 2003 700 board ft. cut woods Dominador Aveno 1247452
0136 13 Oct. 2003 1,700 board ft. Malaruhat Nestor Bautista
4 July 200 800 board ft. cut wood/ Dante Medina 1247180
(assorted sizes)
lumber
0137 13 Oct. 2003 300 board ft. Lawaan Trinidad Guerero
6 July 2003 600 board ft. cut lumber Rachelle Solana 1247182
(assorted sizes)
3 July 2003 1,200 board ft. hard lumber Necito Crisostomo 1247188
0138 16 Oct. 2003 700 board ft. Lawaan Federico Marquez
3 July 2003 700 board ft. good lumber Nestor Astejada 1247129
0139 17 Oct. 2003 4,602 board ft. good Nenita Juntreal
8 July 2003 959 board ft. cut lumber Necito Crisostomo 1247428
lumber (assorted sizes)
9 July 2003 600 board ft. lumber 0140
Marilou Astejada
20 Oct. 2003
1247191
1,700 board ft. Malaruhat Belen Ordinado
(assorted sizes)
1 Aug. 2003 1,000 board Malaruhat Ruel Ruzol 1247198
5 Aug. 2003 800 board ft. lumber Virgilio Aumentado 1322853
3 Oct. 2003 66 pcs. good lumber 0170
Nestor Astejada
01 Dec. 2003
1482847
400 board ft. Malaruhat Federico Marquez
(assorted sizes)
0171 01 Dec. 2003 500 board ft. good lumber Nestor Astejada
5 Oct. 2003 1,700 board ft. good Dante Medina 1323277
0172 01 Dec. 2003 1,500 board ft. lumber Belen Ordinado
lumber
(assorted sizes)
7 Oct. 2003 1,800 board ft. good Dante Medina 1482951
0173 03 Dec. 2003 500 board ft. Laniti Rosa Turgo
lumber (assorted sizes)
0174 04 Dec. 2003 1,000 board ft. lumber Dante Medina
8 Oct. 2003 1,254 board ft. good Jonathan Supremo 1323281
lumber (assorted sizes) 0175 04 Dec. 2003 26 pcs. lumber (assorted Nenita Juntareal
sizes) & 2 bundles of sticks
8 Oct. 2003 2,500 board ft. lumber Ramir Sanchez 1483001
(assorted sizes) 0176 05 Dec. 2003 800 board ft. lumber Nestor Astejada
8 Oct. 2003 500 board ft. good lumber 0177 08 Dec. 2003
Rolando Franela 678 board ft.
1323280 good lumber Elenor Rutaquio
(assorted sizes) (assorted sizes)
3 Nov. 2003 850 finished products 0178
Naty Orozco
08 Dec. 2003
1483020
200 board ft. lumber William Rutaquio
(cabinet component, (assorted sizes)
balusters, door jambs)
0179 09 Dec. 2003 1,800 board ft. lumber Nestor Astejada
3 Nov. 2003 400 board ft. good lumber Elizabeth Junio 1483022
0180 12 Dec. 2003 One jeep load of good Angelo Avellano
(assorted sizes) & 6
lumber (assorted sizes)
bundles of sticks
0181 12 Dec. 2003 One jeep load of good Angelo Avellano
0 Nov. 2003 1,770 board ft. good Dante Medina 1483032
lumber (assorted sizes)
lumber (assorted sizes)
0182 12 Dec. 2003 800 board ft. lumber Pepito Aumentado
0 Nov. 2003 1,000 board ft. lumber Nestor Astejada 1483033
0183 16 Dec. 2003 600 board ft. Malaruhat Jonathan Marcial
2 Nov. 2003 900 board ft. lumber Federico Marquez 1483041
(assorted sizes) 0184 16 Dec. 2003 650 board ft. lumber Pepito Aumentado
2 Nov. 2003 Mini dump truck good 0185 16 Dec. 2003
Rizalito Francia 1,000 board ft. Malaruhat
1483042 Dante Medina
lumber (assorted sizes)
0186 18 Dec. 2003 100 board ft. lumber Aladin Aveno
4 Nov. 2003 500 components, 100 pcs Annie Gonzales 1483070
0187 19 Dec. 2003 780 board ft. lumber Pepito Aumentado
balusters (assorted sizes of
stringers, tassels) 0188 19 Dec. 2003 1,500 board ft. coco Felecita Marquez
lumber
4 Nov. 2003 700 board ft. good lumber Winnie Aceboque 1323287
0189 22 Dec. 2003 600 board ft. lumber Belen C. Ordinado
7 Nov. 2003 1,600 board ft. Malaruhat Federico Marquez 1483072
lumber (assorted sizes) 0190 29 Dec. 2003 600 board ft. Lawaan Winnie Aciboque
5 Nov. 2003 400 board ft. Tapil & 7 0191 29 Dec. 2003
Belen Ordinado 300 board ft. lumber
1483023 Yolanda
pcs. 1x10x14 Crisostomo
5 Nov. 2003 1,000 board ft. lumber 0192 30 Dec. 2003
Leonardo Aveno 800 board ft. Lawaan
1623003 Pepito Aumentado
(assorted sizes)
0193 20 Nov. 2003 150 board ft. good lumber Francisco Mendoza
5 Nov. 2003 150 board ft. good lumber (assorted sizes)
Francisco Mendoza 1483027
7 Nov. 2003 433 bundles of semi-finished 0194 30 June 2003
Naty Orozco 450
1483031 board ft. fresh cut Mylene Moises
products lumber
8 Nov. 2003 800 board ft. lumber 0195 13 July 2001
Armando Pradillada 1 L-300 load of finished Evangeline Moises
1483134
(assorted sizes) and semi-finished products
5 Nov. 2003 30 pcs. sliced lumber 0196 02 July 2001
Ariel Molina 96
1632059 pcs. good lumber Rollie L. Velasco
(assorted sizes)
9 Nov. 2003 1,000 board ft. good Dante Medina 1623053
lumber (assorted sizes) 0197 07 May 2004 1,500 board ft. babayahin Nemia Molina
lumber
0 Nov. 2003 500 board ft. good lumber Maria Teresa 1323288
(assorted sizes) 0198
Adornado 19 April 2004 107 pcs. sliced lumber Carlo Gudmalin
(assorted sizes)
0 Nov. 2003 1,500 board ft. good Romeo Sabiduria 1483080
lumber (assorted sizes) 0199 5 March 2004 10 pcs. Deadwood Elizabeth Junio
(Bulakan)
1 Nov. 2003 1,000 board ft. Malaruhat Dante Medina 1623057
lumber (assorted sizes) 0200 2 March 2004 600 board ft. Amalang Roda Turgo
wood
5 Oct. 2003 2,000 board ft. lumber Federico Marquez 1322982
(assorted sizes) 0201 1 March 2004 149 sliced lumber (assorted Necito Crisostomo
sizes)
5 Nov. 2003 500 board ft. Malaruhat Federico Marquez 1483090
0202 1 March 2004 80 bundles of rattan Manuel Buendicho
5 Nov. 2003 70 bundles of Rattan Manuel Buendicho 1483095
(assorted sizes) 0203 23 Feb. 2004 30 pcs. sliced lumber Leonardo Aveno
(assorted sizes)
8 Nov. 2003 6,542 board ft. finished Nenita Juntareal 1623019
products (cabinet and 0204 13 Feb. 2004 50 pcs. sliced sliced lumber Federico Marquez
components) (assorted sizes)
2 Feb. 2004 69 pcs. sliced sliced lumber 0235
Florencio Borreo
15 Sept. 2003
1708694
1,500 board ft. malaruhat Decembrano
(assorted sizes) lumber (assorted sizes) Sabiduria
7 Feb. 2004 50 pcs. sliced sliced lumber 0236
Ronnie Astejada
10 Sept. 2003
1708774
200 board ft. good lumber Junier Franquia
(assorted sizes) (assorted sizes)
4 Feb. 2004 600 board ft. sliced lumber 0237
Pepito Aumentado
29 Aug. 2003
1708486
600 board ft. good lumber Annaliza Vargas
(assorted sizes)
0238 07 Aug. 2003 2,000 board ft. lumber Abilardo dela Cruz
March 2004 21 pcs. Lawaan (assorted Atan Marquez 1708878
(assorted sizes)
sizes)
0239 06 Aug. 2003 1,000 board ft. hardwood Jennifer Nudalo
Feb. 2004 563 board ft. sliced lumber Decembrano 1708487
0240 25 June 2003 600 board ft. good lumber Roy Justo
(assorted sizes) Sabiduria
0241 26 May 2003 800 board ft. lumber Adelino Lareza
6 Feb. 2004 80 pcs. Buukan (Ugat) Maila S. Orozco 1708547
0242 26 May 2003 Assorted sizes good lumber Rollie Velasco
0 Jan. 2004 1,000 board ft. good Pepito Aumentado 1708534
lumber (assorted sizes) 0243 23 May 2003 342 sliced lumber (assorted Dolores S. Gloria
sizes)
9 Jan. 2004 950 board ft. good lumber Leonardo Moises 1708528
(assorted sizes) 0244 20 May 2003 500 board ft. lumber Marylyn de Loreto/
Melita Masilang
8 Jan. 2004 1,000 board ft. good Pepito Aumentado 1708518
lumber (assorted sizes) 0245 02 May 2003 123 pieces sliced lumber Armando Lariza
(assorted sizes)
8 Jan. 2004 5, 000 board ft. good Carmelita Lorenzo 1708521
lumber (assorted sizes) 0246 17 Feb. 2003 70 pieces sliced lumber Efren Tena/ Romeo
(assorted sizes) Serafines
8 Jan. 2004 350 board ft. good lumber Amando Pradillada 1708368
(assorted sizes) 0247 07 Feb. 2003 1 piece narra bed; 1 piece Roy D. Justo
narra panel door; 6 pcs.
3 Jan. 2004 800 board ft. lumber Pepito Aumentado 1708517
Refrigerator stand & 1 pc.
(assorted sizes)
Narra cabinet (finished
1 Jan. 2004 1,050 board ft. good Romeo Sabiduria 1708508
product)
lumber (assorted sizes)
0248 05 Dec. 2002 140 pcs. round poles Lamberto R. Ruzol
6 April 2004 800 board ft. sliced lumber Mylene Moises 1868025
0249 20 Nov. 2002 500 board ft. lumber Luz Astoveza
(assorted sizes)
(assorted sizes)
1 March 2004 300 pieces or 1, 200 board Ernesto Aumentado 1708975
0250 30 Oct. 2002 1,200 board ft. sliced Arceli Fortunado
ft. sliced lumber (assorted
lumber (assorted sizes)
sizes)
0251 04 Oct. 2002 500 board ft. Huling Roy Justo
2 Feb. 2004 7,000 board ft. good Carmelita Lorenzo 1708376
Manok
lumber
0252 27 Sept. 2002 300 board ft. sliced lumber Roy Justo
8 Jan. 2004 600 board ft. Malaruhat Nestor Astejada 1623451
(assorted sizes)
0 Dec. 2003 300 pieces good lumber Francisco Mendoza 1623096
0253 24 Sept. 2002 1,000 board ft. sliced Inna L.
8 Nov. 2003 6,432 board ft. assorted Naty Orozco 1483048
lumber (assorted sizes) Customerado
species
0254 23 Sept. 2002 1,000 board ft. sliced Normelita L.
0 Oct. 2003 8,000 board ft. Malauban Ma. Teresa 1483019lumber (assorted sizes) Curioso
Adornado
0255 03 Sept. 2002 2,000 pcs. trophy (wood Floredeliza D.
1 Oct. 2003 1,770 board ft. good Dante Medina 1482796
carvings) Espiritu
lumber (assorted sizes)
0256 7 March 2002 2,000 sets trophy (wood Floredeliza D.
1 Oct. 2003 300 board ft. Malaruhat Leonardo S. Aveno 1323271 carvings) Espiritu
(assorted sizes)
0257 03 Dec. 2001 10,000 sets trophy (wood Floredeliza D.
1 Oct. 2003 10,875 board ft. lumber Annie Gonzales 1323273
carvings) Espiritu
(assorted sizes)
0258 12 Sept. 2001 1,075 board ft of sticks & Lea A. Rivera
0 Oct. 2003 300 board ft. sliced lumber Bernardo Gonzalvo 1482835 1,450 board ft. Bollilo
(assorted sizes)
7 Oct. 2003 6,090 board ft. lumber Naty Orozco 1482834
0259 07 Oct. 2003 Assorted lumber Roy D. Justo
7 Oct. 2003 16 pcs. panel door Roy Justo 1482743
(finished product)
Considering that the facts are undisputed, the parties
1 Oct. 2003 300 board ft. good lumber Analiza Vargas 1482710
during Pre-Trial agreed to dispense with the
(assorted sizes)
presentation of testimonial evidence and submit the
1 Oct. 2003 700 board ft. Malaruhat Engr. Mercado case for decision based on the documentary evidence
1482760
(assorted sizes) and joint stipulation of facts contained in the Pre-Trial
Order. Thereafter, the accused and the prosecution
0 Sept. 2003 500 board ft. sliced lumber Mylene Moises 1482810
submitted their respective memoranda.6
(assorted sizes)
9 Sept. 2003 800 board ft. good lumber Wennie Acebuque Ruzol's
1482703Defense
(assorted sizes)
As summarized by the Sandiganbayan, Ruzol
professes his innocence based on following
arguments:
(1) As Chief Executive of the municipality of
General Nakar, Quezon, he is authorized to
issue permits to transport forest products
pursuant to RA 7160 which give the LGU not
only express powers but also those powers that
are necessarily implied from the powers
expressly granted as well as those that are
necessary, appropriate or incidental to the
LGU’s efficient and effective governance. The
LGU is likewise given powers that are essential
to the promotion of the general welfare of the
inhabitants. The general welfare clause
provided in Section 16, Chapter 2, Title One,
Book I of R.A. 7160 is a massive grant of
authority that enables LGUs to perform or
exercise just about any power that will benefit
their local constituencies.
(2) In addition to the foregoing, R.A. 7160 has
devolved certain functions and responsibilities
of the DENR to the LGU. And the permits to
transport were issued pursuant to the devolved
function to manage and control communal
forests with an area not exceeding fifty (50)
square kilometers.
(3) The Permits to Transport were issued as an
incident to the payment of Transport Fees
levied by the municipality for the use of local
public roads for the transport of salvaged forest
products. Under (a) Section 5, Article X of the
Constitution, (b) Section 129, Chapter I, Title
One Book II of R.A. 7160, and (c) Section 186,
Article Five, Chapter 5, Tile One, Book II of
R.A. 7160, the municipality is granted the
power to create its own sources of revenue and
to levy fees in accordance therewith.
(4) The only kind of document the DENR issues
relating to log, timber or lumber is denominated
"Certificate of Timber Origin" or CTO for logs
and "Certificate of Lumber Origin" or CLO for
lumber; hence, even if accused issued the
Transport Permits on his side, a person
wanting to transport the said forest products
would have to apply and obtain a CTO or CLO
from the DENR. The Transport Permits issued
by the accused were never taken as a
substitute for the CTO or CLO, and this is the
reason why said permits contain the annotation
"Subject to DENR rules, laws and regulations."
(5) There is no proof of conspiracy between the
accused. The Transport Permits were issued
by accused Sabiduria in his capacity as
Municipal Administrator and his mere issuance
is not enough to impute upon the accused
Ruzol any transgression or wrongdoing that
may have been committed in the issuance
thereof following the ruling in Arias v.
Sandiganbayan (180 SCRA 309).
(6) The DENR directly sanctioned and
expressly authorized the issuance of the 221
Transport permits through the Provincial
Environment and natural Resources officer
Rogelio Delgado Sr., in a Multi-Sectoral
Consultative Assembly.
(7) The accused cannot be convicted of
Usurpation of Authority since they did not act
"under the pretense of official position,"
accused Ruzol having issued the permits in his
capacity as Mayor and there was no pretense
or misrepresentation on his part that he was an
officer of DENR.7
Ruling of the Sandiganbayan
After due consideration, the Sandiganbayan rendered
on December 19, 2008 a Decision, acquitting Sabiduria
but finding Ruzol guilty as charged, to wit:
WHEREFORE, premises considered, the Court
resolves these cases as follows:
1. Against the accused LEOVEGILDO R.
RUZOL, judgment is hereby rendered finding
him GUILTY beyond reasonable doubt of Two
Hundred Twenty One (221) counts of the
offense of Usurpation of Official Functions as
defined and penalized under Article 177 of the
Revised Penal Code and hereby sentences
him to suffer for each case a straight penalty of
SIX (6) MONTHS and ONE (1) DAY.
However, in the service of his sentences,
accused Ruzol shall be entitled to the benefit of
the three-fold rule as provided in Article 70 of
the Revised Penal Code, as amended.
2. On the ground of reasonable doubt, accused
GUILLERMO M. SABIDURIA is ACQUITTED
of all 221 charges. The cash bond posted by
him for his provisional liberty may now be
withdrawn by said accused upon presentation
of the original receipt evidencing payment
thereof subject to the usual accounting and
auditing procedures. The hold departure
procedure issued by this Court dated 16 April
2008 is set aside and the Order issued by the
Bureau of Immigration dated 29 April 2008
including the name of Sabiduria in the Hold
Departure List is ordered recalled and
cancelled.
SO ORDERED.8
The Sandiganbayan predicated its ruling on the
postulate that the authority to issue transport permits
with respect to salvaged forest products lies with the
Department of Environment and Natural Resources
(DENR) and that such authority had not been devolved
to the local government of General Nakar.9 To the graft
court, Ruzol’s issuance of the subject permits
constitutes usurpation of the official functions of the
DENR.
The Issue
The critical issue having a determinative bearing on the
guilt or innocence of Ruzol for usurpation revolves
around the validity of the subject permits to transport,
which in turn resolves itself into the question of whether
the authority to monitor and regulate the transportation
of salvaged forest product is solely with the DENR, and
no one else.
The Ruling of this Court
The petition is partly meritorious.
Subsidiary Issue:
Whether the Permits to Transport Issued by Ruzol Are
Valid
In ruling that the DENR, and not the local government
units (LGUs), has the authority to issue transportation
permits of salvaged forest products, the
Sandiganbayan invoked Presidential Decree No. 705
(PD 705), otherwise known as the Revised Forestry
Code of the Philippines and in relation to Executive
Order No. 192, Series of 1987 (EO 192), or the
Reorganization Act of the Department of Environment
and Natural Resources.
Section 5 of PD 705 provides:
Section 5. Jurisdiction of Bureau. The Bureau of Forest
Management shall have jurisdiction and authority over
all forest land, grazing lands, and all forest reservations
including watershed reservations presently
administered by other government agencies or
instrumentalities.
It shall be responsible for the protection, development,
management, regeneration, and reforestation of forest
lands; the regulation and supervision of the operation
of licensees, lessees and permittees for the taking or
use of forest products therefrom or the occupancy or
use thereof; the implementation of multiple use and
sustained yield management in forest lands; the
protection, development and preservation of national
parks, marine parks, game refuges and wildlife; the
implementation of measures and programs to prevent
kaingin and managed occupancy of forest and grazing
lands; in collaboration with other bureaus, the effective,
efficient and economic classification of lands of the
public domain; and the enforcement of forestry,
reforestation, parks, game and wildlife laws, rules, and
regulations.
The Bureau shall regulate the establishment and
operation of sawmills, veneer and plywood mills and
other wood processing plants and conduct studies of
domestic and world markets of forest products.
(Emphasis Ours.)
On the other hand, the pertinent provisions of EO 192
state:
SECTION 4. Mandate. The Department shall be the
primary government agency responsible for the
conservation, management, development, and proper
use of the country’s environment and natural
resources, specifically forest and grazing lands of the
public domain, as well as the licensing and regulation
of all natural resources as maybe provided for by law
in order to ensure equitable sharing of the benefits
derived therefrom for the welfare of the present and
future generations of Filipinos.
xxxx
SECTION 5. Powers and Functions. To accomplish its
mandate, the Department shall have the following
functions:
xxxx
(d) Exercise supervision and control over forest
lands, alienable and disposal lands, and
mineral resources and in the process of
exercising such control the Department shall
impose appropriate payments, fees, charges,
rentals and any such revenues for the
exploration, development, utilization or
gathering of such resources.
xxxx
(j) Regulate the development, disposition,
extraction, exploration and use of the country’s
forest, land and mineral resources;
(k) Assume responsibility for the assessment,
development, protection, conservation,
licensing and regulation as provided for by law,
where applicable, of all natural resources; the
regulation and monitoring of service
contractors, licensees, lessees, and permittees
for the extraction, exploration, development
and utilization of natural resources products;
the implementation of programs and measures
with the end in view of promoting close
collaboration between the government and the
private sector; the effective and efficient
classification and sub-classification of lands of
the public domain; and the enforcement of
natural resources laws, rules and regulations;
(l) Promulgate rules, regulations and guidelines
on the issuance of co-production, joint venture
or production sharing agreements, licenses,
permits, concessions, leases and such other
privileges and arrangement concerning the
development, exploration and utilization of the
country’s natural resources and shall continue
to oversee, supervise and police our natural
resources; to cancel or cause to cancel such
privileges and arrangement upon failure, non-
compliance or violations of any regulations,
orders, and for all other causes which are
furtherance of the conservation of natural
resources and supportive of the national
interests;
xxxx
(n) Implement measures for the regulation and
supervision of the processing of forest
products, grading and inspection of lumber and
other forest products and monitoring of the
movement of timber and other forest products.
(Emphasis Ours.)
Invoked too is DENR Administrative Order No. 2000-
78 (DAO 2000-78) which mandates that the permittee
should secure the necessary transport and other
related documents before the retrieved wood materials
are sold to the buyers/users and/or wood processing
plants.10 DAO 2000-78 obliges the entity or person
concerned to secure a Wood Recovery Permit––a
"permit issued by the DENR to gather/retrieve and
dispose abandoned logs, drifted logs, sunken logs,
uprooted, and fire and typhoon damaged tress, tree
stumps, tops and branches."11 It prescribes that the
permittee shall only be allowed to gather or recover
logs or timber which had already been marked and
inventoried by the Community Environment and
Natural Resources Officer.12 To the Sandiganbayan,
this mandatory requirement for Wood Recovery Permit
illustrates that DENR is the sole agency vested with the
authority to regulate the transportation of salvaged
forest products.1âwp hi1
The Sandiganbayan further reasoned that the
"monitoring and regulating salvaged forest products" is
not one of the DENR’s functions which had been
devolved upon LGUs. It cited Sec. 17 of Republic Act
No. 7160 (RA 7160) or the Local Government Code
(LGC) of 1991 which provides:
Section 17. Basic Services and Facilities. -
(a) Local government units shall endeavor to be self-
reliant and shall continue exercising the powers and
discharging the duties and functions currently vested
upon them. They shall also discharge the functions and
responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local
government units shall likewise exercise such other
powers and discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provisions of the
basic services and facilities enumerated herein.
xxxx
(2) For a Municipality:
xxxx
(ii) Pursuant to national policies and subject to
supervision, control and review of the DENR,
implementation of community-based forestry projects
which include integrated social forestry programs and
similar projects; management and control of communal
forests with an area not exceeding fifty (50) square
kilometers; establishment of tree parks, greenbelts,
and similar forest development projects. (Emphasis
Ours.)
According to the Sandiganbayan, Sec. 17 of the LGC
has limited the devolved functions of the DENR to the
LGUs to the following: (1) the implementation of
community-based forestry products; (2) management
and control of communal forests with an area not
exceeding fifty (50) square kilometers; and (3)
establishment of tree parks, greenbelts and similar
forest development projects.13 It also referred to DENR
Administrative Order No. 30, Series of 1992 (DAO
1992-30), which enumerates the forest management
functions, programs and projects of the DENR which
had been devolved to the LGUs, as follows:14
Section 3.1 Forest Management
a. Implementation of the following community-
based forestry projects:
i. Integrated Social Forestry Projects,
currently funded out of regular
appropriations, except at least one
project per province that shall serve as
research and training laboratory, as
identified by the DENR, and those
areas located in protected areas and
critical watersheds;
ii. Establishment of new regular
reforestation projects, except those
areas located in protected areas and
critical watersheds;
iii. Completed family and community-
based contract reforestation projects,
subject to policies and procedures
prescribed by the DENR;
iv. Forest Land Management
Agreements in accordance with DENR
Administrative Order No. 71, Series of
1990 and other guidelines that the
DENR may adopt; and
v. Community Forestry Projects,
subject to concurrence of financing
institution(s), if foreign assisted.
b. Management and control of communal
forests with an area not exceeding fifty (50)
square kilometers or five thousand (5,000)
hectares, as defined in Section 2, above.
Provided, that the concerned LGUs shall
endeavor to convert said areas into community
forestry projects;
c. Management, protection, rehabilitation and
maintenance of small watershed areas which
are sources of local water supply as identified
or to be identified by the DENR; and
d. Enforcement of forest laws in community-
based forestry project areas, small watershed
areas and communal forests, as defined in
Section 2 above, such as but not limited to:
i. Prevention of forest fire, illegal cutting
and kaingin;
ii. Apprehension of violators of forest
laws, rules and regulations;
iii. Confiscation of illegally extracted
forest products on site;
iv. Imposition of appropriate penalties
for illegal logging, smuggling of natural
resources products and of endangered
species of flora and fauna, slash and
burn farming and other unlawful
activities; and
v. Confiscation, forfeiture and
disposition of conveyances, equipment
and other implements used in the
commission of offenses penalized
under P.D. 705 as amended by E.O.
277, series of 1987 and other forestry
laws, rules and regulations.
Provided, that the implementation of the foregoing
activities outside the devolved areas above mentioned,
shall remain with the DENR.
The Sandiganbayan ruled that since the authority
relative to salvaged forest products was not included in
the above enumeration of devolved functions, the
correlative authority to issue transport permits remains
with the DENR15and, thus, cannot be exercised by the
LGUs.
We disagree and refuse to subscribe to this postulate
suggesting exclusivity. As shall be discussed shortly,
the LGU also has, under the LGC of 1991, ample
authority to promulgate rules, regulations and
ordinances to monitor and regulate salvaged forest
products, provided that the parameters set forth by law
for their enactment have been faithfully complied with.
While the DENR is, indeed, the primary government
instrumentality charged with the mandate of
promulgating rules and regulations for the protection of
the environment and conservation of natural
resources, it is not the only government instrumentality
clothed with such authority. While the law has
designated DENR as the primary agency tasked to
protect the environment, it was not the intention of the
law to arrogate unto the DENR the exclusive
prerogative of exercising this function. Whether in
ordinary or in legal parlance, the word "primary" can
never be taken to be synonymous with "sole" or
"exclusive." In fact, neither the pertinent provisions of
PD 705 nor EO 192 suggest that the DENR, or any of
its bureaus, shall exercise such authority to the
exclusion of all other government instrumentalities, i.e.,
LGUs.
On the contrary, the claim of DENR’s supposedly
exclusive mandate is easily negated by the principle of
local autonomy enshrined in the 1987 Constitution 16 in
relation to the general welfare clause under Sec. 16 of
the LGC of 1991, which provides:
Section 16. General Welfare. - Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government
units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a
balanced ecology, encourage and support the
development of appropriate and self-reliant scientific
and technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the comfort
and convenience of their inhabitants. (Emphasis Ours.)
Pursuant to the aforequoted provision, municipal
governments are clothed with authority to enact such
ordinances and issue such regulations as may be
necessary to carry out and discharge the
responsibilities conferred upon them by law, and such
as shall be necessary and proper to provide for the
health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the
prosperity and general welfare of the municipality and
its inhabitants, and ensure the protection of property in
the municipality.17
As held in Oposa v. Factoran, Jr.,18 the right of the
people "to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the
environment." In ensuring that this duty is upheld and
maintained, a local government unit may, if it deems
necessary, promulgate ordinances aimed at enhancing
the right of the people to a balanced ecology and,
accordingly, provide adequate measures in the proper
utility and conservation of natural resources within its
territorial jurisdiction. As can be deduced from Ruzol’s
memoranda, as affirmed by the parties in their Joint
Stipulation of Facts, it was in the pursuit of this
objective that the subject permits to transport were
issued by Ruzol––to regulate the salvaged forest
products found within the municipality of General Nakar
and, hence, prevent abuse and occurrence of any
untoward illegal logging in the area.19
In the same vein, there is a clear merit to the view that
the monitoring and regulation of salvaged forest
products through the issuance of appropriate permits
is a shared responsibility which may be done either by
DENR or by the LGUs or by both. DAO 1992-30, in fact,
says as much, thus: the "LGUs shall share with the
national government, particularly the DENR, the
responsibility in the sustainable management and
development of the environment and natural resources
within their territorial jurisdiction." 20 The significant role
of the LGUs in environment protection is further echoed
in Joint Memorandum Circular No. 98-01(JMC 1998-
01) or the Manual of Procedures for DENR-DILG-LGU
Partnership on Devolved and other Forest
Management Functions, which was promulgated jointly
by the DILG and the DENR in 1998, and provides as
follows:
Section 1. Basic Policies
Subject to the general policies on devolution as
contained in RA 7160 and DENR Administrative Order
No. 30, Series of 1992, the following basic policies shall
govern the implementation of DENR-DILG-LGU
partnership on devolved and other forest management
functions:
1.1. The Department of Environment and
Natural Resources (DENR) shall be the
primary government agency responsible for the
conservation, management, protection, proper
use and sustainable development of the
country’s environment and natural resources.
1.2. The LGUs shall share with DENR the
responsibility in the sustainable management
and development of the forest resources within
their territorial jurisdiction. Toward this end, the
DENR and the LGUs shall endeavor to
strengthen their collaboration and partnership
in forest management.
1.3. Comprehensive land use and forest land
use plans are important tools in the holistic and
efficient management of forest resources.
Toward this end, the DENR and the LGUs
together with other government agencies shall
undertake forest land use planning as an
integral activity of comprehensive land use
 planning to determine the optimum and
balanced use of natural resources to support
local, regional and national growth and
development.
1.4. To fully prepare the LGUs to undertake
their shared responsibilities in the sustainable
management of forest land resources, the
DENR, in coordination with DILG, shall
enhance the capacities of the LGUs in the
various aspects of forest management. Initially,
the DENR shall coordinate, guide and train the
LGUs in the management of the devolved
functions. As the LGUs’ capacity in forest
management is enhanced, the primary tasks in
the management of devolved functions shall be
performed by the LGUs and the role of the
DENR becomes assistive and coordinative.
1.5. To further the ends of local autonomy, the
DENR in consultation with the LGUs shall
devolved [sic] additional functions and
responsibilities to the local government units,
or enter into agreements with them for enlarged
forest management and other ENR-related
functions.
1.6. To seek advocacy, popular support and
ultimately help achieve community
empowerment, DENR and DILG shall forge the
partnership and cooperation of the LGUs and
other concerned sectors in seeking and
strengthening the participation of local
communities for forest management including
enforcement of forestry laws, rules and
regulations. (Emphasis Ours.)
To our mind, the requirement of permits to transport
salvaged forest products is not a manifestation of
usurpation of DENR’s authority but rather an additional
measure which was meant to complement DENR’s
duty to regulate and monitor forest resources within the
LGU’s territorial jurisdiction.
This is consistent with the "canon of legal hermeneutics
that instead of pitting one statute against another in an
inevitably destructive confrontation, courts must exert
every effort to reconcile them, remembering that both
laws deserve respect as the handiwork of coordinate
branches of the government."21 Hence, if there appears
to be an apparent conflict between promulgated
statutes, rules or regulations issued by different
government instrumentalities, the proper action is not
to immediately uphold one and annul the other, but
rather give effect to both by harmonizing them if
possible.22 Accordingly, although the DENR requires a
Wood Recovery Permit, an LGU is not necessarily
precluded from promulgating, pursuant to its power
under the general welfare clause, complementary
orders, rules or ordinances to monitor and regulate the
transportation of salvaged forest products.
Notwithstanding, We still find that the Permits to
Transport issued by Ruzol are invalid for his failure to
comply with the procedural requirements set forth by
law for its enforcement.
Then and now, Ruzol insists that the Permit to
Transport partakes the nature of transport fees levied
by the municipality for the use of public roads. 23 In this
regard, he argues that he has been conferred by law
the right to issue subject permits as an incident to the
LGU’s power to create its own sources of revenue
pursuant to the following provisions of the LGC:
Section 153. Service Fees and Charges. – Local
government units may impose and collect such
reasonable fees and charges for services rendered.
xxxx
Section 186. Power to Levy Other Taxes, Fees or
Charges. – Local government units may exercise the
power to levy taxes, fees or charges on any base or
subject not otherwise specifically enumerated herein or
taxed under the provisions of the National Internal
Revenue Code, as amended, or other applicable laws:
Provided, That the taxes, fees, or charges shall not be
unjust, excessive, oppressive, confiscatory or contrary
to declared national policy: Provided, further, That the
ordinance levying such taxes, fees or charges shall not
be enacted without any prior public hearing conducted
for the purpose. (Emphasis Ours.)
Ruzol further argued that the permits to transport were
issued under his power and authority as Municipal
Mayor under Sec. 444 of the same law:
(iv) Issue licenses and permits and suspend or revoke
the same for any violation of the conditions upon which
said licenses or permits had been issued, pursuant to
law or ordinance;
xxxx
vii) Adopt adequate measures to safeguard and
conserve land, mineral, marine, forest, and other
resources of the municipality; provide efficient and
effective property and supply management in the
municipality; and protect the funds, credits, rights and
other properties of the municipality. (Emphasis Ours.)
Ruzol is correct to a point. Nevertheless, We find that
an enabling ordinance is necessary to confer the
subject permits with validity. As correctly held by the
Sandiganbayan, the power to levy fees or charges
under the LGC is exercised by the Sangguniang Bayan
through the enactment of an appropriate ordinance
wherein the terms, conditions and rates of the fees are
prescribed.24 Needless to say, one of the fundamental
principles of local fiscal administration is that "local
revenue is generated only from sources expressly
authorized by law or ordinance."25
It is likewise expressly stated in Sec. 444(b)(3)(iv) of
the LGC that the authority of the municipal mayor to
issue licenses and permits should be "pursuant to a law
or ordinance." It is the Sangguniang Bayan, as the
legislative body of the municipality, which is mandated
by law to enact ordinances against acts which
endanger the environment, i.e., illegal logging, and
smuggling of logs and other natural resources.26
In this case, an examination of the pertinent provisions
of General Nakar’s Revised Municipal Revenue
Code27 and Municipal Environment Code28 reveals that
there is no provision unto which the issuance of the
permits to transport may be grounded. Thus, in the
absence of an ordinance for the regulation and
transportation of salvaged products, the permits to
transport issued by Ruzol are infirm.
Ruzol’s insistence that his actions are pursuant to the
LGU’s devolved function to "manage and control
communal forests" under Sec. 17 of the LGC and DAO
1992-3029 is specious. Although We recognize the
LGU’s authority in the management and control of
communal forests within its territorial jurisdiction, We
reiterate that this authority should be exercised and
enforced in accordance with the procedural
parameters established by law for its effective and
efficient execution. As can be gleaned from the same
Sec. 17 of the LGC, the LGU’s authority to manage and
control communal forests should be "pursuant to
national policies and is subject to supervision, control
and review of DENR."
As correctly held by the Sandiganbayan, the term
"communal forest"30 has a well-defined and technical
meaning.31Consequently, as an entity endowed with
specialized competence and knowledge on forest
resources, the DENR cannot be discounted in the
establishment of communal forest. The DILG, on behalf
of the LGUs, and the DENR promulgated JMC 1998-
01 which outlined the following procedure:
Section 8.4 Communal Forest
8.4.1 Existing Communal Forest
The devolution to and management of the communal
forest by the city and municipal governments shall be
governed by the following general procedures:
(a) DENR, through its CENRO, and the
concerned LGU shall undertake the actual
identification and assessment of existing
communal forests. The assessment shall
determine the suitability of the existing
communal forests. If these are no longer
suitable, then these communal forests may be
disestablished. The Approval for
disestablishment shall be by the RED upon
recommendation of the DENR-LGU
assessment Team through the PENRO and the
RTD for Forestry;
(b) Existing communal forest which are found
and recommended by the DENR-LGU
Assessment Team as still suitable to achieve
their purpose shall be maintained as such.
Thereafter, the Sangguniang Panglungsod or
Sangguniang Bayan where the communal
forest is located shall pass resolution
requesting the DENR Secretary for the
turnover of said communal forest to the city or
municipality. Upon receipt of said resolution,
the DENR Secretary shall issue an
Administrative Order officially transferring said
communal forest to the concerned LGU. The
DENR RED shall effect the official transfer to
the concerned LGU within fifteen (15) days
from the issuance of the administrative order;
(c) Within twelve months from the issuance of
the Administrative Order and turnover of said
communal forest to the city or municipality, the
LGU to which the communal forest was
transferred shall formulate and submit to the
Provincial ENR Council for approval a
management plan governing the sustainable
development of the communal forest.
For the purpose of formulating the communal forest
management plan, DENR shall, in coordination with the
concerned LGU, undertake a forest resource inventory
and determine the sustainable level of forest resource
utilization and provide the LGU technical assistance in
all facets of forest management planning to ensure
sustainable development. The management plan
should include provision for replanting by the
communities and the LGUs of the communal forests to
ensure sustainability.
8.4.2 Establishment of New Communal Forest
The establishment of new communal forests shall be
governed by the following guidelines:
(a) DENR, through its CENRO, together with
the concerned city/municipal LGU shall jointly
identify potential communal forest areas within
the geographic jurisdiction of the concerned
city/municipality.
(b) Communal forests to be established shall
be identified through a forest land use planning
to be undertaken jointly between the DENR
and the concerned LGU. The ensuing forest
land use plan shall indicate, among others, the
site and location of the communal forests within
the production forest categorized as such in the
forest land use plan;
(c) Once the forest land use plan has been
affirmed, the local chief executive shall initiate
the passage by the LGU’s sanggunian of a
resolution requesting the DENR Secretary to
issue an Administrative Order declaring the
identified area as a communal forest. The
required administrative order shall be issued
within sixty (60) days after receipt of the
resolution;
(d) Upon acceptance of the responsibility for
the communal forest, the city/municipal LGU
shall formulate the management plan and
submit the same to its ENR Council. The
management plan shall include provision for
replanting by the communities and the LGUs of
the communal forests to ensure sustainability.
The communal forests of each municipality shall in no
case exceed a total of 5,000 hectares. (Emphasis
Ours.)
It is clear, therefore, that before an area may be
considered a communal forest, the following
requirements must be accomplished: (1) an
identification of potential communal forest areas within
the geographic jurisdiction of the concerned
city/municipality; (2) a forest land use plan which shall
indicate, among other things, the site and location of
the communal forests; (3) a request to the DENR
Secretary through a resolution passed by the
Sangguniang Bayan concerned; and (4) an
administrative order issued by DENR Secretary
declaring the identified area as a communal forest.
In the present case, the records are bereft of any
showing that these requirements were complied with.
Thus, in the absence of an established communal
forest within the Municipality of General Nakar, there
was no way that the subject permits to transport were
issued as an incident to the management and control
of a communal forest.
This is not to say, however, that compliance with
abovementioned statutory requirements for the
issuance of permits to transport foregoes the necessity
of obtaining the Wood Recovery Permit from the
DENR. As earlier discussed, the permits to transport
may be issued to complement, and not substitute, the
Wood Recovery Permit, and may be used only as an
additional measure in the regulation of salvaged forest
products. To elucidate, a person seeking to transport
salvaged forest products still has to acquire a Wood
Recovery Permit from the DENR as a prerequisite
before obtaining the corresponding permit to transport
issued by the LGU.
Main Issue:
Whether Ruzol Is Guilty of Usurpation of Official
Functions
The foregoing notwithstanding, Ruzol cannot be held
guilty of Usurpation of Official Functions as defined and
penalized under Art. 177 of the RPC, to wit:
Art. 177. Usurpation of authority or official functions. —
Any person who shall knowingly and falsely represent
himself to be an officer, agent or representative of any
department or agency of the Philippine Government or
of any foreign government, or who, under pretense of
official position, shall perform any act pertaining to any
person in authority or public officer of the Philippine
Government or any foreign government, or any agency
thereof, without being lawfully entitled to do so, shall
suffer the penalty of prision correccional in its minimum
and medium periods. (Emphasis Ours.)
As the aforementioned provision is formulated, there
are two ways of committing this crime: first, by
knowingly and falsely representing himself to be an
officer, agent or representative of any department or
agency of the Philippine Government or of any foreign
government; or second, under pretense of official
position, shall perform any act pertaining to any person
in authority or public officer of the Philippine
Government or any foreign government, or any agency
thereof, without being lawfully entitled to do so. 32 The
former constitutes the crime of usurpation of authority,
while the latter act constitutes the crime of usurpation
of official functions.33
In the present case, Ruzol stands accused of
usurpation of official functions for issuing 221 permits
to transport salvaged forest products under the alleged
"pretense of official position and without being lawfully
entitled to do so, such authority properly belonging to
the Department of Environment and Natural
Resources."34 The Sandiganbayan ruled that all the
elements of the crime were attendant in the present
case because the authority to issue the subject permits
belongs solely to the DENR.35
We rule otherwise.
First, it is settled that an accused in a criminal case is
presumed innocent until the contrary is proved and that
to overcome the presumption, nothing but proof
beyond reasonable doubt must be established by the
prosecution.36As held by this Court in People v. Sitco:37
The imperative of proof beyond reasonable doubt has
a vital role in our criminal justice system, the accused,
during a criminal prosecution, having a stake interest
of immense importance, both because of the possibility
that he may lose his freedom if convicted and because
of the certainty that his conviction will leave a
permanent stain on his reputation and name.
(Emphasis supplied.)
Citing Rabanal v. People,38 the Court further explained:
Law and jurisprudence demand proof beyond
reasonable doubt before any person may be deprived
of his life, liberty, or even property. Enshrined in the Bill
of Rights is the right of the petitioner to be presumed
innocent until the contrary is proved, and to overcome
the presumption, nothing but proof beyond reasonable
doubt must be established by the prosecution. The
constitutional presumption of innocence requires
courts to take "a more than casual consideration" of
every circumstance of doubt proving the innocence of
petitioner. (Emphasis added.)
Verily, an accused is entitled to an acquittal unless his
or her guilt is shown beyond reasonable doubt and it is
the primordial duty of the prosecution to present its side
with clarity and persuasion, so that conviction becomes
the only logical and inevitable conclusion, with moral
certainty.39 As explained by this Court in People v.
Berroya:40
The necessity for proof beyond reasonable doubt lies
in the fact that "(i)n a criminal prosecution, the State is
arrayed against the subject; it enters the contest with a
prior inculpatory finding in its hands; with unlimited
means of command; with counsel usually of authority
and capacity, who are regarded as public officers, and
therefore as speaking semi-judicially, and with an
attitude of tranquil majesty often in striking contrast to
that of defendant engaged in a perturbed and
distracting struggle for liberty if not for life. These
inequalities of position, the law strives to meet by the
rule that there is to be no conviction when there is a
reasonable doubt of guilt."
Indeed, proof beyond reasonable doubt does not mean
such a degree of proof, excluding possibility of error,
produces absolute certainty; moral certainly only is
required, or that degree of proof which produces
conviction in an unprejudiced mind.41 However,
contrary to the ruling of the Sandiganbayan, We find
that a careful scrutiny of the events surrounding this
case failed to prove that Ruzol is guilty beyond
reasonable doubt of committing the crime of usurpation
of official functions of the DENR.
We note that this case of usurpation against Ruzol
rests principally on the prosecution’s theory that the
DENR is the only government instrumentality that can
issue the permits to transport salvaged forest products.
The prosecution asserted that Ruzol usurped the
official functions that properly belong to the DENR.
But erstwhile discussed at length, the DENR is not the
sole government agency vested with the authority to
issue permits relevant to the transportation of salvaged
forest products, considering that, pursuant to the
general welfare clause, LGUs may also exercise such
authority. Also, as can be gleaned from the records, the
permits to transport were meant to complement and not
to replace the Wood Recovery Permit issued by the
DENR. In effect, Ruzol required the issuance of the
subject permits under his authority as municipal mayor
and independently of the official functions granted to
the DENR. The records are likewise bereft of any
showing that Ruzol made representations or false
pretenses that said permits could be used in lieu of, or
at the least as an excuse not to obtain, the Wood
Recovery Permit from the DENR.
Second, contrary to the findings of the Sandiganbayan,
Ruzol acted in good faith.
It bears stressing at this point that in People v.
Hilvano,42 this Court enunciated that good faith is a
defense in criminal prosecutions for usurpation of
official functions.43 The term "good faith" is ordinarily
used to describe that state of mind denoting "honesty
of intention, and freedom from knowledge of
circumstances which ought to put the holder upon
inquiry; an honest intention to abstain from taking any
unconscientious advantage of another, even though
technicalities of law, together with absence of all
information, notice, or benefit or belief of facts which
render transaction unconscientious." 44 Good faith is
actually a question of intention and although something
internal, it can be ascertained by relying not on one’s
self-serving protestations of good faith but on evidence
of his conduct and outward acts.45
In dismissing Ruzol’s claim of good faith, the
Sandiganbayan reasoned as follows:
If it is really true that Ruzol believed himself to be
authorized under R.A. 7160 to issue the subject
permits, why did he have to secure the approval of the
various NGOs, People’s Organizations and religious
organizations before issuing the said permits? He
could very well have issued subject permits even
without the approval of these various organizations if
he truly believed that he was legally empowered to do
so considering that the endorsement of these
organizations is not required by law. That Ruzol had to
arm himself with their endorsement could only mean
that he actually knew that he had no legal basis for
issuing the said permits; thus he had to look elsewhere
for support and back-up.46 (Emphasis Ours.)
We, however, cannot subscribe to this posture as there
is neither legal basis nor established doctrine to draw
a conclusion that good faith is negated when an
accused sought another person’s approval. Neither is
there any doctrine in law which provides that bad faith
is present when one seeks the opinion or affirmation of
others.
Contrary to the conclusions made by the
Sandiganbayan, We find that the conduct of the public
consultation was not a badge of bad faith, but a sign
supporting Ruzol’s good intentions to regulate and
monitor the movement of salvaged forest products to
prevent abuse and occurrence of untoward illegal
logging. In fact, the records will bear that the
requirement of permits to transport was not Ruzol’s
decision alone; it was, as earlier narrated, a result of
the collective decision of the participants during the
Multi-Sectoral Consultative Assembly. As attested to
by Bishop Julio Xavier Labayen, it was the participants
who agreed that the subject permits be issued by the
Office of the Mayor of General Nakar, through Ruzol,
in the exercise of the latter’s authority as local chief
executive.47
The Sandiganbayan also posits the view that Ruzol’s
good faith is negated by the fact that if he truly believed
he was authorized to issue the subject permits, Ruzol
did not have to request the presence and obtain the
permission of PENRO Rogelio Delgado Sr. during the
Multi-Sectoral Assembly.48
The graft court’s above posture, however, does not
commend itself for concurrence. If, indeed, Ruzol
willfully and deliberately intended to usurp the official
functions of the DENR as averred by the prosecution,
he would not have asked the presence of a DENR
official who has the authority and credibility to publicly
object against Ruzol’s allegedly intended usurpation.
Thus, the presence of PENRO Delgado during the
Multi-Sectoral Assembly does not negate, but
strengthens Ruzol’s claim of good faith.
As a final note, We emphasize that the burden of
protecting the environment is placed not on the
shoulders of DENR alone––each and every one of us,
whether in an official or private capacity, has his or her
significant role to play. Indeed, protecting the
environment is not only a responsibility but also a right
for which a citizen could and should freely exercise.
Considering the rampant forest denudation,
environmental degradation and plaguing scarcity of
natural resources, each of us is now obligated to
contribute and share in the responsibility of protecting
and conserving our treasured natural resources.
Ruzol chose to exercise this right and to share in this
responsibility by exercising his authority as municipal
mayor––an act which was executed with the
concurrence and cooperation of non-governmental
organizations, industry stakeholders, and the
concerned citizens of General Nakar. Admittedly, We
consider his acts as invalid but it does necessarily
mean that such mistakes automatically demand Us to
rule a conviction. This is in consonance with the settled
principle that "all reasonable doubt intended to
demonstrate error and not crime should be indulged in
for the benefit of the accused."49
Under our criminal judicial system, "evil intent must
unite with the unlawful act for a crime to exist," as "there
can be no crime when the criminal mind is
wanting."50 Actus non facit reum, nisi mens sit rea.
In the present case, the prosecution has failed to prove
beyond reasonable doubt that Ruzol possessed that
"criminal mind" when he issued the subject permits.
What is clear from the records is that Ruzol, as
municipal mayor, intended to regulate and monitor
salvaged forest products within General Nakar in order
to avert the occurrence of illegal logging in the area.
We find that to hold him criminally liable for these
seemingly noble intentions would be a step backward
and would run contrary to the standing advocacy of
encouraging people to take a pro-active stance in the
protection of the environment and conservation of our After arraignment during which the accused pleaded
natural resources. not guilty and after trial, the lower court rendered
judgment finding the accused guilty as charged. On
Incidentally, considering the peculiar circumstances of appeal to the appellate court, the judgment was
the present case and considering further that this case affirmed with modification only as to the penalty
demands only the determination of Ruzol's guilt or imposed.
innocence for usurpation of official functions under the
RPC, for which the issue on the validity of the subject The facts of the case, as recited in the decision of the
Permits to Transport is only subsidiary, We hereby appellate court, are as follows:
resolve this case only for this purpose and only in this
instance, pro hac vice, and, in the interest of justice, During the period material to this case,
rule in favor of Ruzol' s acquittal. or in 1981, accused-appellant Melencio
Gigantoni was an employee of Black
IN VIEW OF THE FOREGOING, the December 19, Mountain Mining Inc. and Tetra
2008 Decision of the Sandiganbayan First Division in Management Corporation, which are
Criminal Case Nos. SB-08-CRIM-0039 to 0259, finding both private companies doing business
Leovegildo R. Ruzol guilty of violating Art. 177 of the in the Philippines .... On May 14, 1981,
Revised Penal Code, is hereby REVERSED and SET as an employee of said companies,
ASIDE. Gigantoni went to the office of the
Philippine Air Lines (PAL) at Vernida
Accused Leovegildo R. Ruzol is, thus, ACQUITTED on Building, Legaspi Street, Makati, Metro
the basis of reasonable doubt of the crimes as charged. Manila, allegedly to conduct verification
of some travels made by Black
SO ORDERED. Mountain's officials. Upon reaching the
said PAL office, he falsely represented
himself to the PAL legal officer as a PC-
PRESBITERO J. VELASCO, JR.
CIS agent investigating a kidnapping
Associate Justice
case, and requested that he be shown
the PAL records particularly the
WE CONCUR: passenger manifests for Manila-
Baguio-Manila flights covering the
period February 1 to 3 1981. He
explained that he was then at the
(3) G.R. No. 74727 June 16, 1988 tracking stage of aforementioned
kidnapping case. ... To further convince
MELENCIO GIGANTONI y JAVIER, petitioner, the PAL officials of his supposed
vs. mission, Gigantoni exhibited his
PEOPLE OF THE PHILIPPINES and INTERMEDIATE Identification card purporting to show
APPELLATE COURT, respondents. that he was a PC-CIS agent. ...
Thereupon, his aforesaid request was
YAP, C.J.: granted, and PAL legal officer Atty.
Conrado A. Boro showed to him the
This is an appeal by certiorari from the decision of the then Intermediate requested PAL records. Gigantoni then
Appellate Court in AC-G.R. No. 01119 entitled "People of the Philippines v. secured xerox copies of the requested
Melencio Gigantoni y Javier," promulgated on November 13, 1985, which
affirmed the decision of the Regional Trial Court, Branch 159, Pasig, Metro
manifest ...and the used PAL tickets of
Manila, finding the accused guilty of usurpation of authority under Article 177 one Cesar (Philippe) Wong, an SGV
of the Revised Penal Code with modification of the penalty by reducing the auditor, and that of a certain Daisy
same to one (1) month and one (1) day of arresto mayor to one (1) year and
one (1) day of prision correccional, after crediting the accused with a Britanico, an employee of Black
mitigating circumstance analogous to voluntary confession of guilt. Mountain. Thereafter, he left the PAL
premises.
Petitioner Melencio Gigantoni y Javier, was charged
before the Regional Trial Court of Rizal, Pasig, with the When Gigantoni was no longer around,
crime of usurpation of authority in violation of Article PAL general counsel Ricardo Puno, Jr.,
177 of the Revised Penal Code upon an information inquired from Atty. Boro about
alleging that the crime was committed as follows: Gigantoni's purpose in securing copies
of PAL records. They then became
That on or about the 14th and 15th day suspicious of the accused" real identity
of May, 1981, in the Municipality of prompting them to conduct verification
Makati, Metro Manila, Philippines, and from the PC-CIS office. They
within the jurisdiction of this Honorable subsequently learned from General Uy
Court, the above-named accused, who of PC-CIS that Gigantoni was no longer
is not a bonafide agent of the CIS, a CIS agent since June 30, 1980 as he
Philippine Constabulary, did then and had been dismissed from the service
there willfully, unlawfully, knowingly for gross misconduct ... brought about
and falsely represented himself as a by the extortion charges filed against
bonafide agent of the CIS, Philippine him and his final conviction by the
Constabulary, said accused, knowing Sandiganbayan for the said offense....
fully well his representation to be false. Upon discovering the foregoing, Atty.
Puno immediately alerted the NBI as
Gigantoni would be coming back to the
PAL office the following day. ...
 On May 15, 1981, when Gigantoni
returned to the Makati PAL office, he
was brought by Atty. Puno to their
conference room while awaiting for the
arrival of the NBI agents who were
earlier contacted. In the presence of
Atty. Boro and a PAL security,
Gigantoni was confronted by Atty.
Puno as to his real Identity. He later
admitted that he was no longer with the
CIS; that he was working for the Black
Mountain Mining Corporation; and that
he was just checking on a claim for per
diem of one of their employees who
had travelled. ...
Upon the arrival of NBI agents Teodoro
Pangilinan, Lolito Utitco and Dante
Crisologo, Attys. Puno and Boro turned
over the person of Gigantoni to the NBI.
They also submitted a complaint
affidavit against Gigantoni .... On that
same day, after the investigation, arrest
and booking conducted by the NBI,
Gigantoni was charged before the
Office of the Provincial Fiscal of Rizal,
thru its office in Makati, with the crime
of Usurpation of Authority.
The petitioner-accused raised substantially the same
errors on appeal to respondent appellate court, to wit:
1. The appellate court erred in interpreting that
presumption that official duty has been regularly
performed, its applicable in the case at bar;
2. The appellate court erred in its interpretation of the
difference between suspension and dismissal.
The gist of petitioner's contention is that he could not
be guilty of the crime charged because at the time of
the alleged commission of the offense, he was still a
CIS agent who was merely suspended and was not yet
informed of his termination from the service.
Furthermore, he avers that the receipt by him of the
notice of dismissal, if there was any, could not be
established on mere presumption of law that official
duty has been regularly performed.
Article 177 of the Revised Penal Code on usurpation of
authority or official functions, under which the petitioner
was charged, punishes any person: (a) who knowingly
and falsely represents himself to be an officer, agent or
representative of any department or agency of the
Philippine Government or of any foreign government;
or (b) who, under pretense of official position, performs
any act pertaining to any person in authority or public
officer of the Philippine Government or any foreign
government or any agency thereof, without being
lawfully entitled to do so. The former constitutes the
crime of usurpation of authority under which the
petitioner stands charged, while the latter act
constitutes the crime of usurpation of official functions.
The question before us is—did
petitioner knowingly and falsely represent himself as
an agent of the CIS, Philippine Constabulary?
Petitioner admits that he received a notice of his
suspension from the CIS effective June 20, 1980. This
admission is supported by the record (Annex "D")
which shows the letter of Lt. Col. Sabas Edades to
petitioner, dated June 23, 1980, regarding said action.
Said official letter was also sent to the Commissioner
of the Merit Systems Board, Civil Service Commission,
the Minister of National Defense and the Commanding
General of the CIS. However, as to petitioner's alleged
dismissal effective June 20, 1980, he denies having
been informed thereof. The record is bereft of any
evidence or proof adduced by the prosecution showing
that the dismissal was actually conveyed to petitioner.
That is why the court, in convicting him, relied on the
disputable presumption that official duty has been
regularly performed, that is, that it is presumed that he
was duly notified of his dismissal.
The failure of the prosecution to prove that petitioner
was duly notified of his dismissal from the service
negatives the charge that he "knowingly and falsely"
represented himself to be a CIS agent. The
constitutional presumption of innocence can only be
overturned by competent and credible proof and never
by mere disputable presumptions, as what the lower
and appellate courts did when they presumed that
petitioner was duly notified of his dismissal by applying
the disputable presumption "that official duty has been
regularly performed." It was not for the accused to
prove a negative fact, namely, that he did not receive
the order of dismissal. In criminal cases, the burden of
proof as to the offense charged lies on the prosecution.
Hence, it was incumbent upon the prosecution to
establish by positive evidence the allegation that the
accused falsely represented himself as a CIS agent, by
presenting proof that he knew that he was no longer a
CIS agent, having been duly notified of his dismissal. It
is essential to present proof that he actually knew at
the time of the alleged commission of the offense that
he was already dismissed from the service. A mere
disputable presumption that he received notice of his
dismissal would not be sufficient.
The Solicitor General has argued in his memorandum,
that it makes no difference whether the accused was
suspended or dismissed from the service, "for both
imply the absence of power to represent oneself as
vested with authority to perform acts pertaining to an
office to which he knowingly was deprived of "
(Emphasis supplied). The observation of the Solicitor
General is correct if the accused were charged with
usurpation of official function (second part of Article
177), but not if he is charged merely with usurpation of
authority (first part of Article 177). The information
charges the accused with the crime of usurpation of
authority for "knowingly and falsely representing
himself to be an officer, agent or representative of any
department or agency of the Philippine Government."
Petitioner is not accused of usurpation of official
functions. It has not been shown that the information
given by PAL to the accused was confidential and was
given to him only because he was entitled to it as part
of the exercise of his official function. He was not
charged in the information for such an offense. In fact,
it appears from the record of the case that the
information, which was not claimed to be secret and
confidential, was readily made available to the accused
because PAL officials believed at the time that he was
a CIS agent. And this was the only offense with which
he was charged in the information, that he knowingly
and falsely represented himself to be a CIS agent.
Premises considered, the decision of the respondent
Appellate Court affirming the judgment of conviction of
the Regional Trial Court is reversed and set aside.
Petitioner-accused, Melencio Gigantoni y Javier is
hereby aquitted of the crime charged.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ.,
concur.
Art. 183 –PERJURY
(1) G.R. No. L-65006 October 31, 1990
REOLANDI DIAZ, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and INTERMEDIATE
APPELLATE COURT, respondents.
Paterno R. Canlas Law Offices for petitioner.
PARAS, J.:
In Criminal Case No. 934 of the Court of First Instance of Pampanga, Fifth
Judicial District, Branch VI, San Fernando, Pampanga, petitioner Reolandi
Diaz was charged with the crime of Falsification of Official Document
committed as follows:
That on or about the 5th day of
December 1972, in the Municipality of
San Fernando, Province of Pampanga,
Philippines, and within the jurisdiction
of this Honorable Court, the above-
named accused, Reolandi M. DIAZ,
then a Senior Clerk at the Jose Abad
Santos High School and, therefore, a
public employee, did then and there
willfully, unlawfully and feloniously
commit falsification of official
documents, to wit: by executing and
filing in the office of the Civil Service
Commission of said municipality a
Personal Data Sheet, CS Form No.
212(65), an official document, stating
and malting it appear therein that he
was a fourth year Bachelor of Arts
student in 1950-54 at the Cosmopolitan
and Harvardian Colleges which
document is a requirement for his
reappointment as School
Administrative Assistant I of the Jose
Abad Santos High School and wherein
the academic requirement to said
Position is at least a fourth year college
undergraduate, when in truth and in
fact, the said accused well knew that
the statement is false and he did not
reach the fourth year in a Bachelor of
Arts degree course, and consequently,
by reason of said untruthful narration of
facts, his appointment to the said
position was approved by the Civil
Service Commission.
All contrary to law. (p. 44, Rollo)
After trial following a plea of not guilty upon
arraignment, petitioner was found guilty as charged.
The dispositive portion of the trial court's decision is as
follows:
WHEREFORE and in view of all the
foregoing, this Court finds the accused
Reolandi M. Diaz guilty as charged of
the crime of falsification of official
document penalized under Article 171,
paragraph 4, of the Revised Penal
Code, and he is therefore sentenced to
suffer the indeterminate penalty of
imprisonment of two (2) years, four (4)
months and one (1) day of prision
correccional, as minimum, to six (6)
years and (1) day of prision mayor, as
maximum, and to pay a fine of ONE
THOUSAND (P1,000.00) PESOS
without subsidiary imprisonment in
case of insolvency.
Costs against the accused. (pp. 55-
56, Rollo)
Petitioner appealed the aforesaid judgment of
conviction to the Intermediate Appellate Court, said
appeal being docketed thereat as CA-G.R. No. 24580-
Cr.
In its Decision promulgated on April 7,1983, the
respondent court modified the trial court's decision by
increasing the maximum of the indeterminate penalty
of imprisonment in the event of non-payment of the fine
due to insolvency, but affirmed the verdict of conviction
in all other respects. The pertinent and dispositive
portions of respondent court's decision read:
The penalty for the offense of
falsification of an official document
committed under Article 171,
paragraph 4 of the Revised Penal Code
is (prision mayor) and a fine not to
exceed P5,000.00. The correct penalty
that should be imposed on the
appellant applying the Indeterminate
Sentence Law is imprisonment of Two
(2) Years, Four (4) Months and One (1)
Day of (prison correctional) as
minimum to Eight (8) Years and One
(1) Day of (prision mayor) as maximum
In cam of non-payment of the fine of
P1,000.00 due to insolvency, the
appellant should be subject to
subsidiary imprisonment.
WHEREFORE, with the above
modification as to the penalty and the
imposition of subsidiary imprisonment
in case of insolvency, the decision
appealed from is affirmed in all other
respects with costs against accused-
appellant' (P. 68, Rollo)
Petitioner's motion for reconsideration was denied,
hence, the present recourse.
It is the contention of petitioner that he is entitled to an
acquittal because—
1. The findings of the lower court adopted by the
respondent intermediate Appellate Court that he was
not a fourth year A-B. College student is contrary to the
evidence presented.
2. The respondent intermediate Appellate Court
gravely commuted an error of law in convicting him as
he did not have any legal obligation to state in CS Form
212 that he was a fourth year college student.
3. The Intermediate Appellate Court committed a grave
abuse of discretion in finding that the transcript of
records (Exhibit I) is spurious.
Upon the following facts, found by both the trial court
and respondent Intermediate Appellate Court, to have
been sufficiently and satisfactorily established by the
evidence on record, it appears that petitioner Reolandi
Diaz was a senior clerk at the Jose Abad Santos High
School in San Fernando, Pampanga.
In 1972 he sought appointment as School
Administrative Assistant I of the same school and as
one of the requirements for appointment to said
position, filled up the prescribed personal information
sheet, Civil Service Form 212, and swore to the truth
and veracity of the data and information therein
furnished by him before the proper administering
officer. As one of the required informations, he
indicated in Exh "A" that his highest educational
attainment was Fourth Year A.B. (Liberal Arts)
allegedly pursued or obtained at the Cosmopolitan and
Harvardian Colleges, respectively, during the years
1950 to 1954 inclusive. On the basis thereof, he was
extended an appointment as School Administrative
Assistant I (Exh. "B"). His personal information sheet
(Exh. "A") together with his appointment paper (Exh.
"B"), the certification as to the availability of funds for
the position (Exh. "C") and the resolution of the
Provincial Board of Pampanga creating the position
(Exh. "D") were all forwarded to the Civil Service
Commission for the approval of petitioner's
appointment.
But contrary to petitioner's claim that his highest
educational attainment was Fourth Year A.B. which he
allegedly took at the Cosmopolitan and Harvardian
Colleges during the years 1950 to 1954, he was never
enrolled at the Cosmopolitan Colleges which later
became the Abad Santos Educational Institution and
still later the Ortanez University-at any time during the
period covering the years from 1950 to 1954, inclusive
as certified to by the Registrar of Ortanez University,
Mr. Atilano D. Solomon. Likewise, petitioner was never
a student at the Harvardian Colleges in Tondo, during
the first quarter of school year 1953-1954, inclusive, as
certified to by the school's President, Mrs. Virginia King
vda. de Yap.
Neither did petitioner ever enroll as a collegiate student
at the Harvardian Colleges in San Fernando,
Pampanga after he finished his secondary course in
the same school in June 1950, as certified to by its
Executive Director, Atty. Arnulfo Garcia.
Also, the name of petitioner was not included in all the
enrollment lists of college students submitted to the
then Bureau of Private Schools of the Department of
Education by the Harvardian Colleges at San
Fernando, Pampanga and at Tondo, Manila, during the
period during which petitioner claimed to have been
enrolled. The same thing is true with the list submitted
by the Cosmopolitan Colleges to the said bureau.
The petitioner did not take the witness stand. He only
presented in evidence an alleged transcript of record
(Exh. 1) purporting to show that he took up collegiate
courses at the Philippine Harvardian College in Tondo,
Manila, beginning from the first quarter of the school
year 1951-1952 up to the first quarter of school year
1953-1954 which transcript of record was allegedly
signed by Mrs. Virginia King vda. de Yap, for and in
behalf of the then President of the school, Ildefonso
Yap. But Mrs. Virginia Yap, testifying for the
prosecution disowned the said signature. Besides, at
the bottom portion of the transcript is a printed notation
reading — this is only valid with the college seal and
signature of Pres. Ildefonso D. Yap. Exhibit "I" lacks the
imprint of the college seal and the signature of
President Ildefonso Yap himself. No other
corroborating piece of evidence was presented by
petitioner.
Contrary to petitioner's posture, there was ample, solid
and conclusive evidence adduced by the prosecution
to prove that he was not a fourth year A.B.
undergraduate.
It was clearly established that the statement made by
the accused — that he reached fourth year A.B. and
that he studied for this course (Liberal Arts) at the
Cosmopolitan Colleges and the Harvardian Colleges
from the years 1950-1954, is devoid of truth. The
records of these colleges do not at all reveal that
petitioner was even enrolled at any time from 1950 to
1954 in its College of Liberal Arts. His name does not
appear and could not be found in the enrollment lists
submitted to the Bureau of Private Schools by these
colleges.
While the petitioner in his defense presented an
alleged transcript (Exh. purporting to show that he took
up collegiate course at the Philippine Harvardian
College in Tondo, Manila, beginning from the first
quarter of the school year 1951-1952 up to the first
quarter of the school year 1953-1954, both the trial
court and the respondent court correctly disregarded
said transcript as having emanated from a spurious
source. The transcript presented lacks the
authenticating marks-the imprint of the college seal and
the signature of the President of the college.
As correctly observed by the trial court —
It is also quite significant to note in this
score that the accused in his defense
failed to present any corroborating
piece of evidence which will show that
he was indeed enrolled in the
Philippine Harvardian Colleges from
the first quarter of the school year
1953- 1954. If he had enrolled as a
student during this period of time and
he was positive that the transcript of
records issued to him and in his
possession is genuine and valid, it
could have been easy for him to
introduce corroborating evidence, i.e.,
the testimony of any of his classmates
or teachers in the different subjects that
 he took to support his claim that he
studied and passed these collegiate
courses at the said school. But this he
failed to do despite all the opportunities
open to him and in the face of damning
evidence all showing that he had not
really enrolled in this school or in the
other school mentioned by him the
personal information sheet that he filed
up as requirement for his appointment.
(p. 53, Rollo)
Following the doctrine laid down, however, in the case
of People v. Rufo B. Cruz, No. L-15132, May
25,1960,108 Phil. 255 and the earlier case of United
States v. Tupasi Molina, 29 Phil. 119, the crime
committed under the foregoing facts, is perjury. This
offense, as defined in Article 183 of the Revised Penal
Code is the willful and corrupt assertion of a falsehood
under oath or affirmation administered by authority of
law on a material matter. The said article provides —
Art. 183. False testimony in other cases
and perjury in solemn affirmation. The
penalty of arresto mayorin its
maximum period to prision
correccional in its minimum period
shall be imposed upon any person
who, knowingly making untruthful
statements and not being included in
the provisions of the next preceding
articles, shall testify under oath or
make an affidavit upon any material
matter before a competent person
authorized to administer an oath in
cases in which the law so requires.
Any person who, in case of a solemn
affirmation made in lieu of an oath,
shall commit any of the falsehoods
mentioned in this and the three
preceding articles of this section shall
suffer respective penalties provided
therein.
In that case of People v. Cruz, supra, the accused Rufo
B. Cruz failed up an application form (Civil Service
Form No. 2) for the patrolman examination. He stated
therein that he had never been accused, indicted or
tried for violation of any law, ordinance or regulation
before any court, when in truth and in fact, as the
accused well knew, he had been prosecuted and tried
before the Justice of the Peace of Cainta, Rizal, for
different crimes. The application was signed and sworn
to by him before the municipal mayor of Cainta, Rizal.
This Court in that case held:
This article is similar to Section 3 of Act
No. 1697 of the Philippine Commission,
which was formerly the law punishing
perjury. Under said section 3 of that
Act, this Court, in the case of United
States v. Tupasi Molina (29 Phil. 119),
held that a person, who stated under
oath in his application to take police
examination that he had never been
convicted of any crime, when as a
matter of fact he has previous
convictions, committed perjury. The
facts in that case are almost exactly
analogous to those in the present, and
we find no reason, either in law or in the
arguments of the Solicitor General to
modify or reverse the conclusion of this
Court therein. More so, because all the
elements of the offense of perjury
defined in Art. 183 of the Revised Penal
Code concur in the present case.
The elements of the crime of perjury are —
(a) That the accused made a statement under oath or
executed an affidavit upon a material matter.
(b) That the statement or affidavit was made before a
competent officer, authorized to receive and administer
oath.
(c) That in that statement or affidavit, the accused
made a and deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the
falsity is required by law or made for a legal purpose.
All the foregoing elements are present in the case at
bar.
Perjury under Art. 183 of the Revised Penal Code
carries a lesser penalty. The penalty for this crime
is arresto mayor in its maximum period to prision
correccional in its minimum period. Since there is no
mitigating and aggravating circumstance the penalty
should be imposed in its medium period. Applying the
Indeterminate Sentence Law, the penalty should be
from four (4) months of arresto mayor as minimum to
one (1) year and one (1) day of prision correccional as
maximum.
WHEREFORE, in view of the foregoing considerations,
the decision appealed from is modified as follows:
(a) The accused Reolandi Diaz is found guilty of the
crime of perjury defined and penalized under Art. 183
of the Revised Penal Code; and
(b) The accused is hereby sentenced to suffer the
penalty of from four (4) months of arrests mayor as
minimum to one (1) year and one (1) day of prision
correccional as maximum.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento
and Regalado, JJ., concur.
(2) G.R. No. 162187 November 18, 2005
CRISTE B. VILLANUEVA, Petitioner,
vs.
THE HON. SECRETARY OF JUSTICE and HORST-
KESSLER VON SPRENGEISEN, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of
the Decision1 of the Court of Appeals (CA) in CA-G.R.
SP No. 76999 dismissing the petition
for certiorari assailing the finding of the Secretary of
Justice that no probable cause exists against private
respondent Horst-Kessler Von Sprengeisen for perjury.
The Antecedents
On April 2, 1996, the Refractories Corporation of the
Philippines (RCP) filed a protest before the Special
Committee on Anti-Dumping of the Department of
Finance against certain importations of Hamburg
Trading Corporation (HTC), a corporation duly
organized and existing under the laws of the
Philippines. The matter involved 151.070 tons of
magnesite-based refractory bricks from
Germany.2 The case was docketed as Anti-Dumping
Case No. I-98.
The protest was referred to the Bureau of Import
Services (BIS) of the Department of Trade and
Industry, to determine if there was a prima facie case
for violation of Republic Act (R.A.) No. 7843, the Anti-
Dumping Law. Sometime in February 1997, the BIS
submitted its report to the Tariff Commission, declaring
that a prima facie case existed and that continued
importation of refractory bricks from Germany would
harm the local industry. It adopted the amount of DM
1,200 per metric ton as the normal value of the
imported goods.3
The HTC received a copy of the said report on
February 14, 1997. However, before it could respond,
the chairman of the Tariff Commission prodded the
parties to settle the matter amicably. A conference
ensued between RCP Senior Vice President and
Assistant General Manager Criste Villanueva and
Jesus Borgonia, on the one hand, and HTC President
and General Manager Horst-Kessler Von Sprengeisen
and Sales Manager Dennis Gonzales, on the other.
During the conference, the parties agreed that the
refractory bricks were imported by the HTC at a price
less than its normal value of DM 1,200, and that such
importation was likely to injure the local industry. The
parties also agreed to settle the case to avoid
expenses and protracted litigation. HTC was required
to reform its price policy/structure of its importation and
sale of refractory bricks from Germany to conform to
the provisions of R.A. No. 7843 and its rules and
regulations. Jesus Borgonio thereafter prepared and
signed a compromise agreement containing the terms
agreed upon which Villanueva and Borgonia
signed.4 Bienvenido Flores, an Office Clerk of RCP,
delivered the agreement to HTC at the 9th Floor of
Ramon Magsaysay Center Building, 1680 Roxas
Boulevard, Manila by Von Sprengeisen’s approval.5
However, Von Sprengeisen did not sign the
agreement. Borgonia revised the agreement by
inserting the phrase "based on the findings of the BIS"
in paragraph 1 thereof. Villanueva and Borgonia signed
the agreement and had the same delivered to the office
of HTC on April 22, 1997 by Lino M. Gutierrez, a
technical assistant of RCP. Gonzales received the
agreement and delivered the same to Von
Sprengeisen. After 20 minutes, Gonzales returned,
with the agreement already signed by Von
Sprengeisen.6 Gonzales, who had also signed, then
gave it to Gutierrez. On the same day, Notary Public
Zenaida P. De Zuñiga notarized the
agreement.7 Gonzales delivered a copy of the
notarized Agreement to HTC.8
RCP submitted the compromise agreement to the Tariff
Commission. During the May 9, 1997 hearing before
the Commission for the approval of the agreement, a
representative of HTC appeared. He offered no
objection to the Agreement. The Commission
submitted its report to the Special Committee which
rendered a decision declaring that, based on the
findings of the BIS, the normal value of the imported
refractory bricks was DM 1,200 per metric ton. HTC
received a copy of the decision on March 4, 1998.
Neither RCP nor HTC appealed the decision to the
Court of Tax Appeals.
In the meantime, HTC imported refractory bricks from
Germany anew and noted that the normal value of the
said importation under the decision of the Special
Committee based on the BIS report was DM 1,200 per
metric ton. On July 28, 1998, the HTC filed an Urgent
Motion to Set Aside and/or Vacate Judgment with the
Special Committee on Anti-Dumping, praying that such
decision be declared null and void on the following
grounds:
1. THE FRAUD HAD BEEN COMMITTED BY THE
PROTESTANT DURING THE NEGOTIATION FOR
THE PREPARATION OF THE COMPROMISE
AGREEMENT.
2. THAT INSERTIONS AND/OR SUBSTITUTION OF
THE FACTS NOT AGREED UPON WAS
DELIBERATELY AND SURREPTITIOUSLY MADE BY
THE PROTESTANT IN THE COMPROMISE
AGREEMENT WITHOUT THE KNOWLEDGE AND
CONSENT OF THE PROTESTEE.9
The motion was verified by Von Sprengeisen. The HTC
averred therein that Villanueva violated Article 172 of
the Revised Penal Code when he surreptitiously
inserted the phrase "based on the findings of the BIS"
in the agreement without the knowledge and consent
of Von Sprengeisen and despite their agreement to put
behind them the findings of the BIS. Appended to the
motion was an Affidavit of Merit executed by Von
Sprengeisen in which he alleged, inter alia, that
sometime in February 1997, the BIS came out with its
Report declaring that the normal value of the
magnesite-based refractory bricks was DM 1,200 per
metric ton; before
HTC could respond to the report, Villanueva invited him
to a conference for the purpose of finding the best
solution to the pending case before the Commission;
he and Gonzales attended the meeting during which it
was agreed, by way of a compromise, that the parties
will accept the amount of DM 1,050 per metric ton as
the normal value for all magnesite-based refractory
bricks from Germany; when he received the draft of the
compromise agreement prepared by Villanueva, he
approved the same; subsequently, Villanueva
transmitted a compromise agreement already signed
by him to Von Sprengeisen for his review, approval and
signature; believing that the compromise agreement
reproduced the contents of the first compromise
agreement, he signed the second agreement without
reading it; when he received, on March 4, 1998, a copy
of the decision of the Tariff Commission based on the
compromise agreement of the parties wherein the
committee adopted the findings and recommendations
of the BIS (that the normal value of the shipment was
DM 1,200 per metric ton), he was shocked because he
never agreed to the use of such findings for the
reformation of its price policies; there was, in fact, an
agreement between him and Villanueva to put behind
them the findings of the BIS; he called up Villanueva at
his office but failed to contact him despite several
attempts; suspecting that something amiss happened,
he had the draft of the first compromise agreement
retrieved but his secretary failed to locate the same; it
was only sometime later that his secretary found the
folder-file containing the draft and was appalled to
discover that Villanueva had substantially altered the
first draft of the compromise agreement; this made him
conclude and confirm his suspicion that Villanueva,
thru deceit and fraud, induced him to sign the
compromise agreement to the prejudice of the HTC.10
The RCP opposed the motion. But, in a parallel move,
Villanueva, in his capacity as Senior Vice President
and Assistant General Manager of RCP, filed a criminal
complaint for perjury against Von Sprengeisen in the
Office of the City Prosecutor of Manila. Appended
thereto was a complaint-affidavit executed by
Villanueva wherein he declared, inter alia, that Von
Sprengeisen made the following false statements in the
Urgent Motion, thus:
a. [Complainant] was the one who called up his office,
inviting him to a meeting for the purpose of finding the
best and most equitable solution to the case (p. 3,
Urgent Motion);
b. RCP and Hamburg Trading agreed to put behind
them the findings and recommendations of the Bureau
of Import Services (BIS) with respect to the anti-
dumping protest filed by RCP (p. 3, Urgent Motion);
c. The original version of the Compromise Agreement
sent to him was merely a draft (p. 3, Urgent Motion);
d. The phrase "based on the findings of the Bureau of
Import Services" was inserted in paragraph 1 of the
final Compromise Agreement without his knowledge
and consent (p. 3, Urgent Motion); and
e. [Complainant] was the one who surreptitiously
inserted the aforesaid phrase (p. 3, Urgent Motion).11
Villanueva also alleged that Von Sprengeisen made
the following false statements in his Affidavit of Merit:
a. [Complainant] invited him to a conference for the
purpose of finding the best solution to the case;
b. [Complainant and he] agreed to put behind [them]
the findings and recommendation of the BIS submitted
to the Secretary of Finance;
c. We agreed to the amount of DM 1,050/ton as the
normal value for all magnesite-based refractory bricks
from Germany;
d. The original version of the Compromise Agreement
sent to him was merely a draft; and
e. Through deceit and fraud, [complainant] induced
[respondent] to sign the final Compromise
Agreement.12
In his Counter-Affidavit, Von Sprengeisen averred that
whoever called the other for a conference was not a
material matter. Since the first draft of the Compromise
Agreement transmitted to him was by fax, he asked the
complainant to send to him the hard copy of the
Agreement for his signature. He further narrated that
when he received the hard copy of the compromise
agreement, he did not bother to review since he
assumed that it contained the same provisions in the
faxed copy. He did not suggest that the phrase "based
on the findings of the BIS" be inserted in the hard copy
of the agreement because he and Villanueva were at
odds on the BIS finding the normal price of the goods
was DM 1,200 per metric ton. He insisted that it would
have been senseless of him to agree to such insertion;
as such, he did not make any willful and deliberate
assertion of any falsehood as to any material fact.13
Investigating Prosecutor Francisco G. Supnet found no
probable cause for perjury against the private
respondent and recommended the dismissal of the
complaint. Second Assistant City Prosecutor Leoncia
Dimagiba reviewed the resolution of Prosecutor
Supnet and found probable cause for perjury against
the private respondent for alleging in his Affidavit of
Merit
that he was induced to sign the compromise agreement
through fraud and deceit. According to the Second
Assistant City Prosecutor, the allegation of the private
respondent "thru deceit and fraud to sign the final
Compromise Agreement" was a deliberate assertion of
a falsehood, designed as it was merely to give the BIS
the impression that private respondent was misled into
agreeing to the compromise agreement. She further
opined that the allegation was perjurious, considering
that the private respondent had sufficient time to pass
upon the Compromise Agreement and could have
availed the services of legal minds who could review
the terms and conditions thereof before signing the
same;14 hence, she recommended the reversal of
Prosecutor Supnet’s resolution and the filing of the
information. The City Prosecutor approved the
recommendation of the Second Assistant City
Prosecutor. Accordingly, an Information for perjury was
filed against the private respondent with the
Metropolitan Trial Court of Manila.
The private respondent appealed the resolution to the
Secretary of Justice, who reversed the resolution of the
City Prosecutor on September 20, 2002. According to
the Justice Secretary, the complainant failed to
establish the materiality of the alleged false assertions
and that the said assertions were willful and deliberate.
Moreover, the allegations in the Affidavit of Merit are
not altogether false since the intention of the parties in
executing the compromise agreement was precisely to
put behind the ruling of the BIS, despite which the
complainant inserted the condition that the parties
would be bound by such findings and
recommendations.15 The decretal portion of the
resolution reads:
WHEREFORE, the appealed resolution of the City
Prosecutor of Manila is hereby REVERSED. The City
Prosecutor is directed to withdraw the information for
perjury against respondent Horst-Kessler von
Sprengeisen and to report the action taken within ten
(10) days from receipt hereof.
SO ORDERED.16
Villanueva then filed a petition for certiorari with the CA
assailing the resolution of the Justice Secretary,
alleging therein that grave abuse of discretion,
amounting to excess or lack of jurisdiction, was
committed in issuing the said resolution.17 The private
respondent, for his part, sought the dismissal of the
petition alleging that, as found by the Justice Secretary,
there was no probable cause against him for perjury.18
On February 13, 2004, the CA dismissed the petition
and affirmed the resolution of the Justice Secretary.19
The CA declared that, as posited by the Office of the
Solicitor General in its comment on the petition, the
parties had agreed to put behind them the findings and
recommendations of the BIS with respect to the anti-
dumping protest. The appellate court stated that its
finding is buttressed by the fact that the amount of DM
1,050 was not mentioned in the first compromise
agreement and that, under such agreement, the HTC
obliged itself "to reform
its pricing policy and structure with respect to refractory
products being imported to and sold in the Philippines
in accordance with the provisions of R.A. No. 7843 and
its implementing rules and requirements." The CA
emphasized that it was inclined to believe that there
was no meeting of the minds of the parties when the
petitioner inserted the phrase "based on the findings of
the BIS" in the revised compromise agreement; hence,
there could not have been perjury when the private
respondent executed the Affidavit of Merit and the
Urgent Motion to Set Aside and/or Vacate Judgment.
The CA also agreed with the findings of the Secretary
of Justice that the insertion of the condition in the
compromise agreement that the parties would be
bound by the BIS findings and recommendation gave
the private respondent reason to believe that he was
deceived by the petitioner into signing the Agreement;
as such, the private respondent’s allegation in his
Affidavit of Merit, that he was induced to signing the
Compromise Agreement through fraud and deceit, was
not altogether false. Consequently, the CA ruled, the
private respondent did not make any willful and
deliberate assertion of a falsehood.20 The appellate
court conformed to the disquisitions of the Secretary of
Justice in the assailed resolution and concluded that
the private respondent did not, in the Affidavit of Merit,
make a willful and deliberate assertion of a falsehood. 21
Aggrieved, the petitioner filed a petition for review
on certiorari with this Court against private respondent
Von Sprengeisen and the Secretary of Justice, insisting
that the CA committed grave abuse of discretion
amounting to excess or lack of jurisdiction in dismissing
the petition and affirming the assailed resolution.
The petitioner maintains that, during the preliminary
investigation, he adduced substantial evidence to
prove probable cause for perjury against the private
respondent. He maintains that probable cause does
not mean actual and positive causes; nor does it import
absolute certainty. It is merely based on opinion and
reasonable belief. It is enough that it is believed that
the act or omission complained of constitutes the
offense charged. He avers that, contrary to the claim of
the private respondent in his Affidavit of Merit, the
meeting between him and Jesus Borgonio, on the one
hand, and the private respondent and HTC Sales
Manager Dennis Gonzales, on the other, was arranged
by the latter and not by him. As gleaned from the draft
and final copies of the compromise agreement, the
parties made express reference to the prima
facie findings of the BIS that the actual export price of
HTC was below the fair market value. By agreeing that
such findings of the BIS be included in the Compromise
Agreement, the said private respondent impliedly
agreed to such findings as basis of the price for which
HTC would sell the German-made magnesite-based
refractory bricks in the Philippines. The petitioner avers
that the fact that the amount of DM 1,050 per metric ton
was not specifically mentioned in the compromise
agreement was of no importance, considering the
parties’ acceptance of such findings is based on R.A.
No. 7843. He points out that the private respondent
could not have failed to notice the difference between
the first draft and the final copy of the agreement before
signing it because, as alleged by Lino Gutierrez in his
reply affidavit, it took the private respondent twenty
minutes or so after receiving the agreement to review
the final draft before signing it. Moreover, the Urgent
Motion to Set Aside and/or Vacate Judgment signed by
the private respondent was filed more than 15 months
from the execution of the compromise agreement and
after four months from the Tariff Commission’s
approval thereof.
The petitioner argues that it is incredible that during
the interregnum of 19 months, the private respondent
failed to discover the revisions/insertions in the final
draft of the compromise agreement. Considering the
premises, the petitioner submits, the private
respondent’s filing of the Urgent Motion for and in
behalf of HTC was merely an afterthought, to enable
the latter to escape compliance with the terms and
conditions of the Agreement.
The petitioner further insists that the insertion of the
contested phrase in the final draft of the compromise
agreement was necessary although it may not be in the
best interest of HTC. He posits that the falsehoods
made by the private respondent in his Urgent Motion
and Affidavit of Merit were material to the proceedings
in the Anti-Dumping Office of the Tariff Commission
because these were used to set aside the compromise
agreement executed by the parties.
In his Comment on the petition, the private respondent
avers that the issues raised by the petitioner are
factual, hence, improper in a petition for
review on certiorari under Rule 45 of the Rules of
Court. The determination of the existence of a probable
cause is primarily an administrative sanction of the
Secretary of Justice. He insists that the findings of the
Justice Secretary should be accorded great respect,
especially since the same were upheld by the CA. He
asserts that the petitioner failed to establish in the CA
and in this Court that the Justice Secretary committed
a grave abuse of discretion amounting to excess or
lack of jurisdiction in her resolution.
The petition has no merit.
The pivotal issue in this case is factual – whether or
not, based on the records, there was probable cause
for the private respondent’s indictment for perjury.
Rule 45 of the Rules of Court provides that only
questions of fact may be raised in a petition for review
on certiorari. Findings of facts of a quasi-judicial
agency, as affirmed by the CA, are generally
conclusive on the Court, unless cogent facts and
circumstances of such a nature warranting the
modification or reversal of the assailed decision were
ignored, misunderstood or misinterpreted. Thus, the
Court may delve into and resolve factual issues in
exceptional cases. The petitioner has failed to establish
that any such circumstance is present in the case at
bar.22
The Court finds that the public respondent did not
commit any grave abuse of discretion amounting to
excess or lack of jurisdiction in issuing the assailed
resolution, and that the CA did not commit any
reversible error in its assailed decision and resolution.
If at all the public respondent erred in issuing the
assailed resolution, such is merely an error in the
exercise of jurisdiction, reversible by a petition for
review under Rule 43 of the Rules of Court especially
so where, as in this case, the issues before the CA
were factual and not legal. The absence or existence
of probable cause in a given case involves a calibration
and a reexamination of the evidence adduced by the
parties before the Office of the City Prosecutor of
Manila and the probative weight thereof. The CA thus
ruled correctly when it dismissed the petition before it.
Probable cause, for purposes of filing a criminal
information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime
has been committed and that the private respondent is
probably guilty thereof. It is such a state of facts in the
mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe or entertain
an honest or strong suspicion that a thing is so. The
term does not mean "actual or positive cause;" nor
does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into
whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense
charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge."23
The determination of its existence lies within the
discretion of the prosecuting officers after conducting a
preliminary investigation upon complaint of an
offended party.24 The Resolution of the Secretary of
Justice declaring the absence or existence of a
probable cause affirmed by the CA is accorded high
respect. However, such finding may be nullified where
grave abuse of discretion amounting to excess or lack
of jurisdiction is established.25
Perjury is defined and penalized in Article 183 of the
Revised Penal Code, thus:
Art. 183. False testimony in other cases and perjury in
solemn affirmation. The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period shall be imposed upon any person who,
knowingly making untruthful statements and not being
included in the provisions of the next preceding articles,
shall testify under oath or make an affidavit upon any
material matter before a competent person authorized
to administer an oath in cases in which the law so
requires.
Any person who, in case of a solemn affirmation made
in lieu of an oath, shall commit any of the falsehoods
mentioned in this and the three preceding articles of
this section shall suffer the respective penalties
provided therein.
Perjury is an obstruction of justice; its perpetration may
affect the earnest concerns of the parties before a
tribunal. The felony is consummated when the false
statement is made.26
The seminal modern treatment of the history of perjury
concludes that one consideration of policy
overshadows all others – the measures taken against
the offense must not be so severe as to discourage
aggrieved parties from lodging complaints or
testifying.27 As quoted by Dean Wigmore, a leading
19th Century Commentator, noted that English law,
"throws every fence round a person accused of perjury,
for the obligation of protecting witnesses from
oppression or annoyance, by charges, or threats of
charges, of having made false testimony is far
paramount to that of giving even perjury its deserts." 28
Perjury is the willful and corrupt assertion of a
falsehood under oath or affirmation administered by
authority of law on a material matter.29 The elements of
the felony are:
(a) That the accused made a statement under oath or
executed an affidavit upon a material matter.
(b) That the statement or affidavit was made before a
competent officer, authorized to receive and administer
oath.
(c) That in that statement or affidavit, the accused
made a willful and deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the
falsity is required by law or made for a legal purpose.30
A mere assertion of a false objective fact, a falsehood,
is not enough. The assertion must be deliberate and
willful.31Perjury being a felony by dolo, there must be
malice on the part of the accused.32 Willfully means
intentionally; with evil intent and legal malice, with the
consciousness that the alleged perjurious statement is
false with the intent that it should be received as a
statement of what was true in fact. It is equivalent to
"knowingly." "Deliberately" implies meditated as
distinguished from inadvertent acts.33 It must appear
that the accused knows his statement to be false or as
consciously ignorant of its truth.34
Perjury cannot be willful where the oath is according to
belief or conviction as to its truth. A false statement of
a belief is not perjury. Bona fide belief in the truth of a
statement is an adequate defense.35 A false statement
which is obviously the result of an honest mistake is not
perjury.
There are two essential elements of proof for perjury:
(1) the statement made by the defendants must be
proven false; and (2) it must be proven that the
defendant did not believe those statements to be true.36
Knowledge by the accused of the falsity of his
statement is an internal act. It may be proved by his
admissions or by circumstantial evidence. The state of
mind of the accused may be determined by the things
he says and does, from proof of a motive to lie and of
the objective falsity itself, and from other facts tending
to show that the accused really knew the things he
claimed not to know.37
A conviction for perjury cannot be sustained merely
upon the contradictory sworn statements of the
accused. The prosecution must prove which of the two
statements is false and must show the statement to be
false by other evidence than the contradicting
statement.38 The rationale of this principle is thus:
… Proof that accused has given contradictory
testimony under oath at a different time will not be
sufficient to establish the falsity of testimony charged
as perjury, for this would leave simply one oath of the
defendant as against another, and it would not appear
that the testimony charged was false rather than the
testimony contradictory thereof. The two statements
will simply neutralize each other; there must be some
corroboration of the contradictory testimony. Such
corroboration, however, may be furnished by
evidence aliunde tending to show perjury
independently of the declarations of testimony of the
accused.39
The term "material matter" is the main fact subject of
the inquiry, or any circumstance which tends to prove
that fact, or any fact or circumstance which tends to
corroborate or strengthen the testimony related to the
subject of the inquiry, or which legitimately affects the
credence of any witness who testified. In this case, a
matter is material if it has a material effect or tendency
to influence the Commission in resolving the motion of
HTC one way or the other. The effects of the statement
are weighed in terms of potentiality rather than
probability.40 The prosecution need not prove that the
false testimony actually influenced the Commission.41
The private respondent did err when he declared, in the
motion of the HTC and his affidavit, that it was the
petitioner who invited him to a and Assistant General Manager, Borgonia’s superior.
conference. The truth of the matter is that it was
Gonzales who did so. Nonetheless, the issue of who
called for a conference is of de minimis importance
because, after all, the parties agreed to meet after
having been prodded by the Chairman of the
Commission to settle the case instead of going through
the tribulations and expenses of a protracted litigation.
No adverse inference (related to the merits of their
respective contention in this case) can be ascribed as
to whoever called the conference. After all, parties are
even urged to settle cases amicably.
Besides, as correctly declared by the Second Assistant
City Prosecutor in her resolution:
The allegation that it was complainant who invited
respondent to the meeting may not be a deliberate lie.
Respondent may not have known who arranged the
meeting, but as he was able to talk to complainant, he
presumed that it was complainant who extended the
invitation. Moreover, the identity of the one who
initiated the meeting is not material considering that
there was a meeting of the minds of the Parties.42
The Court also agrees with the contention of the private
respondent that the copy of the first agreement
transmitted to him was a fax copy of the draft, and that,
contrary to the allegations of the private respondent,
such agreement was prepared by Borgonia and not by
the petitioner. As gleaned from page two of the
agreement, the particulars of the residence certificates
of the petitioner and the private respondent were not
typewritten, hence, cannot as yet be notarized. As
claimed by the private respondent, a copy was
transmitted to him for his personal review, and if he
found it to be in order, the petitioner and Borgonia
would prepare and sign the agreement and give it back
to him for review and signature, with the particulars of
his community tax certificate indicated in the final copy.
Undeniably, the identity of the person who prepared or
caused to prepare the compromise agreement
subsequently signed by the petitioner and the private
respondent was of prime importance because only
such person should be charged for perjury. The private
respondent erroneously stated in his Affidavit of Merit
and Urgent Motion that it was the petitioner who
prepared the agreement that was signed by the parties.
It turned out that it was Borgonia who prepared the first
and the second copies. However, the private
respondent cannot be held liable for perjury since it
was Borgonia who prepared the agreement and not the
petitioner. The Court agrees with the following
contention of the private respondent in his counter-
affidavit:
4.6 While complainant claims that it was not he but Mr.
Borgonia who made the insertions, there is no doubt
that, indeed, the insertions were made into the
document. Since complainant is the signatory to the
Compromise Agreement, it is but natural for one to
presume that he had made the insertions. At the same
time, I can not be expected to know that it was Mr.
Borgonia, as claimed by complainant, who made such
insertions.43
Indeed, Borgonia was merely the Manager of the
Management Information Group of RCP, whereas the
petitioner was no less than its Senior Vice President
Unless and until approved by the petitioner, any
agreement prepared by Borgonia was merely a piece
of paper, barren of any legal effect. In this case, the
compromise agreement prepared by Borgonia had the
petitioner’s
imprimatur. Borgonia was merely a witness to the
agreement. For all legal intents and purposes, the
petitioner had the compromise agreement prepared
under his supervision and control. It cannot thus be
concluded that the private respondent made a
deliberate falsehood when he alleged that the
agreement was prepared by the petitioner.
The Court is not persuaded by the petitioner’s claim
that, during the conference, he and the private
respondent agreed that, based on the BIS report, the
normal value of the imported refractory bricks per
metric ton was DM 1,200, and that such report would
be used as basis for the revision of the price policy and
structure of HTC.
It bears stressing that, during the conference, the
petitioner and the private respondent had agreed on
three aspects of the case: (1) based on the prima
facie findings of the BIS, the normal value of the goods
per meter ton was DM 1,200 and that the actual export
price of HTC was below the fair market value; (2) to
terminate the case, HTC will have to adjust and revise
its price policy and structure for imported refractory
bricks to conform to R.A. No. 7843 and rules and
regulations implementing the law; and (3) if HTC fails
or refuses to comply with its undertaking, RCP will be
entitled to a writ of execution without need of demand.
However, the petitioner and the private respondent
could not have agreed on such base price; the
petitioner insisted on the amount recommended by the
BIS (DM 1,200) while the private respondent insisted
on DM 950. There was an impasse. By way of a
compromise, the parties agreed to do away with the
BIS recommended base
value and agreed for HTC to base the normal value of
the importation per metric ton under R.A. No. 7843 and
the rules issued implementing the law. This is gleaned
from the affidavit of Borgonia:
13. During the meeting, Mr. von Sprengeisen
suggested that the value of DM 1,050/ton be applied
as the price at which Hamburg Trading would sell
German-made magnesite-based refractory bricks in
the Philippines. Mr. Villanueva did not agree to the
suggested value, as we considered it low. In the end,
both parties decided to base the determination of the
price on the provisions of Republic Act No. 7843 and
its implementing rules and regulations. …44
Borgonia prepared the first compromise agreement
and incorporated therein the agreement of the
petitioner and the private respondent arrived at during
the conference, thus:
1. For the purpose of buying peace and by way of
concession in order to end litigation, the SECOND
PARTY undertakes and commits to reform its pricing
policy and structure with respect to refractory products
being imported interest sold in the Philippines in
accordance with the provisions of Republic Act 7843
and its implementing rules and regulations.45
If, as claimed by the petitioner in his Affidavit-
Complaint, he and the private respondent had agreed
that HTC will use as basis for its price policy and
structural revision, the BIS report, for sure, Borgonia
would have incorporated the said agreement in the first
compromise agreement. He did not, and Borgonia has
not offered any explanation for such failure. The
petitioner signed the draft of the agreement without any
plaint or revision. It was only in the second compromise
agreement that was later signed by the petitioner and
the private respondent that Borgonia incorporated the
phrase
"based on the findings of the BIS." Borgonia and the
petitioner made the insertion on their own, without the a
prioriconsent of the private respondent.
The Court is not convinced by the petitioner’s
contention (and that of Borgonia in his Affidavit) that the
petitioner and the private respondent had agreed to
leave the final determination of the base value or price
of importation per metric ton to a third party (BIS). The
private respondent could not have agreed to the use of
the BIS report because, as mentioned, he had
strenuously objected to its use as basis for the revision
of its price policy and structure. For HTC to admit that
the BIS finding of DM 1,200 per metric ton was the
normal value of the refractory bricks from Germany for
the purpose of resolving the anti-dumping case is one
thing; but for HTC to agree to be bound by the BIS
recommendation for the purpose of revising its price
policy and structure is completely a different matter.
With the petitioner and the private respondent’s
admission of the prima facie findings of the BIS, the
Commission can prepare its recommendation to the
Special Committee on the protest of the RCP to the
HTC importation subject of the case. Thereafter:
D. The Special Committee shall, within fifteen (15) days
after receipt of the report of the Commission, decide
whether the article in question is being imported in
violation of this section and shall give due notice of
such decision. In case the decision of dumping is in the
affirmative, the special committee shall direct the
Commissioner of Customs to cause the dumping duty,
to be levied, collected and paid, as prescribed in this
section, in addition to any other duties, taxes and
charges imposed by law on such article, and on the
articles of the same specific kind or class subsequently
imported under similar circumstances coming from the
specific country.
In the event that the Special Committee fails to decide
within the period prescribed herein, the
recommendation of the Commission shall be deemed
approved and shall be final and executory.46
On the matter of the revision or adjustment of the price
policy and structure of HTC, the parties had agreed to
accomplish the same in due time. It goes without
saying that the RCP retained the right to object to or
protest to the price policy and structure revision of
HTC.
The agreement of the petitioner and the private
respondent not to be bound by the base value in the
BIS report for the revision of its price policy and
structure is not unexpected because: (1) the findings of
the BIS are only prima facie, meaning to say, not
conclusive, and HTC was accorded a chance to base
its price policy and structure on evidence and
informations other than those contained in the BIS
report; (2) the normal value of the imported refractory
bricks may fluctuate from time to time, hence, the need
for any importer to revise its price policy and structure
from time to time; and (3) the base value to be used by
HTC in revising its price policy would be scrutinized
and resolved initially by the Commission, by the
Special Committee and by the Court of Tax Appeals on
appeal.
The process agreed upon by the petitioner and the
private respondent was not only practical and fair, but
in accord with law as well.
In fine, the private respondent did not commit any
falsehood in the Urgent Motion and his Affidavit of Merit
when he declared that he and the
petitioner put behind them the BIS report, and agreed
to use R.A. No. 7843 and the rules and regulations
implementing the same to determine the base price for
the revision of the price policy and structure of HTC.
Admittedly, the respondent did not object to the
offending phrase before and after signing the
agreement and for a considerable stretch period until
HTC filed its motion. However, we do not agree with
the contention of the petitioner that such failure of the
respondent to object to the offending phrase for such
period of time amounted to an admission that, indeed,
the private respondent was aware of the offending
phrase in the Agreement, and to his agreement thereto;
and estopped the private respondent from alleging that
he was deceived by the petitioner into signing the
Compromise Agreement. In his appeal to the DOJ, the
private respondent declared that:
3.9 True, respondent-appellant may have been remiss
and lacking in circumspect in failing to review the hard
copy Compromise Agreement and notice the insertion.
Being in the trading business, respondent-appellant
personally handles hundreds of documents daily and is
on the telephone for most of the day communicating
with suppliers and customers. And he had no reason to
believe that either complainant-appellee or Mr.
Borgonia would make such an insertion, especially
after respondent-appellant had accepted the fax
Compromise Agreement wording and conveyed such
acceptance to complainant-appellee’s office.
Respondent-appellant also had to reason to even think
that such a surreptitious insertion would be made; after
all, he had a very warm and friendly meeting with
complainant-appellee and Mr. Borgonia and came out
of it with a feeling that he could trust complainant-
appellee (p. 4, Annex "C").
3.10 Hence, when respondent-appellant alleges that
he was induced to sign the hard copy Compromise
Agreement through fraud and deceit, respondent-
appellant honestly believes that he was misled into
signing it. He was misled by the fact that he had been
sent the fax Compromise Agreement by complainant-
appellee, that he had conveyed its acceptability to
complainant-appellee and now requested for the hard
copy for execution, that he had been led to trust that
the findings and recommendation of the BIS were
being put behind them and that complainant-appellee
had agreed to such a compromise. The transmittal of
the hard copy Compromise Agreement, without any
notice or mention by complainant-appellee or
complainant-appellee’s office that it contained
insertions or wording different from the fax
Compromise Agreement, and on respondent-
appellant’s understanding that the wording of the hard
copy Compromise Agreement would be exactly the
same as the fax Compromise Agreement, constitutes
the fraud or deceit allegedly by respondent-appellant.47
In his rejoinder-affidavit, the private respondent
explained that:
2. Again, contrary to the allegations in the Reply-
Affidavits, I was unable to review the Compromise
Agreement delivered by Mr. Gutierrez on 22 April 1997
as I was busy with numerous calls and business at the
time it was delivered. Also, I had been led to believe in
our meetings with Mr. Villanueva and Mr. Borgonia that
I could trust them. So, after having seen the fax
Compromise Agreement and being amenable to it, I
trusted that they would send a genuine hard copy. As
it turned out, I was mistaken.48
Moreover, even before filing the Urgent Motion and
signing the Affidavit of Merit, the private respondent
tried for several times to contact the petitioner, but the
latter failed to return his calls. This reinforced the
suspicion of the private respondent that the insertion of
the offending phrase was not, after all, inadvertent but
deliberate, calculated to deceive him to the prejudice of
HTC. The private respondent may be blamed for
putting too much trust and confidence on the petitioner,
but he certainly cannot be indicted for perjury for lack
of probable cause.
The petitioner failed to append to his petition records of
the Commission that the private respondent appeared
for HTC, on May 9, 1997, before the Commission for
the hearing on the Compromise Agreement; and
showing that the private respondent did not object
thereto.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED for lack of merit. The assailed Decision of
the Court of Appeals in CA-G.R. SP No. 76999
is AFFIRMED. Costs against the petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR
Footnotes
2
Section 3 of Republic Act No. 7843 reads:
SEC. 3. Section 301, Part 2, Title II, Book I of
the Tariff and Customs Code of the Philippines,
as amended, is hereby further amended to
read as follows:
"SEC. 301. Dumping Duty. –
"A. Whenever the Secretary of Finance or the
Secretary of Trade and Industry (hereinafter
called the ‘Secretary’) receives an anti-
dumping petition from the domestic industry or
the Secretary has reason to believe, from any
invoice or other document or newspaper,
magazine or information or translation thereof
by any reputable language translator made
available by any government agency or
interested party, that a specific kind or class of
foreign article, is being imported into, or sold or
is likely to be sold in the Philippines at a price
less than its normal value, the importation or
sale of which might injure, or retard the
establishment of, or is likely to injure an
industry producing like articles in the
Philippines, the Secretary shall, within twenty
(20) days from receipt of such petition or
information, determine a prima facie case of
dumping. Within five (5) days from such
receipt, he shall notify the protestee-importer
and require him to submit within ten (10) days
from such notice evidence from the producer of
the imported article duly authenticated by the
Philippine consular or trade office to support
the normal value of such product. If no such
evidence is submitted within the prescribed
period, the Secretary shall base his decision on
the available pertinent data.
"Pending determination of a prima facie case
of dumping, the petitioner may petition that the
release from the Bureau of Customs of the
alleged dumped product be withheld. If the
Secretary determines that on the face of the
petition and documents presented, there exists
an imminent danger of injury to a particular
industry as a result of the alleged dumping, he
shall direct the Commissioner of Customs to
hold the release of the questioned importation,
upon filing by the petitioner of a bond equal to
the alleged margin of dumping. The bond shall
answer for damages which the importer may
suffer as a result of the holding of the release
of the questioned importation, in case the
Secretary finds that there is no prima
facie case. However, the petitioner’s liability for
damages shall not exceed the amount of his
bond. This bond shall be cancelled once
a prima faciecase has been determined by the
Secretary. The Secretary may, motu proprio,
hold the release of the questioned articles
based on his information that an imminent
danger of injury exists to a particular industry
as a result of the alleged dumping.
"The Secretary upon the determination of
a prima facie case of dumping shall so advise
the Tariff Commission (hereinafter called the
‘Commission’) and shall instruct the
Commissioner of Customs to hold the release
of the goods or articles in question, unless the
protestee/importer shall have filed a cash bond
not less than the provisionally estimated
dumping duty plus the applicable regular duty
based on the documentary evidence submitted
with the dumping protest, to answer for the
payment of such duties, fees and charges if a
dumping case is established. If the protest is
dismissed, the cash deposit shall be returned
to the importer within ten (10) days from the
finality of the order."
The law has been amended by Republic Act
No. 8752, otherwise known as the Anti-
Dumping Act of 1999.
22
(1) … the conclusion is a finding grounded
entirely on speculation, surmise and
conjecture; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion;
(4) the judgment is based on a
misapprehension of facts; (5) the findings of
fact are conflicting; (6) the Court of Appeals
went beyond the issues of the case and its
findings are contrary to the admissions of both
appellant and appellees; (7) the findings of fact
of the Court of Appeals are contrary to those of
the trial court; (8) said findings of fact are
conclusions without citation of specific
evidence on which they are based; (9) the facts
set forth in the petition as well as in the
petitioner’s main and reply briefs are not
disputed by the respondents; and (10) the
findings of fact of the Court of Appeals are
premised on the supposed absence of
evidence and contradicted by the evidence on
record. (Sarmiento v. Court of Appeals, G.R.
No. 110871, 2 July 1998, 291 SCRA 656)
(3) G.R. No. 142011 March 14, 2003
ALFONSO C. CHOA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and LENI
CHOA, respondents.
SANDOVAL-GUTIERREZ, J.:
Alfonso Chan Choa, petitioner, is a Chinese national.
On April 25, 1989, he filed with the Regional Trial Court
(RTC), Branch 41, Bacolod City, a verified petition for
naturalization,1 docketed as Special Proceeding No.
5395.
During the initial hearing of the case on August 27,
1990, petitioner testified on direct examination but he
was not able to finish the same. On August 29, 1990,
he filed a motion to withdraw his petition for
naturalization.2 The trial court granted the motion in its
Resolution dated September 28, 1990,3 which partly
reads:
"The petitioner, Alfonso Chan Choa, has not
yet finished testifying on direct-examination.
Although the petitioner has not stated in his
said ‘Motion To Withdraw Petition’ the reason
why he is withdrawing his petition at this stage
of the proceedings, the petitioner can not be
compelled to continue with his petition for
naturalization.
"In view thereof, the petitioner, Alfonso Chan
Choa, is allowed to withdraw his petition for
naturalization.
"SO ORDERED."
Meanwhile, on August 5, 1992, State Prosecutor Pedro
D. Delfin on detail at Bacolod City, acting upon the
complaint of petitioner’s wife, Leni, filed an
Information4 with the Municipal Trial Court in Cities
(MTCC), Branch 3, Bacolod City, charging petitioner
with perjury under Article 183 of the Revised Penal
Code, docketed as Criminal Case No. 50322. The
Information reads:
"That on or about 30th day of March, 1989, in
the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein
accused did then and there, willfully, unlawfully,
feloniously and knowingly made untruthful
statements or falsehoods upon material
matters required by the Revised Naturalization
Law (C.A. No. 473) in his verified ‘Petition for
Naturalization’ dated April 13, 1989
(sic),5 subscribed and sworn to before Notary
Public Felomino B. Tan, Jr., who is authorized
to administer oath, which petition bears Doc.
No. 140, Page No. 29, Book No. XXIII, series
of 1989, in the Notarial Register of said Notary
Public, by stating therein the following, to wit:
‘5.) I am married to a Filipino. My wife’s
name is Leni Ong Choa and now
resides at 46 Malaspina Street,
Bacolod City. I have two (2) children
 whose names, dates and places of
birth, and residence are as follows:
Name Date of Birth
ALBRYAN ONG July 19, 1981
CHOA
CHERYL May 5, 1983
LYNNE ONG
CHOA
xxx xxx xxx
‘10) I am of good moral character, I
believe in the principles underlying the
Philippine Constitution. I have
conducted myself in a proper and
irreproachable manner during the
entire period of my residence in the
Philippines in my relations with the
constituted government as well as with
the community in which I am living.’
xxx xxx xxx
when in truth and in fact, said accused knew
that his wife Leni Ong Choa and their two (2)
children were not then residing at said address
at # 46 Malaspina Street, Villamonte, Bacolod
City, having left the aforesaid residence in
1984, or about five (5) years earlier and were
then residing at Hervias Subdivision, Bacolod
City; that contrary to his aforesaid allegation in
his verified Petition for Naturalization, accused,
while residing at 211 106 Street, Greenplains
Subdivision, Bacolod City, has been carrying
on an immoral and illicit relationship with one
Stella Flores Saludar, a woman not his wife
since 1984, and begetting two (2) children with
her as a consequence, as he and his wife, the
private offended party herein, have long been
separated from bed and board since 1984;
which falsehoods and/or immoral and improper
conduct are grounds for disqualification to
become a citizen of the Philippines.
"Act contrary to law."
Upon arraignment, petitioner entered a plea of not
guilty. Trial ensued thereafter.
After trial, the MTCC rendered a Decision6 dated
February 21, 1995 finding petitioner guilty of perjury, as
charged, thus:
"FOR ALL THE FOREGOING, this Court finds
the accused guilty beyond reasonable doubt of
the offense which he is presently charged, and
there being no aggravating or mitigating
circumstances that may be considered, the
accused is sentenced to suffer the penalty of
six (6) months and one (1) day of prision
correccional and to pay the costs."
Petitioner filed a motion for a oath and the same was entered in his notary
reconsideration,7 contending, among others, that there
is no basis to convict him of perjury because almost two
years prior to the filing of the Information, his motion to
withdraw the petition for naturalization containing the
alleged false statements was granted by the MTCC,
hence, the alleged false statements were no longer
existing or had become functus officio.
The
Place ofMTCC,
Birth inResidence
its Order8 dated March 31, 1995, denied
petitioner’s
Bacolod City motion
46 for reconsideration.
Malaspina
St., Bacolod City
On appeal, the Regional Trial Court (RTC), Branch 54,
Bacolod City 46 Malaspina
Bacolod City, in a Decision dated September 12, 1996,
St., Bacolod City9
affirmed the MTCC judgment.
Petitioner then filed with the Court of Appeals a petition
for review, docketed as CA-G.R. CR No. 19968. In his
comment, the Solicitor General recommended the
acquittal of petitioner, contending that the withdrawal of
his petition for naturalization rendered the
same functus officio, thus making the questioned false
statements inexistent.
The Court of Appeals, in its Decision dated June 8,
1999,10 affirmed the RTC Decision with modification,
thus:
"WHEREFORE, finding the appealed decision
of the Regional Trial Court to be in accordance
with law and evidence, we AFFIRM the same
with the modification that petitioner-accused-
appellant Alfonso Choa is sentenced to suffer
imprisonment, after applying the Indeterminate
Sentence Law without any aggravating or
mitigating circumstance, for a period of three
(3) months of arresto mayor, to one (1) year
and eight (8) months of prision correccional.
"SO ORDERED."
In convicting petitioner, the Appellate Court adopted as
its own the RTC’s findings as follows:
"Evidence presented clearly proved that all the
above-enumerated elements (of perjury) have
been duly executed by the accused. His
allegations in his petition regarding his, his
wife’s and children’s residences and his
positive averment of the fact that he is of good
moral character and had conducted himself in
an irreproachable manner during his stay in the
Philippines are material matters in connection
with his petition for naturalization as they are
essential facts required by Sec. 7 of C.A. No.
473 for one to fulfill for the acquisition of
Philippine citizenship. They are the very facts
which would be the subject of inquiry by the
court hearing the petition and the same would
be the basis of the court’s ruling whether one is
qualified and granted Philippine citizenship.
"Paragraph 2 of Art. 183 of the Revised Penal
Code provides that the statement or affidavit is
to be made before a competent officer,
authorized to receive and administer oath. The
information shows that the statement was duly
subscribed and sworn to before Notary Public
Felomino B. Tan, Jr., a person competent and
authorized by law to receive and administer
register as Doc. No. 140, Page No. 29, Book
No. XXIII, Series of 1989.
 "That the accused made a willful and deliberate
assertion of falsehood could be gleaned from
the discrepancies in his given addresses. In his
petition for naturalization he gave No. 46
Malaspina Street, Villamonte, Bacolod City as
his and his wife’s residence, while in the birth
certificates and the affidavit of admission of
paternity of both Fonsella Kae Saludar and
Steve Albert Saludar, he gave No. 211, 106
Street, Greenplains Subdivision, Bacolod City
as his address besides from the fact that while
may have been residing in the above-stated
addresses, his wife and children have been
staying at Hervias Subdivision, Bacolod City
since the latter part of 1984. Furthermore,
cohabiting openly with another woman not his
wife and siring (2) children with the same, in
open defiance with the norm of morality of the
community where monogamy is the accepted
practice, is very inconsistent with his
allegations of a moral life, proper and
irreproachable, considering that the accused,
by his own admission is a graduate of the
University of St. La Salle, a school known for
its high academic and moral standards. These
assertions are not only willful and deliberate but
a perversion of truth which the law is mandated
to punish.
"Section 7 of C.A. 473 provides:
‘Any person desiring to acquire
Philippine citizenship shall file with the
competent Court, a petition in triplicate,
accompanied by two (2) photographs
of the petitioner, setting forth his name
and surname; his present and former
residence, his occupation; the place
and date of his birth, whether single or
married, the name, age, birthplace and
residence of the wife and each of the
children…x x x.’ (underscoring
supplied)
"The above-cited provisions are the pertinent
law which specifically requires any person
desiring to acquire Philippine citizenship to
accomplish, thus complying with the fourth
element of the crime of perjury. (pp. 119-120,
Original Records, Vol. II)"11
Petitioner filed a motion for reconsideration but it was
denied by the Court of Appeals in a Resolution dated
February 22, 2000.12
Hence, the present petition for review on certiorari.13
Both the petitioner and the Solicitor General in their
respective pleadings contend that the challenged
Decision of the Court of Appeals should be reversed
because: (a) not all the elements of the crime of perjury
are present; and (b) the withdrawal of the petition for
naturalization which contains the alleged untruthful
statements bars the prosecution of petitioner for
perjury.
Thus, the issue here is whether petitioner may be
convicted of perjury based on the alleged false
statements he stated in his petition for naturalization
withdrawn almost two years prior to the filing of the
Information for perjury.
The petition is unmeritorious.
Article 183 of the Revised Penal Code under which
petitioner has been charged and convicted, provides:
"Art. 183. False testimony in other cases and
perjury in solemn affirmation. – The penalty
of arresto mayor in its maximum period
to prision correccional in its minimum period
shall be imposed upon any person who,
knowingly making untruthful statements and
not being included in the provisions of the next
preceding articles, shall testify under oath, or
make an affidavit, upon any material matter
before a competent person authorized to
administer an oath in cases in which the law so
requires.
"Any person who, in case of a solemn
affirmation made in lieu of an oath, shall
commit any of the falsehoods mentioned in this
and the three preceding articles of this section,
shall suffer the respective penalties provided
therein."
The elements of perjury are:
1. The accused made a statement under oath
or executed an affidavit upon a material matter;
2. The statement or affidavit was made before
a competent officer authorized to receive and
administer oath;
3. In that statement or affidavit, the accused
made a willful and deliberate assertion of a
falsehood; and
4. The sworn statement or affidavit containing
the falsity is required by law or made for a legal
purpose.14
All these elements are present in the instant case.
Petitioner willfully and deliberately alleged false
statements concerning his "residence" and "moral
character" in his petition for naturalization. This was
sufficiently proven by the prosecution, as succinctly
noted by the Court of Appeals in its assailed Decision.
The petition for naturalization was duly subscribed and
sworn to by petitioner before Notary Public Filomino B.
Tan, Jr., a person competent and authorized by law to
receive and administer oath. Also, petitioner started
testifying under oath on his false allegations before the
trial court.
The allegations in the petition regarding "residence"
and "moral character" are material matters because
they are among the very facts in issue or the main facts
which are the subject of inquiry15 and are the bases for
the determination of petitioner's qualifications and
fitness as a naturalized Filipino citizen. Thus, C.A. No.
473 provides:
"SEC. 2. Qualifications. – Subject to section
four of this Act, any person having the following
 qualifications may become a citizen of the
Philippines by naturalization:
xxx xxx xxx
"Third. He must be of good moral
character and believes in the principles
underlying the Philippine Constitution,
and must have conducted himself in a proper
and irreproachable manner during the entire
period of his residence in the Philippines in his
relation with the constituted government as well
as with the community in which he is living;
xxx xxx xxx
"SEC. 7. Petition for citizenship. – Any person
desiring to acquire Philippine citizenship shall
file with the competent court, a petition in
triplicate, accompanied by two photographs of
the petitioner, setting forth his name and
surname; his present and former places of
residence; his occupation; the place and date
of his birth; whether single or married and if the
father of children, the name, age, birthplace
and residence of the wife and of the children; x
x x; a declaration that he has the qualifications
required by this Act, specifying the same, and
that he is not disqualified for naturalization
under the provisions of this Act; x x x." (italics
supplied)
The necessity of declaring a truthful and specific
information on the "residence" and "moral character" in
the petition for naturalization has been underscored by
this Court in Chua Kian Lai vs. Republic,16 thus:
"One qualification for Philippine citizenship is
that the petitioner ‘must be of good moral
character.’ That circumstance should be
specifically alleged in the petition.
xxx xxx xxx
"The law explicitly requires that the applicant
should indicate in his petition ‘his present and
former places of residence’ (Sec. 7, Com. Act
No. 473). That requirement is designed to
facilitate the verification of petitioner’s
activities which have a bearing on his petition
for naturalization, especially so as to
his qualifications and moral character, either
by private individuals or by investigative
agencies of the government, by pointing to
them the localities or places wherein
appropriate inquiries may be made (Keng Giok
vs. Republic, 112 Phil. 896). Moreover, the
suppression of that information might
constitute falsehood which signifies that the
applicant lacks good moral character and is
not, therefore, qualified to be admitted as a
citizen of the Philippines." (italics supplied)
Fully cognizant of the truth surrounding his moral
character and residence, petitioner instead declared
falsely in his verified petition for naturalization that "he
has all the qualifications and none of the
disqualification under C.A. No. 473." 17 Clearly, he
willfully asserted falsehood under oath on material
matters required by law.
We cannot go along with the submission of the
petitioner and the Solicitor General that petitioner could
no longer be prosecuted for perjury in view of the
withdrawal of the petition for naturalization containing
his false material statements. In this jurisdiction, it is not
necessary that the proceeding in which the perjury is
alleged to have been committed be first terminated
before a prosecution for the said crime is
commenced.18 At the time he filed his petition for
naturalization, he had committed perjury. As discussed
earlier, all the elements of the crime were already
present then. He knew all along that he wilfully stated
material falsities in his verified petition. Surprisingly, he
withdrew his petition without even stating any reason
therefor.19 But such withdrawal only terminated the
proceedings for naturalization. It did not extinguish his
culpability for perjury he already committed. Indeed,
the fact of withdrawal alone cannot bar the State from
prosecuting petitioner, an alien, who made a mockery
not only of the Philippine naturalization law but the
judicial proceedings as well. And the petition for
naturalization tainted with material falsities can be used
as evidence of his unlawful act.
Petitioner then claims that since the petition for
naturalization is a pleading, the allegations therein are
absolutely privileged and cannot be used for any
criminal prosecution against him, citing Sison vs.
David,20 People vs. Aquino21 and Flordelis vs.
Himalaloan. 22
The argument is unavailing. Sison and Aquino both
involve libel cases. In Sison, this Court categorically
stressed that the term "absolute privilege" (or "qualified
privilege") has an "established technical meaning, in
connection withcivil actions for libel and slander." The
purpose of the privilege is to ensure that "members of
the legislature, judges of courts, jurors, lawyers, and
witnesses may speak their minds freely and exercise
their respective functions without incurring the risk of a
criminal prosecution or an action for the recovery of
damages. It is granted in aid and for the advantage of
the administration of justice."23 Certainly, in the present
case, petitioner cannot seek refuge under the
absolutely privileged communication rule since the
false statements he made in his petition for
naturalization has instead made a mockery of the
administration of justice.
The Flordelis case is likewise not in point. There,
Flordelis was charged with perjury for having alleged
false statements in his verified answer. This Court held
that no perjury could be committed by Flordelis
because "an answer to a complaint in an ordinary civil
action need not be under oath," thus, "it is at once
apparent that one element of the crime of perjury is
absent x x x, namely, that the sworn statement
complained of must be required by law."24
Anent the alleged violation of petitioner's constitutional
right to equal protection, suffice it to state that such
right cannot be invoked to protect his criminal act.
In People vs. Cainglet,25 this Court emphatically
stressed that "every interest of public policy demands
that perjury be not shielded by artificial refinements and
narrow technicalities. For perjury strikes at the
administration of the laws. It is the policy of the law
that judicial proceedings and judgments be fair and
free from fraud, and that litigants and parties be
encouraged to tell the truth, and that they be punished
if they do not."
WHEREFORE, the instant petition for review on
certiorari is hereby DENIED. The appealed Decision of
the Court of Appeals is AFFIRMED.
SO ORDERED.
Puno, (Chairman), Panganiban, Corona, and Carpio-
Morales, JJ., concur.
(4) A.C. No. 4634 September 24, 1997
JESUS CABARRUS, JR., complainant,
vs.
JOSE ANTONIO S. BERNAS, respondent.
TORRES, JR., J.:
On August 30, 1996, Mr. Jesus Cabarrus, Jr. filed an
administrative complaint for disbarment against Atty.
Jose Antonio Bernas for alleged violations of Article
172 of the Revised Penal Code and Code of
Professional Responsibility. In his complaint-
affidavit1 dated August 12, 1996, complainant alleged
as follows:
A. That on April 16, 1996, respondent
Ramon B. Pascual, Jr., subscribed
under oath before Marie Lourdes T. Sia
Bernas, a notary public in Makati City,
wife of lawyer Jose Antonio Bernas, a
verification and certification of non-
forum shopping which was appended
to a complaint for reconveyance of
property and damages, denominated
as Civil Case No. 65646, filed before
the Regional Trial Court in National
Capital Region, RTC, which case was
raffled to RTC Branch 159 in Pasig
City. A photocopy of said complaint is
hereto attached and marked as
Annexex (sic) A, A-1, A-3, A-4, A-5 and
A-6;
B. That as basis for the instant
complaint for falsification of public
document, I am hereto quoting
verbatim, the test (sic) of Annex A-6,
the verification and certification of non-
forum shopping which states:
Ramon B. Pascual, Jr., under oath,
depose and states:
He is the plaintiff in this case, and
certify that he cause the preparation of
the foregoing pleading, the content of
which are true to his personal
knowledge and that he has not
commenced any other action or
proceeding involving the same issues
in any court, including the Supreme
Court, the Court of Appeals, or any
other tribunal or agency. If he should
learn that a similar action of (sic)
proceeding has been filed or is pending
before the Supreme Court or any other
Tribunal agency, he undertake to report
to (sic) that fact within Five (5) days
from notice to this notice (sic) to this
Honorable Court. Emphasis supplied.
C. That the cause of action relied upon
by the respondent in Civil Case No.
65646 is fraud, facilitated by forgery as
gleaned from paragraphs 15, 16, and
22;
D. That contrary to the tenor, import
and meanoing (sic) of the allegation
under 1-B of the instant complaint,
respondent and his counsel Jose
Antonio Bernas caused the preparation
and filing of a criminal complaint for
falsification of a public document on
April 11, 1996, (three days before the
filing of the aforecited Civil Case) at the
AOED of the National Bureau of
Investigation if (sic) Taff (sic) Ave., a
xerox copy of said complaint is hereto
attached and marked as Annex "B".
D-1. That as stated in Annex "B", the
gravaman of the affidavit complaint of
the respondent is forgery, the same
legal issue in Civil Case No. 65646;
D-2. That as early as August 14, 1995,
respondent counsel, Jose Antonio
Bernas filed a written complaint at the
NBI for the same cause of action which
was reiterated in another letter
submitting to the NBI standard
specimen signatures dated October
1995, copies of said letter complaint
are hereto attached and marked as
Annexes (sic) "C".
E. That respondent Ramon B. Pascual,
Jr., on the basis of Annexes A, B, C, D,
inclusive of submarkings knowingly
subverted and perverted the truth when
he falsify certified (sic) and verified
under oath in the verification and
certification of non-forum shopping,
that:
He has not
commenced any other
action or proceeding
involving the same
issues in any court,
including the Supreme
Court, the Court of
Appeals, or any other
Tribunal or agency."
Where verification-
certification was placed
under oath and was
conveniently notarized
by the wife of the
counsel of respondent
in both cases at Branch
 159 of the RTC in Pasig article, shall be
and at the NBI, an punished by the
agency within the penalty next lower in
ambis (sic) and purview degree.
of the circulus (sic) of
the Supreme Court G. That Atty. Jose Antonio Bernas
prohibiting forum should be disbarred for having
shopping. instigated, abetted and facilitated the
perversion and subversion of truth in
F. That Jose Antonio Bernas, the the said verification and certification of
counsel on record of the respondents in non-forum shopping. Contrary to
Civil Case No. 65646 is the same Canon 1, Rule 1.01, 1.02, Canon 3,
lawyer who instigated a criminal 3.01, Canon 10 of the Code of
complaint at the NBI for forgery and Professional Responsibility for
respondents themselves conspired Lawyers, the pertinent provisions of
and confabulated with each other in which are herein below quoted and a
facilitating and insuring the open, copy of said code is hereto attached
blatant and deliberate violation of Art. and marked as Annex "E";
172 of the Revised Penal Code which
states: CANON 1. A. LAWYER
SHALL UPHOLD THE
Art. 172. Falsification CONSTITUTION,
by private individual OBEY THE LAWS OF
and use of falsified THE LAND PROMOTE
documents. — The RESPECT FOR LAW
penalty of prision AND LEGAL
correccional in its PROCESSES.
medium and maximum
periods and a fine of Rule
not more than P5,000 1.01 —
pesos shall be imposed A
upon: lawyer
shall
1. Any private not
individual who shall engage
commit any of the in
falsifications unlawfu
enumerated in the next l,
preceding article in any dishon
public or official est,
document or letter of immora
exchanged (sic) or any l or
other kind of decietf
commercial document; ul (sic)
and conduc
t.
2. Any person who, to
the damage of a third Rule
party, or with the intent 1.02 —
to cause such damage, A
shall in any private lawyer
document commit any shall
of the acts of not
falsification counsel
enumerated in the next or abet
preceding article. activitie
s simed
Any person who shall (sic) at
knowingly introduce in defianc
evidence in any judicial e of the
proceeding or to the law or
damage of another or at
who, with the intent to lesseni
cause such damage, ng
shall use any of the confide
false documents nce in
embraced in the next the
preceding article, or in legal
any of the foregoing system.
subdivisions of this
 CANON 3. A. LAWYER assisted Ramon Pascual in drafting an affidavit-
IN MAKING KNOWN complaint for falsification of public documents against
HIS LEGAL complainant. Likewise, respondent by counsel
SERVICES SHALL reiterates that the letter transmitted to the NBI cannot
USE ONLY TRUE, constitute an action or proceeding because the NBI's
HONEST, FAIR, functions are merely investigatory and informational in
DIGNIFIED AND nature. NBI has no prosecutorial functions or quasi-
OBJECTIVE judical powers and is incapable of granting relief or
INFORMATION OF remedy. The NBI cannot be an agency contemplated
(sic) STATEMENT OF by the circular.
FACTS.
The core issue to be resolved here is whether
Rule respondent Atty. Bernas transgressed Circular No. 28-
3.01 — 91, Revised Circular No. 28-91, and Administrative
A Circular No. 04 - 94 on forum shopping.
lawyer
shall After a careful scrutiny of the records, we find the
not use administrative complaint bereft of merit and should be
or dismissed.
permit
the use There is forum-shopping whenever, as a result of an
of any adverse opinion in one forum, a party seeks a favorable
false, opinion (other than by appeal or certiorari) in another.
fraudul Therefore, a party to a case resorts to forum shopping
ent, because "by filing another petition involving the same
mislead essential facts and circumstances, . . . , respondents
ing, approached two different fora in order to increase their
decepti chances of obtaining a favorable decision or action.4 In
ve, this case, there is no forum shopping to speak of. Atty.
undigni Bernas, as counsel of Mr. Pascual, Jr., merely
fied, requested the assistance of the NBI to investigate the
self- alleged fraud and forgery committed by Mr. Jesus
laudato Cabarrus.5 The filing of a civil case for reconveyance
ry or and damages before the Regional Trial Court of Pasig
unfair City does not preclude respondent to institute a
statem criminal action. The rule allows the filing of a civil case
ent or independently with the criminal case without violating
claim the circulars on forum shopping. It is scarcely
regardi necessary to add that Circular No. 28-91 must be so
ng his interpreted and applied as to achieve the purposes
qualifie projected by the Supreme Court when it promulgated
d (sic) that Circular. Circular No. 28-91 was designed to serve
or legal as an instrument to promote and facilitate the orderly
service administration of justice and should not be interpreted
s. with such absolute literalness as to subvert its own
ultimate and legitimate objective or the goal of all rules
CANON 10. A of procedure — which is to achieve substantial justice
LAWYER OWES as expeditiously as possible.6
CANDOR, FAIRNESS
AND GOOD FAITH TO Adjunct to this, Act No. 1577, specifically section 1
THE COURT. hereof provides, viz:

In his Comment,2 respondent Jose Antonio Bernas Sec. 1. There is hereby created a
avers that he has not committed forum shopping Bureau of Investigation under the
because the criminal action is not an action that Department of Justice which shall have
involves the same issue as those in a civil action and the following functions:
both suits can exist without constituting forum shopping
so long as the civil aspect has not been prosecuted in
(a) To undertake investigation of
the criminal case. He emphasized that forum shopping
crimes and other offenses against the
only exists when identical reliefs are issued by the
laws of the Philippines, upon its
same parties in multiple fora.
initiative and as public interest may
require;
In his Supplemental Comment,3 respondent further
contends that neither he or his client Pascual has
(b) To render assistance, whenever
commenced any criminal action. Pascual merely
properly requested in the investigation
requested the NBI to assist in the investigation or
or detection of crimes and other
prosecution, and left it to the NBI to determine whether
offenses;
the filing of an endorsement to the prosecutor, who
would determine probable cause, would be
appropriate. It was only upon request of the NBI that he (c) To act as a national clearing
house of criminal and other
 informations for the benefit and use of
all prosecuting and law-enforcement
entities of the Philippines, identification
records of all persons without criminal
convictions, records of identifying
marks, characteristics, and ownership
or possession of all firearms as well as
of test bullets fired therefrom;
(d) To give technical aid to all
prosecuting and law-enforcement
officers and entities of the Government
as well as the courts that may request
its services;
(e) To extend its services, whenever
properly requested in the investigation
of cases of administrative or civil nature
in which the Government is interested;
(f) To undertake the instruction and
training of representative number of
city and municipal peace officers at the
request of their respective superiors
along effective methods of crime
investigation and detection in order to
insure greater efficiency in the
discharge of their duties;
(g) To establish and maintain an up-to-
date scientific crime laboratory and to
conduct researches in furtherance of
scientific knowledge in criminal
investigation;
(h) To perform such other related
functions as the Secretary of Justice
may assign from time to time.
Explicitly, the functions of the National Bureau of
Investigations are merely investigatory and
informational in nature. It has no judicial or quasi-
judicial powers and is incapable of granting any relief
to a party. It cannot even determine probable cause. It
is an investigative agency whose findings are merely
recommendatory. It undertakes investigation of crimes
upon its own initiative and as public welfare may
require. It renders assistance when requested in the
investigation or detection of crimes which precisely
what Atty. Bernas sought in order to prosecute those
persons responsible for defrauding his client.
The courts, tribunals and agencies referred to under
Circular No. 28-91, Revised Circular No. 28-91 and
Administrative Circular No. 04-94 are those vested with
judicial powers or quasi-judicial powers and those who
not only hear and determine controversies between
adverse parties, but to make binding orders or
judgments. As succinctly put it by R.A. 157, the NBI is
not performing judicial or quasi-judicial functions. The
NBI cannot therefore be among those forums
contemplated by the Circular that can entertain an
action or proceeding, or even grant any relief,
declaratory or otherwise.
WHEREFORE, premises considered, the instant
complaint is hereby DISMISSED.
SO ORDERED.
Regalado and Puno, JJ., concur.
Mendoza, J., is on leave.
(5a) A.M. No. MTJ-95-1063 February 9, 1996
ALFONSO C. CHOA, complainant,
vs.
JUDGE ROBERTO S. CHIONGSON, respondent.
RESOLUTION
DAVIDE, JR., J.:
The uncomplicated issues in this administrative
complaint have been property joined with the filing of
the respondent's comment as required in the 1st
Indorsement of 18 August 1995 of Hon. Bernardo P.
Abesamis, Deputy Court Administrator. No further
pleadings need be required from the parties.
In the complaint signed by Atty. Raymundo A. Quiroz
as counsel for the complainant and verified by the
latter, the respondent is charged with grave
misconduct, gross bias and partiality, and having
knowingly rendered an unjust judgment in Criminal
Case No. 50322 entitled, "People of the Philippines vs.
Alfonso C. Choa.
Criminal Case No. 50322 was for Perjury and initiated
by the complainant's wife, Leni L. Ong-Choa, through
the filing of a letter-complaint with the Office of the City
Prosecutor of Bacolod City. This complaint arose from
the alleged untruthful statements or falsehoods in the
complainant's Petition for Naturalization dated 30
March 1989 which was docketed as Case No. 5395, of
Branch 41 of the Regional Trial Court (RTC) of Bacolod
City.
In due course, an Information was filed, in the
Municipal Trial Court in Cities (MCTC) of Bacolod City
by the Office of the Prosecutor, charging the
complainant herein with perjury allegedly committed as
follows:
That on or about the 30th day of March, 1989,
in the City of Bacolod, Philippines, and within
the jurisdiction of this Honorable Court, the
herein accused, did, then and there wilfully,
unlawfully, feloniously and knowingly made
untruthful statements of [sic] falsehoods upon
material matters required by the Revised
Naturalization Law (C.A. No. 473) in his verified
"Petition for Naturalization" dated April 13,
1989, subscribed and sworn to before Notary
Public Felomino B. Tan, Jr., who is authorized
to administer oath[s], which petition bears Dec.
No. 140; Page No. 29; Book No. XXIII; and
Series of 1989, in the Notarial Register of said
Notary Public, by stating therein the following,
to wit:
5. I am married to a Filipino. My wife's
name is Leni Ong Choa and now
resides at 46 Malaspina Street,
Bacolod City. I have two (2) children,
 whose names, dates and places of The respondent Judge denied the motion for
birth, and residences are as follows:reconsideration for lack of merit in an order dated 31
March 1995.
NAME DATE OF PLACE OF PLACE OF RESIDENCE
BIRTHThe complainant
BIRTH filed the instant complaint on 14 July
ALBRYAN ONG CHOA 1995
July 19, 1981and prayed
Bacolod forMalaspina
City the removal
St., of the respondent
Bacolod City
Judge from office. As grounds therefor, he alleges that:
CHERYL LYNNE ONG CHOA May 5, 1983 Bacolod City Malaspina St., Bacolod City
(1) The respondent Judge is guilty of Grave
10. I am of good moral character, I Misconduct, Gross Bias and Partiality, and
believe in the principles underlying the Knowingly Rendering An Unjust Judgment
Philippine Constitution. I have when he intentionally failed to divulge the next-
conducted myself in a proper and door-neighbor relationship between him and
irreproachable manner during the the family of Leni Ong Choa and to disqualify
entire period of my residence in the himself from sitting in the criminal case on such
Philippines in my relations with the ground as part of the grand design and
constituted government as well as with preconceived intention to unjustly convict the
the community in which I am living. complainant of the crime charged without due
process.
xxx xxx xxx
(2) The allegations in the Information do not
When in truth and in fact said accused knew constitute the offense of perjury.
that his wife Leni Ong Choa and their two (2)
children were not then residing at the said (3) The petition having been withdrawn with
address at No. 46 Malaspina Street, finality, it has become functus oficio and it is as
Villamonte, Bacolod City, having left the if the Petition was not filed at all so that
aforesaid residence in 1984, or about five (5) whatever false statements were contained
years earlier and were then residing at Hervias therein were no longer required by law and had
Subdivision, Bacolod City, that contrary to his ceased to be on a material matter.
aforesaid allegations in his verified Petition for
Naturalization, accused while residing at 211, (4) The respondent Judge admitted for
106 Street, Greenplains Subdivision, Bacolod prosecution Exhibit "P" (handwritten list of
City, has been carrying on an immoral and illicit properties) even if this was self-serving as it
relationship with one Stella Flores Saludar, a was undated and unsigned; and Exhibit "Q"
woman not his wife since 1984, and begotting (letter of Leni Ong Choa's counsel to the
[sic] two (2) children with her as a complainant) even if it was also self-serving as
consequence, as he and his wife, the private there was no showing that he received the
offended party herein, have long been letter.
separated from bed and boards [sic] since
1984; which falsehoods and/or immoral and
(5) The respondent Judge has sentenced the
improper conduct are grounds for
complainant to suffer a penalty higher than that
disqualifications [sic] of [sic] becoming a citizen
of the Philippines. provided by law, without applying the
Indeterminate Sentence Law.
Act contrary to law.
The respondent Judge refutes the charge in his
Comment dated 12 September 1995, thus:
The case was docketed as Criminal Case No. 50322
and was assigned to Branch III thereof where the
respondent is the presiding Judge. He denies being the next-door-neighbor of Leni
Ong Choa there being a house, belonging to
the Sia family, separating his house and that of
After trial, the respondent Judge rendered judgment on Leni Choa; he and the rest of the members of
21 February 1995 and found the complainant herein his family are not acquainted with Leni Choa or
guilty beyond reasonable doubt of the crime of perjury. any member of her family and had not
The respondent Judge accordingly sentenced him to exchanged greetings nor is he even a nodding
suffer the penalty of six months and one day of prision acquaintance of Leni Choa or any member of
correccional and to pay the costs. her family.

The complainant moved for a reconsideration of the
judgment alleging that: (1) there is no basis for the
conviction since his petition for naturalization had been
withdrawn and therefore had become functus oficio; (2)
the petition for naturalization is a pleading, hence its
allegations are privileged; and (3) his prosecution
violates the equal protection clause of the Constitution.
The last ground is founded on an admission made by
a representative of the Office of the Solicitor General of
her lack of knowledge of any perjury case filed based
on a withdrawn or dismissed petition for naturalization.
He asserts that if the allegations in the
Information do not constitute an offense, the
complainant, should have filed a Motion to
Quash but he did not. Just the same, when the
complainant stated in the Petition that he
together with his wife and children lived at 46
Malaspina St., Bacolod City, he committed a
falsehood under oath because the truth is two
(2) years before the filing of the Petition, his
wife and two (2) children were not living with
him anymore, caking him liable for perjury.
 Respondent also avers that the complainant is
not of good moral character contrary to what he
stated in the Petition for Naturalization since he
is conducting and extra-marital relationship
with Stella Flores Saludar, his former
employee, with whom he has begotten two (2)
children. As a matter of fact, a case for
concubinage against complainant was filed
and is now pending in Court.
According to the respondent, a reading of the
Order granting the Motion to Withdraw the
Petition will show that the Prosecutor
representing the Office of the Solicitor General
opposed the Motion to Withdraw the Petition for
the reason that the complainant had
abandoned his wife and two (2) children, is not
giving them support and is now living with his
paramour.
On the claim of the complainant that his petition
for naturalization has became functus officio in
view of its withdrawal, hence no longer
existent, the respondent Judge maintains that
the withdrawal reduced the petition to functus
oficio only for the purpose of the Special
Proceedings but not when it is used as
evidence in other cases.
On the issue of the admissibility of the Exhibits
P, Q and R, the respondent Judge contends
that Exhibits P, Q and R were duly identified by
Leni Ong Choa and her testimonies on these
were found to be credible by the Court.
Finally, respondent Judge asserts that the
Indeterminate Sentence Law is not applicable
in the perjury case as the penalty imposed by
the court did not exceed one (1) year.
The respondent Judge then prays for the dismissal of
the complaint for being patently without merit and for
the censure and reprimand of the complainant's
counsel with a warning to refrain from filing similar
harassment suits.
In the Evaluation contained in a Memorandum dated
17 November 1995 and duly approved by the Court
Administrator, Hon. Zenaida N. Elepaño, Deputy Court
Administrator, makes the following findings and
conclusions:
EVALUATION: A careful study of the records
shows that the allegations of the complainant
are devoid of any merit.
The charge that respondent Judge and Leni
Choa are nieghbors [sic] appears to be petty
under the circumstances. Granting that they
are indeed next-door neighbors does not
necessarily mean that respondent Judge has
violated Rule 137 of the Rules of Court for
Disqualification of Judges. Nowhere in said
Rule is it ordained that being the neighbor of a
party litigant is reason enough for the Judge to
disqualify himself from hearing the former's
case.
With respect to the complainant's claim that the
allegations in the Information do not constitute
the offense of perjury, an administrative
proceeding is not the forum to decide whether
the judge has erred or not, especially as
complainant has appealed his conviction.
Even if the matter can be examined, we do not
find any error in the Court's decision.
The elements of perjury as enumerated in the
case of People of the Philippines
vs. Bautista (C.A., 40 O.G. 2491) are as
follows:
(a) statement in the affidavit upon material
latter made under oath;
(b) The affiant swears to the truthfulness of the
statements in his affidavit before a competent
officer authorized to administer oath;
(c) There is a willful and deliberate assertion of
falsehood; and
(d) Sworn statement containing the falsity is
required by law.
It cannot be denied that the petition for
naturalization filed by Alfonso C. Choa was
made under oath and before a competent
officer authorized to administer oath as shown
by the records (p. 4 APPENDIX "A"). This
petition for naturalization is required by law as
a condition precedent for the grant of Philippine
citizenship (Section 7 Com. Act No. 473).
The question now boils down to whether there
is a willful and deliberate assertion of
falsehood.
As shown by the records (p. 1 APPENDIX "A"),
Alfonso C. Choa declared in his petition dated
30 March 1989 that his wife Leni Ong Choa
resides at 46 Malaspina St. Bacolod City while
in the administrative complaint he filed against
respondent Judge, he stated that his wife Leni
Ong Choa left their family residence (46
Malaspina St. Bacolod City) in the latter part of
1984 (p. 6 par. 2 of Adm. Complaint). This
simply means that when he filed his petition for
naturalization, Leni Ong Choa was not residing
at the abovementioned address anymore.
It was also proven that Alfonso C. Choa had a
child with a woman not his wife and he himself
signed the birth certificate as the father of that
child (p. 4 APPENDIX "E"). This is contrary to
what he declared in his petition that he is of
good moral character which is required under
the Naturalization Law (par. 3 Sec. 2 Com. Act
No. 473).
There was therefore a deliberate assertion of
falsehood by Alfonso C. Choa to warrant
conviction for perjury as found by Judge
Chiongson.
As to the complainant's claim that the
withdrawal of the petition makes it functus
oficio, we sustain the respondent Judge's view
 that the Petition can be used as evidence in
another case. In the case of People of the
Philippines vs. Cainglet (16 SCRA 748) the
Court held that "every interest of public policy
demands that perjury be not shielded by
artificial refinements and narrow technicalities.
For perjury strikes at the very administration of
the laws (Jay vs. State, [1916] 15 Ala. App.
255, 43 So. 137). It is the policy of the law that
judicial proceedings and judgment shall be fair
and free from fraud, and that litigants and
parties be encouraged to tell the truth and that
they be punished if they do not (People vs.
Niles, 300 Ill., 458, 133 N.E. 252, 37 A.R.L.
1284, 1289)".
On whether the judge erred in not applying the
Indeterminate Sentence Law to the case, we
cite Section 2 of R.A. No. 4103 (Indeterminate
Sentence Law) which provides in part that
"This Act shall not apply to . . . those whose
maximum term of imprisonment does not
exceed one year, . . ." Since the penalty for
perjury under Article 183 of the Revised Penal
Code is arresto mayor in its maximum period
which is one (1) month and one (1) day to six
(6) months to prision correccional in its
minimum period which is six (6) months and
one (1) day to two (2) years and four (4)
months, the respondent Judge was correct in
not applying the Indeterminate Sentence Law.
As earlier stated, the foregoing discussion is in
no way the final appreciation of the Court's
decision which is on appeal, but is made only
to illustrate the utter lack of merit of this charge.
Counsel for the complainant must be
reprimanded for assisting in the filing of this
complaint.
Deputy Court Administrator Elepaño then
recommends:
Premises considered, it is respectfully
recommended that this complaint against
Judge Roberto S. Chiongson be DISMISSED
for lack of merit. It is further recommended that
Atty. Raymundo A. Quiroz be REPRIMANDED
for assisting in the filing of a patently
unmeritorious complaint.
We fully agree with Deputy Court Administrator
Elepaño that the allegations in the complaint are
utterly devoid of merit. Good faith and good motive did
not seem to have inspired the filing of the complaint.
Indeed, as correctly pointed out by the respondent, if
the complainant and his counsel honestly believed that
the allegations in the Information in the perjury case did
not constitute an offense, they should have filed a
motion to quash. Under Section 3(a), Rule 117 of the
Rules of Court, the accused may move to quash the
complaint or information on this ground. The
complainant never did; he was arraigned and entered
into trial. Although his failure to do so did not operate
as a waiver of the said ground pursuant to Section 8 of
the same Rule, it showed, nevertheless, his admission
of the weakness of the ground. If he had perceived it to
be strong, he would not have wasted an opportunity to
put an early end to the ordeal of a prolonged litigation.
Besides, this ground had not at all been invoked by
him, as shown in the order of 31 March 1995 denying
the complainant's motion for the reconsideration.
The withdrawal of the Petition for Naturalization did not
and cannot amount to a recall of the questioned
untruthful statements. Neither could it extinguish any
offense which may have been committed by reason of
such untruthful statements.
As to the respondent Judge's being a next-door
neighbor of the complainant's wife the complainant in
the perjury case it must be stressed that that alone is
not a ground for either a mandatory disqualification
under the first paragraph or for a voluntary
disqualification under the second paragraph of Section
1, Rule 137 of the Rules of Court. In any event, the
complainant has failed to disclose in his complaint that
he had raised this matter at any time before the
rendition of the judgment. In fact, the summary of the
grounds of his motion for reconsideration in the
respondent's order denying the said motion does not
include this matter. If indeed the complainant honestly
believed in the justness of this grievance, he would
have raised it in an appropriate pleading before the trial
court.
Finally, the nature and character of the complainant's
grievances relative to the respondent's judgment
finding the former guilty of perjury may only be properly
ventilated in an appropriate judicial proceeding, such
as an appeal from the judgment.
This kind of recourse; whether made in addition to a
regular appeal from the judgment, or in lieu thereof, if
none had been made, is clearly without any basis and
cannot be tolerated for it robs Judges of precious time
which they could otherwise devote to the cases in their
courts or to the unclogging of their dockets.
Atty. Raymundo A. Quiroz, counsel for the
complainant, must have been aware of the utter lack of
merit of the charges against the respondent. As a
Member of the Philippine Bar he is bound: (1) by his
oath, not to, wittingly or willingly, promote or sue any
groundless, false, or unlawful suit nor give aid nor
consent to the same; (2) by Section 20(c)i Rule 138 of
the Rules of Court, to counsel or maintain such action
or proceedings only as appear to him to be just; and (3)
to uphold the Code of Professional Responsibility. It
was incumbent upon him to give a candid and honest
opinion on the merits and probable results of the
complainant's case (Rule 15.05, Canon 15, Code of
Professional responsibility) with the end in view of
promoting respect for the law and legal processes
(Canon 1, Id.). He should, therefore, be required to
show cause why no disciplinary action should be taken
against him for his apparent failure to observe the
foregoing duties and responsibilities.
WHEREFORE, for want of merit, the instant complaint
is DISMISSED.
For the reasons above stated, Atty. Raymundo A.
Quiroz is hereby directed to SHOW CAUSE, within
fifteen (15) days from notice hereof, why he should not
be disciplinary dealth with for his apparent failure to
comply with his duties and responsibilities stated
above.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban,
JJ., concur.
(5b) A.M. No. MTJ-95-1063 August 9, 1996
ALFONSO C. CHOA, complainant,
vs.
JUDGE ROBERTO S. CHIONGSON, respondent.
DAVIDE, JR., J.:p
In the resolution of 9 February 1996, this Court dismissed the instant
complaint for want of merit and directed Atty. Raymundo A. Quiroz, counsel
for the complainant, to show cause within fifteen days from notice why he
should not be disciplinarily dealt with for his apparent failure to comply with
the duties and responsibilities of a member of the Bar. Such duties and
responsibilities were noted in the following paragraph of the resolution:
Atty. Raymundo A. Quiroz, counsel for
the complainant, must have been
aware of the utter lack of merit of the
charges against the respondent. As a
Member of the Philippine Bar he is
bound: (1) by his oath, not to, wittingly
or willingly, promote or sue any
groundless, false, or unlawful suit nor
give aid nor consent to the same; (2) by
Section 20(c), Rule 138 of the Rules of
Court, to counsel or maintain such
actions or proceedings only as appear
to him to be just; and (3) to uphold the
Code of Professional Responsibility. It
was incumbent upon him to give a
candid and honest opinion on the
merits and probable results of the
complainant's case (Rule 15.05, Canon
15, Code of Professional
Responsibility) with the end in view of
promoting respect for the law and legal
processes (Canon 1, He should,
therefore, be required to show cause
why no disciplinary action should be
taken against him for his apparent
failure to observe the foregoing duties
and responsibilities.
Atty. Quiroz received a copy of the foregoing resolution
on 16 February 1996, and on 2 March 1996, he filed a
Motion for Extension of Time wherein he prayed that
he be given an extension of six days from 2 March 1996
— the expiry date of the original period to file his
compliance to the show-cause order — within which to
file his compliance to or motion for reconsideration of
the resolution.
In the resolution of 25 March 1996, this Court granted
Atty. Quiroz's motion but only insofar as the filing of his
compliance was concerned, as clearly shown in the
notice of the resolution sent to him reading as follows:
Quoted hereunder, for your
information, is a resolution of the Third
Division of this Court dated MAR. 25,
1996:
Administrative Matter MTJ-95-1063
(Alfonso C. Choa vs. Judge Roberto S.
Chiongson, etc.) — The first motion of
Atty. Raymundo A. Quiroz, counsel for
complainant, for extension of six (6)
days form March 2, 1996 or until March
8, 1996 within which to file compliance
with the resolution of February 9, 1996
which directed him to show cause, why
he should not be disciplinarily dealt with
for his apparent failure to comply with
his duties and responsibilities, is
GRANTED, with WARNING that no
further extension will be given.
It appears that on 8 March 1996 Atty. Quiroz filed with
the Office of the Court Administrator a pleading
entitled Compliance/Motion for Reconsideration. This
pleading is more of a motion for reconsideration. It was
filed on the last day of the period he solicited in his
motion for extension. Since the resolution of 25 March
1996 granted only an extension of the period to submit
his compliance, it necessarily follows that the motion
for reconsideration was filed beyond the reglementary
period. It bears stressing that paragraph 5 of this
Court's en banc resolution of 7 April 1988 provides
that, as a general policy, no motion for extension of
time to file a motion reconsideration shall be granted
after the Court has rendered its judgment. Accordingly,
the motion for reconsideration must forthwith be
DENIED for having been filed late. In any event, it has
no merit whatsoever except, perhaps, as to its
sophistry.
The only issue then left is the sufficiency and adequacy
of his explanation which is, nevertheless, inexorably
linked to the motion for reconsideration. Atty. Quiroz
asserts that he never had the intention to prosecute or
sue any groundless, false, or unlawful suit or to file the
instant complaint in addition to the appeal or in lieu
thereof; that he assisted the complainant in the honest
belief that the latter has really a cause of action against
the respondent; and that he "was not ventilating in the
instant case the complainant's grievances relative to
the respondent's judgment finding [the complainant]
guilty of perjury but was only raising the matter to show
that indeed the respondent was biased because of
such next-door-neighbor relationship."
These explanations deserve scant consideration. The
claim of "honest belief," which amounts to a claim of
good faith, fails to convince us in light of what follows.
Nothing is further from the truth than the claim of Atty.
Quiroz that he "was not ventilating in the instant case
the complainant's grievances relative to the
respondent's judgment finding [the complainant] guilty
of perjury but was only raising the matter to show that
indeed the respondent was biased because of such
next-door-neighbor relationship." He was in fact,
attacking the judgment of conviction by asserting that
the trial court's only recourse was to acquit the
complainant because (a) the allegations in the
information do not constitute the offense of perjury; (b)
the complainant's petition for naturalization, which was
the basis for the charge of perjury, having been
withdrawn with finality, had become functus officio, i.e.
as if the petition was not filed at all, and, therefore,
whatever false statement contained therein was no
longer required by law and had ceased to be on a
material matter; (c) the respondent had admitted in
evidence exhibits which are obviously inadmissible;
and (d) the respondent had sentenced the complainant
with the penalty higher than that provided by law
without applying the Indeterminate Sentence Law.
The upshot of these allegations is that the
complainant's (Mr. Choa's) conviction of the crime of
perjury is baseless or unfounded in law and in fact and
is nothing but the product of the respondent's prejudice
against Mr. Choa because the respondent happens to
be a "next-door neighbor" of Mr. Choa's wife, the
private complainant in the perjury case. Considering
that Mr. Choa seasonably appealed from the judgment
of conviction, Atty. Quiroz knew or ought to know that
all the matters which he may find relevant or material
for the reversal of the judgment and the consequent
acquittal of his client, Mr. Choa, may be raised with the
appellate court, and that this Court, not being the venue
for such appeal, cannot resolve the appeal even by
way of an administrative complaint against the judge
who convicted Mr. Choa.
If Atty. Quiroz then assisted Mr. Choa in the
preparation of this case, he had nothing in mind but to
harass the respondent Judge and to unduly influence
the course of the appeal in the criminal case by
injecting into the mind of the appellate judge that,
indeed, something was definitely wrong with the
appealed decision because the ponentethereof is now
facing a serious administrative complaint arising from
his improper conduct therein. It might even be said that
the filing of this case was to send a signal to the
appellate judge in the criminal case that an affirmance
of the challenged decision would clearly be erroneous,
if not equally baseless and unfounded as that of the
trial court below.
While a lawyer owes absolute fidelity to the cause of
his client, full devotion to his genuine interest, and
warm zeal in the maintenance and defense of his
rights, as well as the exertion of his utmost learning and
ability,1 he must do so only within the bounds of the
law.2 He must give a candid and honest opinion on the
merits and probable results of his client's case3 with the
end in view of promoting respect for the law and legal
processes,4 and counsel or maintain such actions or
proceedings only as appear to him to be just, and such
defenses only as he believes to be honestly debatable
under the law.5 He must always remind himself of the
oath he took upon admission to the Bar that he "will not
wittingly or willingly promote or sue any groundless,
false or unlawful suit nor give aid nor consent to the
same"; and that he "will conduct [himself] as lawyer
according to the best of [his] knowledge and discretion
with all good fidelity as well to the courts as to [his]
clients." Needless to state, the lawyer's fidelity to his
client must not be pursued at the expense of truth and
the administration of justice,6 and it must be done within
the bounds of reason and common sense.7 A lawyer's
responsibility to protect and advance the interests of
his client does not warrant a course of action propelled
by ill motives and malicious intentions against the other
party.8
As an officer of the court and its indispensable partner
in the sacred task of administering justice, graver
responsibility is imposed upon a lawyer than any other
to uphold the integrity of the courts and to show respect
to its officers. This does not mean, however, that a
lawyer cannot criticize a judge. As we stated in Tiongco
vs. Hon. Aguilar:9
It does not, however, follow that just
because a lawyer is an officer of the
court, he cannot criticize the courts.
That is his right as a citizen, and it is
even his duty as an officer of the court
to avail of such right. Thus, in In Re:
Almacen (31 SCRA 562, 579-580
[1970]), this Court explicitly declared:
Hence, as a citizen and as officer of the
court, a lawyer is expected not only to
exercise the right, but also to consider
it his duty to avail of such right. No law
may abridge this right. Nor is he
"professionally answerable to a
scrutiny into the official conduct of the
judges, which would not expose him to
legal animadversion as a citizen" (Case
of Austin, 28 Am Dec. 657, 665).
Above all others, the members of the
bar have the best opportunity to
become conversant with the character
and efficiency of our judges. No class
is less likely to abuse the privilege, or
no other class has as great an interest
in the preservation of an able upright
bench. (State Board of Examiners in
Law vs. Hart, 116 N.W. 212, 216).
To curtail the right of a lawyer to be
critical of the foibles of the courts and
judges is to seal the lips of those in the
best position to give advice and who
might consider it their duty to speak
disparagingly. "Under such a rule," so
far as the bar is concerned, "the merits
of a sitting judge may be rehearsed, but
as to his demerits there must be
profound silence." (State vs. Circuit
Court [72 N.W. 196]).
Nevertheless, such a right is not
without limit. For, as this Court warned
in Almacen:
But it is a cardinal
condition of all such
criticism that it shall
be bona fide, and shall
not spill over the walls
of decency and
propriety. A wide
chasm exists between
fair criticism, on the one
hand, and abuse and
slander of courts and
the judges thereof, on
the other. Intemperate
and unfair criticism is a
gross violation of the
duty of respect to
courts. It is such a
misconduct that
subjects a lawyer to
disciplinary action.
xxx xxx xxx
The lawyer's duty to render respectful
subordination to the courts is essential
to the orderly administration of justice.
Hence, in the assertion of their clients'
rights, lawyers — even those gifted
with superior intellect — are enjoined to
rein up their tempers.
Elsewise stated, the right to criticize,
which is guaranteed by the freedom of
speech and of expression in the Bill of
Rights of the Constitution, must be
exercised responsibly, for every right
carries with it a corresponding
obligation. Freedom is not freedom
from responsibility, but freedom with
responsibility. In Zaldivar
vs. Gonzales (166 SCRA 316, 353-354
[1988]), it was held:
Respondent Gonzales
is entitled to the
constitutional
guarantee of free
speech. No one seeks
to deny him that right
least of all this Court.
What respondent
seems unaware of is
that freedom of speech
and of expression, like
all constitutional
freedoms, is not
absolute and that
freedom of expression
needs an occasion to
be adjusted to and
accommodated with
the requirements of
equally important
public interests. One of
these fundamental
public interests is the
maintenance of the
integrity and orderly
functioning of the
administration of
justice. There is no
antimony between free
expression and the
integrity of the system
of administering justice.
For the protection and
maintenance of
freedom of expression
itself can be secured
only within the context
of a functioning and
orderly system of
dispensing justice,
within the context, in
other words, of viable
independent
institutions for delivery
of justice which are
accepted by the
general community.
Proscribed then are, inter alia, the use
of unnecessary language which
jeopardizes high esteem in courts,
creates or promotes distrust in judicial
administration (Rheem, supra), or
tends necessarily to undermine the
confidence of people in the integrity of
the members of this Court and to
degrade the administration of justice by
this Court (In re: Sotto, 82 Phil. 595
[1949]); or of offensive and abusive
language (In re: Rafael Climaco, 55
SCRA 107 [1974]); or abrasive and
offensive language (Yangson vs.
Salandanan, 68 SCRA 42 [1975]); or of
disrespectful, offensive, manifestly
baseless, and malicious statements in
pleadings or in a letter addressed to the
judge (Baja vs. Macandog, 158 SCRA
391 [1988], citing the resolution of 19
January 1988 in Phil. Public Schools
Teachers Association vs. Quisumbing,
G.R. No. 76180, and Ceniza vs.
Sebastian, 130 SCRA 295 [1984]); or
of disparaging, intemperate, and
uncalled-for remarks (Sangalang vs.
Intermediate Appellate Court, 177
SCRA 87 [1989]).
Any criticism against a judge made in the guise of an
administrative complaint which is clearly unfounded
and impelled by ulterior motive will not excuse the
lawyer responsible therefor under his duty of fidelity to
his client. As we stated in Ng vs. Alfaro,10 lawyers, as
officers of the court, should not encourage groundless
administrative cases against court officers and
employees. The time of the latter should not be wasted
in answering or defending groundless complaints;
every minute of it is precious and must be reserved for
the enhancement of public service. Our precious time
too should not be diverted to such cases.
We find the explanation of Atty. Quiroz to be
unsatisfactory.
WHEREFORE, we hereby impose upon ATTY,
RAYMUNDO A. QUIROZ a FINE in the amount of Five
Thousand Pesos (P5,000,00) to be paid within five (5)
days from notice hereof. He is further WARNED that a
commission of the same or similar acts in the future
shall be dealt with more severely.
SO ORDERED.
Narvasa C.J., Melo, Francisco and Panganiban, JJ.,
concur.
(6) A.M. No. P-94-1081 October 25, 1995
VIRGINIA E. BURGOS, complainant,
vs.
JOSEFINA R. AQUINO, Court Stenographer, RTC,
Branch 19, Malolos, Bulacan, respondent.
PUNO, J.:
This administrative matter refers to the charge of ganitong mga babae, kung hindi po
immorality brought by complainant against respondent, natin papansinin ay marami pang
for maintaining illicit relations with complainant's pamilya na masisira. Masyado na po
husband which eventually begot them a child, a akong nasasaktan.
daughter named Jocelyn A. Burgos.
Kalakip po rito ang mga papeles na
The letter-complaint of complainant states: siya ay may anak.

Sir:

Ito po ay may kinalaman sa isang

empleyado ninyo sa Branch 19,
Malolos, Bulacan na si Josefina R.
Aquino, court stenographer.

Nais ko pong paimbistigahan siya sa

pagkaimmoral dahil siya po ay may-
anak sa aking asawa.

Nito nga pong mga nagdaan panahon

ay hindi ko na pinapansin pero grabe
na po ang mga gawain. Nuon pong
isang taon, April 1993, napagalaman
ko na nagbababad sa office ng asawa
ko, kasama ang kanyang anak.
Nakikialam sa mga gawain sa office at
nagpapanggap pang Mrs. siya ng
asawa ko. Maluag siyang nakaaalis sa
office niya nuong panahon na iyon na
walang pumupuna. Sa katunayan po
ay kalakip nito ang papeles na
nilalakad niya kahit office hour. Hindi
siya mapigil sa pagpunta sa office ng
asawa ko, sa dahilan mag-iiskandalo
raw siya. Tumagal po iyon ng
mahabang panahon sapagkat hindi ko
po ugali ang pumunta sa office ng
asawa ko.

Napagalaman ko lang po ito nang

umuwi ang anak ko na sumama sa
office ng asawa ko. Hindi po tumigil ng
kapupunta ruon kahit na nanduon ang
anak ko. Hindi naman po kilala ng anak
ko. Hindi na po matiis ng mga tao sa
office kaya sinabi sa anak ko.
Isinumbong sa akin ng anak ko.

Kinabukasan po ay isinumbong ko sa
judge ng Branch 19. Pinagsabihan
siya. Nangako na hihiwalay na raw
siya. Hindi na raw kami guguluhin.
Hindi po tumupad. Ang pagpunta lang
po sa office ang sinunod pero patuloy
pa rin po ang paghahabol sa asawa ko.
Ayaw pong tumigil. Matalas po at
walang kahihiyan.
Nito pong nakaraang linggo May 26 at
28, 1994 nagbantay na naman po ang
anak sa harapan ng office ng asawa
ko. Hindi po tumigil. Alam po ito ng
buong compound ng kapitolyo.
Kilalang-kilala po siya sa gawain nga
immoral. Hindi po ako
nagsisinungaling. Totoong lahat ito.
Siguro po ay nauunawaan ninyo ako,
dahil may ina rin po kayo na katulad ko
na napakasakit kapag niloko. Dapat na
pong masugpo itong gawain ng
We asked the respondent to file her Comment. In her
Comment, she admitted that she had an illicit relation
with complainant's husband. The illicit relation
allegedly happened prior to her employment in the
judiciary. She claimed that the affair occurred in 1979
and their love child, Jocelyn, was born on March 19,
1980.2 She joined the judiciary only on July 9, 1981 as
Court Clerk Interpreter I at the Municipal Trial Court of
Guiguinto, Bulacan and was promoted to Stenographic
Reporter. She later transferred to the Regional Trial
Court of Malolos, Bulacan, Branch 19, in 1983. She
now avers that she had severed her relation with Atty.
Burgos arising from their disagreement over support.
In her Reply, complainant maintained that her husband
and respondent are still "on." She had also demanded
the respondent to disallow her daughter from using the
family name Burgos.
We referred the letter-complaint to Executive Judge
Natividad C. Dizon, Regional Trial Court, Malolos,
Bulacan, Branch 19, for investigation. In her report and
recommendation, dated March 17, 1995, Judge Dizon
found the following:
xxx xxx xxx
The parties, through counsel, agreed
that they will just submit their
respective position papers relative to
their respective contentions. No
testimonial evidence was presented
but only documentary.
xxx xxx xxx
It appears from the Personal Data
Sheet submitted by the respondent to
the Supreme Court, under Column No.
20 that: in 1974 to September 30, 1979,
she was employed as Clerk
Stenographer in the Fiscal's Office
which is a clear indication that when
she got pregnant with her child she was
in the government service. Also in Item
No. 27 of said Personal Data Sheet,
under references, it can be noted that
she named Atty. Francisco Burgos as
one of her references.
It is a given fact, as the records clearly
show, that when respondent had an
affair with the husband of the
complainant which resulted in the birth
of the love child, respondent was in the
government service. The admission in
the Answer (Exh. "B") of the
respondent that she was a victim of
amorous advances of complainant's
husband sometime in 1979 and out of
that relationship a child was born
confirmed the fact that respondent,
while in the government service
committed a disgraceful and immoral
act for which respondent may be
subjected to disciplinary action. Now,
whether the relationship with the
husband of the complainant is still
subsisting, complainant submitted
documents typed by the respondent at
the office of complainant's husband
showing that in the said pleadings
typewritten below are the initials
"fcb\jo" and also complainant claims
that respondent brags about her being
a mistress and introduces herself as
the legal wife and goes to the office of
her paramour almost everyday during
office hours (Letter to the undersigned
attached as Annex "4"). Complainant
also claims that her husband supports
respondent and the child. However,
she did not present evidence to prove
such. Therefore, except for the fact that
there was admission on the part of the
respondent that complainant's
husband is the father of respondent's
child and the relationship was during
the time she was an employee of the
Fiscal's Office, no sufficient evidence
was presented that the relationship is
subsisting while respondent was in the
judiciary.3
Judge Dizon recommended respondent's
suspension from service.
We then referred the report to the Office of the Court
Administrator for evaluation. In its Memorandum, dated
June 19, 1995, it held:
This Office finds merit on the
conclusion of the investigating Judge
that indeed the respondent committed
an immoral act while in the government
service, regardless of whether or not it
was committed when employed in the
Judiciary. At the time she gave birth to
her child, the respondent may not be in
the government service. However, the
child was conceived when she was still
in the Fiscal's Office where the
complainant's husband likewise
worked. It could be presumed
undisputably that the reason for her
resignation is because of her
conception and eventually giving birth
to her child.
This Office went deeper in its
evaluation inquiring further on the
personal record of herein respondent.
Her personal record reveals that
respondent was employed as Clerk-
Typist in the Office of the Governor of
Malolos, Bulacan from August 1, 1974
to April 22, 1976, and from April 23,
1976 to September 30, 1979 as Clerk
Stenographer in the Fiscal's Office on
the same province. She resigned from
the Fiscal's Office and subsequently
got herself employed as Court
Interpreter in MTC, Guiguinto, Bulacan
on July 9, 1981. While it is true that in
all her personal record from the time
she assumed office in the Judiciary,
she declares her status as single with a
child named Jocelyn Aquino born on
March 19, 1980, however, in one of her
personal data sheets dated October
26, 1982, respondent did not declare
her child. Moreover, it is worthy to note
that in her Statement of Assets and
Liabilities dated July 11, 1984, April 30,
1990, May 14, 1992, April 5, 1993, and
April 13, 1994, her only child, though
declared, already carries the name
Jocelyn A. Burgos. The reason for the
change in her child's surname was not
explained.
It is to be emphasized that the offense
of disgraceful and immoral conduct is
punishable by DISMISSAL from the
service. Whether or not the immoral
relationship still subsist is no longer
material. Documents submitted by a
government employee to form part of
his/her personal file are official
 documents. Any alteration or material
changes in the content thereof without
a valid justification is tantamount to
falsification which is likewise penalized
by DISMISSAL from the service. It
could be added that in these official
documents, the employee declares
under the penalty of perjury that all
statements given in the document are
true and correct to the best of his
knowledge and belief. It appears from
these documents and in the record of
the case that no doubt, herein
respondent is guilty of immorality and
committed an act of falsifying her own
records and therefore, guilty of perjury,
which merit a severe punishment.4
We agree with the findings of the Office of the Court
Administrator.
Respondent has admitted her illicit relationship with
Atty. Francisco C. Burgos, complainant's husband in
1979 which gave life to their love child, Jocelyn, in
1980. She, however, denies the charge of complainant
that she continues to carry on her dalliance with Atty.
Burgos.
The evidence proves the charge of complainant.
Complainant submitted pleadings in various courts
filed by her husband, Atty. Burgos and typed by
respondent. These pleadings are: (1) Motion for
Extension to File Brief filed in the Court of Appeals in
CA-G.R. No. 13785, dated April 1, 1993;5 (2) Motion to
Reset, dated April 12, 1993, and filed in Civil Case No.
423 in the Municipal Trial Court of Pulilan,
Bulacan;6 and (3) Position Paper, dated May 12, 1993,
filed also in the Municipal Trial Court of Pulilan,
Bulacan in Civil Case No. 423.7 All these pleadings
bear the initials "fcb/jo" and which were typed by the
respondent in the office of Atty. Burgos. As the
legitimate wife of Atty. Burgos, it is not difficult for
complainant to obtain copies of these pleadings. It is
not also far fetched for respondent to type them for she
is a court stenographer. Given these circumstances, it
behooved the respondent to disprove the charge that
her relationship with complainant's husband has not
ceased. She did nothing to meet this burden. We hold
that the evidence on record is substantial enough to
conclude that respondent did not stop her illicit
relationship with complainant's husband. Proceedings
in administrative investigation are not strictly governed
by the technical rules of evidence. They are summary
in nature.
The Code of Judicial Ethics mandates that the conduct
of court personnel must be free from any whiff of
impropriety, not only with respect to his duties in the
judicial branch but also to his behavior outside the court
as a private individual.8 There is no dichotomy of
morality; a court employee is also judged by his private
morals.9 The exacting standards of morality and
decency have been strictly adhered to and laid down
by the Court to those in the service of the
judiciary. 10 Respondent, as a court stenographer, did
not live up to her commitment to lead a moral life. Her
act of maintaining relation with Atty. Burgos speaks for
itself.
Likewise, the records reveal that when respondent
applied in the judiciary she filled up the prescribed
personal information sheet, Civil Service Form 212,
dated October 26, 1982 and did not disclose the
existence of her daughter. The form itself gives this
warning: "I declare under penalties of perjury that the
answers given above are true and correct to the best
of my knowledge and belief." Despite the warning, she
professed that her statements were true.11Under Article
183 of the Revised Penal Code, perjury is the
deliberate making of untruthful statements upon any
material matter before a competent person authorized
to administer an oath in cases in which the law so
requires. The required Civil Service Form 212
submitted by respondent to form part of her personal
file is an official document. Her deliberate omission to
disclose her child without a valid justification makes her
liable for perjury.12
IN VIEW HEREOF, respondent Josefina R. Aquino is
meted the penalty of suspension from office for six (6)
months for immorality and perjury. Let a copy of this
decision be entered in respondent's personal record.
SO ORDERED.
Narvasa, C.J., Regalado, Mendoza and Francisco, JJ.,
concur.
R.A. 9165- Comprehensive Dangerous Drugs Act of
2002
(1) G.R. No. 149878 July 1, 2003
PEOPLE OF THE PHILIPPINES, plaintiff–appellee,
vs.
TIU WON CHUA a.k.a. "Timothy Tiu" and QUI
YALING y CHUA a.k.a. "Sun Tee Sy y
Chua," accused–appellant.
PUNO, J.:
This is an appeal from the decision of the Regional Trial
Court (RTC) of Manila, Branch 27, convicting
appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won)
and Qui Yaling y Chua a.k.a. Sun Tee Sy y Chua (Qui
Yaling) for violation of Section 16, Article III of Republic
Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended by Republic Act No.
7659.
Appellants were charged with the crime of illegal
possession of a regulated drug, i.e., methamphetamine
hydrochloride, otherwise known as "shabu," in an
information which reads:
The undersigned accuses TIU WON CHUA aka
"Timothy Tiu" and QUI YALING Y CHUA aka "Sun Tee
Sy Y Chua" of violation of Section 16, Article III in
relation to Section 2 (e-2), Article I of Republic Act No.
6425, as amended by Batas Pambansa Blg. 179 and
as further amended by Republic Act No. 7659,
committed as follows:
That on or about the 3rd day of October 1998,
in the City of Manila, Philippines, the said
accused without being authorized by law to
 possess or use any regulated drug, did then
and there wilfully, unlawfully, knowingly and
jointly have in their possession and under their
custody and control the following, to wit:
A sealed plastic bag containing two three four
point five (234.5) grams of white crystalline
substance;
Four (4) separate sealed plastic bags
containing six point two two four three (6.2243)
grams of white crystalline substance;
Sixteen (16) separate sealed plastic bags
containing twenty point three six seven three
(20.3673) grams of white crystalline substance;
or a total of 261.0916 grams, and;
An improvised tooter with traces of crystalline
substance
known as "SHABU" containing
methamphetamine hydrochloride, a regulated
drug, without the corresponding license or
prescription thereof.
Contrary to law.1
During arraignment, a plea of not guilty was entered.
Appellants, with the assistance of counsel, and the
prosecution stipulated on the following facts:
1. The authenticity of the following documents:
a. The letter of Police Senior Inspector
Angelo Martin of WPD, District
Intelligence Division, United Nations
Avenue, Ermita, Manila, dated October
12, 1998, to the Director of the NBI
requesting the latter to conduct a
laboratory examination of the
specimen mentioned therein;
b. The Certification issued by Forensic
Chemist Loreto Bravo of the NBI, dated
October 13, 1998, to the effect that the
specimen mentioned and enumerated
therein gave positive results for
methamphetamine hydrochloride,
Exhibit "B"; and
c. Dangerous Drug Report No. 98-1200
issued by Forensic Chemist Bravo,
dated October 13, 1998, to the effect
that the specimen mentioned therein
gave positive results for
methamphetamine hydrochloride;
2. The existence of one plastic bag containing
234.5 grams of methamphetamine
hydrochloride, Exhibit "D"; four (4) plastic
sachets also containing methamphetamine
hydrochloride with a total net weight of 6.2243
grams, Exhibits "E", "E-1", "E-2" and "E-3";
additional 16 plastic sachets containing
methamphetamine hydrochloride with a total
net weight of 20.3673 grams, Exhibits "F", "F-
1" to "F-15", and one improvised tooter with a
length of 8 inches more or less and with a red
plastic band, Exhibit "G";
3. Forensic Chemist Loreto Bravo has no
personal knowledge as to the source of the
regulated drug in question; and
4. Tiu Won Chua and Qui Yaling y Chua as
stated in the information are the true and
correct names of the two accused.2
The witnesses presented by the prosecution were
SPO1 Anthony de Leon, PO2 Artemio Santillan and
PO3 Albert Amurao. Their testimonies show that the
police authorities, acting on an information that drug-
related activities were going on at the HCL Building,
1025 Masangkay St., Binondo, Manila, surveyed the
place on October 2, 3, 4 and 5, 1998. At about 10 p.m.
of October 6, they conducted a test-buy operation,
together with a Chinese-speaking asset. They were
able to buy P2,000.00 worth of substance from
appellants, which, upon examination by the PNP crime
laboratory, proved positive for methamphetamine
hydrochloride.3 Nonetheless, they did not immediately
arrest the suspects but applied for a warrant to search
Unit 4-B of HCL Building, 1025 Masangkay St.,
Binondo, Manila. Their application to search the unit
supposedly owned by "Timothy Tiu" was granted by
Judge Ramon Makasiar of Branch 35 of the RTC of
Manila on October 9.4 Armed with the warrant, they
proceeded to the place and learned that Tiu Won was
not inside the building. They waited outside but Tiu
Won did not come. After several stakeouts, they were
able to implement the warrant on October 12. Failing to
get the cooperation of the barangay officials, they
requested the presence of the building coordinator,
Noel Olarte, and his wife, Joji, who acted as witnesses.
During the enforcement of the warrant, there were
three (3) persons inside the apartment, namely,
appellants Tiu Won and Qui Yaling, and a housemaid.
The search was conducted on the sala and in the three
(3) bedrooms of Unit 4-B. On top of a table inside the
master’s bedroom, one (1) big pack, containing 234.5
grams of shabu, was found inside a black leather man’s
handbag supposedly owned by Tiu Won, while sixteen
(16) small packs of shabu weighing 20.3673 grams
were found inside a lady’s handbag allegedly owned by
Qui Yaling. Also contained in the inventory were the
following items: an improvised tooter, a weighing scale,
an improvised burner and one rolled tissue paper. 5 The
authorities also searched a Honda Civic car bearing
Plate No. WCP 157, parked along Masangkay Street,
registered in the name of the wife of Tiu Won and found
four (4) plastic bags containing 6.2243 grams of shabu,
which were likewise confiscated. A gun in the
possession of Tiu Won was also seized and made
subject of a separate criminal case.
The defense presented appellants Tiu Won and Qui
Yaling. They denied that Timothy Tiu and Tiu Won
Chua are one and the same person. They presented
papers and documents to prove that appellant is Tiu
Won Chua and not Timothy Tiu, as stated in the search
warrant. Tiu Won also claimed that he does not live in
the apartment subject of the search warrant, alleging
that he is married to a certain Emily Tan and is a
resident of No. 864 Alvarado St., Binondo, Manila.
Nonetheless, he admitted that his co-appellant, Qui
Yaling, is his mistress with whom he has two children.
Qui Yaling admitted being the occupant of the
apartment, but alleged that she only occupied one
room, while two other persons, a certain Lim and a
certain Uy, occupied the other rooms. Both appellants
denied that they were engaged in the sale or
possession of shabu. They asserted that they are in the
jewelry business and that at the time the search and
arrest were made, the third person, whom the
prosecution identified as a housemaid, was actually a
certain Chin, who was there to look at some of the
pieces of jewelry sold by Tiu Won. They also denied
that a gun was found in the possession of Tiu Won.
Qui Yaling recalled that upon asking who was it
knocking at the door of her apartment on October 12,
the police authorities represented that they were
electric bill collectors. She let them in. She was
surprised when upon opening the door, around ten (10)
policemen barged inside her unit. She, together with
Tiu Won and Chin, was asked to remain seated in the
sofa while the men searched each room. Tiu Won
alleged that after a fruitless search, some of the
policemen went out, but came back a few minutes later
with another person. Afterwards, he was made to sign
a piece of paper. Appellants also claimed that the
policemen took their bags which contained money, the
pieces of jewelry they were selling and even Qui
Yaling’s cell phone. They both denied that shabu was
discovered in the apartment during the search.
Appellants were arrested and brought to the police
station.
In a decision, dated August 15, 2001, the RTC found
proof beyond reasonable doubt of the guilt of the
appellants and sentenced them to suffer the penalty of
reclusion perpetua and a fine of P500,000.00 each.6
Thus, appellants interpose this appeal raising the
following assignment of errors:
I properly. Besides, the authorities conducted
THE TRIAL COURT ERRED IN
DISREGARDING THE LEGAL DEFECTS OF
THE SEARCH WARRANT USED BY THE
POLICE OPERATIVES AGAINST BOTH
ACCUSED.
II
THE TRIAL COURT ERRED IN TAKING INTO
CONSIDERATION EVIDENCES (sic) WHICH
SHOULD HAVE BEEN EXCLUDED AND
DISREGARDED WHICH RESULTED IN THE
ERRONEOUS CONVICTION OF BOTH
ACCUSED.
III
THE TRIAL COURT ERRED IN CONVICTING
BOTH ACCUSED DESPITE THE ABSENCE
OF PROOF BEYOND REASONABLE DOUBT.
IV
THE TRIAL COURT ERRED IN
DISREGARDING THE FACT THAT THE
CONSTITUTIONAL RIGHTS OF BOTH
ACCUSED WERE SERIOUSLY VIOLATED
BY THE POLICE OPERATIVES.7
These issues can be trimmed down to two i.e., the
legality of the search warrant and the search and arrest
conducted pursuant thereto, and the correctness of the
judgment of conviction imposed by the RTC.
As regards the propriety of the search warrant issued
in the name of Timothy Tiu, which did not include
appellant Qui Yaling, appellants contend that because
of this defect, the search conducted and consequently,
the arrest, are illegal. Being fruits of an illegal search,
the evidence presented cannot serve as basis for their
conviction.
We beg to disagree. There are only four requisites for
a valid warrant, i.e,: (1) it must be issued upon
"probable cause"; (2) probable cause must be
determined personally by the judge; (3) such judge
must examine under oath or affirmation the
complainant and the witnesses he may produce; and
(4) the warrant must particularly describe the place to
be searched and the persons or things to be
seized.8 As correctly argued by the Solicitor General, a
mistake in the name of the person to be searched does
not invalidate the warrant,9 especially since in this
case, the authorities had personal knowledge of the
drug-related activities of the accused. In fact, a "John
Doe" warrant satisfies the requirements so long as it
contains a descriptio personae such as will enable the
officer to identify the accused.10 We have also held that
a mistake in the identification of the owner of the place
does not invalidate the warrant provided the place to
be searched is properly described.11
Thus, even if the search warrant used by the police
authorities did not contain the correct name of Tiu Won
or the name of Qui Yaling, that defect did not invalidate
it because the place to be searched was described
surveillance and a test-buy operation before obtaining
the search warrant and subsequently implementing it.
They can therefore be presumed to have personal
knowledge of the identity of the persons and the place
to be searched although they may not have specifically
known the names of the accused. Armed with the
warrant, a valid search of Unit 4-B was conducted.
We affirm, however, the illegality of the search
conducted on the car, on the ground that it was not part
of the description of the place to be searched
mentioned in the warrant. It is mandatory that for the
search to be valid, it must be directed at the place
particularly described in the warrant.12 Moreover, the
search of the car was not incidental to a lawful arrest.
To be valid, such warrantless search must be limited to
that point within the reach or control of the person
arrested, or that which may furnish him with the means
of committing violence or of escaping.13 In this case,
appellants were arrested inside the apartment,
whereas the car was parked a few meters away from
the building.
In a prosecution for illegal possession of a dangerous
drug, it must be shown that (1) appellants were in
possession of an item or an object identified to be a
prohibited or regulated drug, (2) such possession is not
authorized by law, and (3) the appellants were freely
and consciously aware of being in possession of the
drug.14 We also note that the crime under consideration
is malum prohibitum, hence, lack of criminal intent or
good faith does not exempt appellants from criminal
liability. Mere possession of a regulated drug without
legal authority is punishable under the Dangerous
Drugs Act.15
In the case at bar, the prosecution has sufficiently
proved that the packs of shabu were found inside Unit
4-B, HCL Building, 1025 Masangkay St., Binondo,
Manila. Surveillance was previously conducted.
Though no arrest was made after the successful test-
buy operation, this does not destroy the fact that in a
subsequent search, appellants were found in
possession of shabu. The testimonies of the
prosecution witnesses are consistent in that after the
test-buy operation, they obtained a search warrant
from Judge Makasiar, pursuant to which, they were
able to confiscate, among others, several packs of
shabu from a man’s handbag and a ladies’ handbag
inside a room in the unit subject of the warrant.
Furthermore, the seizure of the regulated drug from
Unit 4-B is proven by the "Receipt for Property
Seized"16 signed by SPO1 de Leon, the seizing officer,
Noel, the building administrator, and Joji Olarte, his
wife, who were also present. De Leon attested to the
truth and genuineness of the receipt which was not
contradicted by the defense.
Be that as it may, we cannot sustain the trial court’s
decision attributing to both appellants the illegal
possession of the same amount of shabu. We note that
nowhere in the information is conspiracy alleged.
Neither had it been proven during the trial. As such, we
need to look at the individual amounts possessed by
each appellant.
In his testimony, Tiu Won admitted ownership of the
man’s handbag where 234.5 grams of shabu were
found, viz:
Q: During those ten to 20 minutes, what
were those policemen doing inside that unit?
A: They went inside the rooms and started
ransacking the drawers and everything. As a
matter of fact, even handbags were searched
by them.
Q: Whose handbags were searched?
A: My bag, the one I was carrying that day,
with jewelry and checks and others were taken
by them.17(emphasis supplied)
Qui Yaling, in her appellant’s brief, denied owning the
handbag where 20.3673 grams of shabu were
discovered. However, during her testimony, she
admitted its ownership, viz:
Q: Now, the police testified before this
court that you has (sic) a bag and when they
searched this bag, it yielded some sachets of
shabu(.) (W)hat can you say about that?
A: That is an absolute lie, sir. What they
saw in my bag were my cosmetics.18 (emphasis
supplied)
An admission is an act or declaration of a party as to
the existence of a relevant fact which may be used in
evidence against him.19 These admissions, provided
they are voluntary, can be used against appellants
because it is fair to presume that they correspond with
the truth, and it is their fault if they do not.20
Qui Yaling likewise argues that the lower court erred in
attributing ownership of the handbag to her considering
that there was another girl present at the apartment
during the search. She contends that since the
prosecution was not able to establish the ownership of
the bag, then such could have also been owned by
Chin.
We do not subscribe to this argument. The defense
failed to bring Chin to court, although during the course
of the presentation of their evidence, they manifested
their intention to present her testimony. Furthermore, a
visitor does not normally leave her bag lying anywhere,
much more in the master’s bedroom. Being the
occupant of the apartment, it is more logical to presume
that the handbag belongs to Qui Yaling. The failure of
the prosecution to present the bags and proofs that the
bags belong to the appellants is immaterial because
the bags, the license of Tiu Won found inside the man’s
handbag and the passport of Qui Yaling found inside
the ladies’ handbag are not illegal. Having no relation
to the use or possession of shabu, the authorities could
not confiscate them for they did not have the authority
to do so since the warrant authorized them to seize
only articles in relation to the illegal possession of
shabu.21 Not within their control, they could not have
been presented in court.
We now come to the penalties of the appellants. R. A.
No. 6425, as amended by R. A. No. 7659, applies.
Thus, since 234.5 grams of shabu were found inside
the man’s handbag, deemed to be owned by Tiu Won,
he is guilty of violating Section 16, Article III of R.A. No.
6425, while Qui Yaling, whose handbag contained only
20.3673 grams of shabu is guilty of violating Section 20
thereof. Section 16, in connection with Section 20
(1st paragraph), provides the penalty of reclusion
perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos where the amount
of shabu involved is 200 grams or more. Where the
amount is less than 200 grams, Section 20 punishes
the offender with the penalty ranging from prision
correccional to reclusion perpetua.
IN VIEW WHEREOF, the decision of RTC Br. 27,
Manila as to the penalty of appellant Tiu Won is
affirmed, while that of appellant Qui Yaling is modified.
Tiu Won Chua is sentenced to a penalty of reclusion
perpetua, and a fine of five hundred thousand pesos
(P500,000.00) in accordance with Section 16 and
Section 20 (1st paragraph) of R.A. No. 6425, as
amended by R.A. No. 7659. Qui Yaling y Chua is
sentenced to an indeterminate sentence of prision
correccional as minimum to prision mayor as
maximum, there being no mitigating or aggravating
circumstances.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio-
Morales, JJ., concur.
(2) G.R. No. 179940 April 23, 2008 buyer, and PO1 Antonio Barreras as back-up
operative. After the briefing, the team, together with the
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, confidential informant, proceeded to Poblacion Dike for
vs. the execution of the buy-bust operation.
NORBERTO DEL MONTE y GAPAY @
OBET, accused-appellant. When the team arrived at appellant’s place, they saw
the appellant standing alone in front of the gate. The
DECISION informant and PO1 Tolentino approached appellant.
The informant introduced PO1 Tolentino to appellant
CHICO-NAZARIO, J.: as his friend, saying "Barkada ko, user." PO1 Tolentino
gave appellant P300.00 consisting of three
marked P100 bills.7 The bills were marked with "GT
Assailed before Us is the Decision1 of the Court of
JR," PO1 Tolentino’s initials. Upon receiving
Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May
the P300.00, appellant took out a plastic sachet from
2007 which affirmed with modification the Decision 2 of
his pocket and handed it over to PO1 Tolentino. As a
the Regional Trial Court (RTC) of Malolos, Bulacan,
pre-arranged signal, PO1 Tolentino lit a cigarette
Branch 78, in Criminal Case No. 3437-M-02, finding
signifying that the sale had been consummated. PO1
accused-appellant Norberto del Monte, a.k.a. Obet,
Barreras arrived, arrested appellant and recovered
guilty of violation of Section 5,3 Article II of Republic Act
from the latter the marked money.
No. 9165, otherwise known as "Comprehensive
Dangerous Drugs Act of 2002."
The white crystalline substance8 in the plastic sachet
which was sold to PO1 Tolentino was forwarded to
On 11 December 2002, accused-appellant was
PNP Regional Crime Laboratory Office 3, Malolos,
charged with Violation of Section 5, Article II of
Bulacan, for laboratory examination to determine the
Republic Act No. 9165, otherwise known as
presence of the any dangerous drug. The request for
Comprehensive Dangerous Drugs Act of 2002. The
laboratory examination was signed by SPO2
accusatory portion of the information reads:
Maung.9 Per Chemistry Report No. D-728-2002,10 the
substance bought from appellant was positive for
That on or about the 10th day of December methamphetamine hydrochloride, a dangerous drug.
2002, in the municipality of Baliuag, province of
Bulacan, Philippines, and within the jurisdiction
The testimony of Nellson Cruz Sta. Maria, Forensic
of this Honorable Court, the above-named
Chemical Officer who examined the substance bought
accused, without authority of law and legal
from appellant, was dispensed after both prosecution
justification, did then and there wilfully,
and defense stipulated that the witness will merely
unlawfully and feloniously sell, trade, deliver,
testify on the fact that the drugs subject matter of this
give away, dispatch in transit and transport
case was forwarded to their office for laboratory
dangerous drug consisting of one (1) heat-
examination and that laboratory examination was
sealed transparent plastic sachet of
indeed conducted and the result was positive for
Methylamphetamine Hydrochloride weighing
methamphetamine hydrochloride.11
0.290 gram.4
For the defense, the appellant took the witness stand,
The case was raffled to Branch 78 of the RTC of
together with his common-law wife, Amelia Mendoza;
Malolos, Bulacan and docketed as Criminal Case No.
and nephew, Alejandro Lim.
3437-M-02.
From their collective testimonies, the defense version
When arraigned on 20 January 2003, appellant,
goes like this:
assisted by counsel de oficio, pleaded "Not Guilty" to
the charge.5On 17 February 2003, the pre-trial
conference was concluded.6 Thereafter, trial on the On 10 December 2002, appellant was sleeping in his
merits ensued. sister’s house in Poblacion Dike when a commotion
woke him up. His nephew, Alejandro Lim, was shouting
because the latter, together with appellant’s common-
The prosecution presented as its lone witness PO1
law wife, Amelia Mendoza, and a niece, was being
Gaudencio M. Tolentino, Jr., the poseur-buyer in the
punched and kicked by several police officers. When
buy-bust operation conducted against appellant, and a
appellant tried to pacify the policemen and ask them
member of the Philippine National Police (PNP)
why they were beating up his common-law wife and
assigned with the Philippine Drug Enforcement Agency
other relatives, the policemen arrested him, mauled
(PDEA) Regional Office 3/Special Enforcement Unit
him, punched him on the chest, slapped him and hit
(SEU) stationed at the Field Office, Barangay Tarcan,
him with a palo-palo. He sustained swollen face, lips
Baliuag, Bulacan.
and tooth. His common-law wife was likewise hit on the
chest with the palo-palo.
The version of the prosecution is as follows:
The policemen then took appellant and his common-
On 10 December 2002, at around 3:00 o’clock in the law wife to a house located in the middle of a field
afternoon, a confidential informant went to the office of where the former demanded P15,000.00 for their
the PDEA SEU in Barangay Tarcan, Baliuag, Bulacan liberty. The next day, appellant was brought to the
and reported that appellant was selling shabu. Upon police station.
receipt of said information, a briefing on a buy-bust
operation against appellant was conducted. The team
Amelia Mendoza identified PO1 Tolentino and PO1
was composed of SPO2 Hashim S. Maung, as team
Barreras as the police officers who manhandled them
leader, PO1 Gaudencio Tolentino, Jr. as the poseur-
and who demanded P15,000.00 so that she and
appellant could go home. The following day at 6:00
a.m., she said her child and cousin arrived with
the P15,000.00. She was released but appellant was
detained. She does not know why the police officers
filed this case against appellant. What she knows is
that they were asking money from them.
Alejandro Lim merely corroborated the testimonies of
appellant and Amelia Mendoza.
On 8 March 2004, the trial court rendered its decision
convicting appellant of Violation of Section 5, Article II
of Republic Act No. 9165, and sentenced him to life
imprisonment and to pay a fine of P5,000,000.00. The
dispostive portion of the decision reads:
WHEREFORE, the foregoing considered, this
Court hereby finds accused Norberto del Monte
y Gapay @ Obet GUILTY beyond reasonable
doubt of the offense of Violation of Section 5,
Art. II of R.A. 9165 and sentences him to suffer
the penalty of LIFE IMPRISONMENT and a
fine of P5,000,000.00. With cost.
The drugs subject matter of this case is hereby
ordered forfeited in favor of the government.
The Branch of this Court is directed to turn over
the same to the Dangerous Drugs Board within
ten (10) days from receipt hereof for proper
disposal thereof.12
The trial court found the lone testimony of PO1
Gaudencio M. Tolentino, Jr. to be credible and
straightforward. It established the fact that appellant
was caught selling shabu during an entrapment
operation conducted on 10 December 2002. Appellant
was identified as the person from whom PO1 Tolentino
bought P300.00 worth of shabuas confirmed by
Chemistry Report No. D-728-2002. On the other hand,
the trial court was not convinced by appellant’s defense
of frame-up and denial. Appellant failed to substantiate
his claims that he was merely sleeping and was
awakened by the screams of his relatives who were
being mauled by the police officers.
Appellant filed a Notice of Appeal on 10 March
2004.13 With the filing thereof, the trial court directed
the immediate transmittal of the entire records of the
case to us.14 However, pursuant to our ruling in People
v. Mateo,15 the case was remanded to the Court of
Appeals for appropriate action and disposition.16
On 28 May 2007, the Court of Appeals affirmed the trial
court’s decision but reduced the fine imposed on
appellant to P500,000.00. It disposed of the case as
follows:
WHEREFORE, the appeal is DISMISSED and
the decision dated March 8, 2004 of the RTC,
Branch 78, Malolos, Bulacan, in Criminal Case
No. 3437-M-02, finding accused-appellant
Norberto del Monte guilty beyond reasonable
doubt of Violation of Section 5, Article II,
Republic Act No. 9165, and sentencing him to
suffer the penalty of life imprisonment
is AFFIRMED with the MODIFICATION that
the amount of fine imposed upon him is
reduced from P5,000,000.00 to P500,000.00.17
A Notice of Appeal having been timely filed by
appellant, the Court of Appeals forwarded the records
of the case to us for further review.18
In our Resolution19 dated 10 December 2007, the
parties were notified that they may file their respective
supplemental briefs, if they so desired, within 30 days
from notice. Both appellant and appellee opted not to
file a supplemental brief on the ground they had
exhaustively argued all the relevant issues in their
respective briefs and the filing of a supplemental brief
would only contain a repetition of the arguments
already discussed therein.
Appellant makes a lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY OF THE OFFENSE CHARGED
DESPITE THE INADMISSIBILITY OF THE
EVIDENCE AGAINST HIM FOR FAILURE OF
THE ARRESTING OFFICERS TO COMPLY
WITH SECTION 21 OF R.A. 9165.20
Appellant anchors his appeal on the arresting
policemen’s failure to strictly comply with Section 21 of
Republic Act No. 9165. He claims that pictures of him
together with the alleged confiscated shabu were not
taken immediately upon his arrest as shown by the
testimony of the lone prosecution witness. He adds that
PO1 Tolentino and PO1 Antonio Barreras, the police
officers who had initial custody of the drug allegedly
seized and confiscated, did not conduct a physical
inventory of the same in his presence as shown by their
joint affidavit of arrest. Their failure to abide by said
section casts doubt on both his arrest and the
admissibility of the evidence adduced against him.
At the outset, it must be stated that appellant raised the
police officers’ alleged non-compliance with Section
2121 of Republic Act No. 9165 for the first time on
appeal. This, he cannot do. It is too late in the day for
him to do so. In People v. Sta. Maria22 in which the very
same issue was raised, we ruled:
The law excuses non-compliance under
justifiable grounds. However, whatever
justifiable grounds may excuse the police
officers involved in the buy-bust operation in
this case from complying with Section 21 will
remain unknown, because appellant did not
question during trial the safekeeping of the
items seized from him. Indeed, the police
officers’ alleged violations of Sections 21
and 86 of Republic Act No. 9165 were not
raised before the trial court but were
instead raised for the first time on appeal. In
no instance did appellant least intimate at
the trial court that there were lapses in the
safekeeping of seized items that affected
their integrity and evidentiary value.
Objection to evidence cannot be raised for
the first time on appeal; when a party
desires the court to reject the evidence
offered, he must so state in the form of
objection. Without such objection he
cannot raise the question for the first time
on appeal.(Emphases supplied.)
In People v. Pringas,23 we explained that non-
compliance with Section 21 will not render an
accused’s arrest illegal or the items seized/confiscated
from him inadmissible. What is of utmost importance is
the preservation of the integrity and the evidentiary
value of the seized items as the same would be utilized
in the determination of the guilt or innocence of the
accused. In the case at bar, appellant never questioned
the custody and disposition of the drug that was taken
from him. In fact, he stipulated that the drug subject
matter of this case was forwarded to PNP Regional
Crime Laboratory Office 3, Malolos, Bulacan for
laboratory examination which examination gave
positive result for methamphetamine hydrochloride, a
dangerous drug. We thus find the integrity and the
evidentiary value of the drug seized from appellant not
to have been compromised.
We would like to add that non-compliance with Section
21 of said law, particularly the making of the inventory
and the photographing of the drugs confiscated and/or
seized, will not render the drugs inadmissible in
evidence. Under Section 3 of Rule 128 of the Rules of
Court, evidence is admissible when it is relevant to the
issue and is not excluded by the law or these rules. For
evidence to be inadmissible, there should be a law or
rule which forbids its reception. If there is no such law
or rule, the evidence must be admitted subject only to
the evidentiary weight that will accorded it by the
courts. One example is that provided in Section 31 of
Rule 132 of the Rules of Court wherein a party
producing a document as genuine which has been
altered and appears to be altered after its execution, in
a part material to the question in dispute, must account
for the alteration. His failure to do so shall make the
document inadmissible in evidence. This is clearly
provided for in the rules.
We do not find any provision or statement in said law
or in any rule that will bring about the non-admissibility
of the confiscated and/or seized drugs due to non-
compliance with Section 21 of Republic Act No. 9165.
The issue therefore, if there is non-compliance with
said section, is not of admissibility, but of weight –
evidentiary merit or probative value – to be given the
evidence. The weight to be given by the courts on said
evidence depends on the circumstances obtaining in
each case.
The elements necessary for the prosecution of illegal
sale of drugs are (1) the identity of the buyer and the
seller, the object, and consideration; and (2) the
delivery of the thing sold and the payment
therefor.24 What is material to the prosecution for illegal
sale of dangerous drugs is the proof that the
transaction or sale actually took place, coupled with the
presentation in court of evidence of corpus delicti.25
All these elements have been shown in the instant
case. The prosecution clearly showed that the sale of
the drugs actually happened and that
the shabu subject of the sale was brought and
identified in court. The poseur buyer positively
identified appellant as the seller of the shabu. Per
Chemistry Report No. D-728-2002 of Forensic
Chemical Officer Nellson Cruz Sta. Maria, the
substance, weighing 0.290 gram, which was bought by
PO1 Tolentino from appellant in consideration
of P300.00, was examined and found to be
methamphetamine hydrochloride (shabu).
In the case before us, we find the testimony of the
poseur-buyer, together with the dangerous drug taken
from appellant, more than sufficient to prove the crime
charged. Considering that this Court has access only
to the cold and impersonal records of the proceedings,
it generally relies upon the assessment of the trial
court, which had the distinct advantage of observing
the conduct and demeanor of the witnesses during trial.
It is a fundamental rule that findings of the trial courts
which are factual in nature and which involve credibility
are accorded respect when no glaring errors, gross
misapprehension of facts and speculative, arbitrary
and unsupported conclusions can be gathered from
such findings. The reason for this is that the trial court
is in a better position to decide the credibility of
witnesses having heard their testimonies and observed
their deportment and manner of testifying during the
trial.26
The rule finds an even more stringent application
where said findings are sustained by the Court of
Appeals.27Finding no compelling reason to depart from
the findings of both the trial court and the Court of
Appeals, we affirm their findings.
Appellant denies selling shabu to the poseur-buyer
insisting that he was framed, the evidence against him
being "planted," and that the police officers were
exacting P15,000.00 from him.
In the case at bar, the evidence clearly shows that
appellant was the subject of a buy-bust operation.
Having been caught in flagrante delicto, his identity as
seller of the shabu can no longer be doubted. Against
the positive testimonies of the prosecution witnesses,
appellant’s plain denial of the offenses charged,
unsubstantiated by any credible and convincing
evidence, must simply fail.28 Frame-up, like alibi, is
generally viewed with caution by this Court, because it
is easy to contrive and difficult to disprove. Moreover,
it is a common and standard line of defense in
prosecutions of violations of the Dangerous Drugs
Act.29 For this claim to prosper, the defense must
adduce clear and convincing evidence to overcome the
presumption that government officials have performed
their duties in a regular and proper manner. 30 This,
appellant failed to do. The presumption remained
unrebutted because the defense failed to present clear
and convincing evidence that the police officers did not
properly perform their duty or that they were inspired
by an improper motive.
The presentation of his common-law wife, Amelia
Mendoza, and his nephew, Alejandro Lim, to support
his claims fails to sway. We find both witnesses not to
be credible. Their testimonies are suspect and cannot
be given credence without clear and convincing
evidence. Their claims, as well as that of appellant, that
they were maltreated and suffered injuries remain
unsubstantiated. As found by the trial court:
The accused, on the other hand, in an effort to
exculpate himself from liability raised the
defense of frame-up. He alleged that at the
time of the alleged buy bust he was merely
sleeping at the house of his sister. That he was
awakened by the yells and screams of his
relatives as they were being mauled by the
police officers. However, this Court is not
convinced. Accused failed to substantiate
 these claims of maltreatment even in the face
of his wife’s and nephew’s testimony. No
evidence was presented to prove the same
other than their self-serving claims.31
Moreover, we agree with the observation of the Office
of the Solicitor General that the witnesses for the
defense cannot even agree on what time the arresting
policemen allegedly arrived in their house. It explained:
To elaborate, appellant testified that it was 3
o’clock in the afternoon of December 10, 2002
when he was roused from his sleep by the
policemen who barged into the house of his
sister (TSN, July 7, 2003, p. 2). His common-
law wife, however, testified that it was 10-11
o’clock in the morning when the policemen
came to the house (TSN, Oct. 13, 2003, p. 6).
On the other hand, Alejandro Lim testified that
he went to sleep at 11 o’clock in the morning
and it was 10 o’clock in the morning when the
policemen arrived (TSN, Feb.2, 2004, p. 6). He
thus tried to depict an absurd situation that the
policemen arrived first before he went to sleep
with appellant.32
Having established beyond reasonable doubt all the
elements constituting the illegal sale of drugs, we are
constrained to uphold appellant’s conviction.
The sale of shabu is penalized under Section 5, Article
II of Republic Act No. 9165. Said section reads:
SEC. 5. Sale, Trading, Administration,
Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential
Chemicals. – The penalty of life imprisonment
to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed
upon any person, who, unless authorized by
law, shall sell, trade, administer, dispense,
deliver, give away to another, distribute,
dispatch in transit or transport any dangerous
drug, including any and all species of opium
poppy regardless of the quantity and purity
involved, or shall act as a broker in any of such
transactions.
Under said law, the sale of any dangerous drug,
regardless of its quantity and purity, is punishable by
life imprisonment to death and a fine of P500,000.00
to P10,000,000.00. For selling 0.290 gram of shabu to
PO1 Tolentino, and there being no modifying
circumstance alleged in the information, the trial court,
as sustained by the Court of Appeals, correctly
imposed the penalty of life imprisonment in accordance
with Article 63(2)33 of the Revised Penal Code.
As regards the fine to be imposed on appellant, the trial
court pegged the fine at P5,000,000.00 which the
Court of Appeals reduced to P500,000.00. Both
amounts are within the range provided for by law but
the amount imposed by the Court of Appeals,
considering the quantity of the drugs involved, is more
appropriate.
WHEREFORE, premises considered, the instant
appeal is DENIED. The Decision of the Court of
Appeals in CA-G.R. CR-H.C. No. 02070 dated 28 May
2007, sustaining the conviction of appellant Norberto
Del Monte, a.k.a. Obet, for violation of Section 5, Article
II of Republic Act No. 9165, is hereby AFFIRMED. No
costs.
SO ORDERED.
(3) G.R. No. 141532 April 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
GATUDAN BALAG-EY and EDWIN ALIONG y
SUNGOT, appellants.
DECISION
PANGANIBAN, J.:
hose who engage in the illicit trade of dangerous drugs
and who prey on misguided members of society must
be caught and put behind bars. To do this, however,
the prosecution must prove their guilt beyond
reasonable doubt. Without such proof, acquittal is the
only recourse.
The Case
Gatudan Balag-ey and Edwin Aliong appeal the
October 20, 1999 Decision1 of the Regional Trial Court
(RTC) of Baguio City (Branch 6) in Criminal Case No.
16100-R, in which they were found guilty of illegal
possession and attempted sale of prohibited drugs.
The dispositive portion of the assailed Decision reads:
"Wherefore, the Court finds accused Gatudan
Balag-ey and Edwin Aliong guilty beyond
reasonable doubt of the offense of illegal
possession of and attempt to sell marijuana
with a total weight of 18,352.82 grams in
violation of Section 21, Article IV in relation to
Section 4, Article II of Republic Act 6425, as
amended by Republic Act 7659 as charged in
the Information which is included in the offense
of sale or delivery of marijuana proved and
hereby sentences each of them to the penalty
of Reclusion Perpetua and to pay the fine of
₱500,000.00 each, without subsidiary
imprisonment in case of insolvency, and to pay
the costs.
"The accused Gatudan Balag-ey and Edwin
Aliong, being both detention prisoners, are
entitled to be credited 4/5 of their preventive
imprisonment in the service of their sentence in
accordance with Article 29 of the Revised
Penal Code.
"The 18,352.82 grams of bricks of marijuana
contained in the cigarette box with the marking
Philip Morris are forfeited in favor of the State
to be destroyed immediately in accordance
with law."2 (Citations omitted)
Appellants were charged in an Amended
Information3 dated December 9, 1998, as follows:
"That on or about the 28th day of September,
1998, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court,
the above-named accused, conspiring,
confederating and mutually aiding x x x each
other, without any authority of law, did then and
there willfully, unlawfully and feloniously have
in their possession and attempt to sell twenty
(20) bricks of dried marijuana leaves/fruiting
tops, a prohibited drug, weighing about
18,352.82 grams (actual weight) more or less,
to SPO1 DANILO P. NATIVIDAD, a member of
the Philippine National Police, 14th Narcotics
Regional Office, who acted as poseur buyer,
for ₱1,000.00 per kilo, in violation of the
aforecited provision of law."4
During their respective arraignments on December 21,
19985 and January 21, 1999,6 appellants, with the
assistance of their counsels de parte,7 pleaded not
guilty to the charge. After trial in due course, the court a
quorendered the assailed Decision. It also denied
appellants’ Motion for Reconsideration.8
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG)
presents the prosecution’s version of the facts as
follows:
"About 10:30 in the morning of September 28,
1998, the 14th Narcotics Regional Office
(NARCOM) with office at DPS Compound,
Baguio City, received a confidential information
from Roger Imasa that a certain Gatudan of La
Trinidad, Benguet, was engaged in the sale of
marijuana. He was allegedly looking for buyers.
Police Senior Inspector Rodolfo Castel formed
a team for the possible arrest of Gatudan.
SPO1 Danilo Natividad was designated as
poseur buyer with SPO1 Pedro Rabago and
PO2 Emerson Lingbawan as back-up. SPO1
Natividad was given the boodle money.
"Later in the morning of the same day, SPO1
Natividad and Imasa were able to locate
Gatudan at the Universal Martial Arts Gym
along Zandueta Street, Baguio City. Imasa
introduced SPO1 Natividad to Gatudan as a
friend and a drug user. After a brief
conversation, Gatudan agreed to sell to SPO1
Natividad all of his available marijuana, about
20 kilos in all, at ₱1,000.00 per kilo. They
agreed to meet at five in the afternoon in front
of Jollibee at the Session Road. The buy-bust
team was alerted and briefed.
"About 4:30 in the afternoon of the same day,
Imasa, SPO1 Natividad, SPO1 Rabago and
PO2 Lingbawan proceeded to Jollibee Session
Road on board a taxi. SPO1 Rabago and PO2
Lingbawan positioned themselves in the
vicinity while SPO1 Natividad proceeded to
wait in front of Jollibee.
"Not long after, Gatudan alighted from a
Tamaraw FX Taxi. His companion, co-accused
Aliong, remained inside the taxi with the
cigarette box marked Philip Morris at the back
compartment of the taxi. After seeing Gatudan,
SPO1 Natividad approached him and inquired
about the deal. Gatudan told him that the stuff
was ready and opened the [back] compartment
of the taxi. He noticed the plastic straw and
opened the cigarette box containing the
marijuana bricks. After confirming the contents,
SPO1 Natividad gave the pre-arranged signal
by removing his bull cap.
"SPO1 Rabago and PO2 Lingbawan rushed to
the scene. After identifying themselves as
police officers, they arrested Balag-ey and
Aliong. They (Balag-ey and Aliong) were
informed of their constitutional rights. The box
was confiscated and SPO1 Natividad put his
initials on it for identification. They were
brought to the NARCOM office in the same
Tamaraw FX taxi driven by Vicente Garbo.
"At the NARCOM office, they issued a receipt
of the property seized, prepared the booking
sheet and arrest report of Gatudan. SPO1
Natividad executed his Affidavit regarding the
buy-bust and arrest of Gatudan and Aliong as
well as the Joint Affidavit of the back-up team.
"Preliminary findings of Alma Margarita
Villaseñor, forensic chemist of the PNP Crime
Laboratory in Camp Bado Dangwa, La
Trinidad, Benguet, found the bricks to be
positive for marijuana. A more detailed
laboratory examination embodied in Chemistry
Report No. D-011-98 confirmed the findings
about the 20 bricks of marijuana with a total
weight of 18,352.82 grams." 9 (Citations
omitted)
Version of the Defense
Vehemently denying that he was arrested during the
alleged buy-bust operation, Appellant Balag-ey states
his version of the facts in this manner:
"x x x [Balag-ey] was surprised when
policemen in civilian [clothes] suddenly
arrested him at around 5:00 p.m. of September
28, 1998, at the Universal Martial Arts Gym.
The policemen immediately handcuffed him,
and brought him to the NARCOM office. Upon
[his] arrival at the NARCOM office, he saw
Roger Imasa and accused-appellant Edwin
Aliong in handcuffs.
"The NARCOM agents interrogated him and
insisted that he divulge the name of the
supplier of marijuana from Sagada. Accused
Balag-ey retorted that he had no knowledge of
the matters being asked of him and that he was
merely a student at the Universal Martial Arts
Gym. However, the NARCOM agents persisted
and continued to inquire for the identity of the
alleged supplier of the marijuana. He was even
threatened that he will rot in jail, if he failed to
disclose the identity of the marijuana supplier.
During his custody, accused Balag-ey was
 never informed of his constitutional rights and
he was not provided with any counsel."10
For his part, Appellant Aliong narrates the facts in this
wise:
"1. [Aliong] is a martial arts instructor teaching
kick boxing, combat aikido, boxing, among
others at his gym at No. 49-B, Zandueta Street,
Baguio City. His gym is known as the Universal
Martial Arts Organization;
"2. He knows one Roger Imasa, a known asset
of the x x x NARCOM, his kumpadre and one
of the Martial Arts instructors at the Universal
Martial Arts Organization;
"3. Likewise, he knows his co-accused,
Gatudan Balag-ey. Gatudan Balag-ey is his
friend way back during the 1980’s;
"4. Sometime in 1997 and again in 1998,
Gatudan Balag-ey visited him at his gym.
Considering that they are friends, he allowed
Gatudan to practice in his gym;
"5. One time, x x x Gatudan Balag-ey asked
him if he would like to have money. He asked
how and Gatudan said that he knew of
somebody who was looking for a buyer of
marijuana.
"6. He then told Gatudan that he hates that kind
of job. He even advised Gatudan to avoid that
kind of job because that is difficult;
"7. He mentioned his conversation to his friend,
Roger Imasa, the NARCOM asset. Roger then
told him that if he likes, they would cause the
arrest of Gatudan;
"8. Roger Imasa then told him to introduce him
to Gatudan. Roger told him that he introduced
him as someone who knows a buyer.
Thereafter, he introduced Roger Imasa to
Gatudan Balag-ey and when the two were
introduced, they talked to each other;
"9. In the afternoon of September 28, 1998,
Roger Imasa, the NARCOM [a]sset, convinced
him to tell Gatudan to go somewhere. Gatudan
refused. He and Roger Imasa then went to the
Hangar Market. Roger then went out and when
he came back, he was carrying one [carton
box]. He never saw the contents of the [carton];
"10. Roger then loaded the [carton] in an [FX]
Taxi. [Thereafter,] Roger told the taxi driver to
bring them to the DPS Compound. However,
they dropped by at the Jollibee Session Road.
Roger then went out of the taxi and then told
him to wait. Thus, he just sat down inside the
F[X] Taxi. After 5 minutes, a man who
introduced himself as a police officer went
inside and sat down. He was told to sit at the
front seat. About 4 men who introduced
themselves as police officers went near the
taxi;
"11. After the men who introduced themselves
as police officers came inside the taxi, Roger
Imasa was nowhere to be found. Then they
proceeded to the NARCOM Office at DPS
Compound, where someone -- later to be
identified as Police Officer Lingbawan -- asked
his companions[:] ‘Kumusta?’ (How is it?), to
which one of his companions answered.
‘Palpak’ (It was a failure). The one who
answered ‘it was a failure’ was the alleged
poseur buyer, Police Officer Natividad;
"12. He was thereafter told to ‘just relax.’ Police
officer Lingbawan then convinced him to testify
that Gatudan Balag-ey was with him inside the
taxi. Thereafter, Officer Lingbawan convinced
him that if he would cooperate, he will become
an asset and that if he refuses to cooperate, he
will be implicated just the same. Thus, he
agreed to become an asset and [he said] that
‘Gatudan Balag-ey was with him inside the
taxi.’ For this reason, he was made to sign [an]
Affidavit. Incidentally, it was the NARCOM
officers who prepared the said affidavit and
they merely told him to sign the same;
"13. For the record, he never saw the contents
of the box and it was only at the NARCOM
Office that he was informed of its contents;
"14. He was then made to stay at the NARCOM
Office. The next day, September 29, 1998, he
was released. And he was released because
he was totally innocent of the transaction
between Gatudan Balag-ey, the ‘CI’ Roger
Imasa and the alleged poseur buyer, Police
Officer Danilo Natividad."11 (Citations omitted)
Ruling of the Trial Court
Disregarding the defenses proffered by appellants, the
trial court ruled that they had been caught, in flagrante
delicto, selling or delivering 20 bricks of marijuana
weighing 18,352.82 grams to the poseur-buyer --
SPO1 Natividad.
In the case of Balag-ey, the court a quo found it difficult
to believe that police operatives would plant evidence
against him. It also discredited his claim that he had
been arrested at the Universal Martial Arts Gym along
Zandueta Street, rather than at a Jollibee fast-food
restaurant chain along Session Road ("Jollibee-
Session Road").
With regard to Aliong, the RTC held that he, together
with Balag-ey, had loaded a cigarette box containing
marijuana in a taxi, brought it to Jollibee-Session Road,
and delivered it to the poseur-buyer. Thus, the trial
court brushed aside the claim of Aliong that he had no
knowledge of Balag-ey’s marijuana transaction.
Hence, this appeal.12
The Issues
Appellant Balag-ey raises the following supposed
errors for our consideration:
"I
 The trial court erred in giving full weight and
credence to the testimonies of the arresting
officers despite glaring inconsistencies and
improbabilities.
"II
The trial court erred in finding that the guilt of
Accused-appellant Gatudan Balag-ey for the
crime charged has been proven beyond
reasonable doubt."13
Appellant Aliong, on the other hand, alleges the
following errors:
"I
Whether or not the honorable trial court was
correct in convicting the accused despite the
conflicting testimonies of the prosecution
witnesses. The police officers testified that
accused and Gatudan Balag-ey rode together
in the FX taxi while the alleged driver testified
that it was herein Accused-appellant Aliong
and another person who rode in the said FX
Taxi.
"II
Whether or not the honorable trial court is
correct in convicting the accused despite the
testimonies of the police officers that herein
accused-appellant has no knowledge of the
alleged buy-bust operation. The testimonies of
the police officers [show] that it was the
accused, Gatudan Balag-ey, who owned the
marijuana delivered to the alleged poseur-
buyer, Danilo Natividad. Thus, it is incorrect for
the honorable trial court to hold herein
Accused-appellant Aliong in conspiracy with
Gatudan Balag-ey.
"III
Considering the peculiar facts obtaining in the
case at bar, whether or not the honorable trial
court is correct in convicting the accused
appellant despite the fact that the alleged
cooperating individual (‘CI’), Roger Imasa, was
not presented as a witness.
"IV
Whether or not the honorable trial court is
correct in convicting the accused despite clear
and hard evidence that no buy-bust
operation was actually conducted as shown by
the fact that no money changed hands between
the alleged poseur buyer and the accused,
Gatudan Balag-ey. This is further shown by the
fact that no ‘marked money’ was produced and
marked in court as evidence."14
In short, appellants question (1) the credibility of the
prosecution witnesses, (2) the sufficiency of the
prosecution evidence, and (3) the existence of the buy-
bust operation.
The Court’s Ruling
The appeal is meritorious.
First Issue:
Credibility of the Prosecution Witnesses
Appellant Balag-ey impugns the veracity of the
testimonies of the arresting officers that he was caught
in the act of selling marijuana at Jollibee-Session Road.
He maintains that he was arrested at the Universal
Martial Arts Gym located on Zandueta Street.
As a rule, the trial court’s findings of fact and
conclusions on the credibility of witnesses are
accorded high respect15and due weight,16 unless it has
overlooked material and relevant points that would
have led it to rule otherwise. In the present case,
however, the RTC committed glaring factual oversights
that impel us to depart from this general doctrine.17
The witnesses of Balag-ey -- Diosdado Mapala18 and
Angie Liza Ladiwan19 -- testified that on the afternoon
of September 28, 1998, they saw appellant in
handcuffs, being led by police officers downstairs at the
Universal Martial Arts Gym. Hence, they had the
impression that he was arrested there. Nonetheless,
the trial court ruled that their testimonies were
consistent with the fact that the arresting officers had
brought appellant to the gym after his arrest in this
wise:
"Seventh, the testimonies of Diosdado Mapala
and Angie Liza Ladiwan cannot be given
weight by the court to show that Gatudan was
arrested at the Universal Martial Arts Gym at
Zandueta Street.
"Diosdado Mapala was not inside the Universal
Martial Arts Gym at that time and so he could
not say what happened inside the said Gym [or]
if Gatudan was really arrested there. Mapala
himself said that he was outside the Gym in
front of a certain grocery and was crossing the
road when he noticed Gatudan in handcuffs
being accompanied by male persons coming
from the direction of Universal Martial Arts
Gym.
"This does not establish [with] certainty that
Gatudan was arrested inside the Universal
Martial Arts Gym, [b]ecause it could happen
that Gatudan was arrested in Jollibee Session
Road and then brought back to the Universal
Martial Arts by the police and when he was
coming out that was the time and occasion
when Diosdado Mapala saw Gatudan in
handcuffs."20 (Italics supplied)
There is no evidence on record, however, that the
arresting officers did bring Balag-ey to the gym after his
arrest. Quite the contrary, SPO1 Natividad
categorically averred that Gatudan had not been
brought to the Universal Martial Arts Gym at any time
after his alleged arrest. The police officer testified on
direct examination as follows:
"Prosecutor Vergara [to SPO1 Natividad]:
Q Aside from physical examination, did you
bring him anywhere else?
 A No more, sir.
Q He was not brought back to the gymnasium,
Mr. Witness.
A No sir."21 (Italics supplied)
Moreover, Garbo, the taxi driver, categorically said that
when his taxi was hailed on the afternoon of September
28, 1998, Balag-ey was not Aliong’s companion. Garbo
likewise testified that the police officers had not gone
to the Universal Martial Arts Gym after that incident.
Pertinent portions of his testimony are herein quoted:
"[Atty. Molintas:]
Q You mean you do not know the identity of the
person who was with Aliong at that time he was
arrested?
A No sir.
Q You cannot describe him to be a short
person who is with dark complexion?
A Somewhat dark and short, sir.
Q When Edwin Aliong was arrested in Session
[R]oad, was this companion of his not brought
to the NARCOM office?
A No sir.
Q Do you know where he went after Aliong was
arrested?
A No sir.
Q Aside from the NARCOM officers and Edwin
Aliong whom they brought to the NARCOM
office, were there other companions of the
NARCOM officers who followed you in another
vehicle towards the NARCOM office?
A None, sir.
Q You said you went to Hilltop with the
NARCOM officers. From the Hilltop where you
went, have you seen this Universal Martial Arts
Gym?
A No x x x, sir.
Q Anyway, the NARCOM officers told you to
wait and after some time, they came back, is
that your testimony?
A Yes sir.
Q When they came back and boarded your
vehicle, they have another person or they
arrested another person, is that correct?
A I did not notice, sir.
Q This person you mentioned a while ago who
identified himself as Gatudan Balag-ey, you
said that you saw him at the Fiscal’s Office
when you were investigated, would that be
correct?
A Yes sir.
Q That was the first time you saw him, would
that be correct?
A Yes sir.
Q You did not see him at that time of the arrest
of Edwin Aliong?
A Inside the taxi sir, no sir.
Q You mean when Edwin Aliong was arrested,
Gatudan Balag-ey was not inside the taxicab?
A No x x x, sir.
Q And in fact, Gatudan Balag-ey could not be
the companion of Edwin Aliong because
Gatudan Balag-ey is quite tall and fair in
complexion while the companion of Edwin
Aliong was quite dark and short, would that be
correct?
A Yes sir.
COURT:
The court would like to be clear on that. You
are telling this court then that the two persons
who boarded that box in your taxi, one of whom
was Aliong but the other is not Balag-ey, is that
what you are telling the Court?
A No, sir. But his features, it is not like him.
COURT:
Continue
Atty. Molintas:
Q In fact, you testified on this matter before
Fiscal Vergara when you were investigated in
his office, would that be correct?
A Yes sir.
Q Could you tell the Court who prepared that
Affidavit which you identified earlier as your
Affidavit?
A It was prepared at the NARCOM office.
Q After they prepared that, they released you
on the same date on September 28, 1998,
would that be correct?
A Yes sir.
Q In other words, you were made to sleep at
the NARCOM office on September 28, 1998?
A I did not sleep there, sir.
 Q So where did you sleep on the night of
September 28, 1998?
A In our house, sir.
Q At the NARCOM office, you said earlier that
you never met Gatudan Balag-ey, would that
be correct?
A Yes sir.
Q In your Affidavit, a name Gatudan Balag-ey
was indicated, do you know who included this
name Gatudan in your Affidavit?
A The person who investigated me whose
name I do not know wrote that, sir.
Q Because the truth is, you never knew
Gatudan Balag-ey and you never met him on
September 28, 1998, correct?
A Yes sir."22
xxxxxxxxx
"[Atty. Dumawing:]
Q So the 6th paragraph of your Affidavit which
states and I quote, ‘That when we arrived in
front of Jollibee, one male alighted from the taxi
and proceeded inside the Jollibee and when
they returned he has already one male
companion and they went near my taxi and his
(Gatudan) male companion checked the
contents of the box and later announced that
he is a Narcotics agent until other members of
the Narcotics agents arrived and arrested my
passengers and proceeded to Narcotics Office
at DPS Compound, Baguio City x x x’ is not
entirely correct, is it not, Mr. Witness?
A Yes sir because when I was relating, they
were typing it.
COURT:
Q Now, the Court wants to be very clear on
that, so that there will be no mistakes about it.
You are telling us then that it was not Gatudan
Balag-ey who alighted from your taxi, then
came back with another companion to check
the contents of the box in the taxi?
A No sir." 23
Even Aliong said in his testimony that for fear of being
implicated, he was forced to declare that Balag-ey had
been arrested with him at Jollibee-Session Road. He
testified thus:
"[Atty. Dumawing:]
Q So, after you arrived at the NARCOM Office
at the DPS Compound, what happened, if any?
A They told me, ‘Edwin, just relax.’ Then they
talked to each other.
Q Do you know what they were talking about?
A No, sir, because I went out.
Q What happened after that?
A After they talked, Li[ng]bawan called me.
Q Do you remember for how long they were
talking?
A About more than 5 minutes, sir.
Q And where were you during all these 5
minutes that they were talking?
A I was outside, sir.
Q Outside of…?
A Outside of the NARCOM office, sir.
Q So, when this Li[ng]bawan finally called you,
what did he tell you, if any?
A Li[ng]bawan was convincing me to testify that
Gatudan Balag-ey was with me inside the taxi.
Q What did you say to his proposal, Mr.
Witness?
A I refused because I told him Gatudan Balag-
ey was not my companion.
Q What was the response of Li[ng]bawan when
you refused?
A He talked to me and even hit my conscience.
He told me to think it over because I should
think of the number of persons who could be
destroyed by that box of marijuana, that it might
include my children or even my relatives. And
he told me that it was already confirmed that
Gatudan Balag-ey is a pusher and he asked
me to cooperate.
Q What else did he tell you, if any, in order to
convince you?
A He told me that if I cooperate, I will be
officially included as an asset.
Q What else?
A No more, sir.
Q He did not threaten you?
A He told me that if I don’t cooperate, I will be
implicated just the same.
Q So, what was your response to Li[ng]bawan
when he said that?
A I told him that Gatudan Balag-ey might take
revenge against me.
Q When you told that to Li[ng]bawan, what did
he say, if any?
A He told me not to worry because they will
take care of me.
Q So, what followed next, Mr. Witness?
A When he told me that, I agreed to be an asset
[and] to say that Gatudan Balag-ey was with
me inside the taxi.
Q Why did you finally agree to testify falsely
against Gatudan Balag-ey?
PROS. VERGARA:
Already answered.
COURT:
May answer.
WITNESS:
A Because Li[ng]bawan told me that Gatudan
Balag-ey is a confirmed pusher. So, because
as I said I hate that kind of activity, I agreed.
Q Mr. Witness, you executed an [a]ffidavit
earlier marked by the prosecution as Exhibit
‘H.’ Who prepared this [A]ffidavit?
A The NARCOM officers, sir.
Q Who particularly among the NARCOM
officers?
A What I know is it was Li[ng]bawan who
prepared it because he was the one talking to
me and he was the one who showed it to me.
Q Did you understand all the contents of this
[A]ffidavit of yours?
A No sir, only the first part.
Q What particular part of this [A]ffidavit did you
understand, Mr. Witness?
A Only that portion which says that Gatudan
Balag-ey was with me inside the taxi. And when
I saw that, I did not mind the rest anymore.
Q By the way, what is your highest educational
attainment, Mr. Witness?
A Second year high school, sir.
Q Now, Mr. Witness, are the contents of this
[A]ffidavit true as far as you know?
A No, sir.
Q Now, Mr. Witness, despite knowing that the
contents of this [A]ffidavit are not true, why did
you sign it?
A Because the NARCOM officer told me that if
I will not sign it, I will be implicated.
COURT: (to witness)
Q Did you realize that by your testimony now
you have actually implicated yourself because
in your testimony you are the one who brought
the box of marijuana to Jollibee Restaurant in
that taxi?
A What I agreed with Roger Imasa was to bring
that carton of marijuana to the NARCOM office,
sir.
COURT:
Continue.
ATTY. DUMAWING:
Q Mr. Witness, have you seen the contents of
that box?
A No, sir.
Q Did you ever personally hold that box?
A No, sir.
Q Now, Mr. Witness, you finally agreed to
testify against Gatudan Balag-ey. What did
Li[ng]bawan do, if any, after that?
A He told me to call up the gym and inform
them that a NARCOM officer will go to the gym
and that they should show that officer who
Gatudan is.
Q What did you do after that?
A I called my wife by phone and relayed to her
what Li[ng]bawan told me, that when they
arrive at the gym they will point Gatudan to
them.
Q So, after you called your gym, as instructed
by Li[ng]bawan, what did the NARCOM people
do, if any?
A I told Lingbawan that I made a call. After that,
they talked for a while and then they left.
Q Do you know where they proceeded to?
A What I know is they proceeded to the gym
because that is where they asked me to make
a call.
Q So, what happened after they left?
A After 30 minutes, they came back with
Gatudan Balag-ey, sir."24 (Italics supplied)
Because of the vacillating statements of Aliong, the trial
court regarded his testimony as dubious and highly
suspect. Still, it should not have been dismissed
outright, as he had been able to give an adequate
explanation for his testimonial change. Besides, he had
nothing to gain from testifying that Balag-ey had not
been with him during the alleged buy-bust operation.
The foregoing points show the lack of credibility of the
prosecution’s claim that Balag-ey was arrested while in
the act of selling marijuana at Jollibee-Session Road.
Balag-ey also protests the denial of his right to counsel
during his custodial investigation. Section 12 of Article
III of the Constitution provides that any person under
custodial investigation for the commission of an offense
should have a right to independent and competent
counsel at every phase of the investigation -- from its
inception to its end.25
Both PO1 Natividad and PO3 Emerson Lingbawan
affirmed that Balag-ey had not been assisted by
counsel at any stage of the investigation. During cross-
examination, they testified as follows:
"Atty. Molintas [to PO1 Natividad]:
Q How about Gatudan, did you provide him
[with] a lawyer at that time?
A We did not provide him because he did not
give his affidavit or any confessional
statement?
Q Is that your procedure? You only get a lawyer
to assist him if you intend to get his confession?
A Yes sir.
Q You do not provide him a counsel so that …
A We apprised [him of] his constitutional rights
but …
Q Yes. The question is -- you do not find it
necessary or you do not know that the law
require[s] that you provide him a lawyer?
A But he did not require any lawyer.
Q Maybe you did not ask him to give any but
do you know that the law requires you as a
detaining officer to provide him a lawyer?
A Yes, your Honor, we told him but …
Q The question is, do you know that you are
required to provide him a lawyer immediately
after his arrest?
A Yes sir.
Q And despite that, you did not provide him any
lawyer?
A No more sir.
Q In fact you have a very big Memorandum in
your office regarding Republic Act 7438?
A Yes sir.
Q And you allowed Garbo to get in touch with
a lawyer and submit an affidavit and in fact you
did not recommend that he be prosecuted?
A Because he gave a voluntary affidavit that is
why when the investigator took it after reading
the affidavit he conferred with his own lawyer.
Q And that affidavit was prepared by your
investigator?
A Yes sir.
Q And likewise you did not recommend the
prosecution of Aliong because he also gave his
affidavit?
A Yes sir."26
xxx xxx xxx
"Atty. Dumawing [to PO3 Lingbawan]:
Q Between 5:00, a little past 5:00 and until the
afternoon of September 29, 1998, these two
accused were under your custody?
A Yes sir.
Q And while they were under your custody they
were not assisted by counsel?
A None sir.
Q Notwithstanding the fact that you informed
them of their constitutional rights?
A We only informed their relatives sir." 27
The violation of Balag-ey’s right to counsel during his
custodial investigation excludes, from the ambit of the
trial court’s evidence, his alleged extrajudicial
admission that he was the owner of the seized
marijuana.28
Second Issue: Sufficiency of Prosecution
Evidence
Balag-ey and Aliong were charged with violation of
Section 4 in relation to Section 21 of RA 6425, as
amended by RA 765929 -- an offense they allegedly
committed by "conspiring, confederating and mutually
aiding each other, without any authority of law, [and by]
hav[ing] in their possession and attempt[ing] to sell
twenty (20) bricks of dried marijuana leaves/fruiting
tops, a prohibited drug x x x."
The aforementioned Section 4 penalizes "any person
who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in
transit or transport any prohibited drug, or shall act as
a broker in any of such transactions." This provision is
violated by the commission of any of the acts specified
therein or a combination thereof.30 Moreover, the
prevailing doctrine is that "possession of prohibited
drugs" is a necessary element in the offense of selling
them, except where the seller is also found in
possession of another quantity of prohibited drugs not
covered by or included in the sale and which are
probably intended for some future dealings or use by
the seller.31
On the other hand, the aforecited Section 21 punishes
an attempt or a conspiracy, among others, in the
"[s]ale, administration, delivery, distribution and
transportation of dangerous drugs." This is one of the
few instances when the law specifically punishes mere
conspiracy.32
Having charged the accused with conspiracy, it was
incumbent upon the prosecution to prove that Balag-ey
and Aliong had come to an agreement concerning the
possession and the sale of marijuana and had decided
to execute the agreement.33
Furthermore, in a prosecution for the sale of dangerous
drugs, it is material and indispensable (1) to prove that
the accused sold and delivered the prohibited drug to
another, as well as to present in court the corpus
delicti as evidence; and (2) to prove that the accused
knew that what was sold and delivered was a
dangerous drug.34 The attempt to sell the drugs may be
established by overt acts showing that the accused
knowingly commenced the commission of the crime.35
The flaws and the insufficiency of the evidence against
Balag-ey have been discussed earlier. We shall now
take up the sufficiency of the evidence against Aliong.
Aliong was not identified by the entrapping police
officers as one of those who had offered to sell
marijuana to SPO1 Natividad. It was neither alleged
nor established that the two had been in contact prior
to the supposed buy-bust operation. It was not shown
that the former had, at any time, known that the
contents of the Philip Morris cigarette box were
prohibited drugs. It was not he, but his companion, who
loaded the box into the baggage compartment of the
taxi,36 according to the testimony of Garbo, the taxi
driver. As to who the companion of Aliong had been
was not adequately proven. When the testimonies of
the latter and of Prosecution Witness Garbo are taken
together, it becomes reasonably doubtful that the
companion referred to was Balag-ey.
Hence, except for the fact that Aliong was on board the
taxi from where the box of marijuana was seized, and
that he was the one who paid extra fare to the driver
while they waited for the return of the former’s
companion, there is no evidence that Aliong conspired
with Balag-ey and attempted to sell the prohibited
drugs. The rule is settled that, without any other
evidence, mere presence at the scene of the crime is
not by itself sufficient to establish conspiracy.37
After questioning Aliong, even the entrapping police
officers initially cleared him of complicity. Indeed, they
found no reason to indict him together with Balag-ey in
the original Information.38 SPO1 Natividad, in
particular, testified as follows:
"Atty. Molintas (to PO1 Natividad):
Q About Aliong, when was he released?
A He spent the night in our office and then he
was released after the investigator said that he
has no knowledge of the marijuana.
Q Your investigator says that he has no
knowledge but this time you are the poseur-
buyer. What was the participation of Aliong
when the negotiation was being made?
A According to Aliong, he only accompanied
the suspect Gatudan sir.
Q The question is, during the negotiation the
first time you went to the Universal Martial Arts
[Gym], the truth is, he was not there?
A He was not there sir.
Q You only saw him at Session Road?
A Yes sir.
Q Inside the taxicab?
A Inside the taxicab sir.
Q When you met Gatudan at Session Road,
did Aliong alight from the taxicab?
A No sir.
Q Did you ask the taxi driver who paid the taxi
fare at that time?
A No sir.
Q Until now you do not know?
A Yes sir.
Q So, what we are made to understand is, after
doing your part as poseur-buyer, you did not
participate anymore in the investigation of the
case?
A I assisted the investigator when we
inventoried the marijuana sir.
Q That’s it[?] Nothing more?
A Nothing more sir. The investigation and the
documentation, I did not participate [therein]
anymore.
Q [Do you] suggest, Mr. Witness that the
person you actually met at the Universal Martial
Arts Gym and [with whom you] negotiated
about the [sale] of marijuana was a certain
Edwin Aliong?
A No sir, Gatudan.
Q [Do you] also suggest that Gatudan was not
there in the morning?
A He was there sir. The only [one] I knew is
Gatudan.
 Q [Do you] also suggest, Mr. Witness, that at
Session Road, in front of the Jollibee, the
persons riding the taxicab were Roger [I]masa,
Edwin Aliong and Gatudan was not there?
A No sir, Gatudan and Aliong."39
xxx xxx xxx
"Atty. Dumawing [to SPO1 Natividad]:
Q Now, Mr. Witness, is it not a fact that before
you conduct a buy-bust operation you subject
the person or a suspect to surveillance?
A Yes, sir.
Q And in this particular case, Mr. Witness, you
never subjected accused Edwin Aliong to
surveillance?
A No, sir.
Q You also know what they call an Order of
Battle. Will you tell the Honorable Court what
that is?
A It is a NARCOM watch list of persons who
are engaged in the traffic of drugs.
Q And is it not a fact that the name of Edwin
Aliong does not appear in your Order of Battle?
A Yes, sir.
Q Mr. Witness, when this case was filed by
your office with the Prosecutor’s Office, you
only charged Gatudan Balag-ey?
A Yes, sir.
Q You did not initially includ[e] Edwin Aliong?
A Yes, sir, because to our knowledge, after the
investigation was finished in our office, Roger
Imasa revealed to us that Edwin Aliong is his
sub-agent.
Q So that is the reason why you did not include
him initially in the charge, is it not?
A That is one reason, sir."40 (Italics supplied)
The above admissions, taken together with the acts of
Aliong -- prior to, contemporaneous with, and
subsequent to his arrest -- fail to establish any
conspiracy.
Even the charge of illegal possession of prohibited
drugs was not established beyond reasonable doubt.
The elements of this offense are the following: (1) the
accused is in possession of an item or object, which is
identified to be a prohibited drug; (2) such possession
is not authorized by law; and (3) the accused freely and
consciously possessed the drug.41 Admittedly, the third
requisite was not convincingly established by the
prosecution.
In view of the lapses in the prosecution’s case, the
quantum of evidence needed to convict Aliong and
Balag-ey -- proof beyond reasonable doubt -- has not
been adequately established by the prosecution. Our
minds cannot rest easy on their supposed guilt. We
reiterate the conventional wisdom that it is better to free
ten guilty persons than to convict an innocent one.42
Third Issue:
Buy-Bust Operation
Both appellants argue that no buy-bust operation took
place on September 28, 1998, as shown by the inability
of the prosecution to present in court the alleged police
informant and the marked money. Likewise, they point
out that even the prosecution’s witnesses testified that
money had not changed hands during the alleged
transaction.
Well-established is the rule that the presentation of a
confidential informant in a buy-bust operation is not
always required,43 especially when the sale was
actually witnessed and adequately proved by other
prosecution witnesses.44 This rule admits of
exceptions, however, as when the appellant
vehemently denies selling prohibited drugs; and when
there are material inconsistencies in the testimonies of
the arresting officers.45
For like reason, the presentation of the buy-bust
money46 and proof of its actual payment47 -- pieces of
evidence that are otherwise not indispensable --
become necessary if the constitutional presumption of
innocence is to be overcome. In the present case, the
material inconsistencies in the testimonies of the
prosecution witness and the non-presentation of the
buy-bust money raise reasonable doubts about the
occurrence of a buy-bust operation.
The unrelenting drive against illegal drugs is indeed
commendable. Those who engage in the illicit trade of
marijuana and who prey on the misguided members of
society must be caught and prosecuted properly. While
courts are committed to assist the government in its
campaign against illegal drugs, a conviction under the
Dangerous Drugs Law will prosper only after the
prosecution discharges its constitutional burden to
prove guilt beyond reasonable doubt. Otherwise, this
Court is likewise duty-bound to uphold the
constitutional presumption of innocence.
WHEREFORE, the appeal is GRANTED, and the
assailed Decision REVERSED. Appellants Gatudan
Balag-ey and Edwin Aliong y Sungot are
hereby ACQUITTED on reasonable doubt.
Let them be immediately released from their place of
confinement, unless there is any other legal or valid
cause to detain them further. The director of the Bureau
of Corrections shall report to this Court, within ten (10)
days from notice of this judgment, on his action in
obedience to this directive. No costs.
SO ORDERED.
Davide, Jr., Ynares-Santiago, Carpio, and Azcuna,
JJ., concur.

(6) G.R. No. 191366 December 13, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y
FERRER, REZIN MARTINEZ Y CAROLINO, and
RAFAEL GONZALES Y CUNANAN, Accused-
Appellants.
DECISION
MENDOZA, J.:
This is an appeal from the August 7, 2009 Decision1 of
the Court of Appeals (CA), in CA-G.R. HC-NO. 03269,
which affirmed the February 13, 2008 Decision2 of the
Regional Trial Court, Branch 41, Dagupan
City (RTC), in Criminal Case No. 2006-0525-D, finding
the accused guilty of violating Section 13, in relation to
Section 11, Article II of Republic Act No. 9165 for
Possession of Dangerous Drugs During Parties, Social
Gatherings or Meetings.
The Facts
The Information indicting the accused reads:
That on or about the 2nd day of September 2006, in
the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, ARNOLD MARTINEZ y ANGELES, EDGAR
DIZON y FERRER, REZIN MARTINEZ y CAROLINO,
ROLAND DORIA y DIAZ and RAFAEL GONZALES y
CUNANAN, without authority of law, confederating
together, acting jointly and helping one another, did
then and there wilfully, unlawfully and criminally, sniff
and possess dangerous drugs (shabu residues)
contained in empty plastic sachets and rolled aluminum
foil, during a party, or at a social gathering or meeting,
or in the proximate company of at least two (2)
person[s].
Contrary to Section 13, Article II, R.A. 9165. 3
Version of the Prosecution
As culled from the testimonies of prosecution
witnesses, Police Officer 1 Bernard Azardon (PO1
Azardon), one of the apprehending officers, and Police
Inspector Lady Ellen Maranion (P/Insp. Maranion), the
forensic chemical officer, it appears that on September
2, 2006, at around 12:45 o’clock in the afternoon, PO1
Azardon was on duty at the Police Community Precinct
II along Arellano Street, Dagupan City, when a
concerned citizen entered the precinct and reported
that a pot session was going on in the house of
accused Rafael Gonzales (Gonzales) in Trinidad
Subdivision, Dagupan City. Upon receipt of the report,
PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela
Cruz), and members of the Special Weapons and
Tactics (SWAT) team hied to Trinidad Subdivision,
Dagupan City. Upon inquiry from people in the area,
the house of Gonzales was located.
As the police officers entered the gate of the house,
they saw accused Orlando Doria (Doria) coming out of
the side door and immediately arrested him. Inside the
house, they saw accused Gonzales, Arnold
Martinez (A. Martinez), Edgar Dizon (Dizon), and
Rezin Martinez (R. Martinez) in a room. The four were
surprised by the presence of the police. In front of them
were open plastic sachets (containing shabu residue),
pieces of rolled used aluminum foil and pieces of used
aluminum foil.
The accused were arrested and brought to the police
precinct. The items found in the room were seized and
turned over to the Pangasinan Provincial Police Crime
Laboratory Officer, P/Insp. Maranion. The latter
conducted a laboratory examination on the seized
items and all 115 plastic sachets, 11 pieces of rolled
used aluminum foil, and 27 of the 49 pieces of used
aluminum foil tested positive for methamphetamine
hydrochloride. The accused were subjected to a drug
test and, except for Doria, they were found to be
positive for methamphetamine hydrochloride.
Version of the Defense
The defense, through its witnesses, accused A.
Martinez, Dizon, and R. Martinez, claimed that in the
morning of September 2, 2006, the three of them were
along Arellano Street in Trinidad Subdivision, Dagupan
City, to meet with a certain Apper who bumped the
passenger jeep of R. Martinez and who was to give the
materials for the painting of said jeep. As they were
going around the subdivision looking for Apper, they
saw Gonzales in front of his house and asked him if he
noticed a person pass by. While they were talking,
Doria arrived. It was then that five to seven policemen
emerged and apprehended them. They were
handcuffed and brought to the police station in Perez,
Dagupan City, where they were incarcerated and
charged with sniffing shabu.
The Ruling of the RTC
The case against Doria was dismissed on a demurrer
to evidence.
On February 13, 2008, the RTC rendered its decision,
the dispositve portion of which reads:
WHEREFORE, premises considered, judgment is
hereby rendered finding accused ARNOLD
MARTINEZ y Angeles, EDGAR DIZON y Ferrer,
REZIN MARTINEZ y Carolino, and RAFAEL
GONZALES y Cunanan GUILTY beyond reasonable
doubt of the crime of Possession of Dangerous Drugs
During Parties, Social Gatherings or Meetings defined
and penalized under Section 13 in relation to Section
11, Article II of Republic Act 9165, and each of them is
sentenced to suffer the penalty of life imprisonment and
to pay the fine in the amount of P500,000.00, and to
pay the cost of suit.
The subject items are hereby forfeited in favor of the
government and to be disposed of in accordance with
the law.
SO ORDERED.4
The RTC was of the view that the positive testimony of
prosecution witness PO1 Azardon, without any
showing of ill-motive on his part, prevailed over the
defenses of denial and alibi put up by the accused. The
accused were held to have been in constructive
possession of the subject items. A conspiracy was also
found present as there was a common purpose to
possess the dangerous drug.
The Ruling of the CA
The CA ruled that there was sufficient evidence to
support the findings of the RTC as to the constructive
possession of the dangerous drugs by the accused. It
further held that although the procedure regarding the
custody and disposition of evidence prescribed by
Section 21 of R.A. No. 9165 was not strictly complied
with, the integrity and evidentiary value of the evidence
were nonetheless safeguarded. The CA was of the
view that the presumption of regularity in the
performance of official duty was not sufficiently
controverted by the accused.
Not in conformity, the accused now interposes this
appeal before this Court praying for the reversal of the
subject decision, presenting the following
Assignment of Errors
For accused Arnold Martinez, Edgar Dizon and Rezin
Martinez
1. The lower court erred in finding the
accused-appellants to be having a pot
session at the time of their arrest;
2. The lower court erred in not seeing
through the antics of the police to plant the
shabu paraphernalia to justify the arrest of
the accused-appellants without warrant;
3. The lower court erred in not finding that
the corpus delicti has not been sufficiently
established;
4. The lower court erred in not finding the
uncorroborated testimony of PO1 Azardon
insufficient to convict the accused-
appellants of the crime charged;
5. The lower court erred in not acquitting
the accused-appellants.
For accused Rafael Gonzales
I and the persons or things to be seized.
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTION’S FAILURE TO
OVERTHROW THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE.
II
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
DESPITE THE PROSECUTION’S FAILURE TO
ESTABLISH THE CHAIN OF CUSTODY OF THE
ALLEGED CONFISCATED DRUG.
After an assiduous assessment of the evidentiary
records, the Court finds that the prosecution failed to
prove the guilt of the accused. The principal reasons
are 1] that the evidence against the accused are
inadmissible; and 2] that granting the same to be
admissible, the chain of custody has not been duly
established.
Illegal Arrest, Search and Seizure
Indeed, the accused is estopped from assailing the
legality of his arrest if he fails to raise such issue before
arraignment.5 However, this waiver is limited only to the
arrest. The legality of an arrest affects only the
jurisdiction of the court over the person of the accused.
A waiver of an illegal warrantless arrest does not carry
with it a waiver of the inadmissibility of evidence seized
during the illegal warrantless arrest.6
Although the admissibility of the evidence was not
raised as in issue by the accused, it has been held that
this Court has the power to correct any error, even if
unassigned, if such is necessary in arriving at a just
decision,7 especially when the transcendental matter of
life and liberty is at stake.8 While it is true that rules of
procedure are intended to promote rather than frustrate
the ends of justice, they nevertheless must not be met
at the expense of substantial justice. Time and again,
this Court has reiterated the doctrine that the rules of
procedure are mere tools intended to facilitate the
attainment of justice, rather than frustrate it.
Technicalities should never be used to defeat
substantive rights.9 Thus, despite the procedural
lapses of the accused, this Court shall rule on the
admissibility of the evidence in the case at bench. The
clear infringement of the accused’s right to be
protected against unreasonable searches and seizures
cannot be ignored.
The State cannot, in a manner contrary to its
constitutional guarantee, intrude into the persons of its
citizens as well as into their houses, papers and
effects.10 Sec. 2, Art. III, of the 1987 Constitution
provides:
Section 2. - The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched
This constitutional guarantee, however, is not a blanket
prohibition against all searches and seizures without
warrant. Arrests and seizures in the following instances
are allowed even in the absence of a warrant — (i)
warrantless search incidental to a lawful arrest; 11 (ii)
search of evidence in "plain view;" (iii) search of a
moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) stop and frisk; and (vii) exigent
and emergency circumstances.12
This case would appear to fall under either a
warrantless search incidental to a lawful arrest or a
plain view search, both of which require a lawful arrest
in order to be considered valid exceptions to the
constitutional guarantee. Rule 113 of the Revised
Rules of Criminal Procedure provides for the
circumstances under which a warrantless arrest is
lawful. Thus:
Sec. 5. Arrest without warrant; when lawful. – A peace
officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has just been committed
and he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it;
and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving final
judgment or is temporarily confined while his
case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above,
the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall
be proceeded against in accordance with section 7 of
Rule 112.
A review of the facts reveal that the arrest of the
accused was illegal and the subject items were
confiscated as an incident thereof. According to the
testimony of PO1 Azardon and his Joint Affidavit13 with
PO1 Dela Cruz, they proceeded to, and entered, the
house of accused Gonzales based solely on the report
of a concerned citizen that a pot session was going on
in said house, to wit:
Q: I go back to the information referred to you
by the informant, did he not tell you how many
persons were actually conducting the pot
session?
A: Yes, sir.
Q: When you went to the place of Rafael
Gonzales, of course you were not armed with a
search warrant, correct?
A: None, sir.
Q: Before the information was given to you by
your alleged informant, you did not know
personally Rafael Gonzales?
A: I have not met [him] yet but I heard his name,
sir.
Q: When this informant told you that he was
told that there was [an] ongoing pot session in
the house of Rafael Gonzales, was this report
to you placed in the police blotter before you
proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.
Q: In other words, you did not even bother to
get the personal data or identity of the person
who told you that he was allegedly informed
that there was an ongoing pot session in the
house of Rafael Gonzales?
A: What I know is that he is a jeepney driver of
a downtown jeepney but he does not want to
be identified because he was afraid, sir.
Q: And likewise, he did not inform you who told
him that there was an ongoing pot session in
the house of Rafael Gonzales?
A: No more, sir.
Q: But upon receiving such report from that
jeepney driver you immediately formed a group
and went to the place of Rafael Gonzales?
A: Yes, sir.
xxx
Q: When you were at the open gate of the
premises of Rafael Gonzales, you could not
see what is happening inside the house of
Rafael Gonzales?
A: Yes, sir.
Q: You did not also see the alleged
paraphernalia as well as the plastic sachet of
shabu on the table while you were outside the
premises of the property of Rafael Gonzales?
xxx
Q: Before they entered the premises they could
not see the paraphernalia?
COURT: Answer.
A: Of course because they were inside the
room, how could we see them, sir.
Q: But still you entered the premises, only
because a certain person who told you that he
was informed by another person that there was
an ongoing pot session going on inside the
house of Rafael Gonzales?
A: Yes, sir.
Q: And that is the only reason why you barged
in inside the house of Rafael Gonzales and you
arrested the persons you saw?
A: Yes, sir.14
Paragraph (c) of Rule 113 is clearly inapplicable to this
case. Paragraphs (a) and (b), on the other hand, may
be applicable and both require probable cause to be
present in order for a warrantless arrest to be valid.
Probable cause has been held to signify a reasonable
ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious
man’s belief that the person accused is guilty of the
offense with which he is charged.15
Although this Court has ruled in several dangerous
drugs cases16 that tipped information is sufficient
probable cause to effect a warrantless search,17 such
rulings cannot be applied in the case at bench because
said cases involve either a buy-bust operation or drugs
in transit, basically, circumstances other than the sole
tip of an informer as basis for the arrest. None of these
drug cases involve police officers entering a house
without warrant to effect arrest and seizure based
solely on an informer’s tip. The case of People v.
Bolasa18 is informative on this matter.
In People v. Bolasa, an anonymous caller tipped off the
police that a man and a woman were repacking
prohibited drugs at a certain house. The police
immediately proceeded to the house of the suspects.
They walked towards the house accompanied by their
informer. When they reached the house, they peeped
inside through a small window and saw a man and
woman repacking marijuana. They then entered the
house, introduced themselves as police officers,
confiscated the drug paraphernalia, and arrested the
suspects. This Court ruled:
The manner by which accused-appellants were
apprehended does not fall under any of the above-
enumerated categories. Perforce, their arrest is illegal.
First, the arresting officers had no personal knowledge
that at the time of their arrest, accused-appellants had
just committed, were committing, or were about to
commit a crime. Second, the arresting officers had no
personal knowledge that a crime was committed nor
did they have any reasonable ground to believe that
accused-appellants committed it. Third, accused-
appellants were not prisoners who have escaped from
a penal establishment.
Neither can it be said that the objects were seized in
plain view. First, there was no valid intrusion. As
already discussed, accused-appellants were illegally
arrested. Second, the evidence, i.e., the tea bags later
on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped
first through the window before they saw and
ascertained the activities of accused-appellants inside
the room. In like manner, the search cannot be
categorized as a search of a moving vehicle, a
consented warrantless search, a customs search, or a
stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is
bereft of any such showing.
On the contrary, it indicates that the apprehending
officers should have conducted first a surveillance
considering that the identities and address of the
suspected culprits were already ascertained. After
conducting the surveillance and determining the
existence of probable cause for arresting accused-
appellants, they should have secured a search warrant
prior to effecting a valid arrest and seizure. The arrest
being illegal ab initio, the accompanying search was
likewise illegal. Every evidence thus obtained during
the illegal search cannot be used against accused-
appellants; hence, their acquittal must follow in faithful
obeisance to the fundamental law.19
It has been held that personal knowledge of facts in
arrests without warrant must be based upon probable
cause, which means an actual belief or reasonable
grounds of suspicion. The grounds of suspicion are
reasonable when the suspicion, that the person to be
arrested is probably guilty of committing an offense, is
based on actual facts, that is, supported by
circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be
arrested. 20
As to paragraph (a) of Section 5 of Rule 113, the
arresting officers had no personal knowledge that at
the time of the arrest, accused had just committed,
were committing, or were about to commit a crime, as
they had no probable cause to enter the house of
accused Rafael Gonzales in order to arrest them. As to
paragraph (b), the arresting officers had no personal
knowledge of facts and circumstances that would lead
them to believe that the accused had just committed an
offense. As admitted in the testimony of PO1 Azardon,
the tip originated from a concerned citizen who himself
had no personal knowledge of the information that was
reported to the police:
Q: Mr. Witness, you claimed that the reason for
apprehending all the accused was based on a
tip-off by an informant?
A: Yes, sir.
Q: What exactly [did] that informant tell you?
A: He told us that somebody told him that there
was an ongoing pot session in the house of one
of the accused Rafael Gonzales, sir.
Q: You mean to say that it was not the
informant himself to whom the information
originated but from somebody else?
A: That was what he told me, sir.
Q: Because of that you proceeded to where the
alleged pot session was going on? [No Answer]
Q: Did you[r] informant particularly pinpointed
[sic] to where the alleged pot session was
going on?
A: No more because he did not go with us, sir.
Q: So you merely relied on what he said that
something or a pot session was going on
somewhere in Arellano but you don’t know the
exact place where the pot session was going
on?
A: Yes, sir.
Q: And your informant has no personal
knowledge as to the veracity of the alleged pot
session because he claimed that he derived
that information from somebody else?
A: This is what he told us that somebody told
him that there was an ongoing pot session, sir.
Q: Despite of [sic] that information you
proceeded to where?
A: Trinidad Subdivision, sir.
 xxx Chain of Custody

Q: Mr. Witness, did your informant named [sic] Even granting that the seized items are admissible as
those included in the alleged pot session? evidence, the acquittal of the accused would still be in
order for failure of the apprehending officers to comply
A: No, sir. with the chain of custody requirement in dangerous
drugs cases.
Q: That was, because your informant don’t [sic]
know physically what was really happening The accused contend that the identity of the seized
there? drug was not established with moral certainty as the
chain of custody appears to be questionable, the
A: He was told by another person that there authorities having failed to comply with Sections 21 and
was an ongoing pot session there, 86 of R.A. No. 9165, and Dangerous Drug
sir.21 [Emphasis supplied] Board (DDB) Resolution No. 03, Series of 1979, as
amended by Board Regulation No. 2, Series of 1990.
They argue that there was no prior coordination with
Neither can it be said that the subject items were
the Philippine Drug Enforcement Agency (PDEA), no
seized in plain view. The elements of plainview are: (a)
inventory of the confiscated items conducted at the
a prior valid intrusion based on the valid warrantless
crime scene, no photograph of the items taken, no
arrest in which the police are legally present in the
compliance with the rule requiring the accused to sign
pursuit of their official duties; (b) the evidence was
the inventory and to give them copies thereof, and no
inadvertently discovered by the police who have the
showing of how the items were handled from the time
right to be where they are; (c) the evidence must be
of confiscation up to the time of submission to the crime
immediately apparent; and, (d) "plain view" justified
laboratory for testing. Therefore, the corpus delicti was
mere seizure of evidence without further search.22
not proven, thereby producing reasonable doubt as to
their guilt. Thus, they assert that the presumption of
The evidence was not inadvertently discovered as the innocence in their favor was not overcome by the
police officers intentionally entered the house with no presumption of regularity in the performance of official
prior surveillance or investigation before they duty.
discovered the accused with the subject items. If the
prior peeking of the police officers in Bolasa was held
The essential requisites to establish illegal possession
to be insufficient to constitute plain view, then more so
of dangerous drugs are: (i) the accused was in
should the warrantless search in this case be struck
possession of the dangerous drug, (ii) such possession
down. Neither can the search be considered as a
is not authorized by law, and (iii) the accused freely and
search of a moving vehicle, a consented warrantless
consciously possessed the dangerous
search, a customs search, a stop and frisk, or one
drug.25 Additionally, this being a case for violation of
under exigent and emergency circumstances.
Section 13 of R.A. No. 9165, an additional element of
the crime is (iv) the possession of the dangerous drug
The apprehending officers should have first conducted must have occurred during a party, or at a social
a surveillance considering that the identity and address gathering or meeting, or in the proximate company of
of one of the accused were already ascertained. After at least two (2) persons.
conducting the surveillance and determining the
existence of probable cause, then a search warrant
The existence of the drug is the very corpus delicti of
should have been secured prior to effecting arrest and
the crime of illegal possession of dangerous drugs and,
seizure. The arrest being illegal, the ensuing search as
thus, a condition sine qua non for conviction. In order
a result thereof is likewise illegal. Evidence procured
to establish the existence of the drug, its chain of
on the occasion of an unreasonable search and seizure
custody must be sufficiently established. The chain of
is deemed tainted for being the proverbial fruit of a
custody requirement is essential to ensure that doubts
poisonous tree and should be excluded.23 The subject
regarding the identity of the evidence are removed
items seized during the illegal arrest are thus
through the monitoring and tracking of the movements
inadmissible. The drug, being the very corpus delicti of
of the seized drugs from the accused, to the police, to
the crime of illegal possession of dangerous drugs, its
the forensic chemist, and finally to the court. 26 Malillin
inadmissibility thus precludes conviction, and calls for
v. People was the first in a growing number of cases to
the acquittal of the accused.
explain the importance of chain of custody in
dangerous drugs cases, to wit:
As has been noted previously by this Court, some
lawmen, prosecutors and judges have glossed over
As a method of authenticating evidence, the chain of
illegal searches and seizures in cases where law
custody rule requires that the admission of an exhibit
enforcers are able to present the alleged evidence of
be preceded by evidence sufficient to support a finding
the crime, regardless of the methods by which they
that the matter in question is what the proponent claims
were obtained. This attitude tramples on
it to be. It would include testimony about every link in
constitutionally-guaranteed rights in the name of law
the chain, from the moment the item was picked up to
enforcement. It is ironic that such enforcement of the
the time it is offered into evidence, in such a way that
law fosters the breakdown of our system of justice and
every person who touched the exhibit would describe
the eventual denigration of society. While this Court
how and from whom it was received, where it was and
appreciates and encourages the efforts of law
what happened to it while in the witness' possession,
enforcers to uphold the law and to preserve the peace
the condition in which it was received and the condition
and security of society, we nevertheless admonish
in which it was delivered to the next link in the chain.
them to act with deliberate care and within the
These witnesses would then describe the precautions
parameters set by the Constitution and the law.24
taken to ensure that there had been no change in the
condition of the item and no opportunity for someone
not in the chain to have possession of the same.27
Section 1(b) of DDB Regulation No. 1, Series of
2002,28 defines chain of custody as follows:
b. "Chain of Custody" means the duly recorded
authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the
time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of
seized item shall include the identity and signature of
the person who held temporary custody of the seized
item, the date and time when such transfer of custody
were made in the course of safekeeping and used in
court as evidence, and the final disposition;
Paragraph 1, Section 21, Article II of R.A. No. 9165,
provides for safeguards for the protection of the identity
and integrity of dangerous drugs seized, to wit:
SEC. 21. Custody and Disposition of Confiscated,
Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take
charge and have custody of all dangerous drugs, plant
sources of dangerous drugs controlled precursors and
essential chemicals, as well as
instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered,
for proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s
from whom such items were confiscated and/or seized,
or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to
sign the copies of the inventory and be given a copy
thereof.
People v. Habana thoroughly discusses the proper
procedure for the custody of seized or confiscated
items in dangerous drugs cases in order to ensure their
identity and integrity, as follows:
Usually, the police officer who seizes the suspected
substance turns it over to a supervising officer, who
would then send it by courier to the police crime
laboratory for testing. Since it is unavoidable that
possession of the substance changes hand a number
of times, it is imperative for the officer who seized the
substance from the suspect to place his marking on its
plastic container and seal the same, preferably with
adhesive tape that cannot be removed without leaving
a tear on the plastic container. At the trial, the officer
can then identify the seized substance and the
procedure he observed to preserve its integrity until it
reaches the crime laboratory.
If the substance is not in a plastic container, the officer
should put it in one and seal the same. In this way the
substance would assuredly reach the laboratory in the
same condition it was seized from the accused.
Further, after the laboratory technician tests and
verifies the nature of the substance in the container, he
should put his own mark on the plastic container and
seal it again with a new seal since the police officer’s
seal has been broken. At the trial, the technician can
then describe the sealed condition of the plastic
container when it was handed to him and testify on the
procedure he took afterwards to preserve its integrity.
If the sealing of the seized substance has not been
made, the prosecution would have to present every
police officer, messenger, laboratory technician, and
storage personnel, the entire chain of custody, no
matter how briefly one’s possession has been. Each of
them has to testify that the substance, although
unsealed, has not been tampered with or substituted
while in his care.29
Section 21(a) of the Implementing Rules and
Regulations (IRR) of R.A. No. 9165 further elaborates,
and provides for, the possibility of non-compliance with
the prescribed procedure:
(a) The apprehending officer/team having initial
custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused
or the person/s from whom such items were
confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that
the physical inventory and photograph shall be
conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements
under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody
over said items. [Emphasis supplied]
Accordingly, non-compliance with the prescribed
procedural requirements will not necessarily render the
seizure and custody of the items void and invalid,
provided that (i) there is a justifiable ground for such
non-compliance, and (ii) the integrity and evidentiary
value of the seized items are properly preserved. In this
case, however, no justifiable ground is found availing,
and it is apparent that there was a failure to properly
preserve the integrity and evidentiary value of the
seized items to ensure the identity of the corpus
delicti from the time of seizure to the time of
presentation in court. A review of the testimonies of the
prosecution witnesses and the documentary records of
the case reveals irreparably broken links in the chain of
custody.
According to the apprehending police officers in their
Joint Affidavit, the following were confiscated from the
accused, to wit:
a) Several pcs of used empty plastic sachets
containing suspected shabu residues.
b) Eight used (8) disposable lighters ( two (2)
pcs colored orange, two (2) pcs colored yellow,
 one (1) pc colored green & one (1) pc colored
white ).
c) Several pcs of used rolled aluminum foil
containing suspected shabu residues.
d) Several pcs of used cut aluminum foil
containing suspected shabu residues.
e) One (1) pc glass tube containing suspected
shabu residues.30
[Emphases supplied]
At the police station, the case, the accused, and the
above-mentioned items were indorsed to Duty
Investigator Senior Police Officer 1 Pedro Urbano, Jr.
(SPO1 Urbano) for proper disposition.31 A letter-
request for laboratory examination was prepared by
Police Superintendent Edgar Orduna Basbag for the
following items:
a) Pieces of used empty small plastic sachets
with suspected shabu residues
marked "DC&A-1."
b) Pieces of used rolled and cut aluminum foil
with suspected shabu residues
marked "DC&A-2."
c) Pieces of used cut aluminum foil with
suspected shabu residues marked "DC&A-
3."32
[Emphases supplied]
The letter-request and above-mentioned items were
submitted to P/Insp. Maranion by SPO3 Froilan
Esteban (SPO3 Esteban). Final Chemistry Report No.
D-042-06L listed the specimens which were submitted
for testing, to wit:
SPECIMENS SUBMITTED:
A – A1 to A115 – One Hundred fifteen
(115) open transparent plastic sachet with tag
each containing suspected shabu
residue without markings.
B – B1 to B11 – Eleven (11) rolled used
aluminum foil with tag each containing
suspected shabu residue without markings.
C – C1 to C49 – Forty-nine (49) used
aluminum foil with tag each containing
suspected shabu residue without markings.33
[Emphases supplied]
Three days after the subject items were seized, or on
September 5, 2006, a Confiscation Receipt was issued
by PO1 Azardon and PO1 Dela Cruz, which reads:
DCPS AID SOTG 05 September 2006
CONFISCATION RECEIPT
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that on or about 12:45 noon
of September 4, 2006, we together with our precinct
supervisor, SPO4 Pedro Belen Jr., and SWAT
members composed of SPO1 Marlon Decano, PO3
Manuel Garcia, PO2 Adriano Cepiroto and PO1 Aldrin
Guarin apprehended the following names of persons of
ARNOLD MARTINEZ Y ANGELES, 37 yrs old,
married, jobless, a resident of Lucao Dist., this city;
EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle
driver, a resident of 471 Lucao Dist., this city. REZIN
MARTINEZ Y CAROLINO, 44 yrs old, married, jitney
driver, a resident of Lucao Disttrict this city; ROLAND
DORIA Y DIAZ, 39 yrs old, married, businessman,
resident of Cabeldatan, Malasiqui, Pangasinan and
RAFAEL GONZALES Y CUNANAN, 49 yrs old,
separated, jobless and a resident of Trinidad Subd.,
Arellano-Bani this city.
Suspects were duly informed of their constitutional
rights and were brought to Dagupan City Police
Station, Perez Market Site Dagupan City and indorsed
to Duty Desk Officer to record the incident and the
sachet of suspected Shabu Paraphernalias were
brought to PNP Crime Laboratory, Lingayen,
Pangasinan for Laboratory Examination.
Seizing Officer:
(sgd.) (sgd.)
PO1 Bernard B PO1 Alejandro Dela
Azardon Cruz
Affiant Affiant
Remarks:
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed34
[Emphases supplied]
The 115 open transparent plastic sachets, 11 pieces of
rolled used aluminum foil, and 27 (of the 49) pieces of
used aluminum foil, all containing shabu residue, as
identified in the Final Chemistry Report, were
presented in court and marked as Exhibits "H" and
series, "I" and series, and "J" and series, respectively.
Said items were identified by PO1 Azardon and P/Insp.
Maranion at the witness stand.35
The CA ruled that the integrity and evidentiary value of
the subject items were properly preserved as there was
sufficient evidence to prove that the items seized from
the accused were the same ones forwarded to the
crime laboratory for examination, as shown in the
Confiscation Receipt and the letter-request for
laboratory examination.
A review of the chain of custody indicates, however,
that the CA is mistaken.
First, the apprehending team failed to comply with
Section 21 of R.A. No. 9165. After seizure and
confiscation of the subject items, no physical inventory
was conducted in the presence of the accused, or their
representative or counsel, a representative from the
media and the DOJ, and any elected public official.
Thus, no inventory was prepared, signed, and provided
to the accused in the manner required by law. PO1
Azardon, in his testimony,36admitted that no
photographs were taken. The only discernable reason
proffered by him for the failure to comply with the
prescribed procedure was that the situation happened
so suddenly. Thus:
Q: But upon receiving such report from that
jeepney driver you immediately formed a group
and went to the place of Rafael Gonzales?
A: Yes, sir.
Q: Such that you did not even inform the PDEA
before you barged in that place of Rafael
Gonzales?
A: It was so suddenly, [sic] sir.
Q: And that explains the reason why you were
not able to have pictures taken, is that correct?
A: Yes, sir.37
[Emphasis supplied]
The Court does not find such to be a justifiable ground
to excuse non-compliance. The suddenness of the
situation cannot justify non-compliance with the
requirements. The police officers were not prevented
from preparing an inventory and taking photographs. In
fact, Section 21(a) of the IRR of R.A. No. 9165 provides
specifically that in case of warrantless seizures, the
inventory and photographs shall be done at the nearest
police station or at the nearest office of the
apprehending officer/team. Whatever effect the
suddenness of the situation may have had should have
dissipated by the time they reached the police station,
as the suspects had already been arrested and the
items seized. Moreover, it has been held that in case
of warrantless seizures nothing prevents the
apprehending officer from immediately conducting the
physical inventory and photography of the items at their
place of seizure, as it is more in keeping with the law’s
intent to preserve their integrity and evidentiary value. 38
This Court has repeatedly reversed conviction in drug
cases for failure to comply with Section 21 of R.A. No.
9165, resulting in the failure to properly preserve the
integrity and evidentiary value of the seized items.
Some cases are People v. Garcia,39 People v. Dela
Cruz,40 People v. Dela Cruz,41 People v. Santos,
Jr.,42 People v. Nazareno,43People v. Orteza,44 Zarraga
v. People,45 and People v. Kimura.46
Second, the subject items were not properly marked.
The case of People v. Sanchez is instructive on the
requirement of marking, to wit:
What Section 21 of R.A. No. 9165 and its implementing
rule do not expressly specify is the matter of "marking"
of the seized items in warrantless seizures to ensure
that the evidence seized upon apprehension is the
same evidence subjected to inventory and
photography when these activities are undertaken at
the police station rather than at the place of arrest.
Consistency with the "chain of custody" rule requires
that the "marking" of the seized items - to truly ensure
that they are the same items that enter the chain and
are eventually the ones offered in evidence - should be
done (1) in the presence of the apprehended
violator (2) immediately upon confiscation.This
step initiates the process of protecting innocent
persons from dubious and concocted searches, and of
protecting as well the apprehending officers from
harassment suits based on planting of evidence under
Section 29 and on allegations of robbery or theft.
For greater specificity, "marking" means the placing by
the apprehending officer or the poseur-buyer of his/her
initials and signature on the item/s seized. x x x
Thereafter, the seized items shall be placed in an
envelope or an evidence bag unless the type and
quantity of the seized items require a different type of
handling and/or container. The evidence bag or
container shall accordingly be signed by the handling
officer and turned over to the next officer in the chain
of custody.47 [Emphasis in the original]
Nowhere in the testimony of PO1 Azardon or in his
Joint Affidavit with PO1 Dela Cruz does it appear that
the subject items were at all marked. It was only in the
letter-request for laboratory examination that the
subject items were indicated to have been marked with
"DC&A-1," "DC&A-2" and "DC&A-3." There is no
showing, however, as to who made those markings
and when they were made. Moreover, those purported
markings were never mentioned when the subject
items were identified by the prosecution witnesses
when they took the stand.
The markings appear to pertain to a group of items, that
is, empty plastic sachets, rolled and cut aluminium foil,
and cut aluminium foil, but do not specifically pertain to
any individual item in each group. Furthermore, it was
only in the Chemistry Report48 that the precise number
of each type of item was indicated and enumerated.
The Court notes that in all documents prior to said
report, the subject items were never accurately
quantified but only described as "pieces,"49 "several
pcs,"50 and "shabu paraphernallas."51 Strangely, the
Chemistry Report indicates that all the subject items
had "no markings," although each item was reported to
have been marked by P/Insp. Maranion in the course
of processing the subject items during laboratory
examination and testing.52 Doubt, therefore, arises as
to the identity of the subject items. It cannot be
determined with moral certainty that the subject items
seized from the accused were the same ones
subjected to the laboratory examination and presented
in court.
This Court has acquitted the accused for the failure and
irregularity in the marking of seized items in dangerous
drugs cases, such as Zarraga v. People,53 People v.
Kimura,54 and People v. Laxa.55
Third, the Confiscation Receipt relied upon by the
prosecution and the courts below gives rise to more
uncertainty. Instead of being prepared on the day of the
seizure of the items, it was prepared only three days
after. More important, the receipt did not even indicate
exactly what items were confiscated and their quantity.
These are basic information that a confiscation receipt
should provide. The only information contained in the
Confiscation Receipt was the fact of arrest of the
accused and the general description of the subject
items as "the sachet of suspected Shabu
paraphernallas were brought to the PNP Crime
Laboratory." The receipt is made even more dubious
by PO1 Azardon’s admission in his testimony56 that he
did not personally prepare the Confiscation Receipt
and he did not know exactly who did so.
Fourth, according to the Certification57 issued by the
Dagupan Police Station, the subject items were
indorsed by PO1 Dela Cruz to Duty Investigator SPO1
Urbano for proper disposition. These were later turned
over by SPO3 Esteban to P/Insp. Maranion. There is,
however, no showing of how and when the subject
items were transferred from SPO1 Urbano to SPO3
Esteban.
Fifth, P/Insp. Maranion appears to be the last person in
the chain of custody. No witness testified on how the
subject items were kept after they were tested prior to
their presentation in court. This Court has highlighted
similar shortcomings in People v. Cervantes,58 People
v. Garcia,59 People v. Sanchez,60 and Malillin v.
People.61
More irregularities further darken the cloud as to the
guilt of the accused. Contrary to PO1 Azardon’s
testimony62that they were tipped off by a concerned
citizen while at the police station, the Letter 63 to the
Executive Director of the DDB states that the
apprehending officers were tipped off "while
conducting monitoring/surveillance." Said letter also
indicates, as does the Confiscation Receipt, that the
arrest and seizure occurred on September 4, 2006, and
not September 2, 2006, as alleged in the Information.
It was also mentioned in the aforementioned
Certification of the Dagupan Police and Joint Affidavit
of the police officers that a glass tube suspected to
contain shabu residue was also confiscated from the
accused. Interestingly, no glass tube was submitted for
laboratory examination.
In sum, numerous lapses and irregularities in the chain
of custody belie the prosecution’s position that the
integrity and evidentiary value of the subject items were
properly preserved. The two documents specifically
relied on by the CA, the Confiscation Receipt and the
letter-request for laboratory examination, have been
shown to be grossly insufficient in proving the identity
of the corpus delicti. The corpus delicti in dangerous
drugs cases constitutes the drug itself. This means that
proof beyond reasonable doubt of the identity of the
prohibited drug is essential before the accused can be
found guilty.64
Regarding the lack of prior coordination with the PDEA
provided in Section 86 of R.A. No. 9165, in People v.
Sta. Maria,65 this Court held that said section was silent
as to the consequences of such failure, and said
silence could not be interpreted as a legislative intent
to make an arrest without the participation of PDEA
illegal, nor evidence obtained pursuant to such an
arrest inadmissible. Section 86 is explicit only in saying
that the PDEA shall be the "lead agency" in the
investigation and prosecution of drug-related cases.
Therefore, other law enforcement bodies still possess
authority to perform similar functions as the PDEA as
long as illegal drugs cases will eventually be
transferred to the latter.
Let it be stressed that non-compliance with Section 21
of R.A. No. 9165 does not affect the admissibility of the
evidence but only its weight.66 Thus, had the subject
items in this case been admissible, their evidentiary
merit and probative value would be insufficient to
warrant conviction.
It may be true that where no ill motive can be attributed
to the police officers, the presumption of regularity in
the performance of official duty should prevail.
However, such presumption obtains only when there is
no deviation from the regular performance of
duty.67 Where the official act in question is irregular on
its face, the presumption of regularity cannot stand.
In this case, the official acts of the law enforcers were
clearly shown and proven to be irregular. When
challenged by the evidence of a flawed chain of
custody, the presumption of regularity cannot prevail
over the presumption of innocence of the accused.68
This Court once again takes note of the growing
number of acquittals for dangerous drugs cases due to
the failure of law enforcers to observe the proper arrest,
search and seizure procedure under the
law.69 Some bona fidearrests and seizures in
dangerous drugs cases result in the acquittal of the
accused because drug enforcement operatives
compromise the integrity and evidentiary worth of the
seized items. It behooves this Court to remind law
enforcement agencies to exert greater effort to apply
the rules and procedures governing the custody,
control, and handling of seized drugs.
It is recognized that strict compliance with the legal
prescriptions of R.A. No. 9165 may not always be
possible. Thus, as earlier stated, non-compliance
therewith is not necessarily fatal. However, the lapses
in procedure must be recognized, addressed and
explained in terms of their justifiable grounds, and the
integrity and evidentiary value of the evidence seized
must be shown to have been preserved.70
On a final note, this Court takes the opportunity to be
instructive on Sec. 1171 (Possession of Dangerous
Drugs) and Sec. 1572 (Use of Dangerous Drugs) of R.A.
No. 9165, with regard to the charges that are filed by
law enforcers. This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases
where the presence of dangerous drugs as basis for
possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec. 11.
Although not incorrect, it would be more in keeping with
the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of
drug use, provided that there is a positive confirmatory
test result as required under Sec. 15. The minimum
penalty under the last paragraph of Sec. 11 for the
possession of residue is imprisonment of twelve years
and one day, while the penalty under Sec. 15 for first
time offenders of drug use is a minimum of six months
rehabilitation in a government center. To file charges
under Sec. 11 on the basis of residue alone would
frustrate the objective of the law to rehabilitate drug
users and provide them with an opportunity to recover
for a second chance at life.
In the case at bench, the presence of dangerous drugs 71
Section 11. Possession of Dangerous
was only in the form of residue on the drug Drugs. - The penalty of life imprisonment to
paraphernalia, and the accused were found positive for death and a fine ranging from Five hundred
use of dangerous drugs. Granting that the arrest was thousand pesos (₱500,000.00) to Ten million
legal, the evidence obtained admissible, and the chain pesos (₱10,000,000.00) shall be imposed
of custody intact, the law enforcers should have filed upon any person, who, unless authorized by
charges under Sec. 15, R.A. No. 9165 or for use of law, shall possess any dangerous drug in the
dangerous drugs and, if there was no residue at all, following quantities, regardless of the degree of
they should have been charged under Sec. purity thereof:
1473 (Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs During (1) 10 grams or more of opium;
Parties, Social Gatherings or Meetings). Sec. 14
provides that the maximum penalty under Sec. (2) 10 grams or more of morphine;
1274(Possession of Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for
(3) 10 grams or more of heroin;
Dangerous Drugs) shall be imposed on any person
who shall possess any equipment, instrument,
apparatus and other paraphernalia for dangerous (4) 10 grams or more of cocaine or
drugs. Under Sec. 12, the maximum penalty is cocaine hydrochloride;
imprisonment of four years and a fine of ₱50,000.00. In
fact, under the same section, the possession of such (5) 50 grams or more of
equipment, apparatus or other paraphernalia is prima methamphetamine hydrochloride or
facie evidence that the possessor has used a "shabu";
dangerous drug and shall be presumed to have
violated Sec. 15.1avv phi1
(6) 10 grams or more of marijuana resin
or marijuana resin oil;
In order to effectively fulfill the intent of the law to
rehabilitate drug users, this Court thus calls on law (7) 500 grams or more of marijuana;
enforcers and prosecutors in dangerous drugs cases and
to exercise proper discretion in filing charges when the
presence of dangerous drugs is only and solely in the (8) 10 grams or more of other
form of residue and the confirmatory test required dangerous drugs such as, but not
under Sec. 15 is positive for use of dangerous drugs. limited to,
In such cases, to afford the accused a chance to be methylenedioxymethamphetamine
rehabilitated, the filing of charges for or involving (MDA) or "ecstasy",
possession of dangerous drugs should only be done paramethoxyamphetamine (PMA),
when another separate quantity of dangerous drugs, trimethoxyamphetamine (TMA),
other than mere residue, is found in the possession of lysergic acid diethylamine (LSD),
the accused as provided for in Sec. 15. gamma hydroxyamphetamine (GHB),
and those similarly designed or newly
WHEREFORE, the August 7, 2009 Decision of the introduced drugs and their derivatives,
Court of Appeals in CA-G.R. HC-NO. 03269 is without having any therapeutic value or
REVERSED and SET ASIDE and another judgment if the quantity possessed is far beyond
entered ACQUITTING the accused and ordering their therapeutic requirements, as
immediate release from detention, unless they are determined and promulgated by the
confined for any other lawful cause. Board in accordance to Section 93,
Article XI of this Act.
Let a copy of this decision be furnished the Director of
the Bureau of Corrections, Muntinlupa City, for Otherwise, if the quantity
immediate implementation. The Director of the Bureau involved is less than the
of Corrections is directed to report to this Court within foregoing quantities, the
five days from receipt of this decision the action he has penalties shall be graduated as
taken. Copies shall also be furnished the Director- follows:
General, Philippine National Police, and the Director-
General, Philippine Drugs Enforcement Agency, for (1) Life imprisonment and a fine
their information and guidance. ranging from Four hundred thousand
pesos (₱400,000.00) to Five hundred
The Regional Trial Court, Branch 41, Dagupan City, is thousand pesos (₱500,000.00), if the
directed to turn over the seized items to the Dangerous quantity of methamphetamine
Drugs Board for destruction in accordance with law. hydrochloride or "shabu" is ten (10)
grams or more but less than fifty (50)
SO ORDERED. grams;

JOSE CATRAL MENDOZA (2) Imprisonment of twenty (20) years

Associate Justice and one (1) day to life imprisonment
and a fine ranging from Four hundred
WE CONCUR thousand pesos (₱400,000.00) to Five
hundred thousand pesos
(₱500,000.00), if the quantities of
Footnotes
dangerous drugs are five (5) grams or
 more but less than ten (10) grams of
opium, morphine, heroin, cocaine or
cocaine hydrochloride, marijuana resin
or marijuana resin oil,
methamphetamine hydrochloride or
"shabu", or other dangerous drugs
such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and
those similarly designed or newly
introduced drugs and their derivatives,
without having any therapeutic value or
if the quantity possessed is far beyond
therapeutic requirements; or three
hundred (300) grams or more but less
than five hundred (500) grams of
marijuana; and
(3) Imprisonment of twelve (12) years
and one (1) day to twenty (20) years
and a fine ranging from Three hundred
thousand pesos (₱300,000.00) to Four
hundred thousand pesos
(₱400,000.00), if the quantities of
dangerous drugs are less than five (5)
grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or
"shabu", or other dangerous drugs
such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and
those similarly designed or newly
introduced drugs and their derivatives,
without having any therapeutic value or
if the quantity possessed is far beyond
therapeutic requirements; or less than
three hundred (300) grams of
marijuana.
into the body, during parties, social gatherings
or meetings, or in the proximate company of at
least two (2) persons.
74
Section 12. Possession of Equipment,
Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs. - The
penalty of imprisonment ranging from six (6)
months and one (1) day to four (4) years and a
fine ranging from Ten thousand pesos
(₱10,000.00) to Fifty thousand pesos
(₱50,000.00) shall be imposed upon any
person, who, unless authorized by law, shall
possess or have under his/her control any
equipment, instrument, apparatus and other
paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting,
or introducing any dangerous drug into the
body: Provided, That in the case of medical
practitioners and various professionals who are
required to carry such equipment, instrument,
apparatus and other paraphernalia in the
practice of their profession, the Board shall
prescribe the necessary implementing
guidelines thereof.
The possession of such equipment,
instrument, apparatus and other
paraphernalia fit or intended for any of
the purposes enumerated in the
preceding paragraph shall be prima
facie evidence that the possessor has
smoked, consumed, administered to
himself/herself, injected, ingested or
used a dangerous drug and shall be
presumed to have violated Section 15
of this Act.

72
Section 15. Use of Dangerous Drugs. – A
person apprehended or arrested, who is found
to be positive for use of any dangerous drug,
after a confirmatory test, shall be imposed a
penalty of a minimum of six (6) months
rehabilitation in a government center for the
first offense, subject to the provisions of Article
VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she
shall suffer the penalty of imprisonment ranging
from six (6) years and one (1) day to twelve (12)
years and a fine ranging from Fifty thousand
pesos (₱50,000.00) to Two hundred thousand
pesos (₱200,000.00): Provided, That this
Section shall not be applicable where the
person tested is also found to have in his/her
possession such quantity of any dangerous
drug provided for under Section 11 of this Act,
in which case the provisions stated therein
shall apply.

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Section 14. Possession of Equipment,
Instrument, Apparatus and Other
Paraphernalia for Dangerous Drugs During
Parties, Social Gatherings or Meetings. - The
maximum penalty provided for in Section 12 of
this Act shall be imposed upon any person,
who shall possess or have under his/her
control any equipment, instrument, apparatus
and other paraphernalia fit or intended for
smoking, consuming, administering, injecting,
ingesting, or introducing any dangerous drug