Crim Cases

Republic of the PhilippinesSUPREME COURT

ManilaFIRST DIVISION

G.R. No. 184908 July 3, 2013MAJOR JOEL G. CANTOS, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O NVILLARAMA, JR., J.:Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan in Criminal Case No. SB-07-A/R-0008, which affirmed with modification the judgment2 of the Regional Trial Court (RTC) of Manila, Branch 47, convicting him of the crime of Malversation of Public Funds under Article 217 of the Revised Penal Code, as amended.In an Information3 dated February 19, 2003, Major Cantos was charged as follows:That on or about December 21, 2002 or sometime prior or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Commanding Officer of the 22"d Finance Service Center, based in the Presidential Security Group, Malacañang Park, Manila and as such is accountable for public funds received and/or entrusted to him by reason of his office, acting in relation to his office and taking advantage of the same, did then and there, willfully, unlawfully and feloniously take, misappropriate and convert to his personal use and benefit the amount of THREE MILLION TWO HUNDRED SEVENTY THOUSAND PESOS (P3,270,000.00), Philippine Currency, from such public funds received by him by reason of his Office to the damage and prejudice of the Government in the aforestated amount.CONTRARY TO LAW.Upon motion by the prosecution, the trial court issued an Order4 granting the amendment of the date of the commission of the offense from December 21, 2002 to December 21, 2000, the error being merely clerical. When arraigned, Major Cantos entered a plea of not guilty.5

At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.6 He testified that on December 21, 2000, he reported for duty as Disbursing Officer at the 22nd Finance Service Unit (FSU), Presidential Security Group (PSG), Malacañang Park, Manila. At that time, he did not notice any unusual incident in the office. He picked up some Bureau of Internal Revenue (BIR) forms which he filed with the BIR Office at the Port Area, Manila. He returned to the office at around 10:00 a.m. At around 12:00 noon, his commanding officer, Major Cantos, called him to his office and informed him that the money he (Major Cantos) was handling, the Special Duty Allowance for the month of December, and other Maintenance Operating Expenses in the amount of more or less P3 Million was missing from his custody. Shocked, he asked Major Cantos where he kept the money, to which the latter replied that he placed it in the steel cabinet inside his room. He then inquired why Major Cantos did not use the safety vault, but Major Cantos did not reply.7

Major Balao further testified that Major Cantos asked him to get a screwdriver so he went out of the office and got one from his vehicle. He gave the screwdriver to Major Cantos, who used it to unscrew the safety vault. Then, he left the office and handed the screwdriver to Sgt. Tumabcao.After a few minutes, Major Cantos instructed him to go to the house of Major Conrado Mendoza in Taguig to get the safety vault’s combination number. However, Major Mendoza was not around. When he returned to the office at around 4:00 p.m., the National Bureau of Investigation (NBI) personnel took his fingerprints. He learned that all the personnel of the

22nd FSU were subjected to fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that he took the money, but he maintained that he was not the one who took it.8

In his defense, Major Cantos testified that on July 2000, he was assigned as the Commanding Officer of the 22nd FSU of the PSG, Malacañang Park, Manila. His duty was to supervise the disbursement of funds for the PSG personnel and to perform other finance duties as requested by the PSG Commander, Gen. Rodolfo Diaz. On December 19, 2000, he received a check from Director Aguas in the amount of P1,975,000 representing the Special Allowance of PSG personnel. Accompanied by two personnel, he went to the Land Bank branch just across Pasig River and encashed the check. He placed the money in a duffel bag and kept it inside the steel cabinet in his office together with the P1,295,000 that was earlier also entrusted to him by Gen. Diaz. Major Cantos added that as far as he knows, he is the only one with the keys to his office. Although there was a safety vault in his office, he opted to place the money inside the steel cabinet because he was allegedly previously informed by his predecessor, Major Conrado Mendoza, that the safety vault was defective. He was also aware that all personnel of the 22nd FSU had unrestricted access to his office during office hours.9

Major Cantos also narrated that on December 20, 2000, he arrived at the office at around 9:00 a.m. and checked the steel filing cabinet. He saw that the money was still there. He left the office at around 4:00 p.m. to celebrate with his wife because it was their wedding anniversary. On the following day, December 21, 2000, he reported for work around 8:30 a.m. and proceeded with his task of signing vouchers and documents. Between 9:00 a.m. to 10:00 a.m., he inspected the steel cabinet and discovered that the duffel bag which contained the money was missing. He immediately called then Capt. Balao to his office and asked if the latter saw someone enter the room. Capt. Balao replied that he noticed a person going inside the room, but advised him not to worry because he is bonded as Disbursing Officer.10

In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the money. Capt. Balao asked him how the money was lost and why was it not in the vault, to which he replied that he could not put it there because the vault was defective. Capt. Balao then suggested that they should make it appear that the money was lost in the safety vault. In pursuit of this plan, Capt. Balao went out of the office and returned with a pair of pliers and a screwdriver. Upon his return, Capt. Balao went directly to the vault to unscrew it. At this point, Major Cantos told him not to continue anymore as he will just inform Gen. Diaz about the missing funds. Major Cantos was able to contact Gen. Diaz through his mobile phone and was advised to just wait for Col. Espinelli. When Col. Espinelli arrived at the office, Col. Espinelli conducted an investigation of the incident.11

Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office (JAGO), likewise conducted an investigation of the incident. His testimony was however dispensed with as the counsels stipulated that he prepared the Investigation Report, and that if presented, the same would be admitted by defense counsel.12 It likewise appears from the evidence that Police Inspector Jesus S. Bacani of the Philippine National Police (PNP) administered a polygraph examination on Major Cantos and the result showed that he was telling the truth.13

On April 27, 2007, the RTC rendered a decision convicting Major Cantos of the crime charged, to wit:WHEREFORE, in view of the foregoing premises, the Court finds the accused Major Joel G. Cantos GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds, under paragraph 4 of Article 217 of the Revised Penal Code, and, there being no mitigating or aggravating circumstance present, hereby sentences him to an indeterminate penalty of imprisonment for a period of 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, as maximum; to reimburse the AFP Finance Service Center, Presidential Security Group, Armed Forces of the Philippines the amount of Three Million Two Hundred Seventy Thousand Pesos

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(P3,270,000.00); to pay a fine of Three Million Two Hundred Seventy Thousand Pesos (P3,270,000.00); to suffer perpetual special disqualification from holding any public office; and to pay the costs.SO ORDERED.14

In rendering a judgment of conviction, the RTC explained that although there was no direct proof that Major Cantos appropriated the money for his own benefit, Article 217 of the Revised Penal Code, as amended, 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. The RTC concluded that Major Cantos failed to rebut this presumption.Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his conviction by the trial court.On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the dispositive portion of which reads as follows:IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in Criminal Case No. 03-212248 of the Regional Trial Court, National Capital Judicial Region, Branch 47, Manila finding the accused-appellant Major Joel G. Cantos GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217 of the Revised Penal Code is hereby AFFIRMED, with the modification that instead of being convicted of malversation through negligence, the Court hereby convicts the accused of malversation through misappropriation. The penalty imposed by the lower court is also likewise AFFIRMED.SO ORDERED.15

The Sandiganbayan sustained the ruling of the RTC. It held that in the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received public funds and that he did not have them in his possession when demand therefor was made. There is even no need of direct evidence of personal misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same. In this case, the Sandiganbayan found petitioner liable for malversation through misappropriation because he failed to dispute the presumption against him. The Sandiganbayan noted that petitioner’s claim that the money was taken by robbery or theft has not been supported by sufficient evidence, and is at most, self-serving.Contending that the Sandiganbayan Decision erred in affirming his convicting, Major Cantos filed a motion for reconsideration. In its Resolution16 dated October 6, 2008, however, the Sandiganbayan denied the motion.Hence, the present petition for review on certiorari. Petitioner assails the Decision of the Sandiganbayan based on the following grounds:I.THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION FOR MALVERSATION DESPITE ABSENCE OF EVIDENCE SHOWING THAT THE FUNDS WERE CONVERTED TO THE PERSONAL USE OF PETITIONER.II.THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION ON THE BASIS OF THE MERE PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF THE REVISED PENAL CODE IN VIEW OF THE ATTENDANT CIRCUMSTANCES IN THE PRESENT CASE.17

Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in finding petitioner guilty beyond reasonable doubt of the crime of malversation of public funds?Petitioner argues that mere absence of funds is not sufficient proof of misappropriation which would warrant his conviction. He stresses that the prosecution has the burden of establishing

his guilt beyond reasonable doubt. In this case, petitioner contends that the prosecution failed to prove that he appropriated, took, or misappropriated, or that he consented or, through abandonment or negligence, permitted another person to take the public funds.On the other hand, the People, represented by the Office of the Special Prosecutor (OSP), argues that petitioner, as an accountable officer, may be convicted of malversation of public funds even if there is no direct evidence of misappropriation. The OSP asserts that the only evidence required is that there is a shortage in the officer’s account which he has not been able to explain satisfactorily.The petition must fail.The Sandiganbayan did not commit a reversible error in its decision convicting petitioner of malversation of public funds, which is defined and penalized under Article 217 of the Revised Penal Code, as amended, 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 shall suffer:x x x x4. 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. (Emphasis and underscoring supplied.)Thus, the elements of malversation of public funds under Article 217 of the Revised Penal Code are:

1. that the offender is a public officer;2. that he had the custody or control of funds or property by reason of the duties of his office;3. that those funds or property were public funds or property for which he was accountable; and4. that he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.18

We note that all the above-mentioned elements are here present. Petitioner was a public officer occupying the position of Commanding Officer of the 22nd FSU of the AFP Finance Center, PSG. By reason of his position, he was tasked to supervise the disbursement of the Special Duty Allowances and other Maintenance Operating Funds of the PSG personnel, which are indubitably public funds for which he was accountable. Petitioner in fact admitted in his testimony that he had complete control and custody of these funds. As to the element of misappropriation, indeed petitioner failed to rebut the legal presumption that he had misappropriated the fees to his personal use.In convicting petitioner, the Sandiganbayan cites the presumption in Article 217 of the Revised Penal Code, as amended, which states 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

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duly authorized officer, is prima facie evidence that he has put such missing fund or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence that can nullify any likelihood that he put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated.In this case, however, petitioner failed to overcome this prima facie evidence of guilt.1âwphi1 He failed to explain the missing funds in his account and to restitute the amount upon demand. His claim that the money was taken by robbery or theft is self-serving and has not been supported by evidence. In fact, petitioner even tried to unscrew the safety vault to make it appear that the money was forcibly taken. Moreover, petitioner’s explanation that there is a possibility that the money was taken by another is belied by the fact that there was no sign that the steel cabinet was forcibly opened. We also take note of the fact that it was only petitioner who had the keys to the steel cabinet.19 Thus, the explanation set forth by petitioner is unsatisfactory and does not overcome the presumption that he has put the missing funds to personal use.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.20 All that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his accounts.21 To our mind, the evidence in this case is thoroughly inconsistent with petitioner's claim of innocence. Thus, we sustain the Sandiganbayan's finding that petitioner's guilt has been proven beyond reasonable doubt.WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of the Sandiganbayan in Criminal Case No. SB-07-A/R-0008 convicting Major Joel G. Cantos of the crime of Malversation of Public Funds is AFFIRMED and UPHELD.With costs against the petitioner.SO ORDERED.

ZACARIA A. CANDAO,ABAS A. CANDAO ANDISRAEL B. HARON, Petitioners, - versus -

G.R. Nos. 186659-710 Present: CORONA, C.J., Chairperson, BERSAMIN, DEL CASTILLO, VILLARAMA, JR., and SERENO,* JJ.

PEOPLE OF THE PHILIPPINESAND SANDIGANBAYAN, Respondents.

Promulgated: October 19, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.:

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Assailed in this petition for review on certiorari under Rule 45 is the Decision[1] dated October 29, 2008 and Resolution[2] dated February 20, 2009 of the Sandiganbayan (First Division) finding the petitioners guilty beyond reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended. The Facts On August 5, 1993, Chairman Pascasio S. Banaria of the Commission on Audit (COA) constituted a team of auditors from the central office to conduct an Expanded Special Audit of the Office of the Regional Governor, Autonomous Region for Muslim Mindanao (ORG-ARMM). State Auditors Heidi L. Mendoza (Team Leader) and Jaime Roxas (Member) were directed to conduct the said audit under the supervision of Jaime P. Naranjo (State Auditor V). From August 24 to September 1, 1993, the expanded audit was thus conducted on the financial transactions and operations of ORG-ARMM for the period July 1992 to March 1993.

As stated in Special Audit Office (SAO) Report No. 93-25 submitted by the audit team, it was found that illegal withdrawals were made from the depository accounts of the agency through the issuance of checks payable to the order of petitioner Israel B. Haron (Disbursing Officer II) without the required disbursement vouchers. The following are the details of the government accounts and the fifty-two (52) checks [3] issued and encashed without proper supporting documents:

PNB Account No. 370-3208 DATE ISSUED

CHECK NO. SIGNATORIES

AMOUNT

December 29, 1992

414431

Israel Haron & Abas Candao

500,000.00

December 29, 1992

414432 Israel Haron & Abas Candao

439,585.00

December 29, 1992


210,000.00

January 26, 1993


500,000.00

January 26, 1993


500,000.00

January 26, 1993


500,000.00

February 2, 1993


500,000.00

February 2, 1993


500,000.00

February 3, 1993


450,000.00

February 5, 1993


500,000.00

February 5, 1993


500,000.00

February 18, 1993

461803 Israel Haron & Zacaria Candao

500,000.00

February 18, 1993


104,985.64

February 22, 1993


500,000.00

February 22, 1993


500,000.00

February 22, 1993


500,000.00

February 22, 1993


500,000.00

February 22, 1993


500,000.00

February 22, 1993


500,000.00

February 24, 1993


64,000.00

March 18, 1993


500,000.00

March 18, 1993


500,000.00

March 19, 1993


350,000.00

March 22, 1993


500,000.00

March 22, 1993


500,000.00

TOTAL P11,118,570.64

Account No. 844061 (Treasurer of the Philippines)

DATE ISSUED

CHECK NO.

SIGNATORIES AMOUN T

January 11, 1993 January 11, 1993

968739

Israel Haron & Abas Candao 400,000.00

January 11, 1993

968740


January 11, 1993

968741


January 13, 1993

968751

Pandical Santiago & Abas Candao 120,000.00

January 18, 1993

968804


March 2, 1993

974192

Israel Haron & Zacaria Candao 250,000.00

4

March 4, 1993

974208


March 4, 1993

974209


March 4, 1993

974210


March 4, 1993

974211


March 4, 1993

974212


March 5, 1993

974227


March 5, 1993

974228


March 12, 1993

974244


March 18, 1993

974324


March 18, 1993

974325


March 18, 1993

974326


March 18, 1993

974327


March 18, 1993

974328


March 19, 1993

974339


March 19, 1993

974340


March 19, 1993

974341


March 29, 1993

979533


March 29, 1993

979543


March 29, 1993

979544


March 29, 1993

979545


March 30, 1993

979590


TOTAL

P9,927,000.00

GRAND TOTAL = P 21,045,570.64 In a letter dated September 10, 1993, Chairman Banaria demanded from petitioner Haron to produce and restitute to the ARMM-Regional Treasurer immediately the full amount

of P21,045,570.64 and submit his explanation within seventy-two (72) hours together with the official receipt issued by the ARMM Regional Treasurer in acknowledgment of such restitution. On April 17, 1998, the Office of the Special Prosecutor, Office of the Ombudsman-Mindanao, filed in the Sandiganbayan criminal cases for malversation of public funds against the following ORG-ARMM officials/employees: Zacaria A. Candao (Regional Governor), Israel B. Haron (Disbursing Officer II), Abas A. Candao (Executive Secretary) and Pandical M. Santiago (Cashier). They were charged with violation of Article 217 of the Revised Penal Code, as amended, under the following informations with identical allegations except for the varying date, number and amount of the check involved in each case:

Criminal Case Nos. 24569-24574, 24576-24584, 24593, 24595-24620 [4] (42 counts involving checks in the total amount of P17,190,585.00)

That on or about 29 December 1992, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with [Abas] Candao, Executive Secretary of the same office, who is a high ranking officer, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 414431 dated 29 December 1992, payable to the order of accused Israel B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW.Criminal Case Nos. 24585- 24592 and 24594 [5] (9 counts involving checks in the total amount

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of P3,854,985.64)

That on or about 18 February 1993, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Zacaria Candao, Regional Governor of the same office, who is a high ranking officer, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 461803 dated 18 February 1993, payable to the order of accused Israel B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW.Criminal Case No. 24575 [6]

That on or about 13 January 1993, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Pandical Santiago and [Abas] Candao, Cashier and Executive Secretary, respectively, of the same office, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P120,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 968751 dated 13 January 1993, payable to the order of accused Israel B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P120,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated.

CONTRARY TO LAW. At their arraignment, all accused pleaded not guilty to the charge of malversation. In the meantime, accused Santiago died and consequently the case against him in Criminal Case No. 24575 was dismissed.

The prosecution’s lone witness was Heidi L. Mendoza,[7] COA State Auditor IV. She testified that their expanded audit, conducted from August 24 to September 1, 1993, disclosed the illegal withdrawals of funds from the PNB and Treasury accounts of ORG-ARMM involving 52 checks issued without the required disbursement vouchers. Specifically, their attention was caught by the fact that the Report of Checks Issued by the Deputized Disbursing Officer (RCIDDO) showed that the subject 52 checks have no assigned voucher numbers. The audit team demanded for the original of said RCIDDO for the months of December 1992, February and March 1993, which were supposed to be prepared and submitted by the disbursing officer, but the ORG-ARMM did not submit the same. In a letter dated August 24, 1993, the COA likewise made a demand from the Regional Governor through the resident auditor for the production of the original disbursement vouchers and complete supporting documents of the subject checks.[8]

In response, the Finance and Budget Management Services of ORG-ARMM informed the audit team that the vouchers were already submitted to COA Resident Auditor, Supervising State Auditor IV Rosalinda Gagwis, purportedly under transmittal letters dated March 4 and March 30, 1993. Mendoza then personally verified from Gagwis who denied having received the subject vouchers and issued a certification to that effect. In a letter dated September 10, 1993, Chairman Banaria finally demanded for the restitution of the funds illegally withdrawn through the issued 52 checks and to comply with such demand within 72 hours from receipt of said letter. As to the absence of her signature in the audit report, she explained that she was already on maternity leave when the interim report (SAO Report No. 93-25) was submitted. However, she, together with audit team member Jaime B. Roxas executed a Joint Affidavit dated May 17, 1996 regarding their conduct of the expanded audit and their findings and recommendation. Although Haron submitted copies of disbursement vouchers to the COA receiving clerk, this was made beyond the 72-hour deadline given to them.[9]

On cross-examination, witness Mendoza was asked if the audit team had informed the office or parties concerned that they are going to be audited (entry conference). She replied that this was a sensitive assignment, recalling that they were threatened after their identities were established during the earlier audit of the same office such that she had to be brought back to Manila. At that time, the Regional Governor was accused Candao. Hence, during the expanded audit, the team was unable to proceed as in ordinary situations. While they did an entry conference during the previous main audit, they were unable to do so at the time of the expanded audit. Again for security reasons, the team also did not conduct an exit conference after field work; they would be risking their lives if they discuss there and then their findings. Due to threat to her life, it was her team supervisor (Naranjo) and member (Roxas) who personally retrieved the documents in Cotabato City. She admitted the belated submission of original vouchers (October 29, 1993) to the COA central office but these are without supporting documents.[10]

For the accused, the first witness was Nick Luz Aduana who was the Director of Finance of ORG-ARMM from July 1991 until his resignation in March 1993. He testified that his functions then include the supervision and overseeing of the three divisions: Budget, Accounting and Management. When report of the audit team came out, he was surprised because they were not informed of the audit. He was familiar with the 52 checks because the disbursement vouchers passed through his office. He explained the procedure with respect to the processing of cash advances as follows: generally, there were cash advances made in ARMM which cover travels, salaries, etc. but particularly for “peace and order campaign,” it emanates from the ORG when the Regional Governor issues an authority for cash advance, and then they process the voucher (Finance and Budget Management Services); once their division have performed their accounting functions relative to the vouchers, the same are forwarded to the Regional Governor for approval or in his absence to his Executive Secretary; after the

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approval of the voucher, it will be forwarded to the Cash Division for the issuance of check; the person who will liquidate the cash advance is usually the employee mentioned in the voucher; and after they have prepared all the liquidation papers, these are submitted to the Budget and Management Division before forwarding them to the COA Auditor. He maintained that the original disbursement vouchers have already been submitted to the COA Special Audit Office. Since 1991, they have never received any notice of disallowance of their disbursements, including those intended for “peace and order campaign.” Being the first ARMM set of officials, they had sought the advice of their Auditor as to proper accounting procedures; they followed the advice of Auditor Gagwis who said that there should be authority to cash advance coming from the Regional Governor which should be given to the Disbursing Officer. He identified the vouchers presented by the defense as the ones processed by their division with the corresponding amounts reflected therein. Insofar as the expanded audit is concerned, they were not given the opportunity to defend the case as they were not given the so-called exit conference.[11]

On cross-examination, witness Aduana hinted on political reasons why an expanded audit was conducted when Regional Governor Pagdanganan assumed office despite the fact that an earlier audit was already made during the administration of Governor Candao. He claimed that he did not receive any copy of the demand letter dated August 24, 1993; he was no longer connected with ARMM at the time. He also maintained that the disbursement vouchers were processed by their office and entered into their books of account. However, when asked what happened to these books of account, Aduana said these are with the Office of the Regional Governor. He admitted that the only supporting document for the checks and vouchers were the authority to cash advance; the “peace and order campaign” disbursement is peculiar to ARMM and hence they did not know what supporting documents to attach. When queried about the particular activities covered by this “peace and order campaign” disbursement, Aduana admitted that he really does not know the breakdown of expenses or for what items in particular were the disbursed amounts spent. Their division merely processed the disbursement vouchers that were prepared by the ORG, and while his signature appears in said vouchers his role was limited to certifying the availability of funds.[12]

The next witness, Rosalinda G. Gagwis, former COA Resident Auditor of ORG-ARMM, testified that in 1991 she was the Chief of the Operation and Review Division (ORD), COA Region XII which at the time has jurisdiction over ORG-ARMM; she was Auditor-in-Charge of ORG-ARMM only up to March 8, 1993 when the separation of COA Region XII personnel and COA-ARMM was implemented. Among her duties as such Auditor-in-Charge was to conduct a post-audit of the financial transactions of ORG-ARMM. In the course of the expanded audit of ORG-ARMM, she was requested to issue the Certification dated August 27, 1993 stating that she has not received the January to March 1993 vouchers as stated in the letter of Haron. Subsequently, on July 22, 1998 she executed a two-page Affidavit because she has been hearing that her previous Certification was misinterpreted to mean that the subject vouchers were “not existing.” She then clarified that actually, ORG-ARMM tried to submit bundles of vouchers to her office but she refused to accept them because she was no longer Auditor-in-Charge of that office as there was already an order separating COA-Regional Office XII from the COA-ARMM. She confirmed that when ARMM was a newly created agency, its officers (Aduana, Brigida Fontanilla and Bartolome Corpus) sought her advice regarding accounting procedures. Prior to submission to her office for post-audit, the accountable officers like the Cashier and Disbursement Officer prepares and submits a Monthly Report of Disbursements to the Accounting Division which, within ten days from receipt and recording in the Books of Accounts, shall submit the same to the auditor for post-audit custody. Based on her experience, however, this deadline was not strictly observed as 25% to 50% of the national agencies are delayed in the submission of such reports. The usual reasons given were

the geographical locations of the offices in Region XII and ARMM, lack of manpower due to budgetary constraints and lack of know-how of personnel regarding accounting and auditing procedures, especially if there is a change in administration. As far as she can recall, their office had not issued a notice of disallowance to ORG-ARMM although notices of suspension have been issued for minor deficiencies noted during post-audit; these notices of suspension were usually complied with by the agency.[13]

On cross-examination, witness Gagwis said that upon seeing the bundles of vouchers being submitted to her office, she immediately refused to accept, and sort of “washed her hands” by telling her staff that they were no longer incharge of ORG-ARMM. She did not actually scan those documents and examine their contents. She also did not receive the Monthly Report of Disbursements from said office. As to the execution of the July 22, 1998 Affidavit, she insisted that she did it voluntarily five years later in order to clarify herself after hearing about the case filed in the Sandiganbayan and her name was being dragged because of the Certification she made in August 1993. As to the earlier Certification, she maintained that she did not receive the subject vouchers and she does not know where these documents are at present.[14]

Another witness, Brigida C. Fontanilla, Chief Accountant, ORG-ARMM, testified that her duties and responsibilities include the processing, updating and recording of transactions of ORG-ARMM in the books of accounts while vouchers are recorded in the Journal of Analysis and Obligations (JAO). They also prepared financial reports. As to cash advances, she explained that the procedure starts with the preparation of the voucher at ORG which also issues the authority to withdraw cash advance which is attached to the disbursement voucher and supporting documents, afterwhich it is forwarded to the Finance and Budget Management Services for processing: there, it is first submitted to the Budget Division for the request for allotment of obligation, and next forwarded to the Accounting Division for the journal entry of obligation and recording in the books of account, and then the documents are forwarded to the Office of the Finance Director for his approval, and thereafter returned back to the ORG for final approval for the issuance of the check. Presently, their office is more systematic and organized than it was during the administration of Governor Candao. Sometime in 1994 during the investigation by the Office of the Ombudsman relative to the subject illegal withdrawals, she was summoned to produce the Cash Receipts Book and Cash Disbursement Book of the 1991 ARMM seed money for regional, provincial and district Impact Infrastructure Projects. However, she was not able to comply with the said directive because such books are not among those required by the COA for their office; what the COA directed them to maintain was the JAO, a book of original entry for allotments received and disbursements for the transactions of ORG-ARMM. She wrote a letter-reply to the Ombudsman Investigator and transmitted the original 1992 JAO which was never returned to their office.[15] Explaining the contents of the JAO, witness Fontanilla said that the entries in the voucher are recorded therein: an obligation number is placed in the request of allotment (ROA) which also appears in the voucher. Before such recording in the JAO, the disbursement vouchers are presented to their office. Actually, she does not know whether the 1992 JAO still exists or with the Ombudsman Investigator because at the time, they were holding office temporarily at the office of ORG Auditor which unfortunately got burned sometime in 1996.[16]

As for witness Bartolome M. Corpus, his deposition upon oral examination was taken on August 27, 2004 before Atty. Edipolo Sarabia, Clerk of Court, Regional Trial Court of Davao City. He testified that in 1991 he was appointed Chief of the Management Division of the Finance and Budget Management Services (FBMS), ORG-ARMM. He was placed on floating status for three years by the new Chief of Staff of ORG-ARMM (Nasser Pangandaman) upon the election of a new Regional Governor, Lininding Pangandaman who defeated Governor

7

Candao. As Finance Director, it was his responsibility to review all transactions of the ORG-ARMM and see to it that COA regulations are in place and supporting documents are complete. After reviewing documents, which include disbursement vouchers, his office submits the same to the COA Regional Officer or to the COA Resident Auditor. Being the internal control unit of ORG-ARMM, all transactions and supporting documents must pass through his office. As to the transactions covered by the subject 52 checks, he confirmed that these passed through his office, including the disbursement vouchers, afterwhich these were forwarded to the Accounting Office and then to the Cash Division for issuance of checks. He claimed that his subordinates tried to submit the disbursement vouchers to the Resident Auditor, as shown by the transmittal letters dated March 4 and March 30, 1993. However, Ms. Gagwis refused to accept the vouchers because she was no longer the Resident Auditor at the time. During the time of Governor Candao, he does not recall having received any notice of disallowance from the COA although there were times they received a notice of suspension which had been settled. During the time he was on floating status, he discovered that some vouchers including those original vouchers covered by the subject 52 checks were still in his filing cabinet. He then handed them over to Haron. In 1996, he was reinstated by Governor Nur Misuari.[17]

On cross-examination, witness Corpus said that they tried to submit the vouchers to Gagwis sometime in late March or early April 1993. He was not aware of the August 27, 1993 Certification issued by Gagwis. When asked about the stated purpose “peace and order campaign” in the cash advance vouchers, he confirmed that this was the practice at that time and it was only during liquidation that ORG will have the list of expenses; the supporting documents will come only after the issuance of the check.[18] On re-direct examination, he maintained that there were previous similar vouchers for “peace and order campaign” which have not been disallowed but only suspended by the COA.[19]

Sandiganbayan Ruling By Decision dated October 29, 2008, the Sandiganbayan found petitioner Haron guilty beyond reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended, committed in conspiracy with petitioners Zacaria A. Candao and Abas A. Candao who were likewise sentenced to imprisonment and ordered to pay a fine equivalent to the amount of the check in each case, as follows:

Criminal Case Nos. 24569-24584,24593, 24595-24620 Israel B. Haron and Abas A. Candao - convicted of 43 counts of

Malversation of Public Funds and each was sentenced to indeterminate prison term in each case of 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, as maximum, and ordered to pay a fine in each case equivalent to the particular check involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special disqualification to hold public office and other accessory penalties provided by law. In the service of their respective sentences, they shall be entitled to the benefit of the three-fold

rule as provided in Art. 70 of the Revised Penal Code, as amended.

Criminal Case Nos. 24585-24592 & 24594 Israel B. Haron and Zacaria A. Candao – convicted of 9 counts

of Malversation of Public Funds and each was sentenced to indeterminate prison term in each case of 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, as maximum, and ordered to pay a fine in each case equivalent to the particular check involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special disqualification to hold public office and other accessory penalties provided by law. In the service of their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided in Art. 70 of the Revised Penal Code, as amended.[20]

The Sandiganbayan found no merit in petitioners’ claim that the subject checks were covered by existing disbursement vouchers which were belatedly submitted and received by the COA Central Office on October 29, 1993. It said that had those vouchers really existed at the time of the 52 withdrawals petitioners made from December 29, 1992 to March 30, 1993, petitioner Haron could have readily produced them when required to do so by the special audit team on August 24, 1993. Said court likewise did not give credence to the testimony of Corpus in view of the August 27, 1993 Certification issued by then COA Auditor Gagwis that she has not received the vouchers mentioned in the transmittal letters. Gagwis’ explanation, on the other hand, contradicted the testimony of Corpus that when he returned to his office sometime in May 1993, he found the original vouchers together with the transmittal letters still there in his filing cabinet and have not been submitted to the COA Resident Auditor. The Sandiganbayan noted that petitioners presented no proof that the cash advances intended for “peace and order campaign” were spent for public purposes, as in fact the alleged disbursement vouchers did not indicate any detail as to the nature of the expense/s such as purchase of equipment, services, meals, travel, etc. and there were no supporting documents such as the Request for Issuance of Voucher, Purchase Request and Inspection Report of the items supposedly purchased. More importantly, the vouchers were not accomplished in accordance with existing COA circulars because they are unnumbered and undated. Hence, the belatedly submitted vouchers are of doubtful veracity or origin, nay, a fabricated evidence or, as pointed out by the prosecution, “self-serving or an afterthought, belatedly prepared to give the illegal disbursements amounting to the aggregate amount of more than P21M, a semblance of regularity.”[21] As to the JAO and Certification dated August 18, 1998 issued by Chief Accountant Fontanilla, the Sandiganbayan found there is nothing therein to indicate the particular disbursement voucher that corresponds to each of the subject 52 checks which were neither reflected in the JAO. With respect to petitioners’ assertion that the audit conducted by the COA special audit team was incomplete and tainted as it did not follow procedures because the person audited were not notified thereof, the Sandiganbayan found these allegations unsubstantiated as in fact at the start of the audit on August 24, 1993, the audit team thru their team leader State Auditor Naranjo, informed the management of ORG-ARMM thru the COA Resident Auditor of the

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expanded special audit to be conducted as they even requested for the original copies of the disbursement vouchers together with their complete supporting documents covering the 52 checks. But despite said letter, the ORG-ARMM failed to heed the audit team’s request. For the failure of petitioner Haron to account for the funds involved in the illegal withdrawals when asked to do so, the presumption arose that he misappropriated the same, which presumption was not overcome by defense evidence. On the respective liabilities of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan held that by their act of co-signing the subject checks, petitioner Haron was able to consummate the illegal withdrawals without the required disbursement vouchers of the amounts covered by the 43 checks (for Abas) and 9 checks (for Zacaria). Thus, by their collective acts, said court concluded that petitioners conspired to effect the illegal withdrawals of public funds which, when required by the COA to be properly accounted for, petitioners failed to do so.

In its Resolution dated February 20, 2009, the Sandiganbayan denied the prosecution’s motion to cancel bail bonds and petitioners’ motion for reconsideration. The Petition Petitioners raised the following grounds for their acquittal:

1. …THE SANDIGANBAYAN...COMMITTED A REVERSIBLE ERROR IN CONVICTING THE ACCUSED PETITIONERS FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS DESPITE PROOF POSITIVE THAT, CONTRARY TO WHAT THE INFORMATIONS CHARGED, THERE WERE DISBURSEMENT VOUCHERS EXCEPT THAT THE COA REFUSED TO ACCEPT MUCH LESS EXAMINE THE SAME. PETITIONERS WERE THUS DENIED DUE PROCESS OF LAW WHEN THEY WERE CONVICTED FOR OFFENSES NOT COVERED BY THE INFORMATIONS AGAINST THEM.

2. ….THE SANDIGANBAYAN COMMITTED A REVERSIBLE

ERROR IN NOT APPLYING THE “EQUIPOISE RULE” WHICH IF APPLIED WOULD HAVE RESULTED IN THE ACQUITTAL OF THE ACCUSED-PETITIONERS.

3. … THE SANDIGANBAYAN COMMITTED A REVERSIBLE

ERROR IN CONVICTING ACCUSED PETITIONERS ZACARIA A. CANDAO AND ABAS A. CANDAO DESPITE THE FACT THAT THE CHARGE OF CONSPIRACY WHICH IS THEIR ONLY LINK TO THE OFFENSES HEREIN HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.[22]

Our Ruling The petition has no merit.

Article 217 of the Revised Penal Code, as amended, provides: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:

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 bereclusion 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 fund 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. (Emphasis supplied.)

The following elements are essential for conviction in malversation cases:1. That the offender is a public officer;2. That he had custody or control of funds or property by reason of

the duties of his office;3. That those funds or property were public funds or property for

which he was accountable; and4. That he appropriated, took, misappropriated or consented or,

through abandonment or negligence, permitted another person to take them.[23]

All the foregoing elements were satisfactorily established by the prosecution in this case. Petitioners have not rebutted the legal presumption that with the Disbursing Officer’s (Haron) failure to account for the illegally withdrawn amounts covered by the subject checks when demanded by the COA, they misappropriated and used the said funds for their personal benefit.

Petitioners however assert that their convictions were based solely on the Sandiganbayan’s conclusion that the vouchers submitted by the defense were illegal or irregular, whereas the informations simply alleged their absence or non-existence. They contend that said court could not have validly assessed the disbursement vouchers as to their legality because that duty pertains to the COA which refused and failed to examine the same. Had the court allowed the COA to evaluate and make a ruling on the validity of the vouchers, the result would have been different and most probably they would have been acquitted of the crime charged.

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We are not persuaded by petitioners’ asseveration.The Sandiganbayan categorically ruled that the disbursement vouchers were

inexistent at the time of the issuance of the subject checks and expanded special audit based on its findings that: (1) petitioner Haron could not produce the vouchers upon demand by the COA in August 1993; (2) Resident Auditor Gagwis certified at about the same time that to date she has not received the vouchers mentioned in the supposed transmittal letters of March 4 and March 30, 1993; (3) the entries in the duly certified Report of Checks Issued by Deputized Disbursing Officer (RCIDDO) of the late Pandical M. Santiago, Cashier of ORG-ARMM, showed that for the months of January, February and March 1993, there were indeed entries of checks issued with Haron as payee but no disbursement voucher numbers as these were either lacking, detached or missing, and which were verified by the audit team as corresponding to the subject 52 checks issued and signed by petitioners and encashed by petitioner Haron who received the money withdrawn from the government depositary accounts; (4) FBMS Chief Corpus testified that he discovered the supposed vouchers still there at his office filing cabinet in May 1993 when these supposedly have already been submitted to the COA Resident Auditor as reflected in the March 4 and March 30, 1993 transmittal letters; and (5) the supposed original disbursement vouchers belatedly submitted to the COA central office last week of October 1993, were undated and unnumbered with no supporting documents as required by COA Circular No. 78-79 (April 5, 1978).

Contrary to petitioners’ claim, the special audit team could not have examined the vouchers presented by the defense (Exhibits “1” to “1-A-43”) because the only indication of its actual receipt by the COA as admitted by the prosecution, was on October 23, 1993 long after the expanded audit was completed and beyond the 72-hour deadline specified in the September 10, 1993 demand letter addressed to Haron for the restitution of the total amount of illegal withdrawals. In addition, such disbursement vouchers have no supporting documents as required by COA Circular No. 92-389 dated November 3, 1992. On the other hand, the Certification dated August 18, 1998 issued by ARMM Chief Accountant Fontanilla stating that the vouchers were regular because these were properly recorded in the JAO, was not given credence by the Sandiganbayan. Upon scrutiny of the JAO covering the period January to March 1993, said court found that it failed to indicate the particular disbursement voucher that corresponds to each of the 52 checks, aside from the fact that it was prepared by the ARMM Chief Accountant who is under the control and supervision of the ORG. Notably, the JAO is used to summarize obligations incurred and to monitor the balance of unobligated allotments, which is prepared by function, and project for each fund and allotment class. [24] The JAO is thus separate and distinct from the Report of Checks Issued (RCI) which is prepared by the Disbursing Officer to report checks issued for payment of expenditures and/or prior accounts payable. What is clear is that the disbursement of funds covered by the 52 checks issued by the petitioners are subject to the rule that disbursement voucher “shall be used by all government entities for all money claims” and that the “voucher number shall be indicated on the voucher and on every supporting document.”[25] Inasmuch as the JAO for the months of January, February and March 1993 do not at all reflect or indicate the number of each of the disbursement vouchers supposedly attached to the 52 checks, it cannot serve as evidence of the recording of the original vouchers, much less the existence of those disbursement vouchers at the time of the issuance of the 52 checks and the conduct of the expanded audit.

Petitioners further raise issue on the regularity, completeness and objectivity of the expanded audit conducted by the COA. However, records showed that the ORG-ARMM were duly notified of the expanded audit at its commencement and was even requested thru the COA Resident Auditor to submit the needed disbursement vouchers. It must be noted that at an earlier date, a main audit had already been conducted for the financial transactions of ORG-ARMM during which State Auditor Mendoza experienced threats against her own security that

she had to be immediately recalled from her assignment. Thus, by the time the expanded audit was conducted in August 1993 upon the directive of the COA Chairman, petitioners, especially Haron, should have seen to it that the records of disbursements and financial transactions including the period January to March 1993, were in order and available for further audit examination. In any case, even if there was no so-called entry conference held, there is absolutely no showing that petitioners were denied due process in the conduct of the expanded audit as they simply refused or failed to heed COA’s request for the production of disbursement vouchers and likewise ignored the formal demand made by COA Chairman Banaria for the restitution of the illegally withdrawn public funds, submitting their compliance only after the special audit team had submitted their report.

In fine, the Sandiganbayan committed no reversible error in holding that the testimonial and documentary evidence presented by the petitioners failed to overcome the prima facie evidence of misappropriation arising from Haron’s failure to give a satisfactory explanation for the illegal withdrawals from the ARMM funds under his custody and control. Petitioners likewise did not accomplish the proper liquidation of the entire amount withdrawn, during the expanded audit or any time thereafter. There is therefore no merit in petitioners’ argument that the Sandiganbayan erred in not applying the equipoise rule.

Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction.[26] Such is not the situation in this case because the prosecution was able to prove by adequate evidence that Disbursing Officer Haron failed to account for funds under his custody and control upon demand, specifically for the P21,045,570.64 illegally withdrawn from the said funds. In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary in malversation cases.[27]

As to the liability of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan correctly ruled that they acted in conspiracy with petitioner Haron to effect the illegal withdrawals and misappropriation of ORG-ARMM funds.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime, which are indicative of a joint purpose, concerted action and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be deduced from the mode and manner in which the offense was perpetrated.[28]

In this case, petitioners Zacaria A. Candao and Abas A. Candao were co-signatories in the subject checks issued without the required disbursement vouchers. Their signatures in the checks, as authorized officials for the purpose, made possible the illegal withdrawals and embezzlement of public funds in the staggering aggregate amount of P21,045,570.64.

Petitioners Zacaria A. Candao and Abas A. Candao assail their conviction as co-conspirators in the crime of malversation contending that their only participation was in the ministerial act of signing the checks. The checks having passed through processing by finance and accounting personnel of ORG-ARMM, petitioners said they had to rely on the presumption of regularity in the performance of their subordinates’ acts. Furthermore, they assert that since

10

conspiracy requires knowledge of the purpose for which the crime was committed, they could not have been conspirators in the design to defraud the government.

We disagree with such postulation.As the Regional Governor of ARMM, petitioner Zacaria A. Candao cannot

exonerate himself from liability for the illegally withdrawn funds of ORG-ARMM. Under Section 102 (1) of the Government Auditing Code of the Philippines, he is responsible for all government funds pertaining to the agency he heads:

Section 102. Primary and secondary responsibility. – (1) The head of any agency of the government is immediately and primarily responsible for all government funds and property pertaining to his agency.

x x x x (Emphasis supplied.) Petitioners Zacaria A. Candao and his Executive Secretary Abas A. Candao are both accountable public officers within the meaning of Article 217 of the Revised Penal Code, as amended. No checks can be prepared and no payment can be effected without their signatures on a disbursement voucher and the corresponding check. In other words, any disbursement and release of public funds require their approval,[29] as in fact checks issued and signed by petitioner Haron had to be countersigned by them. Their indispensable participation in the issuance of the subject checks to effect illegal withdrawals of ARMM funds was therefore duly established by the prosecution and the Sandiganbayan did not err in ruling that they acted in conspiracy with petitioner Haron in embezzling and misappropriating such funds.

Moreover, as such accountable officers, petitioners Zacaria A. Candao and Abas A. Candao were charged with the duty of diligently supervising their subordinates to prevent loss of government funds or property, and are thus liable for any unlawful application of government funds resulting from negligence, as provided in Sections 104 and 105 of the Government Auditing Code of the Philippines, which read:

Sec. 104. Records and reports required by primarily

responsible officers. – The head of any agency or instrumentality of the national government or any government-owned or controlled corporation and any other self-governing board or commission of the government shall exercise the diligence of a good father of a family in supervising accountable officers under his control to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and solidarily liable with the person primarily accountable therefor. x x x x

Sec. 105. Measure of liability of accountable officers. x x x(2) Every 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.The fact that ARMM was still a recently established autonomous government unit

at the time does not mitigate or exempt petitioners from criminal liability for any misuse or embezzlement of public funds allocated for their operations and projects. The Organic Act for ARMM (R.A. No. 6734) mandates that the financial accounts of the expenditures and revenues of the ARMM are subject to audit by the COA.[30] Presently, under the Amended Organic Act (R.A. No. 9054), the ARMM remained subject to national laws and policies relating to, among others, fiscal matters and general auditing.[31] Here, the prosecution successfully demonstrated that the illegal withdrawals were deliberately effected through the issuance of checks without the required disbursement vouchers and supporting documents. And even if petitioners Zacaria

A. Candao and Abas A. Candao invoke lack of knowledge in the criminal design of their subordinate, Disbursing Officer Haron, they are still liable as co-principals in the crime of malversation assuming such misappropriation of public funds was not intentional, as alleged in the informations, but due to their negligence in the performance of their duties. As this Court ratiocinated in Cabello v. Sandiganbayan[32]:

Besides, 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. A possible exception would be when the mode of commission alleged in the particulars of the indictment is so far removed from the ultimate categorization of the crime that it may be said due process was denied by deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice was occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this case.[33] (Emphasis supplied.)Under Article 217, paragraph 4 of the Revised Penal Code, as amended, the penalty

of reclusion temporal in its maximum period to reclusion perpetua shall be imposed if the amount involved exceeds P22,000.00, in addition to fine equal to the funds malversed. Considering that neither aggravating nor mitigating circumstance attended the crime charged, the maximum imposable penalty shall be within the range of the medium period of reclusion temporal maximum to reclusion perpetua, or eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the minimum penalty, which is one degree lower from the maximum imposable penalty, shall be within the range of prision mayor maximum to reclusion temporal medium, or ten (10) years and one (1) day to seventeen (17) years and four (4) months.[34] The penalty imposed by the Sandiganbayan on petitioners needs therefore to be modified insofar as the maximum penalty is concerned and is hereby reduced to seventeen (17) years and four (4) months of reclusion temporal medium, for each count.

WHEREFORE, the petition for review on certiorari is DENIED for lack of merit. The Decision dated October 29, 2008 in Criminal Case Nos. 24569 to 24574, 24575, 24576 to 24584, 24585 to 24592, 24593, 24594, 24595 to 24620 finding petitioners guilty beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217, paragraph 4 of the Revised Penal Code, as amended, and the Resolution dated February 20, 2009 of the Sandiganbayan (First Division), denying petitioners’ motion for reconsideration are AFFIRMED with MODIFICATIONS in that petitioners are instead accordingly sentenced to suffer an indeterminate prison term of ten (10) years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years and four (4) months of reclusion temporal medium, as maximum, in each of the above-numbered criminal cases.

In addition to the payment of the fine ordered by the Sandiganbayan, and by way of restitution, the petitioners are likewise ordered to pay, jointly and severally, the Republic of the Philippines through the ARMM-Regional Treasurer, the total amount of P21,045,570.64 malversed funds as finally determined by the COA.

In the service of their respective sentences, the petitioners shall be entitled to the benefit of the three-fold rule as provided in Article 70 of the Revised Penal Code, as amended.

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With costs against the petitioners.SO ORDERED.

Republic of the Philippines

Supreme CourtManila

THIRD DIVISION

12

CAROLINA R. JAVIER, Petitioner,

- versus -

THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents.

G.R. Nos. 147026-27 Present:YNARES-SANTIAGO, J., Chairperson,CHICO-NAZARIO,VELASCO, JR.,NACHURA, andPERALTA, JJ. Promulgated:

September 11, 2009

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D E C I S I O N

PERALTA, J.: Before the Court is a petition for certiorari[1] 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) Order[2] dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to Quash Information; (2) Resolution[3] 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 P139,199.00[10] 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. OnJuly 6, 1998, she was issued a Summary of Disallowances[12] from which the balance for settlement amounted to P220,349.00. 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. 6713[13] 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

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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 P139,199.00 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 P139,199.00, 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 P139,199.00, 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 Consolidation[19] of 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 Information[20] 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 P139,199.00, 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 P139,199.00, 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 Order[24] dated November 14, 2000, the First Division[25] 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.

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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 Resolution [27] 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: x x x x (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; x x x x 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,

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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]

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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:

x x x x (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. x x x x

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. 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.[38] The 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

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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.



G.R. Nos. 169823-24 September 11, 2013HERMINIO T. DISINI, Petitioner, vs.THE HON. SANDIGANBAYAN, FIRST DIVISION, AND THE PEOPLE OF THE PHILIPPINES, Respondents.x - - - - - - - - - - - - - - - - - - - - - - - xG.R. Nos. 174764-65HERMINIO T. DISINI, Petitioner, vs.SANDIGANBAYAN, FIRST DIVISION, AND THE PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O NBERSAMIN, 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 CasePetitioner 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.

AntecedentsThe 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 follows:Criminal Case No. 28001That during the period from 1974 to February 1986, in Manila, Philippines, and within the jurisdiction of this Honorable Court, accused HERMINIO T. DISINI, conspiring together and confederating with the then President of the Philippines Ferdinand E. Marcos, did then and there, willfully, unlawfully and feloniously offer, promise and give gifts and presents to said Ferdinand E. Marcos, consisting of accused DISINI’s ownership of two billion and five hundred (2.5 billion) shares of stock in Vulcan Industrial and Mining Corporation and four billion (4 billion)shares of stock in The Energy Corporation, with both shares of stock having then a book value of P100.00 per share of stock, and subcontracts, to Engineering and Construction Company of Asia, owned and controlled by said Ferdinand E. Marcos, on the mechanical and electrical construction work on the Philippine Nuclear Power Plant Project("Project") of the National Power Corporation at Morong, Bataan, all for and in consideration of accused Disini seeking and obtaining for Burns and Roe and Westinghouse Electrical Corporation (Westinghouse), the contracts to do the engineering and architectural design and to construct, respectively, the Project, as in fact said Ferdinand E. Marcos, taking undue advantage of his position and committing the offense in relation to his office and in consideration of the aforesaid gifts and presents, did award or cause to be awarded to said Burns and Roe and Westinghouse, the contracts to do the engineering and architectural design and to construct the Project, respectively, which acts constitute the crime of corruption of public officials.CONTRARY TO LAW.3

Criminal Case No. 28002That during the period 1974 to February 1986, in Manila, Philippines, and within the jurisdiction of the Honorable Court, accused HERMINIO T. DISINI, conspiring together and confederating with the then President of the Philippines, Ferdinand E. Marcos, being then the close personal friend and golfing partner of said Ferdinand E. Marcos, and being further the husband of Paciencia Escolin-Disini who was the first cousin of then First Lady Imelda Romualdez-Marcos and family physicianof the Marcos family, taking advantage of such close personal relation, intimacy and free access, did then and there, willfully, unlawfully and criminally, in connection with the Philippine Nuclear Power Plant (PNPP)Project ("PROJECT") of the National Power Corporation (NPC) at Morong, Bataan, request and receive from Burns and Roe, a foreign consultant, the total amount of One Million U.S. Dollars ($1,000,000.00),more or less, and also from Westinghouse Electric Corporation(WESTINGHOUSE), the total amount of Seventeen Million U.S. Dollars($17,000,000.00), more or less, both of which entities were then having business, transaction, and application with the Government of the Republic of the Philippines, all for and in consideration of accused DISINI securing and obtaining, as accused Disini did secure and obtain, the contract for the said Burns and Roe and Westinghouse to do the engineering and architectural design, and construct, respectively, the said PROJECT, and subsequently, request and receive subcontracts for Power Contractors, Inc. owned by accused DISINI, and Engineering and Construction Company of Asia (ECCO-Asia), owned and controlled by said Ferdinand E. Marcos, which stated amounts and subcontracts constituted kickbacks, commissions and gifts as material or pecuniary advantages, for securing and obtaining, as accused DISINI did secure and obtain, through the direct intervention of said Ferdinand E. Marcos, for Burns and Roe the engineering and architectural contract, and for Westinghouse the construction contract, for the PROJECT.CONTRARY TO LAW.4

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http://www.lawphil.net/judjuris/juri2013/sep2013/gr_169823_2013.html#fnt4




On August 2, 2004, Disini filed a motion to quash,5 alleging that the criminal actions had been extinguished by prescription, and that the informations did not conform to the prescribed form. The Prosecution opposed the motion to quash.6

On September 16, 2004, Disini voluntarily submitted himself for arraignment to obtain the Sandiganbayan’s favorable action on his motion for permission to travel abroad.7 He then entered a plea of not guilty to both informations.As stated, on January 17, 2005, the Sandiganbayan (First Division) promulgated its first assailed resolution denying the motion to quash.8

Disini moved for the reconsideration of the resolution dated January 17, 2005,9 but the Sandiganbayan (First Division) denied his motion on August 10, 2005 through the second assailed resolution.10

IssuesUndaunted, Disini commenced this special civil action for certiorari, alleging that:

A. THE RESPONDENT COURT HAS NO JURISDICTION OVER THEOFFENSES CHARGED.

1. THE RESPONDENT COURT GRAVELY ERRED WHEN ITRULED THAT SECTION 4, PARAGRAPHS (A) AND (B) OFREPUBLIC ACT NO. 8249 DO NOT APPLY SINCE THEINFORMATIONS WERE "FILED PURSUANT TO E.O. NOS. 1,2, 14 AND 14-A".2. THE RESPONDENT COURT GRAVELY ERRED WHEN ITASSUMED JURISDICTION WITHOUT HAVING MET THEREQUISITE UNDER SECTION 4 OF R.A. 8249 THAT THEACCUSED MUST BE A PUBLIC OFFICER.

B. THE RESPONDENT COURT ACTED WITH SUCH GRAVEABUSE OF DISCRETION WHEN IT EFFECTIVELY IGNORED, DISREGARDED, AND DENIED PETITIONER’SCONSTITUTIONAL AND STATUTORY RIGHT TOPRESCRIPTION.

1. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE APPLICABLE PRESCRIPTIVE PERIOD.2. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE COMMENCEMENT OF THEPRESCRIPTIVE PERIOD.3. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE POINT OF INTERRUPTION OF THEPRESCRIPTIVE PERIOD.

C. BY MERELY ASSUMING THE PRESENCE OF GLARINGLYABSENT ELEMENTS IN THE OFFENSES CHARGED TOUPHOLD THE ‘SUFFICIENCY’ OF THE INFORMATIONS INCRIMINAL CASE NOS. 28001 AND 28002, THE RESPONDENTCOURT DEMONSTRATED ITS PREJUDGMENT OVER THE SUBJECT CASES AND ACTED WITH GRAVE ABUSE OF ITSDISCRETION.D. THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OFDISCRETION IN REFUSING TO QUASH THE INFORMATIONSDESPITE THEIR UTTER FAILURE TO COMPLY WITH THEPRESCRIBED FORM, THUS EFFECTIVELY DENYING THEACCUSED HIS CONSTITUTIONAL AND STATUTORY RIGHTTO BE INFORMED OF THE NATURE AND CAUSE OF THEACCUSATION AGAINST HIM.11

RulingThe petition for certiorari has no merit.

1.Preliminary ConsiderationsTo properly resolve this case, reference is made to the ruling of the Court in G.R. No. 175730 entitled Herminio Disini v. Sandiganbayan,12 which involved the civil action for reconveyance, reversion, accounting, restitution, and damages (Civil Case No. 0013 entitled Republic v. HerminioT. Disini, et al.) filed by the Presidential Commission on Good Government(PCGG) against Disini and others.13 The amended complaint in Civil Case No. 0013 alleged that Disini had acted in unlawful concert with his co-defendants in acquiring and accumulating ill-gotten wealth through them is appropriation of public funds, plunder of the nation’s wealth, extortion, embezzlement, and other acts of corruption,14 as follows:4. Defendant HERMINIO T. DISINI is a close associate of defendant Ferdinand E. Marcos and the husband of the first cousin of Defendant Imelda R. Marcos. By reason of this relationship xxx defendant Herminio Disini obtained staggering commissions from the Westinghouse in exchange for securing the nuclear power plant contract from the Philippine government.

x x x x13. Defendants Herminio T. Disini and Rodolfo Jacob, by themselves and/or in unlawful concert, active collaboration and willing participation of defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their association and influence with the latter defendant spouses in order to prevent disclosure and recovery of ill-gotten assets, engaged in devices, schemes, and stratagems such as:

x x x x(c) unlawfully utilizing the Herdis Group of Companies and Asia Industries, Inc. as conduits through which defendants received, kept, and/or invested improper payments such as unconscionably large commissions from foreign corporations like the Westinghouse Corporation; (d) secured special concessions, privileges and/or benefits from defendants Ferdinand E. Marcos and Imelda R. Marcos, such as a contract awarded to Westinghouse Corporation which built an inoperable nuclear facility in the country for a scandalously exorbitant amount that included defendant’s staggering commissions – defendant Rodolfo Jacob executed for HGI the contract for the aforesaid nuclear plant;15

Through its letter dated April 8, 1991,16 the PCGG transmitted the records of Criminal Case No. 28001 and Criminal Case No. 28002 to then Ombudsman Conrado M. Vasquez for appropriate action, to wit:In line with the decision of the Supreme Court in the case of EduardoM. Cojuangco, Jr. versus the PCGG (G.R. Nos. 92319–92320) dated October 2, 1990, we are hereby transmitting to your Office for appropriate action the records of the attached criminal case which we believe is similar to the said Cojuangco case in certain aspects, such as: (i) some parts or elements are also parts of the causes of action in the civil complaints[-]filed with the Sandiganbayan; (ii) some properties or assets of the respondents have been sequestered; (iii) some of the respondents are also party defendants in the civil cases.Although the authority of the PCGG has been upheld by the Supreme Court, we are constrained to refer to you for proper action the herein-attached case in view of the suspicion that the PCGG cannot conduct an impartial investigation in cases similar to that of the Cojuangco case. x x xOstensibly, the PCGG’s letter of transmittal was adverting to the ruling in Cojuangco, Jr. v. Presidential Commission on Good Government (Cojuangco, Jr.),17 viz:x x x The PCGG and the Solicitor General finding a prima facie basis filed a civil complaint against petitioner and intervenors alleging substantially the same illegal or criminal acts subject of the subsequent criminal complaints the Solicitor General filed with the PCGG for preliminary investigation. x x x.Moreover, when the PCGG issued the sequestration and freeze orders against petitioner’s properties, it was on the basis of a prima facie finding that the same were ill-gotten and/or were

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acquired in relation to the illegal 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

x x x xThe 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 andoriginal jurisdiction over the offenses chargedDisini 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:

x x x xb. 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.

x x x xIn 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 xIt 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:

x x x xa. 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

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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)

x x x xUnquestionably, 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 theinformations have not yet prescribedIn 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

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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 theRevised 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 substanceIt 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; and2. That the offers or promises are made or the gifts or presents are given to a public officer under circumstances that will make the public officer liable for direct bribery or indirect bribery.

The allegations in the information for corruption of public officials, if hypothetically admitted, would establish the essential elements of the crime. The information stated that: (1) Disini made an offer and promise, and gave gifts to President Marcos, a public officer; and (2) in

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consideration of the offers, promises and gifts, President Marcos, in causing the award of the contracts to Burns & Roe and Westinghouse by taking advantage of his position and in committing said act in relation to his office, was placed under circumstances that would make him liable for direct bribery.39

The second element of corruption of public officers simply required the public officer to be placed under circumstances, not absolute certainty, that would make him liable for direct or indirect bribery. Thus, even without alleging that President Marcos received or accepted Disini’s offers, promises and gifts – an essential element in direct bribery – the allegation that President Marcos caused the award of the contracts to Burns & Roe and Westinghouse sufficed to place him under circumstances of being liable for direct bribery.The sufficiency of the allegations in the information 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. That the offender has family or close personal relation with a public official;2. That he capitalizes or exploits or takes advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, material or pecuniary advantage from any person having some business, transaction, application, request or contract with the government;3. That the public official with whom the offender has family or close personal relation has to intervene in the business transaction, application, request, or contract with the government.

The allegations in the information charging the violation of Section 4(a) of R.A. No. 3019, if hypothetically admitted, would establish the elements of the offense, considering that: (1) Disini, being the husband of Paciencia Escolin-Disini, the first cousin of First Lady Imelda Romualdez-Marcos, and at the same time the family physician of the Marcoses, had close personal relations and intimacy with and free access to President Marcos, a public official; (2) Disini, taking advantage of such family and close personal relations, requested and received $1,000,000.00 from Burns & Roe and $17,000,000.00 from Westinghouse, the entities then having business, transaction, and application with the Government in connection with the PNPPP; (3) President Marcos, the public officer with whom Disini had family or close personal relations, intervened to secure and obtain for Burns & Roe the engineering and architectural contract, and for Westinghouse the construction of the PNPPP.WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the resolutions promulgated on January 17, 2005 and August 10, 2005 by the Sandiganbayan (First Division) in Criminal Case No. 28001 and Criminal Case No. 28002; and DIRECTS petitioner to pay the costs of suit.SO ORDERED.

23


Republic of the PhilippinesSupreme Court

Manila

SECOND DIVISION ARIEL C. SANTOS, G.R. No. 161877 Petitioner,

Present:

PUNO, J., Chairperson, - versus - SANDOVAL-GUTIERREZ,

CORONA, AZCUNA, and GARCIA, JJ. PEOPLE OF THE PHILIPPINES Promulgated: and the SANDIGANBAYAN, Respondents.

March 23, 2006x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N GARCIA, J.: In this petition for review on certiorari, petitioner Ariel C. Santos assails and seeks the reversal of the July 31, 2003 decision[1] of the Sandiganbayan (Third Division) in Criminal Case No. 21770, as reiterated in its January 28, 2004 resolution,[2] denying petitioner's motion for reconsideration. The facts: In an Information[3] filed with the Sandiganbayan, thereat docketed as Criminal Case No. 21770 and raffled to its Third Division, herein petitioner Ariel Santos y Cadiente, then the Labor Arbiter of the National Labor Relations Commission (NLRC), Regional Arbitration

Branch No. III, San Fernando, Pampanga, was charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed as follows:

That on March 11, 1993 and June 15, 1993 respectively, in San Fernando, Pampanga, …, the above-named accused, …, being then the Labor Arbiter of the [NLRC], Regional Arbitration Branch No. III, San Fernando, Pampanga, while in the performance of his quasi-judicial functions, taking advantage of his position and committing the offense in relation to his office, did then and there willfully, unlawfully, criminally and through evident bad faith and manifest partiality towards Abraham Mose, complainant in NLRC-RAB Case No. RO3-198-79 captioned Abraham Mose vs. Plaza Hotel/Apartments, cause undue injury to Conrado L. Tiu, the owner of the Plaza Hotel/Apartments, in the following manner: accused despite the pendency of the motion for reconsideration of his Order dated October 21, 1992 directing the issuance of a writ of execution and the opposition to the motion for execution as well as the motion to quash writ of execution, issued first a writ of execution dated March 11, 1993 followed by an alias writ of execution dated June 15, 1993, without acting on the said motions and opposition anymore, and as a consequence thereof, undue injury was caused to Conrado L. Tiu while giving unwarranted benefit and advantage to Abraham Mose. CONTRARY TO LAW. [Words in bracket added.]

Arraigned on April 22, 1996,[4] petitioner, as accused below, entered a plea of “Not Guilty.” In the ensuing pre-trial conference, petitioner made the following admissions of fact duly embodied in the court’s second pre-trial order[5] dated April 13, 1999:

1. That at the time material to the case as alleged in the information, accused Ariel Santos was the Labor Arbiter of the NLRC-Branch III, San Fernando, Pampanga;

2. That the accused issued an Order dated October 21, 1992, directing

the issuance of Writ of Execution against Conrado L. Tiu in NLRC-RAB Case No. RO3-198-79 ….;

3. That Conrado L. Tiu …, addressed to the accused, a motion for

reconsideration … of said Order directing the issuance of Writ of Execution;

4. That likewise, Conrado L. Tiu filed an opposition to Abraham

Mose's motion for issuance of Writ of Execution in the above-entitled case;

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http://sc.judiciary.gov.ph/jurisprudence/2006/mar2006/G.R.%20No.%20161877.htm#_ftn5





5. That without resolving the Motion for Reconsideration …, and despite the pendency of the same accused issued a Writ of Execution dated March 11, 1993, as well as an Alias Writ of Execution dated June 15, 1993 in said case.

During trial, the prosecution adduced in evidence the testimony of its sole witness in the person of private complainant Conrado L. Tiu, owner of Plaza Hotel/Apartments, and the documents he identified and marked in the course of the proceedings. For its part, the defense, following the denial of its Demurrer to Evidence,[6] called to the witness box petitioner himself and one Norma G. Reyes. As summarized in the decision under review, the parties’ respective versions of the relevant incidents follow:

Facts as established by the prosecution On July 10, 1981, a Decision was rendered by Labor Arbiter

Andres Palumbarit of the Ministry of Labor and Employment of Region 3, Arbitration Branch in RO3-AB Case No. 198-79 entitled Abraham M. Mose vs. Plaza Hotel/Apartments, owned by Conrado L. Tiu. In said Decision, Conrado L. Tiu was ordered to pay his former employee, Abraham Mose, backwages and other benefits from the time he was illegally dismissed up to the time of his reinstatement, without however indicating any particular amount. Pursuant to the above Labor Decision, NLRC Corporate Auditing Examiner Maria Lourdes L. Flores issued a Report of Examiner rendering the computation of Abraham Mose’s backwages and benefits for a period of three (3) years from July 1979 …for a total amount of P16,360.50. …. On September 2, 1981, the Plaza Hotel/Apartments … filed a Memorandum of Appeal with the MOLE Region 3, … seeking for the reversal/reconsideration of the above stated Labor Decision. This appeal was, however, dismissed per … Resolution dated August 4, 1982. Plaza Hotel/Apartments raised their appeal to the Honorable Supreme Court which was docketed as G.R. No. 77105. While the appeal was still pending before the … Court, another Report of Examiner … was rendered by … Examiner Philip A. Manansala increasing the award from P16,360.50 to P63,537.76 which now covered backwages and benefits from July 1979 to May 1987. This sudden increase of judgment award prompted Plaza Hotel/ Apartments to file an objection to the Report of Examiner Philip Manansala, citing among others: a) Supreme Court rulings that the maximum backwages to be paid should only cover three (3) years from dismissal; ….

On March 15, 1989, the Supreme Court denied the appeal filed by Plaza Hotel/Apartments and with finality on August 3, 1989. On March 13, 1990, the NLRC Region 3 through … Norma G. Reyes, made a recomputation of the judgment award in favor of Abraham Mose in accordance with the Supreme Court ruling covering a period of only three (3) years from the date of dismissal. This recomputed award amounted to P19,908.46 …. After the above incidents, [the] accused took over the above Labor Case RO3-AB-Case No. 198-79, …. On October 21, 1992, [he] …issued an Order of even date, which increased the judgment award … from P19,908.46 to a skyrocketing P178,462.56 adopting and citing therein as basis a Report of Fiscal Examiner dated September 24, 1991, which was not even furnished to Plaza Hotel/Restaurants, Conrado L. Tiu or his counsel. This computation was contrary to the prevailing jurisprudence in Lepanto Consolidated Mining Co. vs. Encarnacion, where the monetary awards for illegally dismissed employees should only cover a three (3) year-period from the time of dismissal. The October 21, 1992 Order of [the] accused included the order for the issuance of Writ of Execution. Plaza Hotel/Apartments filed a Motion for Reconsideration dated November 5, 1992 seeking the reconsideration of the above Order of accused …. Cited as grounds for reconsideration, inter alia, are: a) the order assailed … [is] contrary to the prevailing jurisprudence laid … in Lepanto Consolidated Mining …; b) Conrado L. Tiu … cannot possibly reinstate Abraham Mose to his former position as waiter in the Plaza Hotel because it has already closed business as early as January 21, 1987 …. During the pendency of the Plaza Hotel’s Motion for Reconsideration, Abraham Mose through counsel filed an Ex-Parte Motion for Execution of the Order dated October 21, 1992. This was opposed by Plaza Hotel/Apartments …. Without however acting on the Plaza Hotel/Apartments’ Motion for Reconsideration dated November 5, 1992 and the Opposition to Motion for Execution dated February 6, 1993, [the] accused issued a Writ of Execution dated March 11, 1993 to implement his Order of October 21, 1992 to collect the amount of P178,462.56 …. Reacting to this action of [the] accused …, Plaza Hotel/Apartments filed on May 25, 1993 a Motion to Quash Writ of Execution and to Resolve Motion for Reconsideration. [The] accused however ignored all the abovesaid Motions and pleadings filed by Plaza Hotel/Apartments. Conrado L. Tiu, … was then compelled to file a Petition for Injunction before the Department of Labor and Employment with a prayer for [a] Temporary Restraining Order [TRO].

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The NLRC in its Resolution of June 9, 1993 issued the … (TRO) enjoining the accused from enforcing his Writ of Execution dated March 11, 1993. In order to implement the TRO, the NLRC imposed as a condition the posting by Conrado L. Tiu of a cash or surety bond equivalent to the judgment award of P178,462.56 [which Tiu complied] as shown by his payment of premium amounting to P11,885.50. Despite the [TRO], [the] accused issued an “Alias Writ of Execution” dated June 15, 1993 reiterating the enforcement of his previous Writ of Execution. However, this was not enforced due to the [TRO] presented by Conrado L. Tiu to the NLRC Sheriffs …. On February 8, 1994, the NLRC, … issued a decision … to limit the computation of judgment award in favor of Abraham Mose to only three (3) years from July 4, 1979 to July 4, 1982 without qualification or deduction according to the prevailing jurisprudence laid down by the Supreme Court.[7] (Words in bracket added). Facts as established by the defense Accused Ariel Santos admitted that he had issued a Writ of Execution on the Decision dated July 10, 1981 of the Labor Arbiter Andres Palumbarit …. The award, however, was increased from P19,908.46 to P178,462.56 …. The said writ of execution was issued on March 11, 1993. A Motion for Reconsideration dated February 6, 1993 was subsequently filed by the Plaza Hotel/Apartments on the Order dated October 21, 1992, but [the] accused deemed not to resolve the same because he felt there is no necessity to resolve it, since the decision of Labor Arbiter Palumbarit has become final and executory, hence, ministerial for his part to implement and enforce the same. On February 28, 1994, a Decision of the NLRC was issued … stating that the backwages should be limited only to three (3) years in consonance with the ruling in the Lepanto Mining Company case. He further testified that, he did not know anymore nor aware what happened to the case since, as of August, 1993, he was assigned at the NLRC–NCR, and much as he wanted to rectify the error, he can no longer do so …. Prior to the issuance of the above–said decision, a [TRO]was issued by the DOLE–NLRC for the enjoinment of the implementation of the writ of execution dated March 11, 1993, however, [the] accused issued an alias writ of execution. The Sheriff assigned did not implement the said writs. Norma Reyes initially made a computation for the back wages of Abraham Mose in the amount P19,908.46 …. However, she made a

recomputation … based on the Order of [the accused] … dated October 21, 1992 and increased theP19,908.46 back wages to P178,462.56 …. She was not informed by [the] accused that it is physically impossible for Mose to be reinstated ….[8] (Words in bracket added)

In the same decision, the Sandiganbayan (Third Division) adjudged petitioner guilty as charged and, accordingly, sentenced him, thus:

WHEREFORE, the Court finds accused ARIEL SANTOS y CADIENTE GUILTY beyond reasonable doubt of violation of Section 3 (e) of Republic Act No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices Act", and sentences said accused to EIGHT (8) YEARS and ONE (1) DAY, as minimum, to TEN (10) YEARS, as maximum, and perpetual disqualification from holding public office. Ariel Santos is also ordered to pay Plaza Hotel/Apartments, through Conrado L. Tiu, the following sums as his civil liability:

1. P68,000 for the attorney's fees paid by Conrado L. Tiu because of filing of this case; and

2. P11,800 for the supersedeas bond paid by

Conrado L. Tiu in connection with the restraining order issued by the DOLE-NLRC.

SO ORDERED.[9]

His motion for reconsideration having been denied by the same court in its equally assailed Resolution of January 28, 2004,[10] petitioner is now with this Court via the present recourse imputing on the respondent court the following errors:

I. IN HOLDING THAT PETITIONER WAS GUILTY OF MANIFEST PARTIALITY IN ISSUING THE WRITS OF EXECUTION SUBJECT OF THE INFORMATION.

ll. IN HOLDING THAT THE PRIVATE COMPLAINANT

SUFFERED UNDUE INJURY SINCE, AS SHOWN ABOVE, THE JUDGMENT FOR WHICH HE WAS HELD LIABLE TO PAY BACKWAGES, WHETHER FOR THAT LIMITED PERIOD OF THREE (3) YEARS OR CONTINUING BACKWAGES UNTIL ACTUAL REINSTATEMENT HAS NEVER BEEN SATISFIED.

The petition is not impressed with merit. Section 3(e) of R.A. No. 3019, as amended, under which petitioner was indicted and convicted, reads:

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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.

In Jacinto vs. Sandiganbayan,[11] the Court en banc enumerated the essential elements of the crime punishable under the aforequoted statutory provision, to wit:

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 any undue injury to any party, including

the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.

As may be noted, what contextually is punishable is the act of causing any undue injury to any party, or the giving to any private party of unwarranted benefits, advantage or preference in the discharge of the public officer’s functions. In Uy vs. Sandiganbayan,[12] and again in Santiago vs. Garchitorena,[13] the Court has made it abundantly clear that the use of the disjunctive word “or” connotes that either act of (a) “causing any undue injury to any party, including the Government”; and (b) “giving any private party any unwarranted benefits, advantage or preference,” qualifies as a violation of Section 3(e) of R.A. No. 3019, as amended. This is not to say, however, that each mode constitutes a distinct offense but that an accused may be proceeded against under either or both modes. Anent the first error, petitioner submits that the Sandiganbayan overlooked the fact that, when he issued, on June 15, 1993, the Alias Writ of Execution, reiterating the enforcement of the previous Writ of Execution dated March 11, 1993, he had no knowledge of the issuance on June 9, 1993 by the NLRC of a temporary restraining order (TRO). Prescinding therefrom, petitioner would now insist that, having been apprised of the TRO only on June 29, 1993, the day the NLRC's Central Docket Section released the same, he could not be criminally liable for acting with manifest partiality in issuing thealias writ of execution on June 15, 1993. The Court is not persuaded.

Petitioner’s posture of not having known at some material point in time the issuance of the TRO in question strikes the Court as mere afterthought. If it were really true that he had no knowledge of the TRO issuance before he issued the June 15, 1993 alias writ of execution, he should have at least stated so in his defense before the court below or marked, as evidence, the TRO evidencing that it was released from the NLRC's docket section only on June 29, 1993. The materiality and significant weight of this defense could not have eluded petitioner, himself a lawyer, and his counsel, if indeed he had no knowledge that a TRO had already been issued. Not lost on the Court is the fact that petitioner did not even raise said issue in his Demurrer to Evidence before the respondent court, as well as in his motion for reconsideration of its decision. The settled rule is that no question will be entertained on appeal unless it had been raised in the court below. Points of law, theories, issues and arguments not adequately brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court as they cannot be raised for the first time on appeal. Springing surprises on the opposing party is offensive to the sporting idea of fair play, justice and due process; hence the proscription against raising a new issue for the first time on appeal.[14] In any case, the Court agrees with the findings and disquisitions of the Sandiganbayan that petitioner exhibited manifest partiality towards Abraham Mose in issuing the two Writs of Execution:

As a Labor Arbiter, and a lawyer at that, it is incumbent upon him to exercise prudence and probity in the exercise of his functions. He knew that there was a pending Motion for Reconsideration filed by Plaza Hotel/Apartments contesting his order dated October 21, 1992 ordering, in haste, the issuance of the writ of execution and regarding the hulking increase of the amount of backwages to be paid to Abraham Mose from P19,908.46 to P178,462.56, and despite the pendency of the said Motion, he issued the corresponding writ of execution. His reason that there is no longer a necessity to resolve the motion for reconsideration because the Decision of Labor Arbiter Palumbarit has become final and executory is untenable and a very negligible statement. The issue raised in the motion for reconsideration is not the Decision of Labor Arbiter Palumbarit, but accused's Order dated October 21, 1992, and thus, incumbent upon him to resolve first the pending motion for reconsideration before pursuing with the implementation of the said Order and instead of issuing the writ of execution. Furthermore, accused again issued an alias writ of execution, this time, despite issuance of a temporary restraining order by the DOLE-NLRC. By these acts of accused Ariel Santos, it is clearly evident that he had exercised manifest partiality or bias on Abraham Mose in impetuously issuing the two writs of execution, thus, causing damage and injury, which are not merely negligible to Plaza Hotel/Apartments.[15]

Petitioner also maintains that Plaza Hotel did not suffer damage or injury consequent to his having issued the two writs of execution, arguing that neither was ever enforced. Pressing the point, he also states that what Plaza Hotel paid by way of attorney's fees and premium for the supersedeas bond it posted to enjoin the enforcement of the alias writ of execution is not the damage or injury contemplated under Section 3(e) of R.A. No. 3019. The contention is untenable.

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The term “undue injury” in the context of Section 3 (e) of the Anti-Graft and Corrupt Practices Act punishing the act of "causing undue injury to any party," has a meaning akin to that civil law concept of “actual damage.” The Court said so in Llorente vs. Sandiganbayan,[16] thus:

In jurisprudence, “undue injury” is consistently interpreted as “actual damage.” Undue has been defined as “more than necessary, not proper, [or] illegal;” and injury as “any wrong or damage done to another, either in his person, rights, reputation or property [; that is, the] invasion of any legally protected interest of another.” Actual damage, in the context of these definitions, is akin to that in civil law. In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows: “Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.” Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendant’s act. Actual pecuniary compensation is awarded as a general rule, …. Actual damages are primarily intended to simply make good or replace the loss caused by the wrong.

Petitioner admitted issuing the two writs of execution without first resolving Plaza Hotel's motion for reconsideration of his October 21, 1992 Order. He argued, however, that it was his ministerial duty to issue the writs aforementioned, the finality of the decision sought to be enforced, i.e., the decision of Labor Arbiter Palumbarit, having set in upon the dismissal, with finality, by this Court of Plaza Hotel’s petition for certiorari in G.R. No. 77105 assailing said decision. Petitioner is obviously trying to mislead. As may be recalled, petitioner took over Labor Case RO3-AB Case No. 198-79 after this Court, in G.R. No. 77105, dismissed with finality Plaza Hotel/Apartments’ appeal from the decision of Labor Arbiter Andres Palumbarit which, to stress, decreed payment to Mose of backwages from the date of his illegal dismissal to his reinstatement, without, however, indicating a specific amount. In the span between the issuance of the Palumbarit decision and this Court’s final dismissal action aforementioned, two NLRC auditing examiners came out with (2) different computations of the judgment award. Thereafter, but before accused issued, on October 21, 1992, an order fixing the judgment award at P178,462.56 and directing the issuance of the covering writ of execution, examiner Norma Reyes, following jurisprudence, made a recomputation and came up with the figure P19,908.46 to cover the threshold three years backwages. The increase of the award for Mose from P19,908.46 to P178,462.56 appeared contrary to prevailing jurisprudence that such award should cover only a 3-year period from the time

of the employee's dismissal.[17] The perceived illegality of the said Order of October 21, 1992 is what impelled Plaza Hotel to move for a reconsideration, raising inter alia the following issues for petitioner to consider in assessing the former's liability: (a) the ruling in Lepanto Consolidated Mining vs. Encarnacion[18] on the amount recoverable in illegal dismissal cases is still the prevailing doctrine; (b) as early as July 1990, the employer already expressed willingness to pay Mose the sum of P19,908.46; and (c) Plaza Hotel was not furnished of the new computation assessing it the amount of P178,462.56. From the foregoing narration of events, it is fairly clear that Plaza Hotel’s motion for reconsideration immediately referred to above was directed against petitioner’s order of October 21, 1992directing the issuance of a writ of execution for the amount stated therein. Be this as it may, petitioner’s pose respecting his ministerial duty to order the execution of a final and executory decision of Andres Palumbarit is as simplistic as it is misleading. As it were, petitioner failed to resolve said motion for reconsideration and instead issued on March 11, 1993 a writ of execution. Worse still, he proceeded to issue an alias writ of execution despite the issuance by the NLRC Proper of a TRO enjoining the implementation of the underlying writ. Under the circumstances, Plaza Hotel was within its right to secure the services of counsel - for a fee ofP68,500.00 - and, to apply for injunctive relief and then pay P11,800.00 for the supersedeas bond to stay the implementation of the writ of execution in question. In net effect, Plaza Hotel incurred damages rendered necessary by the illegal or improper acts of petitioner. All told, the Court rules and so holds, as did the respondent Sandiganbayan, that the elements of the offense charged had been duly established beyond reasonable doubt. Petitioner, being a labor arbiter of the NLRC, discharges quasi-judicial functions. His act of issuing the two writs of execution without first resolving the pending motion for reconsideration of his October 21, 1992 Order, and despite the existence of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private complainant Conrado L. Tiu. The penalty for violation of Section 3(e) of R.A. No. 3019 is imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and other accessory penalties. Under the Indeterminate Sentence Law, if the offense is punished by special law, as here, the court shall impose on the accused an indeterminate penalty the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same. Hence, the respondent court correctly imposed on petitioner an indeterminate prison term of eight (8) years and one (1) day, as minimum, to ten (10) years, as maximum, with perpetual disqualification from public office. WHEREFORE, finding no reversible error on the decision under review, the same is hereby AFFIRMED in toto and this petition is DENIED for lack of merit. Costs against petitioner.

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G.R. No. 167048 April 7, 2006MARIETTA T. CAUGMA, AMIANA ABELLA and ROSAURO MARTINEZ, Petitioners, vs.THE PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents.

D E C I S I O NCALLEJO, SR., J.:Before us is a Petition for Review on Certiorari of the Decision1 of the Sandiganbayan in Criminal Case No. 17001 convicting the four accused therein of violating Section 3(e) of Republic Act No. 3019, as well as its Resolution2denying the motion for reconsideration thereof.Under Executive Order (E.O.) No. 888 dated March 18, 1983, ministers and heads of government agencies were authorized to dispose of their unserviceable equipment and disposable property through the creation of a Disposal Committee (Committee) composed of a representative of the owning ministry or agency as chairperson, and, as members, representatives of the Bureau of Supply Coordination and the Commission on Audit (COA). The committee had the following functions:

(1) Inspect or authorize the field officer to inspect the unserviceable equipment and property to verify justification for disposal;(2) Set the final appraised value of all disposable property considering obsolescence, market demand, physical condition and result of previous biddings for similar property;

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(3) Recommend to the Minister or Head of Ministry/Agency for approval the manner of disposal taking into consideration the pertinent provisions of the Revised Administrative Code and the National Auditing Code;(4) Conduct public biddings for the sale or disposable property on an "AS IS," "WHERE IS" basis and to recommend the corresponding award;(5) The representatives of the Commission on Audit and the Bureau of Supply Coordination together with the COA Technical Staff specifically assigned to the Disposal Committee, shall be clothed with full authority to make final decisions in behalf of their respective offices in the various committee deliberations;(6) In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned.3

E.O. No. 888 also provided that the unserviceable equipment may be disposed of by sale through public bidding and that their appraised value (as determined by the Committee) shall be the minimum selling price. Should the sale through public bidding be unsuccessful, the Committee was authorized to dispose of the property in any manner deemed advantageous to the government, including through barter or negotiated sale at no less than the Committee’s appraised value.Pursuant to E.O. No. 888, the Bureau of Fisheries and Aquatic Resources (BFAR) created its own committee under Office Order No. 65 dated May 8, 1983. Among the committee members were Marietta T. Caugma, Chief of the Finance Division as chairperson; Amiana M. Abella, vice-chairperson; Rosauro M. Martinez, BFAR Representative as member; Villa J. Bernaldo, COA Auditor/Representative as member; and Meynardo Geralde, Jr., Supply Coordination Office representative, as member.Way back in December 1959, the BFAR had acquired eight vessels from Japan under the RP-Japan Reparation Commission Agreement, among them the "M/V Malasugui." In 1974 to 1980, the deteriorating vessel was dry-docked for extensive repairs, and thereafter was no longer utilized for test fishing activities.4

Thus, in a Comment Slip5 dated April 18, 1984, Arsenio S. De Jesus, Chief of the Technological Services Division, informed BFAR Director Felix R. Gonzales that it was time to "condemn the vessel due to old age (27 years)."On July 18, 1984, the vessel sustained leaks on her forward hull while docked at Pier 4, Fishing Port, Navotas, Metro Manila, flooding the engine room, fish holder and gear locker rooms. The BFAR engaged the services of V/L Shipyard Corporation (Corporation) to tow the vessel from the Navotas pier.The Corporation billed the BFAR for berthing fees at P110.90 a day from September 11, 1984 to December 31, 1984 in the total amount of P12,420.00,6 and for security services, tonnage, electrical power for water supply, gasoline and other vessel services in the amount of P21,037.00, or the total amount of P33,457.80 via Bill No. 15297 dated January 3, 1985. Gonzales approved the claim and Caugma certified the availability of funds for the disbursement via Disbursement Voucher8 dated January 28, 1985, subject to release of funds from the Ministry of Budget and Management.In a Memorandum9 dated July 20, 1984, Officer-in-Charge Eriberto A. Macatangay of the Fishing Boat Operations Section recommended to the Bureau Director that the vessel should be disposed of considering that it could no longer serve its purpose due to "old age and deteriorating superstructure." In a Memorandum10 dated November 13, 1984, the captain of the vessel also recommended that the vessel be disposed/condemned to save funds which would have to be spent for repair and berthing fees. An Inventory and Inspection Report of Unserviceable Property11 was prepared, declaring that the vessel was obsolete, "junk or scrap," and that to maintain it was no longer economical. The report was signed by the Bureau Director, a COA representative and Arsenio S. De Jesus, Chief, Technological Services

Division. The report was transmitted to the Director of the Supply Coordination Office of the General Services Administration (GSA) for appropriate action.12

In a Memorandum13 dated April 29, 1985 signed by De Jesus, COA representative Jaoquin C. Lim and Supply Coordination Office representative Meynardo L. Garalde, Jr. it was reported to the GSA that the fishing vessel was obsolete, unserviceable and beyond economical repair, and that spare parts were no longer available. The appraised value of the vessel was declared at P86,917.60. It was recommended that the vessel be sold through public bidding for not lower than P86,000.00; that in addition, the awardee/buyer shall pay all the charges in connection with the sale of the property; and that the vessel be disposed immediately to avoid further depreciation in value, "considering that it [was] berthed/docked in a private firm."Meanwhile, on November 8, 1985, the Corporation billed the BFAR for berthing fees at P110.90 a day from January 1, 1985 to October 31, 1985 totaling P33,457.80; and for security services, electrical power, shifting of vessel with the use of a tugboat, fresh water supply and gasoline, and other services amounting to P25,940.00. The total charges amounted to P69,653.60.14

On November 11, 1985, the Disposal Committee submitted its Report15 on the appraisal of the vessel, recommending that it be sold at public auction at the appraised value of P86,917.60, including the charges of the sale. The Committee also prepared the Procedural Guidelines16 to be followed relative to the sale. These were transmitted to Bureau Director Gonzales on November 11, 1985.17

On November 12, 1985, Gonzales issued an Invitation to Bid18 which also contained the conditions of the sale of the vessel. He revised the proposed procedural guidelines of the Committee (Condition No. 8 of the Invitation to Bid) to provide that the "bidder agrees to pay, in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law."19 Prospective bidders were required to submit their sealed bids not later than 10:00 a.m. on November 21, 1985, at which time the bids would be opened publicly as required by Presidential Decree (P.D.) No. 1445. The bid offer was also required to be accompanied by cash or manager’s check in an amount equivalent to 10% percent of the offer to guarantee the bid, and compliance with the terms and conditions of the sale, and later converted as downpayment in case of a winning bidder. Bids which did not meet the full consideration or requirements of the BFAR would be considered defective, and only those deemed advantageous to the government would be accepted. The sale of the vessel would be awarded to the highest bidder who would pay the bid price within 10 days from notice of the award.The invitation to bid was published in the Times Journal for three consecutive days from November 14 to 15, 1985.20 The publisher billed the BFAR P2,400.00 as publication fee on November 16, 1985.21 lawphil.netThe public bidding was held on November 21, 1985.22 There were four bidders but only two participated: Dr. Enrique Peras, Jr. for the All Point Trading and General Services Corporation, and Eddie S. Galler, Jr., General Manager of the Corporation. Galler, Jr. submitted the bid, as well as copies of Invoice Nos. 1529 and 1589 showing that the Corporation had billed the Bureau the total amount of P103,111.40 for various services rendered on the vessel. Dr. Peras, Jr. inquired what were included as "berthing fees" under Condition No. 8 in the invitation to bid, and Caugma replied that the fees included those due after the publication of the invitation to bid up to the final award of the sale of the vessel.23 Galler, Jr. asked if the P103,111.40 under Bill Nos. 1529 and 1589 issued by the Corporation would be included in the bid price, and Caugma replied that the Committee would study the matter.24 At that time, the Committee had no knowledge of the berthing fees and other charges incurred from November 1, 1985 up to the final award.25

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The Committee, however, agreed that the bid for the vessel should be stated separately from berthing and publication fees which should be broken down.26 Galler, Jr. withdrew the bid of the Corporation. The Committee resolved to reset the opening of the bids at 10:00 a.m. of November 28, 1985. Upon the suggestion of Bernaldo, the notice of public bidding was posted in public places.27

On November 28, 1985, the Committee met for the re-scheduled public bidding. Bernaldo was substituted by Marlene Nacua of the COA. There were five registered bidders but only two appeared. The Corporation submitted its sealed bid – P13,890.00 or 10% of its bid price as required by the invitation to bid. The other registered bidders left without submitting any bid.Caugma asked the committee members if the lone bid of the Corporation could already be opened and they all agreed. Nacua did not interpose any objection because she believed in good faith that it was in accordance with COA rules and regulations. Caugma opened the bid and receipted the P13,890.00 representing 10% of the bid price of P138,900.00, broken down as follows:

a) PUBLICATION FEE P 2,400.00

b) BERTHING FEE 103,111.40

c) BFAR 33,388.60

Total P138,900.0028

Believing that the bid price for the vessel was P138,900.00 and that this amount surpassed the appraised value of P86,917.60, the Committee members resolved to recommend to the Bureau Director that the sale of the vessel be awarded to the Corporation for final approval. The Committee transmitted its recommendation to the Bureau Director, including the minutes of the meeting. Upon the suggestion of Amiana Abella, the Committee sent a letter to the corporation confirming that its bill for costs and berthing fees would be the last it would receive.29

Meanwhile, Gonzales approved Disbursement Voucher No. 101-85-12-19-904230 dated December 5, 1985 amounting to P69,653.60 in favor the Corporation. Caugma certified that the amount was available for thepurpose, but payment was held in abeyance pending the release of the final award to be made by the Ministry of Budget and Management.On December 23, 1985, Gonzales transmitted a letter31 to the Minister of Agriculture and Food requesting for authority to award the sale of the "M/V Malasugui" to the Corporation. He stated that of the five registered bidders, only the Corporation had submitted its bid of P138,900.00, which included the cost of publication, berthing fees, and the appraised value of the vessel. He appended to the letter the lone Minutes of the Public Bidding held on November 28, 1985 as well as the submitted bid. The Assistant Minister, Aurora B. Marcos, referred the matter to the Resident Auditor for study and recommendation.32 Then Ministry Auditor Reynaldo Ventura informed the Minister that he had no objection to award to the Corporation the sale of the fishing vessel, considering that the bid it submitted was higher than the appraised value.33 He required, however, that the proposed sale be given wide publication, and that the proceeds of the sale be accounted for as income and be remitted to the National Treasury.In light of this favorable report, the Minister of Agriculture and Food, through Assistant Minister Marcos, authorized the Bureau Director to award and sell the vessel to the Corporation for P138,900.00, pursuant to Section 79 of P.D. No. 1445, and Section 3, paragraph 3 of E.O. No. 888.34

Meanwhile, on January 6, 1986, the BFAR remitted to the Corporation the amount of P69,653.60 in payment of Bill No. 1589. Galler, Jr. issued Receipt No. 256 for the said amount.35 lawphil.netOn February 10, 1986, the BFAR, through Gonzales, awarded the sale of the "M/V Malasugui" to the Corporation and requested it to remit the amount of P138,900.00 in payment thereof.36 The BFAR delivered juridical possession of the vessel to the Corporation on February 27, 1986.37 On February 28, 1986, the Corporation remitted P138,900.00 as full payment of the vessel for which it was issued Official Receipt No. 2861007.38 The amount was deposited in the National Treasury on March 5, 1986.39 Thereafter, the BFAR released to the Corporation its bid bond of P13,890.00.On April 25, 1986, Caugma approved the change of entry in the book of accounts of the BFAR and credited P138,900.00 to it.40

However, on May 5, 1986, Antonio B. Baltazar, a former BFAR Chief Technologist who was separated from government service on September 19, 1975, filed a Complaint-Affidavit41 with the Ombudsman against Director Felix Gonzales for negligence under Article 365 of the Revised Penal Code on July 17, 1984 for the leaks of the vessel while berthed at Navotas, Metro Manila. Baltazar claimed, among others, that Gonzales had failed to file an insurance claim on the vessel from the Government Service Insurance System. The matter was referred to the COA.Meanwhile, on May 12, 1986, the National Treasurer remitted P33,457.80 to the Corporation42 as full payment for berthing fees and other services per Invoice No. 1529 and Disbursement Voucher dated January 28, 1985.43

On June 5, 1986, the Regional Director of the COA directed Villa Bernaldo (then BFAR Auditor) to conduct a discreet inquiry regarding Baltazar’s complaint.44 Bernaldo submitted her report on June 18, 1986, where she declared that the Corporation submitted its P138,900.00 bid, broken down as follows: publication fee, P2,400.00; berthing fee, P103,111.40; charges on the BFAR, P33,388.60; or a total of P138,900.00.45 According to Bernaldo, the berthing fee represented the amount BFAR billed the Corporation for dry-docking costs, and that this expense was included as one of the findings in the 1985 Annual Audit Report of the BFAR because it was incurred mainly due to the delay in the disposal of the "M/V Malasugui." She concluded that the appraised value of P86,917.60 was therefore, not met, but the fees incurred in connection with the disposal were included in the bid offer of P138,900.00 and was accepted by the Bureau. She admitted, however, that the amount of P138,900.00 had been fully accounted for, receipted under O.R. No. 2861007 dated March 4, 1986 and deposited as income in the National Treasury on March 5, 1986.46

Baltazar thereafter filed a Manifestation47 with the Ombudsman requesting the inclusion of Caugma, Abella, Bernaldo, and Martinez as respondents.The Ombusman required the Committee members to submit their counter-affidavits. In their Joint Counter-Affidavit and Rejoinder Affidavit,48 they declared inter alia that the bidding and sale of the vessel was made in accordance with law, as well as accounting and auditing rules and regulations. After the requisite preliminary investigation, Special Prosecution Officer Robert E. Kallos issued a Resolution49 dated July 24, 1992, recommending that the charges against Gonzales and Bernaldo be dropped; Gonzales acted in good faith, while Bernaldo was not present when the actual bidding was conducted.Thereafter, the Ombudsman filed an Information charging Eddie S. Galler, Jr., Marietta Caugma, Amiana Abella and Rosauro Martinez of violating Section 3(e) of Republic Act No. 3019. The accusatory portion of the information reads:That in or about and during the period from November 21, 1985 to November 28, 1985 and/or prior or subsequent thereto in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Marietta T. Caugma, Amiana Abella and Rosauro Martinez, all

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public officers being then the Chairman, Vice-Chairman and member respectively, of the Disposal Committee of the Bureau of Fisheries and Aquatic Resources (BFAR), while in the discharge/exercise of their official administrative functions conspiring and confederating with accused EDUARDO S. GALLER, JR., a private individual and representative of V.L. Shipyard of Navotas, did then and there willfully and unlawfully through evident bad faith cause undue injury to the BFAR/Government by then and there proceeding with a public bidding for the disposal of BFAR’ fishing vessel M/V Malasugui held on November 28, 1985 when only EDDIE S. GALLER, JR. was present and submitted his bid and thereafter accused public officers acted favorably on the itemized bid offer of EDDIE S. GALLER, JR. in spite of their knowledge that said bid offer is in violation of condition no. 8 of the Invitation to Bid and that the BFAR/Government will only get the amount of THIRTY THREE THOUSAND THREE HUNDRED EIGHTY EIGHT PESOS AND SIXTY CENTAVOS (P33,388.60), Philippines (sic) Currency, which is very much below the Appraised value of M/V Malasugui in the amount of P86,917.60, thereby causing damage or injury to the BFAR/Government in the sum of P53,529.00.CONTRARY TO LAW.50

On reinvestigation, the Ombudsman denied the recommendation of Special Prosecutor Reynaldo A. Alhambra to withdraw the Information for being unsupported by evidence.51

To prove the guilt of all the accused, the prosecution relied on the testimony of the BFAR Resident Auditors Bernaldo and Nacua. Bernaldo declared that she was present during the initial public bidding on November 21, 1985. However, during the public bidding on November 28, 1985, the COA was represented by Nacua. She claimed that the second bidding should not have proceeded because the lone bidder offered to purchase the vessel for only P33,388.60 instead of its appraised value as required by Section 6, paragraph 1 of E.O. No. 888.52 She further declared that to comply with E.O. No. 888, the minimum acceptable selling price was P190,000.00 broken down as follows: P2,400.00 for publication fee; berthing fee of P103,111.40; and P86,917.60 for the appraised value of the vessel.53 Considering that this bid price was not reached after the second bid, the Committee should have declared a failure of bid, hence, per COA regulations, the vessel should have been sold through negotiation for a price to be fixed by the Commission.54

In response to the clarificatory question of the Presiding Justice, Bernaldo declared that the transactions relative to the sale of the vessel were in order.55 She also affirmed the contents of petitioners’ Joint Affidavit and Rejoinder Joint Affidavit. Nacua, for her part, declared that the public auction/bidding was done in accordance with pertinent laws and COA rules and regulations.Caugma adduced testimonial and documentary evidence that as early as January 3, 1985, the Corporation had billed the BFAR for services rendered on the vessel after the July 18, 1984 incident, per Invoice No. 1529 for the amount of P33,457.80. The BFAR prepared and issued a Disbursement Voucher on January 28, 1985.56 The funding of the disbursement was released by the Ministry (now Department) of Budget and Management only on March 4, 1986 under CDC B-0141-86-1-022. The Treasurer of the Philippines paid the amount to the Corporation on May 12, 1986, per PNB Check No. SN-5-7994745-4 for P33,457.00.57 She clarified that the P69,653.60 paid to the Corporation per Invoice Receipt No. 1589 dated November 8, 1985 was for mooring and berthing services, as well as part of the security services at the water front, electric supply, tug services from January 1, 1985 up to October 31, 1985, and other services provided to the vessel from January 1, 1985 to September 15, 1985. The payment of these bills to the Corporation was approved by no less than Villa Bernaldo, BFAR resident auditor.58The two obligations of the BFAR totaling P103,111.40 were separate and valid obligations of BFAR which should not have been deducted from the proceeds of the sale to the winning bidder.59

Caugma further declared that on November 21, 1985, she explained to Galler, Jr. and Dr. Peras that the berthing fees referred to in the Invitation to Bid were those due from the publication of the Invitation to Bid up to the final award. The berthing fees from January 1, 1984 to October 31, 1985 were not for the account of the bidder. When she asked Galler, Jr. if the Corporation was waiving the publication fees and berthing fees from the time the invitation to bid was published up to the final award, Galler, Jr. agreed.Galler, Jr. adopted the evidence of Caugma. He testified that he was the Marketing Manager of the Corporation, and that he had not met the Committee members before the public bidding on November 21, 1985.60 At that time, the purchase price of the vessel had not yet been fixed.61 He presented the two bills of the Corporation – one for services, and another for berthing fees up to October 31, 1985 totaling P103,111.40. At the time, the Corporation had not yet presented its bill for berthing fees and various services from November 13, 1985 to November 21, 1985. His impression was that since the vessel was being sold on an "as is where is" basis, the other charges were not part of the bid and had to be separately paid. As far as he knew, the only interest of the BFAR was to recover the value of the vessel.62 He waived the berthing fees due from the publication of the Invitation to Bid until the final award.63 On November 28, 1985, he submitted the sealed bid of the Corporation which he signed upon the request of the Corporation’s president.64 The net bid price of the Corporation for the vessel was P138,900.00,65 but he could not recall whether this bid had been broken down because it was prepared by one of the staff, which he signed before submission to the Committee. The amount of P103,111.40 in his bid included the berthing fees of P46,000.00 and for miscellaneous services for the vessel.66 He felt that the P103,111.40, the amount the BFAR owed the Corporation for services rendered on the vessel, was a reasonable price, but the Corporation still submitted its bid to purchase it for P138,900.00 because it could repair the vessel at the least price.67

On July 29, 2004, the Sandiganbayan rendered judgment68 convicting the four (4) accused of the crime charged. The dispositive portion of the decision reads:WHEREFORE, judgment is hereby rendered finding accused Marietta T. Caugma, Amiana Abella, Rosauro Martinez and Eduardo S. Galler, Jr., GUILTY beyond reasonable doubt for violation of Sec. 3(e) of R.A. 3019 and are hereby sentenced to each suffer the indeterminate penalty of imprisonment from six (6) years and one (1) month as minimum to fifteen (15) years as maximum and to each suffer the penalty of perpetual disqualification from public office.SO ORDERED.69

The Sandiganbayan ruled that, under Condition No. 8 of the invitation to bid, only those bidders who had agreed to pay no less than the appraised value of the vessel, P86,917.60, excluding taxes, duties and other costs (such as berthing fees, publication of the bid and levies which may be imposed by law), should have been considered by the Committee. Caugma was aware of this condition in the invitation to bid, as evidenced by the minutes of the bidding held on November 21, 1985. She even explained the conditions of the sale to the bidders then present. The Sandiganbayan further declared that Caugma had knowledge of the fact that the berthing fee was P103,111.40 since it was clearly indicated in the invitation to bid. Thus, in evident bad faith, the accused conspired together and awarded the vessel to the Corporation for P138,900.00, of which only P33,388.60 would be remitted to the BFAR. It also held that Committee members Abella and Martinez took active part in the public bidding and, as evidenced by the Minutes of the Meeting, favored the Corporation.The Sandiganbayan concluded that the prosecution proved beyond reasonable doubt that the Disposal Committee gave unwarranted advantage and preference to Galler, Jr., causing injury to the government to the extent of P53,529.00; after deducting the publication fee of P2,400.00 and the berthing fee of P103,111.40, the government realized only the net amount of P33,388.60, short by P53,529.00 of the appraisal value of the vessel, P86,917.60.

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Petitioners moved for the reconsideration of the decision, which the graft court denied on January 26, 2005.70

Hence, petitioners filed the instant petition seeking the reversal of the Sandiganbayan’s ruling on the following claims: (1) they were denied their right to equal protection of the law; and (2) the prosecution failed to prove that they acted in evident bad faith in awarding the sale of the vessel to the Corporation and that the BFAR suffered damage/injury in the amount of P53,529.00.Petitioners aver that the Committee complied with the requirements of E.O. No. 888 and of Fisheries Order No. 65, Series of 1983 relative to the sale of the fishing vessel. They maintain that their recommendation to accept the subject bid was in order, as even the BFAR Director concurred therein and transmitted a letter-request to the Minister of Agriculture and Food for authority to award the sale to the lone bidder; in turn, the Ministry Auditor interposed no objection as the said bid was higher than the vessel’s appraised value. Petitioners point out that no less than the Assistant Minister concurred with the Resident Auditor to the Committee’s recommendation.Petitioners likewise posit that the conditions set forth in the invitation to bid were complied with. They maintain that the Committee’s determination of the award is merely recommendatory and is not in itself a contract. Thus, the BFAR Director and the Assistant Minister should be charged and prosecuted for violation of Section 3(e) of Rep. Act No. 3019 considering that under E.O. No. 888, the Ministry of Agriculture and Food has the sole authority to dispose of the vessel. They point out that ultimately, it was the Ministry that sold the vessel to the Corporation. Since the BFAR Director and the Minister were not prosecuted, they (petitioners) should not have been charged and prosecuted for the sale of the vessel to the Corporation, otherwise their right to the equal protection of the law would be violated.Petitioners further aver that the prosecution failed to prove that they acted in evident bad faith and that the government sustained undue injury. They insist that the bid price of the fishing vessel was P138,900.00, not merely P33,388.60. Petitioners aver that this can be gleaned from the testimony of Bernaldo and Galler, Jr. The costs referred to in Condition No. 8 of the Condition of Sale pertained to all charges in connection with the sale of the vessel and were to be paid by the bidder, not as part of but in addition to the bid price of P138,900.00. The fact that BFAR owed to the Corporation has no relevance to the public bidding, as the obligation of BFAR in the amount of P103,111.40 is separate and distinct from the Corporation’s bid of P138,900.00. Petitioners point out that the amount of P138,900.00 was paid to the national treasury. Even assuming that the government sustained a loss of P53,529.00, they should not be the ones held liable therefor.The Office of the Special Prosecutor (OSP), for its part, avers that petitioners’ contention that their role in the public bidding was recommendatory in nature is baseless; such argument was proffered in order to evade responsibility for the unjust and disadvantageous sale which prejudiced the interest of the government. The subsequent issuance by the BFAR Director of the certificate of award to the winning bidder is only a formality. What consummates the sale is the Committee’s declaration of the winning bidder. When a qualified bidder is declared as such, it follows that such winning bidder will be awarded the contract or certificate of award; otherwise, taking part in the said bidding would be a meaningless exercise.The OSP maintains that when the subject fishing vessel was advertised for sale, the act of selling the property had begun as there was already an offer. After complying with the requirements on publication and invitation to bid, the Committee proceeded with the sale and the Corporation was declared the winning bidder. The contract was perfected at that moment, as there was already a meeting of the minds between the seller and the buyer. The Bureau Director’s subsequent issuance of the Certificate of Award did not affect the contract which had already been perfected and consummated in the first place through the Committee’s

actuations. Besides, the OSP asserts, the corresponding certificate of award would not have been issued had not the Committee declared the Corporation as the winning bidder. Thus, it was the Committee that conducted the sale and subsequently disposed of the fishing vessel in favor of said Corporation.According to the OSP, "what is certain is that the public bidding was in fact a feigned, orchestrated and bogus one designed to prejudice the government, and this was known to petitioners before the bidding started." It argued further argued that:The appraised value of M/V Malasugui was P86,917.60 as reported to by the Disposal Committee. V/L Shipyard Corporation offered a bid in the amount of P133,900.00 (sic). In its application, V/L Shipyard broke down the items to constitute the amount of P133,900.00 (sic) as follows:Publication fee P 2,400.00Berthing fee 103,111.40BFAR 33,388.60When the Disposal Committee published its Invitation to Bid, it was specific in one of its condition that – "(t)he bidder agrees to pay in addition to the award, price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law."It was a matter of fact that BFAR owed V/L Shipyard Corporation an amount of P103,111.40, as berthing fee, for [dry-docking] M/V Malasugui at its property. After deducting the said amount together with P2,400.00 for the cost of the publication of the bid from the bid proposal in the amount of P138,900.00, the amount of P33,388.60 was arrived at. And this amount of P33,388.60 will go to BFAR as itemized by V/L Shipyard ahead when it posted its bid for M/V Malasugui. To reiterate, the bid proposal of V/L Shipyard was included in the Invitation to Bid of BFAR. Clearly, the government lost an amount of P53,529.00. x x x

x x x xIn reality what was paid by V/L Shipyard Corporation for M/V Malasugui to BFAR was only P33,388.60, short of P53,529.00 from the appraised value of P86,917.60. The damage cost to the government was not merely negligible but more than substantial.From the foregoing, all the elements of Section 3 (e) of Republic Act No. 3019 were present, and thus, the conviction of all the petitioners, together with Eddie Galler, Jr. is correct.71

In their Reply, petitioners reiterate that their determination as Committee members was merely recommendatory and subject to the final approval of the Minister of Agriculture and Food as provided in Section 6 of E.O. No. 888.The petition is meritorious.Under the Constitution, accusation is not synonymous with guilt. In a criminal case, the accused is presumed innocent. It is incumbent upon the prosecution to prove the guilt of the accused for the crime charged beyond reasonable doubt. His freedom is forfeited only if the requisite quantum of proof necessary for conviction exists. The accused is even obliged to offer evidence in his behalf. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to become a summary judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged in that not only did he perpetrate the act but that it amounted to a crime. It is required that every circumstance favoring his innocence be duly taken into account.72 Thus, the burden of proof never shifts to the accused.Section 3(e) of Rep. Act No. 3019 provides:(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

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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 essential elements of violation of the provision 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; and3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.73

It must be stressed that mere bad faith is not enough for one to be liable under the law, since the act of bad faith must in the first place be evident.74 Elaborating on the meaning of evident bad faith, this Court held in Marcelo v. Sandiganbayan:75

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. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.Undue injury has been interpreted as synonymous to actual damages which is akin to that in civil law.76 The prosecution is burdened to prove the factual basis and amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party.77 Courts cannot simply rely on speculations, conjectures or guesswork in determining the fact and the amount of damages.78

Conspiracy or collusion by and among public officers, inter se, and via private individuals to commit the crime under Section 3(e) of Rep. Act No. 3019 must likewise be proven by the prosecution beyond reasonable doubt. This was the ruling of the Court in Desierto v. Ocampo:79

Collusion implies a secret understanding whereby one party plays into another’s hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service.To prove the guilt of petitioners for the crime charged, the prosecution presented COA Auditors Nacua and Bernaldo, and the report prepared by the latter dated June 18, 1986. However, contrary to petitioners’ stance, the collective testimonies of the witnesses tend to exculpate petitioners.In her Report, Bernaldo declared that the Corporation’s bid for the vessel was only P33,388.60, P53,529.00 short of the threshold minimum price of P86,917.60, as provided in Condition No. 8 of the Invitation to Bid:

8. That the bidder agrees to pay in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law.80

Bernaldo testified that the Corporation’s bid indicated the amount of P103,111.40, its claim for berthing fees and for various services rendered for the vessel from September 11, 1984 to October 31, 1985 under Bill Nos. 1529 and 1589, and that such expenses should be deducted from its bid of P138,900.00. She maintained that a qualified bidder should have submitted a bid not lower than P192,529.60. Bernaldo concluded that the Corporation submitted a bid of only P33,388.00, P53,529.00 short of a threshold minimum bid for the vessel; hence, the government lost P53,529.00 in the sale of the vessel. However, in the Joint Affidavit81 submitted to the Ombudsman, petitioners, including Bernaldo, categorically declared that the bid price of the Corporation was P138,900.00, and that such bid was higher than the appraised value of the vessel amounting to P86,917.60. Bernaldo declared that the P138,900.00 was fully accounted for under O.R. No. 2861007 dated March 4, 1986, and deposited as income in the national treasury on March 5, 1986. Petitioners and Bernaldo maintained that the sale of the vessel was made in accordance with accounting and auditing rules and regulations of the government. Bernaldo was as adamant as petitioners when they declared in their Rejoinder Joint Affidavit82 submitted to the Ombudsman that the disposition of the vessel was made strictly in accordance with the law, rules and regulations of the government on the disposition of government property:6. That the obligations under Bill No. 1529 in the amount of P33,457.00 dated January 3, 1985 for services rendered in 1984 by the [V/L] Shipyard Corporation, was noted and approved for payment by the Bureau Resident Auditor and requested for the revalidation by the Bureau with the Department of Budget and Management and a corresponding funding was released by the said Department of Budget and Management under CDC No. B-0141-86-1-022 dated March 4, 1986.The obligation under Bill No. 1589 dated November 8, 1985 in the amount of P69,653.60 were services rendered by the [V/L] Shipyard Corporation in the form of mooring on berthing fee, including share on security services at water front, supply of electrical power and four units light bulbs during night time, from January 1, 1985 up to October 31, 1985; tug service; supplied vessel’s crew with freshwater requirements on board from January 1, 1985 up to October 31, 1985 and provided vessel with one (1) set gasoline driven 3" diameter centrifugal water pump, and supplied gasoline, oil operator and mechanics from January 1, 1985 to September 15, 1985. That the said obligation under Obligation No. 409-102-12-412-85 was approved and concurred by the Bureau Auditor of the Commission on Audit.Thus, the two obligations (Bill Nos. 1529 and 1589 in the total amount of P103,111.40 of the Bureau with the [V/L] Shipyard Corporation were for services rendered and therefore, separate and distinct valid obligations of the Bureau to the Corporation. The two obligations were pre-audited by the Bureau Auditor before payments were made by the Bureau. The payment of P103,111.40, therefore, for the berthing fees and other services rendered by [V/L] Shipyard Corporation was made in accordance with accounting and auditing rules and regulations and therefore should not be added nor deducted from the proceeds of the sale of the vessel. Xerox copies of the Requests for Obligation of Allotment for [V/L] Shipyard Corporation in the amount of P33,457.00 and P69, 653.50, for various services rendered for RPS Malasugui in 1984 and 1985 as noted and approved by the Bureau Auditor of the Commission on Audit before payment can be made by the Bureau as Annexes 8 and 9[,] respectively. Xerox copies of the two vouchers for P33,457.00 and P69,653.60 with all supporting documents including the description of the services rendered by [V/L] Shipyard Corporation approved by Director Juanito B. Malig and Mr. Felix R. Gonzales, former Director of the Bureau, respectively, as Annexes 10 and 11.83

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When queried by the Sandiganbayan Presiding Justice, Bernaldo categorically declared that there was nothing wrong with the transaction relative to the award and sale of the vessel to the Corporation:PJ GARCHITORENAQuestions from the Court.Q Madam witness, as far as you are concerned what was wrong with the transaction or was there anything wrong with the transaction?WITNESSA I do not see anything wrong because the amount was more than the appraised value.Q So, as far as you are concerned the transaction was in order?A Yes, sir.84

When asked whether her and petitioners’ Joint Affidavit and Rejoinder Affidavit were correct even in the light of the June 18, 1986 Report, Bernaldo answered in the affirmative:Q Madam witness, when you executed this Joint Affidavit as well as the Rejoinder which have been marked as Exhibits 26 and 27[,] respectively[,] sometime in 1987, this superceded your previous Report, do you agree with me?PROS. TABANGUILThat will call for the conclusion of the witness, your Honor.PJ GARCHITORENASustained. If there is a contradiction then there is contradiction. Whether it supercedes or not is something you will have to find out, unless you will ask her why she excluded one and then the other.ATTY. BLANESQ Now, when you executed Exhibit 26, Madam witness, you have taken into account your indorsement dated June 18, 1986A Yes, sir.Q And your Joint Affidavit and your Rejoinder explained correctly what actually happened with respect to the sale of M/V Malasugui?PROS. TABANGUILVague, your Honor.PJ GARCHITORENAMay answer.WITNESSThey were both correct.85

It bears stressing that the Rejoinder Affidavit86 executed by petitioners and Bernaldo were adduced in evidence by no less than the prosecution itself. Bernaldo even sought the dismissal of the criminal complaint filed by the Ombudsman against her for violation of Section 3(e) of Rep. Act No. 3019 based on the Joint Affidavit and Rejoinder Affidavit.Not to be outdone was COA auditor Marlene Nacua who declared on cross-examination that not only was the bidding process made on November 28, 1985 in order, but also that the bid of the Corporation was in accordance with COA regulations:ATTY. PADERNALQ At the time of the bid you know that procedure well.A Yes, sir.Q And knowing that procedure[,] you did not interpose any objection to the decision of the committee to open the bid, the lone bid of [V/L] Shipyard, is that correct.A Yes, sir.Q And am I correct to say also that as representative of the Commission on Audit during the bid although you act as a witness, you have to guide the committee as to the regulations of the Commission on Audit, is that correct, Mrs. Witness.

A Yes, sir.Q And when the bid was opened to [V/L] Shipyard it was then your belief and perception at the time that the committee had followed all the regulations of the Commission on Audit.A Yes, sir.87

x x x xQ That is why when the committee decided to open and award the bid to [V/L] Shipyard and submitted a payment of One Hundred Thirty Eight Thousand Nine Hundred Pesos (P138,900.00) you did not interpose any objection or guided the committee as to whether or not the bid was wrong or in accordance with the COA rules and regulations because you believe then that the bid and the opening of the bid was in accordance with the COA regulations, is that correct.A Yes, sir.88

By her testimony, Nacua thereby implied that the petitioners acted in good faith when the Committee conducted the bid process and made its recommendation to the Ministry of Agriculture and Food. The BFAR Director found no infirmity in the bid process, as shown in the minutes of the meeting on November 18, 1985 and the Committee’s recommendation.Moreover, no less than BFAR Director Gonzales concurred with the Committee’s recommendation and requested the Minister of Agriculture and Food for authority to award the sale of the vessel to the Corporation for P138,900.00 which included the P103,111.40 for services and berthing fees and P2,400.00 as publication fee. The Resident Auditor of the Ministry studied the matter very carefully and found no factual and legal basis for any objection to the recommendation. The Assistant Minister of Agriculture and Food also found the Committee’s recommendation in accordance with law and COA rules and regulations, and directed the BFAR to award the vessel to the Corporation for P138,900.00. The Bureau Director complied with the directive. The ranking officials of the Ministry found no infirmity in the bid process and the Committee’s recommendation, evidence of which was adduced by no less than the prosecution itself.We agree with petitioners’ contention that the recommendation of the Committee to the Ministry to approve the award of the sale was not in itself a contract of sale in favor of the Corporation. The sale of the vessel was perfected only upon notice to said Corporation that the sale of the vessel had been awarded to it.Article 1318 of the New Civil Code provides that there is no contract unless the following requisites concur:

(1) Consent of the contracting parties;(2) Object certain which is the subject matter of the contract;(3) Cause of the obligation which is established.

Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. An offer is the manifestation of willingness to enter into a bargain in such a way as to justify the other process in understanding that an assessment will conclude the agreement. An offer ripens into a contract when it is accepted. The offer must be certain and the acceptance absolute.89

Thus, a bid at an auction constitutes an offer to buy. Where, as in this case, the seller reserved the right to refuse to accept any bid made, a bindingsale is not perfected until the seller accepts the bid. The seller may exercise his right to reject any bid even after the auctioneer has accepted a bid.90 The mere determination of a public official bound to accept the offer or a proposal of a bidder does not constitute a contract.91

Anent petitioners’ contention that the Committee had no authority to dispose of the vessel to the Corporation through the sale at public auction, Section 1 of E.O. No. 888 provides that the Ministers or Heads of ministries of the government shall have the full and sole authority and responsibility to dispose of all unserviceable equipment and property:

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Section 1. Authority to Dispose – The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Ministers or Heads of Ministries/Agencies of the Government shall have the full and sole authority and responsibility to dispose of, all unserviceable equipment and property of their respective Ministries/Agencies. (emphasis supplied)In cases of agencies attached to the Ministry of Agriculture and Food such as the BFAR, the Committee merely determines the awardee and makes a recommendation to the Minister concerned. In fine, the recommendation of the Committee is subject to such final approval:6. In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned (emphasis supplied).The awardee is not obliged to make payment for the property bid until after notice to the awardee. It is only when the awardee receives the notice of award that a contract of sale is perfected between the bidder and the seller.In this case, the Corporation was notified of the award only after February 28, 1986. It was only upon its receipt of the notice of award that a contract of sale had been perfected between the government, as seller, and the Corporation as buyer. The Committee had no involvement in the sale of the vessel to the Corporation apart from its recommendation on the November 28, 1986 bidding, and yet, the Ombudsman indicted only petitioners, excluding the BFAR Director, Resident Auditor and Assistant Minister of Agriculture and Food.We agree with petitioners’ contention that the crime of violation of Section 3(e) of Rep. Act No. 3019 was not committed when the Committee conducted the bidding on November 28, 1985 and resolved to recommend to the Minister, through the BFAR Director, to award the sale of the vessel to the Corporation; neither was it committed when the award was made by the BFAR Director to the Corporation. This is so because there was as yet no evidence that the government sustained a loss of P53,529.60. The crime would have been committed if the Corporation had remitted to the National Treasurer the P138,900.00, and the P103,111.40 was applied by way of set-off against Bureau’s account to said Corporation for Bill Nos. 1529 and 1589.The prosecution failed to prove beyond reasonable doubt that the government lost P53,529.00 in the sale of the vessel. The only evidence presented is the Corporation’s bid and the Report of Villa Bernaldo on June 18, 1986. The Prosecution offered no competent and sufficient evidence to prove the actual damages caused to the government. On the other hand, the BFAR Director declared that the vessel was sold to the Corporation for P138,900.00, which accepted and remitted the amount to the national treasury, as full payment of the vessel. The government receipted the amount "as proceeds of the sale" of the vessel.92 To reiterate, there is no evidence on record that, after the Corporation had remitted the P138,900.00 on February 28, 1986, P103,111.40 thereof was applied to the Bureau’s account under Bill Nos. 1529 and 1589 by way of set off. In fact, on January 6, 1986, before the sale of the vessel was awarded to the Corporation, the government had already remitted the P69,653.60 to it in payment of Bill No. 1589. The government did not even apply a portion of the P138,900.00 as payment of its account of P33,388.60 under Bill No. 1529, and instead paid the amount to the Corporation on May 12, 1986.Thus, the full amount of the bid price, P138,900.00, which the Corporation remitted to the national treasury was intact as Bernaldo stated in her June 18, 1986 Report; yet, petitioners were prosecuted and convicted of violation of Section 3(e) of Rep. Act No. 3019.In fine then, the Court holds that the travesty which had been committed must be undone.IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Sandiganbayan is REVERSED and SET ASIDE. Petitioners Marietta T. Caugma, Amiana Abella and Rosauro Martinez are ACQUITTED of the crime charged. The bail bonds posted for petitioners’ provisional liberty are CANCELLED. No costs.SO ORDERED.

ROMEO J. CALLEJO, SR.



G.R. No. 160211 August 28, 2006

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VENANCIO R. NAVA, Petitioner,vs.The Honorable Justices RODOLFO G. PALATTAO, GREGORY S. ONG, and MA. CRISTINA G. CORTEZ-ESTRADA as Members of the Sandiganbayan’s Fourth Division, and the PEOPLE OF THE PHILIPPINES,Respondents.

D E C I S I O NPANGANIBAN, CJ:A meticulous review of the records and the evidence establishes the guilt of the accused beyond reasonable doubt. Clearly, the prosecution was able to prove all the elements of the crime charged. Hence, the conviction of petitioner is inevitable.

The CaseBefore us is a Petition for Certiorari 1 under Rule 65 of the Rules of Court, assailing the June 2, 2003 Decision 2and September 29, 2003 Resolution of the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of the challenged Decision reads:"WHEREFORE, premises considered, judgment is hereby rendered convicting accused VENANCIO NAVA Y RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g) thereof, or entering on behalf of government in any contract or transaction manifestly and grossly disadvantageous to the same whether or not the pubic officer profited or will profit thereby. In the absence of any aggravating or mitigating circumstances, applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of imprisonment of six (6) years, and one (1) day as minimum to twelve (12) years and one (1) day as maximum and to suffer perpetual disqualification from public office. Accused Nava is further ordered to pay the government the amount of P380,013.60 which it suffered by way of damages because of the unlawful act or omission committed by the herein accused Venancio Nava."From the narration of facts, there hardly appears any circumstance that would suggest the existence of conspiracy among the other accused in the commission of the crime."Thus in the absence of conspiracy in the commission of the crime complained of and as the herein other accused only acted upon the orders of accused Venancio Nava, in the absence of any criminal intent on their part to violate the law, the acts of the remaining accused are not considered corrupt practices committed in the performance of their duties as public officers and consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH VENTURA Y ABAD are hereby considered innocent of the crime charged and are hereby acquitted." 3

The assailed Resolution dated September 29, 2003, denied reconsideration.The Facts

The Sandiganbayan narrated the facts of this case as follows:"The complaint involving the herein accused was initiated by the COA, Region XI, Davao City, which resulted from an audit conducted by a team which was created by the COA Regional Office per COA Regional Assignment Order No. 91-74 dated January 8, 1991. The objective of the team [was] to conduct an audit of the 9.36 million allotment which was released in 1990 by the DECS, Region XI to its Division Offices."In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement of their facilities, accused Nava succeeded in

persuading his seven (7) schools division superintendents to use the allotment for the purchase of science education facilities for the calendar year 1990."In the purchase of the school materials, the law provides that the same shall be done through a public bidding pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund."In the hurried purchase of SLTD’s, the provision on the conduct of a public bidding was not followed. Instead the purchase was done through negotiation. Evidence shows that the items were purchased from Joven’s Trading, a business establishment with principal address at Tayug, Pangasinan; D’[I]mplacable Enterprise with principal business address at 115 West Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242 Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the prices of the [SLTDs] as purchased from the above-named sellers exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The report concluded that the government lostP380,013.60. That the injury to the government as quantified was the result of the non-observance by the accused of the COA rules on public bidding and DECS Order No. 100 suspending the purchases of [SLTDs]." 4

The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the persons liable, including petitioner, before the Office of the Ombudsman-Mindanao.Petitioner was subsequently charged in an Information 5 filed on April 8, 1997, worded as follows:"That on or about the period between November to December 1990, and for sometime prior or subsequent thereto, in Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction of this Honorable Court, the accused Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative Officer and Assistant Division Superintendent, respectively of DECS-Division of Davao Del Sur), all low ranking officials, while in the discharge of their respective official functions, committing the offense in relation to their office and with grave abuse [of] authority, conniving and confederating with one another, did then and there willfully, unlawfully and feloniously enter, on behalf of the government, into transactions with D’Implacable Enterprise and Joven’s Trading, respectively, represented by accused Antonio S. Tan and Evelyn Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and Devices (SLTD) intended for use by the public high schools in the area amounting to [P603,265.00], Philippine currency, without the requisite public bidding and in violation of DECS Order No. 100, Series of 1990, which transaction involved an overprice in the amount of P380,013.60 and thus, is manifestly and grossly disadvantageous to the government." 6

Special Prosecution Officer II Evelyn T. Lucero-Agcaoili recommended the dismissal of the foregoing Information on the ground, among others, that there was no probable cause. She argued that only estimates were made to show the discrepancy of prices instead of a comparative listing on an item to item basis. 7 The recommendation was disapproved, however, by then Ombudsman Aniano A. Desierto.

Ruling of the SandiganbayanAfter due trial, only petitioner was convicted, while all the other accused were acquitted. 8

Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or would profit thereby.

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The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner had not conducted a public bidding in accordance with COA Circular No. 85-55A. As a result, the prices of the SLTDs, as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical computations of the COA team. 9 In his defense, petitioner had argued that the said COA Circular was merely directory, not mandatory. Further, the purchases in question had been done in the interest of public service. 10

The Sandiganbayan did not give credence to the foregoing defenses raised by petitioner. On the contrary, it found the evidence adduced by petitioner’s co-accused, Superintendent Ajatil Jairal, to be "enlightening," manifesting an intricate web of deceit spun by petitioner and involving all the other superintendents in the process. 11

The graft court did not accept the claim of petitioner that he signed the checks only after the other signatories had already signed them. The evidence showed that blank Philippine National Bank (PNB) checks had been received by Nila E. Chavez, a clerk in the regional office, for petitioner’s signature. The Sandiganbayan opined that the evidence amply supported Jairal’s testimony that the questioned transactions had emanated from the regional office, as in fact, all the documents pertinent to the transaction had already been prepared and signed by petitioner when the meeting with the superintendents was called sometime in August 1990. 12

In that meeting, the superintendents were given prepared documents like the Purchase Orders and vouchers, together with the justification. 13 This circumstance prompted Jairal to conduct his own canvass. The Sandiganbayan held that this act was suggestive of the good faith of Jairal, thereby negating any claim of conspiracy with the other co-accused and, in particular, petitioner.In its assailed Resolution, the SBN denied petitioner’s Motion for Reconsideration. It held that the series of acts culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the contract or transaction entered into was manifestly or grossly disadvantageous to the government.Hence, this Petition. 14

The IssuesPetitioner raises the following issues for our consideration:"I. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings of the Special Audit Team that irregularly conducted the audit beyond the authorized period and which team falsified the Special Audit Report."II. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the special audit report where the Special Audit Team egregiously failed to comply with the minimum standards set by the Supreme Court and adopted by the Commission on Audit in violation of petitioner’s right to due process, and which report suppressed evidence favorable to the petitioner."III. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the Special Audit Report considering that none of the allegedly overpriced items were canvassed or purchased by the Special Audit Team such that there is no competent evidence from which to determine that there was an overprice and that the transaction was manifestly and grossly disadvantageous to the government."IV. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that there was an overprice where none of the prices of the questioned items exceeded the amount set by the Department of Budget and Management.

"V. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings in the decision in Administrative Case No. XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase and that there was no overpricing."VI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings of XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase, there was no overpricing, and that the purchases did not violate DECS Order No. 100."VII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in failing to absolve the petitioner where conspiracy was not proven and the suppliers who benefited from the alleged overpricing were acquitted."VIII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in admitting in evidence and giving probative value to Exhibit ‘8’ the existence and contents of which are fictitious."IX. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in giving credence to the self-serving and perjurious testimony of co-accused Ajatil Jairal that the questioned transactions emanated from the regional office [in spite] of the documentary evidence and the testimony of the accused supplier which prove that the transaction emanated from the division office of Digos headed by co-accused Ajatil Jairal."X. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that the petitioner entered into a transaction that was manifestly and grossly disadvantageous to the government where the evidence clearly established that the questioned transactions were entered into by the division office of Digos through co-accused Ajatil Jairal."XI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in convicting the petitioner in the absence of proof beyond reasonable doubt." 15

All these issues basically refer to the question of whether the Sandiganbayan committed reversible errors (not grave abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No. 3019.

The Court’s RulingThe Petition has no merit.

Procedural Issue:Propriety of Certiorari

At the outset, it must be stressed that to contest the Sandiganbayan’s Decision and Resolution on June 2, 2003 and September 29, 2003, respectively, petitioner should have filed a petition for review on certiorari under Rule 45, not the present Petition for Certiorari under Rule 65.

Section 7 of Presidential Decree No. 1606, 16 as amended by Republic Act No. 8249, 17 provides that "[d]ecisions and final orders of the Sandiganbayan shall be appealable to

the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court." Section 1 of Rule 45 of the Rules of Court

likewise provides that "[a] party desiring to appeal by certiorari from a judgment or final order or resolution of the x x x Sandiganbayan x x x whenever authorized by law, may file with the

Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."

Basic is the principle that when Rule 45 is available, recourse under Rule 65 cannot be allowed either as an add-on or as a substitute for appeal. 18 The special civil action for certiorari is not and cannot be a substitute for an appeal, when the latter remedy is available. 19

This Court has consistently ruled that a petition for certiorari under Rule 65 lies only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of

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law. 20 A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency or as in this case, the Sandiganbayan. 21 Since the assailed Decision and Resolution were dispositions on the merits, and the Sandiganbayan had no remaining issue to resolve, an appeal would have been the plain, speedy and adequate remedy for petitioner.To be sure, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 22 For this procedural lapse, the Petition should have been dismissed outright. Nonetheless, inasmuch as it was filed within the 15-day period provided under Rule 45, the Court treated it as a petition for review (not certiorari) under Rule 45 in order to accord substantial justice to the parties. Thus, it was given due course and the Court required the parties to file their Memoranda.

Main Issue:Sufficiency of Evidence

Petitioner argues that the Sandiganbayan erred in convicting him, because the pieces of evidence to support the charges were not convincing. Specifically, he submits the following

detailed argumentation:"1. the Special Audit Report was fraudulent, incomplete, irregular, inaccurate, illicit and suppressed evidence in favor of the Petitioner;"2. there was no competent evidence to determine the overprice as none of the samples secured by the audit team from the Division of Davao del Sur were canvassed or purchased by the audit team;"3. the allegedly overpriced items did not exceed the amount set by the Department of Budget and Management;"4. the decision in an administrative investigation were selectively lifted out of context;"5. the administrative findings that Petitioner was justified in undertaking a negotiated purchase, that there was no overpricing, and that the purchases did not violate DECS Order No. 100 were disregarded;"6. Exhibit ‘8’, the contents of which are fictitious, was admitted in evidence and given probative value;"7. The suppliers who benefited from the transactions were acquitted, along with the other accused who directly participated in the questioned transactions; and"8. The self-serving and perjury-ridden statements of co-accused Jairal were given credence despite documentary and testimonial evidence to the contrary." 23

Petitioner further avers that the findings of fact in the Decision dated October 21, 1996 in DECS Administrative Case No. XI-91-088 24 denied any overpricing and justified the negotiated purchases in lieu of a public bidding. 25Since there was no overpricing and since he was justified in undertaking the negotiated purchase, petitioner submits that he cannot be convicted of violating Section 3(g) of Republic Act No. 3019.Validity of AuditThe principal evidence presented during trial was the COA Special Audit Report (COA Report). The COA is the agency specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund and property owned by or pertaining to the government. 26 It has the exclusive authority to define the scope of its audit and examination and to establish the required techniques and methods. 27

Thus, COA’s findings are accorded not only respect but also finality, when they are not tainted with grave abuse of discretion. 28 Only upon a clear showing of grave abuse of discretion may the courts set aside decisions of government agencies entrusted with the regulation of activities coming under their special technical knowledge and training. 29 In this case, the SBN correctly

accorded credence to the COA Report. As will be shown later, the Report can withstand legal scrutiny.Initially, petitioner faults the audit team for conducting the investigation beyond the twenty-one day period stated in the COA Regional Office Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself did not destroy the credibility of the Report. Neither was it sufficient to constitute fraud or indicate bad faith on the part of the audit team. Indeed, in the conduct of an audit, the length of time the actual examination occurs is dependent upon the documents involved. If the documents are voluminous, then it necessarily follows that more time would be needed. 30 What is important is that the findings of the audit should be sufficiently supported by evidence.Petitioner also imputes fraud to the audit team for making "it appear that the items released by the Division Office of Davao Del Sur on 21 February 1991 were compared with and became the basis for the purchase of exactly the same items on 20 February 1991." 31

The discrepancy regarding the date when the samples were taken and the date of the purchase of the same items for comparison was not very material. The discrepancy per se did not constitute fraud in the absence of ill motive. We agree with respondents in their claim of clerical inadvertence. We accept their explanation that the wrong date was written by the supplier concerned when the items were bought for comparison. Anyway, the logical sequence of events was clearly indicated in the COA Report:"1.5.1. Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as Exhibits 1.2 and 3 of this Report.""1.5.2. Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where these items are also available, for price verification."1.5.3. Available items which were exactly the same as the samples presented were purchased from AMESCO and Berovan Marketing Incorporated, the business establishments which quoted the lowest prices. Official receipts were issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7 respectively." 32

The COA team then tabulated the results as follows: 33

ItemPurchased Unit Cost

RecanvassedPrice + 10% Allow. Difference

% of Over-pricing

Quantity Purchased

Total Amount of Overpricing

Flask Brush made of Nylon P112.20 P8.80 P103.40 1,175% 400 P41,360.00Test Tube Glass Pyrex (18x50 mm) 22.36 14.30 8.06 56% 350 2,821.00Graduated Cylinder Pyrex

713.00 159.50 553.50 347% 324 179,334.00Glass Spirit Burner (alcohol

163.50 38.50 125.00 325% 144 18,000.00Spring Balance (12.5kg)Germany 551.00 93.50 457.50 489% 102 46,665.00Iron Wire Gauge 16.20 9.90 6.30 64% 47 296.10Bunsen Burner 701.00 90.75 610.25 672% 150 91,537.50

Total P380,013.60What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E-1," "E-2," "E-3," and "E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with those procured by petitioner. 34 The

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authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its Decision, the fact of overpricing -- as reflected in the aforementioned exhibits -- was testified to or identified by Laura S. Soriano, team leader of the audit team. 35 It is hornbook doctrine that the findings of the trial court are accorded great weight, since it was able to observe the demeanor of witnesses firsthand and up close. 36 In the absence of contrary evidence, these findings are conclusive on this Court.It was therefore incumbent on petitioner to prove that the audit team or any of its members thereof was so motivated by ill feelings against him that it came up with a fraudulent report. Since he was not able to show any evidence to this end, his contention as to the irregularity of the audit due to the discrepancy of the dates involved must necessarily fail.An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and regulations. It is not a witch hunt to terrorize accountable public officials. The presumption is always that official duty has been regularly performed 37 -- both on the part of those involved with the expense allotment being audited and on the part of the audit team -- unless there is evidence to the contrary.Due ProcessPetitioner likewise invokes Arriola v. Commission on Audit 38 to support his claim that his right to due process was violated. In that case, this Court ruled that the disallowance made by the COA was not sufficiently supported by evidence, as it was based on undocumented claims. Moreover, in Arriola, the documents that were used as basis of the COA Decision were not shown to petitioners, despite their repeated demands to see them. They were denied access to the actual canvass sheets or price quotations from accredited suppliers.As the present petitioner pointed out in his Memorandum, the foregoing jurisprudence became the basis for the COA to issue Memorandum Order No. 97-012 dated March 31, 1997, which states:"3.2 To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in pa. 2.1 above have to be supported with canvass sheet and/or price quotations indicating:a) the identities of the suppliers or sellers;b) the availability of stock sufficient in quantity to meet the requirements of the procuring agency;c) the specifications of the items which should match those involved in the finding of overpricing;d) the purchase/contract terms and conditions which should be the same as those of the questioned transaction"Petitioner’s reliance on Arriola is misplaced. First, that Decision, more so, the COA Memorandum Order that was issued pursuant to the former, was promulgated after the period when the audit in the present case was conducted. Neither Arriola nor the COA Memorandum Order can be given any retroactive effect.Second and more important, the circumstances in Arriola are different from those in the present case. In the earlier case, the COA merely referred to a cost comparison made by the engineer of COA-Technical Services Office (TSO), based on unit costs furnished by the Price Monitoring Division of the COA-TSO. The COA even refused to show the canvass sheets to the petitioners, explaining that the source document was confidential.In the present case, the audit team examined several documents before they arrived at their conclusion that the subject transactions were grossly disadvantageous to the government. These documents were included in the Formal Offer of Evidence submitted to the Sandiganbayan. 39 Petitioner was likewise presented an opportunity to controvert the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so. 40

Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster petitioner’s claim that his right to due process was violated. To be sure, there is no rule stating that all price canvass sheets must be presented. It is enough that those that are made the basis of comparison be submitted for scrutiny to the parties being audited. Indubitably, these documents were properly submitted and testified to by the principal prosecution witness, Laura Soriano. Moreover, petitioner had ample opportunity to controvert them.Public BiddingPetitioner oscillates between denying that he was responsible for the procurement of the questioned SLTDs, on the one hand; and, on the other, stating that the negotiated purchase was justifiable under the circumstances.On his disavowal of responsibility for the questioned procurement, he claims that the transactions emanated from the Division Office of Digos headed by Jairal. 41 However, in the administrative case 42 filed against petitioner before the DECS, it was established that he "gave the go signal" 43 that prompted the division superintendents to procure the SLTDs through negotiated purchase. This fact is not disputed by petitioner, who quotes the same DECS Decision in stating that his "acts were justifiable under the circumstances then obtaining at that time and for reasons of efficient and prompt distribution of the SLTDs to the high schools." 44

In justifying the negotiated purchase without public bidding, petitioner claims that "any delay in the enrichment of the minds of the public high school students of Davao del Sur is detrimental and antithetical to public service." 45Although this reasoning is quite laudable, there was nothing presented to substantiate it.Executive Order No. 301 states the general rule that no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities may be renewed or entered into without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may be entered into under any of the following circumstances:"a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property;"b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service;"c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government;"d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications;"e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned;"f. Whenever the purchase is made from an agency of the government." 46

National Center for Mental Health v. Commission on Audit 47 upheld the validity of the negotiated contracts for the renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential in providing due and proper treatment and care for the center’s patients." 48

This justification was likewise accepted in Baylon v. Ombudsman 49 in which we recognized that the purchases were made in response to an emergency brought about by the shortage in the blood supply available to the public. The shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that "he directed the NKTI [National

40

Kidney and Transplant Institute] to do something about the situation and immediately fast-track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further deaths owing to the lack of blood." 50

Unfortunately for petitioner, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We cannot accept his unsubstantiated reasoning that a public bidding would unnecessarily delay the purchase of the SLTDs. Not only would he have to prove that indeed there would be a delay but, more important, he would have to show how a public bidding would be detrimental and antithetical to public service.As the COA Report aptly states, the law on public bidding is not an empty formality. It aims to secure the lowest possible price and obtain the best bargain for the government. It is based on the principle that under ordinary circumstances, fair competition in the market tends to lower prices and eliminate favoritism. 51

In this case, the DECS Division Office of Davao del Sur failed to conduct public bidding on the subject transactions. The procurement of laboratory tools and devices was consummated with only the following documents to compensate for the absence of a public bidding:"1.13.a Price lists furnished by the Supply Coordination Office1.13.b. Price lists furnished by the Procurement Services of the Department of Budget and Management1.13.c. Price lists of Esteem Enterprises" 52

The COA Report states that the Division Office merely relied on the above documents as basis for concluding that the prices offered by D’Implacable Enterprises and Joven’s Trading were reasonable. But as found by the COA, reliance on the foregoing supporting documents was completely without merit on the following grounds:"a. The Supply Coordination Office was already dissolved or abolished at the time when the transactions were consummated, thus, it is illogical for the management to consider the price lists furnished by the Supply Coordination Office."b. The indorsement letter made by the Procurement Services of the Department of Budget and Management containing the price lists specifically mentions Griffin and George brands, made in England. However, the management did not procure these brands of [SLTDs]."c. The price lists furnished by the Esteem Enterprises does not deserve the scantest consideration, since there is no law or regulation specifically mentioning that the price lists of the Esteem Enterprises will be used as basis for buying [SLTDs]." 53

Granting arguendo that petitioner did not have a hand in the procurement and that the transactions emanated from the Division Office of Davao del Sur, we still find him liable as the final approving authority. In fact, Exhibit "B-2" -- Purchase Order No. 90-024, amounting to P231,012 and dated December 17, 1990 -- was recommended by Jairal and approved by petitioner. 54 This exhibit was part of the evidence adduced in the Sandiganbayan to prove that the purchase of the SLTDs was consummated and duly paid by the DECS without any proof of public bidding.Although this Court has previously ruled 55 that all heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies or enter into negotiations, it is not unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper formalities in the questioned transaction were observed -- that a public bidding was conducted. This step does not entail delving into intricate details of product quality, complete delivery or fair and accurate pricing.Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent; and the approving authority can easily call the attention of the subordinates concerned. To rule otherwise would be to render meaningless the accountability of high-ranking public officials and to reduce their approving authority to

nothing more than a mere rubber stamp. The process of approval is not a ministerial duty of approving authorities to sign every document that comes across their desks, and then point to their subordinates as the parties responsible if something goes awry.Suspension of PurchasesObviously working against petitioner is DECS Order No. 100 dated September 3, 1990 which states thus:"In view of the Government’s call for economy measures coupled with the deficiency in allotments intended for the payment of salary standardization, retirement benefits, bonus and other priority items, the procurement of reference and supplementary materials, tools and devices equipment, furniture, including land acquisition and land improvement shall be suspended for CY 1990. However, the following items shall be exempted from the said suspension:a) textbooks published by the Instructional Materials Corporation and its commercial edition;b) elementary school desks and tablet arm chairs[.]"As the COA Report succinctly states, the Administrative Order is explicit in its provisions that tools and deviceswere among the items whose procurement was suspended by the DECS for the year 1990.Petitioner claims that in the administrative case against him, there was no mention of a violation of DECS Order No. 100. 56 He alleges that the purchases of SLTDs by the division superintendents were entered into and perfected on July 1, 1990; that is, more than two (2) months before the issuance of DECS Order No. 100. He also alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in the amount of P9.36M -- out of which P603,265.00 was used for the procurement of the questioned SLTDs -- had been released by the DECS Central Office in August 1990, a month before the issuance of DECS Order No. 100.The Court notes that these arguments are mere assertions bereft of any proof. There was no evidence presented to prove that the SAA was issued prior to the effectivity of DECS Order No. 100. On the other hand, the COA Report states that the DECS Division of Davao del Sur received the following Letters of Advice of Allotments (LAA): 57

"LAA NO. AMOUNT DATE OF LAADO CO471-774-90 P141,956.00 October 24, 1990DO-CO471-797-90 P161,309.00 November 16, 1990DO-CO471-1007-90 P300,000.00 December 14, 1990"The foregoing LAAs were attached as annexes 58 to the COA Report and were presented during trial in the Sandiganbayan. 59

Also, Schools Division Superintendent Jairal had sent a letter to petitioner, requesting favorable consideration of a forthcoming release of funding for the different barangay and municipal high schools. The letter was dated October 16, 1990, 60 and was made well within the effectivity of the DECS Order. In that letter, Jairal mentioned the receipt by his office of DECS Order No. 100, albeit wrongly interpreting it as suspending only the purchases of reference books, supplementary readers, and so on, but allegedly silent on the purchase of laboratory supplies and materials. 61

Finally, the SLTDs were purchased within the covered period of DECS Order No. 100, as evidenced by the following relevant documents adduced by the COA audit team, among others:1) Disbursement Voucher dated November 27, 1990 for the payment of various laboratory supplies and materials by DECS, Davao del Sur in the amount of P303,29.40 62

2) Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Joven’s Trading 63

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3) Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo Canoy 64

4) Sales Invoice No. 044 dated November 26, 1990 issued by Joven’s Trading in favor of DECS amounting toP303,259.40 65

5) Certificate of Acceptance dated November 27, 1990 signed by Felicismo Canoy 66

6) Purchase Order No. 90-021 in favor of Joven’s Trading dated November 26, 1990 recommended for approval by Ajatil Jairal 67

7) Official Receipt No. 92356 dated January 7, 1991 issued by D’Implacable Enterprises amounting toP231,012.00 68

8) Purchase Order No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal and approved Director Venancio Nava amounting to P231,012.00." 69

The confluence of the foregoing circumstances indubitably establishes that petitioner indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates his claim that the negotiated transaction -- done instead of a public bidding -- was justified. If that Order suspended the acquisition of tools and devices, then there was all the more reason for making purchases by public bidding. Since the buying of tools and devices was specifically suspended, petitioner cannot argue that the purchases were done in the interest of public service.Proof of GuiltTo sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government. 70

From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to the government.We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution of the Sandiganbayan denying the Motion for Reconsideration. 71 Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government. 72

If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should be established to prove the culpability of the accused. In this case, there is a clear showing that all the elements of the offense are present. Thus, there can be no other conclusion other than conviction.We note, however, that petitioner was sentenced to suffer the penalty of six (6) years and one (1) day as minimum to twelve (12) years and one (1) day as maximum. Under Section 9 of Republic Act 3019, petitioner should be punished with imprisonment of not less than six (6) years and one (1) month nor more than fifteen years. Thus, we adjust the minimum penalty imposed on petitioner in accordance with the law.WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution are AFFIRMED, with the MODIFICATION that the minimum sentence imposed shall be six (6) years and one (1) month, not six (6) years and one (1) day. Costs against petitioner.

SO ORDERED.

THIRD DIVISION

OFELIA C. CAUNAN,Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - - - - - - - XJOEY P. MARQUEZ,

Petitioner,

- versus - THE SANDIGANBAYAN-FOURTH DIVISION and PEOPLE OF THEPHILIPPINES,

Respondents.

G.R. Nos. 181999 & 182001-04 G.R. Nos. 182020-24 Present: YNARES-SANTIAGO, J., Chairperson,CHICO-NAZARIO,VELASCO, JR.,NACHURA, andPERALTA, JJ. Promulgated: September 2, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court which assail the Decision[1] dated August 30, 2007 and Resolution[2] dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan (Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Marquez and Caunan, along with four (4) other local government officials of Parañaque City[3] and private individual Antonio Razo (Razo), were charged under five (5) Informations, to wit:

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The Information in Criminal Case No. 27944 states: That on January 11, 1996 or thereabout, in Parañaque City,

Philippines, and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO Trading, for the purchase of 5,998 pieces of “walis ting-ting” at P25 per piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the “walis ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the government in the aforesaid sum.

The Information in Criminal Case No. 27946 states: That on June 30, 1997 or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused

private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of “walis ting-ting” at P15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the “walis ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00), thus causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27952 states: That [in] September 1997, or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of “walis ting-ting” at P15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the ”walis ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore,

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of P4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27953 states: That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advance of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of “walis ting-ting” on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:

Date of Transaction

Voucher No.

Amount

February 20, 1997 101-97-04-1755 P 3,000.00

February 12, 1997 101-97-04-1756 P100,000.00

February 11, 1997 101-97-04-1759 P149,500.00

in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which transactions were clearly overpriced as the actual cost per piece of the “walis ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE

THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27954 states: That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Parañaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Parañaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of “walis ting-ting” on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows:

Date of Transaction Voucher Number Amount Quantity

October 15, 1996 101-96-11-7604 P 100,000.00 4,000 pcs.October 18, 1996 101-96-11-7605 P 100,000.00 4,000 pcs.

in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were clearly grossly overpriced as the actual cost per piece of the “walis ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00), thus, causing damage and prejudice to the government in the aforesaid sum.[4]

The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Parañaque City. In March 1999, a Special Audit Team composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local

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Government Audit Office Assignment Order No. 99-002, audited selected transactions of Parañaque City for the calendar years 1996 to 1998, including the walis tingting purchases. In connection with the walis tingting purchases audit, the audit team gathered the following evidence: 1. Documents furnished by the Office of the City Mayor of Parañaque City upon request of the audit team; 2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor of Parañaque City; 3. Samples of walis tingting without handle actually utilized by the street sweepers upon ocular inspection of the audit team; 4. Survey forms accomplished by the street sweepers containing questions on the walis tingting; 5. Evaluation by the Technical Services Department[5] of the reasonableness of the walis tingting procurement compared to current prices thereof;

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6. A separate canvass by the audit team on the prices of the walis tingting, including purchases thereof at various merchandising stores;[6] and 7. Documents on the conduct and process of procurement of walis tingting by the neighboring city of Las Piñas. Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Parañaque City. All, however, were reluctant to provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to purchase walis tingting from the named suppliers of Parañaque City. Curiously, when the audit team went to the listed addresses of the suppliers, these were occupied by other business establishments. Thereafter, the audit team located, and purchased from, a lone supplier that sold walis tingting. As previously adverted to, the audit team made a report which contained the following findings: 1. The purchase of walis tingting was undertaken without public bidding;

2. The purchase of walis tingting was divided into several purchase orders and requests to evade the requirement of public bidding and instead avail of personal canvass as a mode of procurement; 3. The purchase of walis tingting through personal canvass was attended with irregularities; and 4. There was glaring overpricing in the purchase transactions. Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006-101 (96), 01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering the overpriced amount ofP1,302,878.00 for the purchases of 142,612 walis tingting, with or without handle, by Parañaque City in the years 1996-1998.[7]

Objecting to the disallowances, petitioners Marquez and Caunan, along with the other concerned local government officials of Parañaque City, filed a request for reconsideration with the audit team which the latter subsequently denied in a letter to petitioner Marquez. Aggrieved, petitioners and the other accused appealed to the COA which eventually denied the appeal. Surprisingly, on motion for reconsideration, the COA excluded petitioner Marquez from liability for the disallowances based on our rulings in Arias v. Sandiganbayan[8] and Magsuci v. Sandiganbayan.[9]

On the other litigation front, the criminal aspect subject of this appeal, the Ombudsman found probable cause to indict petitioners and the other local government officials of Parañaque City for violation of Section 3(g) of R.A. No. 3019. Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan. After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack of sufficient evidence to hold them guilty beyond reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows:

1. The prosecution evidence, specifically the testimony of Bermudez and the Special Audit Team’s report, did not constitute hearsay evidence, considering that all the prosecution witnesses testified on matters within their personal knowledge; 2. The defense failed to question, and timely object to, the admissibility of documentary evidence, such as the Las Piñas City documents and the Department of Budget and Management (DBM) price listing downloaded from the Internet, which were certified true copies and not the originals of the respective documents; 3. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition against splitting of orders; and Parañaque City had not been afforded the best possible advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding; 4. The contracts for procurement of walis tingting in Parañaque City for the years 1996-1998 were awarded to pre-selected suppliers; and 5. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the government. Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan decision. Caunan and Tanael, represented by the same counsel, collectively filed a Motion for Reconsideration (with Written Notice of Death of Accused Silvestre S. de Leon). Marquez filed several motions,[10] including a separate Motion for Reconsideration. All the motions filed by Marquez, as well as Caunan’s motion, were denied by the Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason to reconsider her conviction. Hence, these separate appeals by petitioners Marquez and Caunan. Petitioner Caunan posits the following issues:

1. [WHETHER] THE PROSECUTION’S PROOF OF OVERPRICING [IS] HEARSAY. 2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ’ TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY. 3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS EXCEPTION, “PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC RECORDS, ETC.,” x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN. 4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].[11]

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For his part, petitioner Marquez raises the following:

1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER EXISTING REGULATIONS[;] 2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;] 3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZ’S] GUILT BY THE SANDIGANBAYAN – FOURTH DIVISION[;] 4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;] 5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN BEHALF OF PARAÑAQUE CITY WERE MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;] 6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;] 7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN – FOURTH DIVISION

REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF INTEREST[;] 8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;] 9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and] 10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12]

In a Resolution dated February 23, 2009, we directed the consolidation of these cases. Thus, we impale petitioners’ issues for our resolution:

1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of violation of Section 3(g) of R.A. No. 3019.

2. Whether the testimony of Bermudez and the report of the Special Audit Team constitute hearsay and are, therefore, inadmissible in evidence against petitioners.

3. Whether petitioner Marquez should be excluded from liability based on our rulings in Arias v. Sandiganbayan[13] and Magsuci v. Sandiganbayan.[14]

Both petitioners insist that the fact of overpricing, upon which the charge against

them of graft and corruption is based, had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable doubt.[15] Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required by COA Memorandum No. 97-012 dated March 31, 1997.[16] In all, petitioners asseverate that, as the overpricing was not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 — a contract or transaction grossly and manifestly disadvantageous to the government — was not proven.

Section 3(g) of R.A. No. 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:

47

x x x x (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.

For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.[17]

The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the government. We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions. In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt.[18] The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence. [19] The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accused’s guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. [20] Otherwise, where there is reasonable doubt, the accused must be acquitted. In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COA’s finding of overpricing which was, in turn, based on the special audit team’s report. The audit team’s conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Piñas City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Parañaque City’s walis tingting transactions. Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Parañaque City. In fact, even thewalis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Parañaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be

concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019. On the issue of hearsay, the Sandiganbayan hastily shot down petitioners’ arguments thereon, in this wise:

We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their personal knowledge. The prosecution’s principal witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected transactions of Parañaque City. The report which she identified and testified on [was] made by [the] Special Audit Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other documents constituting the supporting papers of the team’s report were public documents requested from the City Auditor of Parañaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Audit Team’s official task was to review the documents of the walis tingting transactions. In the process of [the] review, they found many irregularities in the documentations —violations of the Local Government Code and pertinent COA rules and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated in a report. The same report was the basis of Ms. Bermudez’s testimony. x x x.[21]

The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price ofwalis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in Las Piñas City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners. As pointed out by petitioner Caunan, not all of the contents of the audit team’s report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be the market price of walis tingting in Las Piñas City which was used as proof of overpricing in Parañaque City. The prosecution should have presented evidence of the actual price of the particular walis tingting purchased by petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government.

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We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned procurements. However, the lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan,[22] the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the government. With the foregoing disquisition, we find no necessity to rule on the applicability of our rulings in Arias and Magsuci to petitioner Marquez. Nonetheless, we wish to reiterate herein the doctrines laid down in those cases. We call specific attention to the sweeping conclusion made by the Sandiganbayan that a conspiracy existed among petitioners and the other accused, most of whom were acquitted, particularly private individual Razo, the proprietor of Zaro Trading. Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.:

The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now deceased Enriquez. There is conspiracy “when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.” Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design. x x x x Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts. In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded:

“We would be setting a bad precedent if a head of office plagued by all too common

problems—dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence—is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. “x x x x “x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling.”[23]

WHEREFORE, premises considered, the Decision dated August 30, 2007 and Resolution dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 areREVERSED and SET ASIDE. Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are ACQUITTED of the charges against them. Costs de oficio.

FIRST DIVISION

RUPERTO A. AMBIL, JR., Petitioner,

- versus - SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent.

G.R. No. 175457

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

49

ALEXANDRINO R. APELADO, SR., Petitioner, - versus - PEOPLE OF THE PHILIPPINES, Respondent.

G.R. No. 175482 Present: CORONA,C.J., Chairperson, CARPIO,*

BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., Promulgated: July 6, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISIONVILLARAMA, JR., J.: Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr.[1] and petitioner Alexandrino R. Apelado Sr.[2] assailing the Decision[3] promulgated on September 16, 2005 and Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter[5] of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report[6] dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e) [7] of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.[8]

Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum[10] dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 156[11] of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information[12] reads:

That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and

cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by allowing said Mayor Adalim to stay at accused Ambil’s residence for a period of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government.CONTRARY TO LAW.BAIL BOND RECOMMENDED: P30,000.00 each.[13]

On arraignment, petitioners pleaded not guilty and posted bail. At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalim’s transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalim’s sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held. Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial [14] but the same was denied. At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim. Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalim’s lawyers that he directed the transfer of Adalim’s detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.[15] For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayor’s safety.[16]

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. White’s account that he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.’s residence for almost three months before he posted bail after the charge against him was downgraded to homicide.[17]

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalim’s arrest and arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was

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under the governor, in the latter’s capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s order to relinquish custody of Adalim.[18]

Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits.[19]

On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision[20] finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.[21] The Sandiganbayan brushed aside petitioners’ defense that Adalim’s transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior and Local Government. Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months. Hence, the present petitions. Petitioner Ambil, Jr. advances the following issues for our consideration:

IWHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONER’S CASE BEFORE THE SANDIGANBAYAN.

IIWHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.

IIIWHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e).

IVWHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER.

V

WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VIWHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[22]

For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan:I

THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL.

IIIN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE.

IIITHE COURT A QUO’S BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM “UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.[23]

The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5)[24] of the RPC. Meanwhile, petitioner Apelado, Sr.’s assignment of errors can be condensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)[25] of the RPC. Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a “Provincial Jailer” under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty. Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability. For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their

51

functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners’ lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance. After a careful review of this case, the Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which 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:

x x x x(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.

In order to hold a person liable under this provision, the following elements must concur: (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.[26]

As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606,[27] as amended by R.A. No. 8249.[28] The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows:

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 provincial department heads[;]

x x x x 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 and 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. x x x x

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification[29] from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade ‘27’ or higher shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them – the Sandiganbayan. The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. In Sison v. People,[30] we defined “partiality,” “bad faith” and “gross negligence” as follows:

“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.” x x x[31]

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.’s house. There is no merit to petitioner Ambil, Jr.’s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the “Provincial Jailer” of Eastern Samar. Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction:

SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.—The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise

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known as “The Department of the Interior and Local Government Act of 1990,” and the rules and regulations issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975 [32] on the Bureau of Jail Management and Penology provides:

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[33] An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.[34] On the other hand, the power of supervision means “overseeing or the authority of an officer to see to it that the subordinate officers perform their duties.”[35] If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.[36] The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.[37]

Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides:

SEC. 1731. Provincial governor as keeper of jail.—The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person. (Emphasis supplied.)

This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the “provincial jailer,” or even slightly suggest that he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governor’s duty as a jail keeper is confined to the administration of the jail and the procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it[38] by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it. Besides, the only reference to a transfer of prisoners in said article is found in Section 1737[39] under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides:

SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication[40] dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:

06 October 1996GOVERNOR RUPERTO AMBILProvincial CapitolBorongan, Eastern Samar Dear Sir: This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco “Aising” Adalim of Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963. If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail. Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention. In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications. Please be guided accordingly.

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Very truly yours, (SGD.)JESUS I. INGENIEROAssistant SecretaryStill, petitioner Ambil, Jr. insisted on his supposed authority as a “provincial

jailer.” Said petitioner’s usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate, [41] betray his unmistakable bias and the evident bad faith that attended his actions. Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the “provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions” and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer. However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is “charged with the grant of licenses or permits or other concessions.” Following is an excerpt of what we said in Mejorada,

Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) 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 [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) 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.[43] (Italics supplied.)In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a prosecution

for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions.[45] Meanwhile, regarding petitioner Ambil, Jr.’s second contention, Section 2(b) of R.A. No. 3019 defines a “public officer” to include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer

of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners’ case beyond the ambit of said law? We believe not. In drafting the Anti-Graft Law, the lawmakers opted to use “private party” rather than “private person” to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term “party” is a technical word having a precise meaning in legal parlance[46] as distinguished from “person” which, in general usage, refers to a human being.[47] Thus, a private person simply pertains to one who is not a public officer. While a private party is more comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest. In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.’s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. Moreover, 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.[48] The word “unwarranted” means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. “Advantage” means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. “Preference” signifies priority or higher evaluation or desirability; choice or estimation above another.[49] Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayor’s life would be put in danger inside the provincial jail. As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalim’s safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatan’s gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and compelling reason to warrant Adalim’s detention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.’s house. More importantly, even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer. The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners. Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.[50] Both requisites are lacking in petitioner Ambil, Jr.’s case. As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting

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violation of the Anti-Graft Law did not proceed from the due performance of his duty or lawful exercise of his office. In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.[51] Only the first requisite is present in this case. While the order for Adalim’s transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)[52] of the RPC. An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.[53] Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.’s willful cooperation in executing petitioner Ambil, Jr.’s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators. As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty. WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. With costs against the petitioners.

SO ORDERED.

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Synopsis/SyllabiFIRST DIVISION

[G.R. No. 133535. September 9, 1999]LILIA B. ORGANO, petitioner, vs. THE SANDIGANBAYAN and THE PEOPLE OF

THE PHILIPPINES, respondents.D E C I S I O N

PARDO, J.:The case before the Court is a special civil action for certiorari with preliminary

injunction or temporary restraining order assailing the resolutions of the Sandiganbayan, Fourth Division,[1] that denied petitioner's motion to quash the information in the case below, for lack of merit.

We grant the petition.The facts are as follows:On August 15, 1997, Special Prosecution Officer Jose T. de Jesus, Jr., filed with the

Sandiganbayan an Information against petitioner, together with others, for the crime of "plunder" or violation of R. A. No. 7080, as amended by R. A. No. 7659.[2]

The Information reads as follows:“That on or about 05 November 1996, or sometime prior or subsequent thereto, in

Quezon City, Philippines and within the jurisdiction of this Honorable Court, accused Dominga S. Manalili, Teopisto A. Sapitula, Jose dP. Marcelo, Lilia B. Organo, being then public officers and taking advantage of their official positions as employees of the Bureau of Internal Revenue, Region 7, Quezon City, and Gil R. Erencio, Reynaldo S. Enriquez and Luis S. Se, Jr., conspiring, confabulating and confederating with one another, did then and there wilfully, unlawfully and criminally amass and acquire funds belonging to the National

Government by opening an unauthorized bank account with the Landbank of the Philippines, West Triangle Branch, Diliman, Quezon City, for and in behalf of the Bureau of Internal Revenue and deposit therein money belonging to the government of the Philippines, consisting of revenue tax payments, then withdraw therefrom the total sum of Pesos: One Hundred Ninety Three Million Five Hundred Sixty Five Thousand Seventy Nine & 64/100 (P193,565,079.64) Philippine Currency, between November, 1996 to February, 1997, without proper authority, through checks made payable to themselves and/or the sole proprietorship firms of the above named private persons, thereby succeeding in misappropriating, converting, misusing and/or malversing said public funds tantamount to a raid on the public treasury, to their own personal gains, advantages and benefits, to the damage and prejudice of the government in the aforestated amount”[3]

On August 20, 1997, petitioner filed with the Sandiganbayan a motion to quash information for lack of jurisdiction, contending that the Sandiganbayan no longer had jurisdiction over the case under R. A. 8249, approved on February 5, 1997.

On September 29, 1997, without first resolving petitioner's motion to quash information, the Sandiganbayan issued a warrant of arrest against all the accused in the case.

On November 28, 1997, the Sandiganbayan issued a resolution denying petitioner's motion to quash the information for lack of merit.

On December 9, 1997, petitioner filed with the Sandiganbayan a motion for reconsideration, reiterating the ground of lack of jurisdiction over the case pursuant to Republic Act No. 8249, approved on February 5, 1997.

On April 28, 1998, after one hundred forty (140) days from its filing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration ruling that she should first surrender to the court before she may file any further pleading with the court.

Hence, this petition.On June 23, 1998, the Court resolved to require the respondents to comment on the

petition, not to file a motion to dismiss, within ten (10) days from notice.[4]

On September 14, 1998, the Office of the Special Prosecutor, representing the People of the Philippines, filed its comment.[5]

On January 4, 1999, the Solicitor General filed his comment.[6]

We give due course to the petition.At issue is whether the Sandiganbayan at the time of the filing of the information on

August 15, 1997 had jurisdiction over the case, in view of the enactment on February 5, 1997 of Republic Act No. 8249, vesting in the Sandiganbayan jurisdiction over offenses and felonies whether simple or complexed with other crimes committed by public officers and employees mentioned in subsection (a) of Section 4 in relation to their office where the accused holds a position with salary grade "27" and higher under the Compensation and Position Classification Act of 1989.

Petitioner contends that since none of the accused holds a position with Salary Grade "27" and higher, jurisdiction over the case falls with the Regional Trial Court. [7] On the other hand, respondent Sandiganbayan's position is that Republic Act No. 7080 which defines and penalizes the crime of "plunder" vests in the Sandiganbayan jurisdiction thereof, and since it is a special law, it constitutes an exception to the general law, Republic Act No. 8249.[8]

Republic Act No. 7080, Section 3 provides:"Until otherwise provided by law, all pro-sections under this Act shall be within the

original jurisdiction of the Sandiganbayan."This law was enacted on September 23, 1991, and was effective on October 7, 1991.On February 5, 1997, Republic Act No. 8249 was approved, further defining the

jurisdiction of the Sandiganbayan.Section 4 of the law provides:

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“Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

“x x x“b. Other offenses or felonies whether simple or complexed with other crimes

committed by the public officials and employees mentioned in sub-section a of this section in relation to their office.

“x x x“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 and 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 jurisdictions as provided in Batas Pambansa Blg. 129, as amended.”[9]

This latest enactment collated the provisions on the exclusive jurisdiction of the Sandiganbayan. It is a special law enacted to declog the Sandiganbayan of "small fry" cases. In an unusual manner, the original jurisdiction of the Sandiganbayan as a trial court was made to depend not on the penalty imposed by law on the crimes and offenses within its jurisdiction but on the rank and salary grade of accused government officials and employees.

However, the crime of "plunder" defined in Republic Act No. 7080, as amended by Republic Act No. 7659, was provisionally placed within the jurisdiction of the Sandiganbayan "until otherwise provided by law."[10] Republic Act No. 8429, enacted on February 5, 1997 is the special law that provided for the jurisdiction of the Sandiganbayan "otherwise" than that prescribed in Republic Act No. 7080.

Consequently, we rule that the Sandiganbayan has no jurisdiction over the crime of plunder unless committed by public officials and employees occupying the positions with Salary Grade "27" or higher, under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758) in relation to their office.

In ruling in favor of its jurisdiction, even though none of the accused occupied positions with Salary Grade “27” or higher under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), the Sandiganbayan incurred in serious error of jurisdiction, entitling petitioner to the relief prayed for.

WHEREFORE, the Court hereby GRANTS the petition for certiorari and ANNULS the resolutions of the Sandiganbayan, dated November 20, 1997, and April 28, 1998, in Criminal Case No. 24100.

The Court orders the Sandiganbayan to forthwith refer the case to the court of proper jurisdiction.

No costs.SO ORDERED.

EN BANC[G.R. No. 148965. February 26, 2002]

JOSE “JINGGOY” E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents.

D E C I S I O NPUNO, J.:

A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against him by the respondent Ombudsman.

The antecedent facts are as follows:In November 2000, as an offshoot of the impeachment proceedings against Joseph

Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman.

On April 4, 2001, the respondent Ombudsman issued a Joint Resolution [1] finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose “Jinggoy” Estrada, then mayor of San Juan, Metro Manila.

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no bail for petitioner’s provisional liberty was fixed.

On April 24, 2001, petitioner filed a “Motion to Quash or Suspend” the Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion.

On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis, petitioner and his co-accused were placed in custody of the law.

On April 30, 2001, petitioner filed a “Very Urgent Omnibus Motion”[2] alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a “series or combination of overt or criminal acts” as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court.[3]

On June 28, 2001, petitioner filed a “Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him.”[4]

On July 3, 2001, petitioner filed a “Motion to Strike Out So-Called ‘Entry of Appearance,’ To Direct Ombudsman To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents.”[5]

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioner’s “Motion to Quash and Suspend” and “Very Urgent Omnibus Motion.”[6] Petitioner’s alternative prayer to post bail was set for hearing after arraignment of all accused. The court held:“WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose ‘Jinggoy’ Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio.

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Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose ‘Jinggoy’ Estrada, his VERY URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled for July 10, 2001, at 2:00 o’clock in the afternoon after the arraignment of all the accused.”[7]

The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of “not guilty” for him.[8]

Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in:“1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal protection of the laws;2) not holding that the Plunder Law does not provide complete and sufficient standards;3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process;4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality.”[9]

We shall resolve the arguments of petitioner in seriatim.I.

Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the laws.[10]

The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been settled in the case of Estrada v. Sandiganbayan.[11] We take off from the Amended Information which charged petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie “Atong” Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows:

“AMENDED INFORMATIONThe undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses former PRESIDENT 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 PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF,

DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ‘ATONG’ ANG, Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR inCONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE

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BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME “JOSE VELARDE”;

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount ofMORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME “JOSE VELARDE” AT THE EQUITABLE-PCI BANK.

CONTRARY TO LAW.Manila for Quezon City, Philippines, 18 April 2001”[12]

Petitioner’s contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to bail.

Petitioner’s premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together with petitioner Jose “Jinggoy” Estrada, Charlie “Atong” Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act.

Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Information which is of “receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount ofP545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x.” In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioner’s posture, the allegation is that he received or collected money from illegal gambling “on several instances.” The phrase “on several instances” means the petitioner committed the predicate act in series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the phrase “several instances” is to indulge in a twisted, nay, “pretzel” interpretation.

It matters little that sub-paragraph (a) did not utilize the exact words “combination” or “series” as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan,[13] we held that where these two terms are to be taken in their popular, not technical, meaning, the word “series” is synonymous with the clause “on several instances.” “Series” refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word “combination” contemplates the commission of at least any two different predicate acts in any of said items. Plainly, sub-paragraph (a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate act under Section 1 (d) (2) of the law.

Similarly misleading is petitioner’s stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million, which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne out by

the April 4, 2001 Resolution of the Ombudsman, recommending the filing of charges against petitioner and his co-accused, which in pertinent part reads:

“x x x x x x x x x

Respondent Jose ‘Jinggoy’ Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov. Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000 and another P1 million in February, 2000. An alleged “listahan” of jueteng recipients listed him as one “Jingle Bell,” as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI].”[14]

Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner as “jueteng haul” on “at least two occasions.” The P2 million is, therefore, not the entire sumwith which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that:

“x x x x x x x x x

It is clear that Joseph Ejercito Estrada, in confabulation with Jose ‘Jinggoy’ Estrada, Atty. Edward Serapio and Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the operators thereof, channeled thru Gov. Luis ‘Chavit’ Singson, in exchange for protection from arrest or interference by law enforcers; x x x.”[15]

To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this petition.

II.Next, petitioner contends that “the plunder law does not provide sufficient and complete

standards to guide the courts in dealing with accused alleged to have contributed to the offense.”[16] Thus, he posits the following questions:“For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another accused is shown to have participated in three of the ten specifications, what would be the penalty imposable, compared to one who may have been involved in five or seven of the specifications? The law does not provide the standard or specify the penalties and the courts are left to guess. In other words, the courts are called to say what the law is rather than to apply what the lawmaker is supposed to have intended.”[17]

Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty of petitioner cannot be

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unclear. It will be no different from that of the former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz:“Section 2. Any public officer who, by himself or in connivance with the 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.”

III.Petitioner also faults the respondent Sandiganbayan for “sustaining the charge against

petitioner for alleged offenses and with alleged conspirators, with which and with whom he is not even remotely connected – contrary to the dictum that criminal liability is personal, not vicarious – results in the denial of substantive due process.”[18]

The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs of the Amended Information.[19]

For better focus, there is a need to examine again the allegations of the Amended Information vis-à-vis the provisions of R.A. No. 7080.

The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts - that of ordering the Government Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the “Jose Velarde” account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name

“Jose Velarde” at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080.

From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each otherto enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion.

We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth.[20] They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. [21] R.A. No. 7080 or the Anti-Plunder Law[22] was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz:“Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power.”

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

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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.

In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the so-called “wheel” or “circle” conspiracy, in which there is a single person or group (the “hub”) dealing individually with two or more other persons or groups (the “spokes”); and (2) the “chain” conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[23]

From a reading of the Amended Information, the case at bar appears similar to a “wheel” conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.

IV.Some of our distinguished colleagues would dismiss the charge against the petitioner on

the ground that the allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence.

We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law. Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the agreement or conspiracy itself is the gravamen of the offense.[24] The essence of conspiracy is the combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.[25] Its elements are: agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the underlying substantive offense.[26]

A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of conspiracy[27] – conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371,[28] as follows:“Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz:“Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or

to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both.”

Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2) conspiracy to defraud the United States or any agency thereof. The conspiracy to “commit any offense against the United States” refers to an act made a crime by federal laws.[29] It refers to an act punished by statute.[30] Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory.[31] These laws cover criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of federal regulation. [32] Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of conspiracy is generally separate and distinct from the substantive offense, [33] hence, the court rulings that acquittal on the substantive count does not foreclose prosecution and conviction for related conspiracy.[34]

The conspiracy to “defraud the government” refers primarily to cheating the United States out of property or money. It also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.[35] It comprehends defrauding the United States in any manner whatever, whether the fraud be declared criminal or not.[36]

The basic difference in the concept of conspiracy notwithstanding, a study of the American case law on how conspiracy should be alleged will reveal that it is not necessary for the indictment to include particularities of time, place, circumstances or causes, in stating the manner and means of effecting the object of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars. [37] An indictment for conspiracy is sufficientwhere it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed; and (3) the overt acts performed in furtherance of the agreement. [38] To allege that the defendants conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy. To allege a conspiracy is to allege an agreement.[39] The gist of the crime of conspiracy is unlawful agreement, and where conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required in cases where such object is charged as a substantive offense.[40]

In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for this crime must contain the following averments:“Sec. 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 was committed by more than one person, all of them shall be included in the complaint or information.”

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The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the acts or omissions 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.

Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference to the section or subsection of the statute punishing it.[41] The information must also state the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances.[42] The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment.[43] No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. [44] Every element of the offense must be stated in the information.[45] What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes.[46] The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense.[47]

To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. For example, the crime of “conspiracy to commit treason” is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. [48] The elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information.

The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree of their participation in the crime. [49] The liability of the conspirators is collective and each participant will be equally responsible for the acts of others,[50] for the act of one is the act of all.[51] In People v. Quitlong,[52] we ruled on how conspiracy as the mode of committing the offense should be alleged in the Information, viz:“x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one

being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well.A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient “if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844).

x x x x x x x x x

x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words “conspired” or “confederated” or the phrase “acting in conspiracy,” must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term “conspire” or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused.

x x x x x x x x x.”

Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word “conspire,” or its derivatives or synonyms, such as confederate, connive, collude, etc;[53] or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.[54]

The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it. [55] A statement of this evidence is not necessary in the information.

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In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused committed the crime of plunder. It used the words “in connivance/conspiracy with his co-accused.” Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of plunder.

V.We now come to petitioner’s plea for bail. On August 14, 2002, during the pendency of

the instant petition before this Court, petitioner filed with respondent Sandiganbayan an “Urgent Second Motion for Bail for Medical Reasons.” Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if he goes back to his place of detention. The motion was opposed by respondent Ombudsman to which petitioner replied.

For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness for petitioner.

On December 18, 2001, petitioner filed with the Supreme Court an “Urgent Motion for Early/Immediate Resolution of Jose ‘Jinggoy’ Estrada’s Petition for Bail on Medical/Humanitarian Considerations.” Petitioner reiterated the motion for bail he earlier filed with respondent Sandiganbayan.[56]

On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001.

On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated December 20, 2001 denying petitioner’s motion for bail for “lack of factual basis.”[57] Basing its finding on the earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner “failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail.”[58]

The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong, to wit:“Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.”[59]

Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads:“Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt.[60]

This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which

respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on petitioner’s guilt was presented before the lower court.

Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioner’s guilt is strong as to warrant the granting of bail to petitioner.

IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

SO ORDERED.

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