PART II.

LAUREL VS DESIERTOThe Evaluation and Preliminary Investigation Bureau of the Office of the Ombudsman directed petitioner, Chairman of the National Centennial Commission (NCC), to submit his counter affidavit on the charges of anomalies found by the Senate Blue Ribbon and Saguisag Committees. The Blue Ribbon Committee recommended his prosecution for violation of the rules on public bidding on the award of centennial contracts and manifest bias in the issuance of the Notice to Proceed in the absence of a valid contract, while the Saguisag Committee recommended the further investigation of petitioner for violations of Section 3 (e) of RA. No. 3019, Section 4 (a) in relation to Section 11 of R.A. 6713, and Article 217 of the Revised Penal Code. Petitioner moved to dismiss on ground of lack of jurisdiction claiming that he is not a public officer and that NCC is a private organization. The motion was denied by the Ombudsman, hence, the instant recourse.The NCC was created under Administrative Order No. 223 and Executive Order No. 128 to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and nongovernment or private organizations. It aims to implement the state policies on the promotion of the nation's historical and cultural heritage and resources. It is thus a public office performing executive functions. Thus, the Chairman of this Committee is a public officer who may be investigated by the Office of the Ombudsman.

A definition of public officers cited in jurisprudence is that provided by Mechem, a recognized authority on the subject: 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.

In the Court's decision in Uy, we held that "it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercise prosecutorial powers only in cases cognizable by the Sandiganbayan." The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal. The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee.

HANNAH EUNICE SERANA VS SANDIGANBAYANCAN the Sandiganbayan try a government scholar ** accused, along with her brother, of swindling government funds?

Sandiganbayan has jurisdiction over the offense of estafa. Section 4 (B) of P.D. No. 1606 reads: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.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4 (B) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4 (A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.Petitioner UP student regent is a public officer. Petitioner contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that we will be called upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer. 39 The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence.Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No.1606. In Geduspan v. People, 43 We held that while the first part of Section 4 (A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law. Section 4 (A) (1) (g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. 45 By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office. 46 At most, it is merely incidental to the public office. 47 Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer. 48The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. 49 Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit. The offense charged was committedin relation to public office, according to the Information.Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. It is axiomatic that jurisdiction is determined by the averments in the information. More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash. Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent. In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while

in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government." (Underscoring supplied) Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground.

Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estrada's private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that "petitioner requested the amount of FifteeN Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)." Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.

TECSON VS SANDIGANBAYANClaiming that Demetrio Tecson, then mayor of

Prosperidad, Agusan del Sur, solicited and received P4,000.00 as consideration of the issuance of a business permit in her favor, Salvacion Luzana filed an administrative complaint against Tecson before the Sangguniang Panlalawigan. A complaint for violation of the "Anti-Graft and Corrupt Practices Act" was likewise filed with the OMBUDSMAN. The administrative case was dismissed on October 23, 1991. On June 30, 1995, the Sandiganbayan rendereda decision convicting Tecson. Hence, this petition wherein Tecson interposed res judicata and double jeopardy, among others.Res judicata is a doctrine of civil law. It has no bearing in the criminal proceedings before the Sandiganbayan. A public officer may be held civilly, criminally and administratively liable for a wrongful doing. Thus, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the object of the administrative complaint.The proceedings conducted by the Sanggunian were not criminal but administrative in nature. Hence, double jeopardy will not lie. Absent a showing that the prosecution witnesses were actuated by any improper motive, their testimony is entitled to full faith and credit. Recourse to the records showed that no error of law or abuse of discretion was committed by the respondent court when it gave credence to the positive testimony of the prosecution's witness as opposed to petitioner's bare denials. Denial, like alibi, is a weak defense, which becomes even weaker in the face of positive testimony by prosecution witnesses. The petition was denied.

Having been exonerated by the Sangguniang Panlalawigan of Agusan del Sur in the administrative case, he now submits the same is res judicata and thus bars the Sandiganbayan from hearing his case. Petitioner's theory has no leg to stand on. First, it must be pointed out that res judicata is a doctrine of civil law. It thus has no bearing in the criminal proceedings before the Sandiganbayan. Second, it is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public officer may be held

civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. Thus, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts, which were the subject of the administrative complaint. We conclude, therefore, that the decision of the Sangguniang Panlalawigan of Agusan del Sur exonerating petitioner in Administrative Case No. SP 90-01 is no bar to the criminal prosecution before the Sandiganbayan.

ESPINOSA VS OFFICE OF OMBUDSMANPetitioner Francisco Enriquez was Municipal Treasurer,

while petitioner Carmencita G. Espinosa was Administrative Officer and Acting Municipal Cashier of the Office of the Municipal Treasurer of Pasig. By virtue of Local Government Audit Order No. 88- 01-3, an audit examination of the cash and accounts of the Pasig Treasury covering the period from May 4, 1987 to November 30, 1987 was conducted. The audit disclosed, among other things, that Enriquez's accounts contained a shortage amounting to P3,178,777.41, which shortage was mainly due to a dishonored China Banking Check No. 303100 dated October 7, 1987 in the amount of P3,267,911.10. Said check was deposited with the Quezon City Treasury as part of the collections of the Pasig Treasury. The check was dishonored for several reasons. A demand for the restitution of the value of the dishonored check was made on Enriquez. However, Enriquez denied responsibility for the shortage. He claimed that it was Espinosa, the custodian of the check, who was responsible for the alleged shortage. Enriquez and Espinosa were charged, tried and convicted of the crime of malversation of public funds by the Sandiganbayan. The Sandiganbayan found that petitioners, in conspiracy with each other, misappropriated public funds in their custody and sought to cover up the shortages already existing in the municipal treasury's collections by depositing the subject check. The Sandiganbayan found the denials of the accused and their acts of shifting the blame and passing the responsibility for the dishonored check to each other as unacceptable and indicative of their guilt.

After an assiduous scrutiny of the pleadings and the evidence, testimonial and documentary, the Supreme Court acquitted the petitioners. The evidence in this case has not been proven beyond reasonable doubt that the accused were guilty of the crime charged for the following reasons: First, there was no evidence to prove that the Pasig Treasury incurred a cash shortage in the amount of P3,178,777.41. Second, there was no evidence that Enriquez or Espinosa had received such an amount, which they could no longer produce or account for at the time of the audit.Third, there was no showing that the subject check was received by the Pasig Treasury in an official capacity; that there was a duty to receive or collect the said amount, and that there was an obligation to account for the same. The evidence submitted, would point out that the subject check was not issued in payment of taxes or obligations due to the municipality and, consequently, no official receipt was issued for it. Indeed, the subject check never formed a portion of the public funds of the municipality for which either Enriquez or Espinosa are accountable for.

The crime of malversation for which ENRIQUEZ and ESPINOSA had been charged is defined under Article 217 of the Revised Penal Code. The elements of malversation under the

above penal provision are: (a) That the offender is a public officer. (b) That he has the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property are public funds or property for which he is accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

We are constrained to conclude that the prosecution, upon whose burden was laden the task of establishing proof beyond reasonable doubt that petitioners had committed the offense charged, failed to discharge this obligation. The Sandiganbayan found the denials of the accused and their acts of shifting the blame and passing the responsibility for the dishonored check to each other as unacceptable and indicative of their guilt. However, it must be emphasized that although the evidence for the defense may be characterized as weak, criminal conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. We are not convinced that the evidence in this case has proven beyond reasonable doubt that the accused are guilty of the crime charged.

There is no evidence to prove that the PasigTreasury incurred a cash shortage in the amount of P3,178,777.41, which amount, incidentally, is even less than the amount of the dishonored check. As per report of the audit team, the alleged shortage was computed and based on the value of the dishonored check. As stated in the assailed decision, it was only the drawn check, based on the audit examination that brought about the shortage. It was palpable error for the Sandiganbayan to conclude that the check which the audit team had pinpointed as the shortage due to its dishonor was at the same time, intended and used by ENRIQUEZ and ESPINOSA to "cover up" shortages in the funds allegedly in their custody. The shortage must be clearly established as a fact, i .e., that over and above the funds found by the auditor in the actual possession of the accountable officers, there is an additional amount of P3,178,771.42 which could no longer be produced or accounted for at the time of audit. Evidence of shortage is necessary before there could be any taking, appropriation, conversion, or loss of public funds that would amount to malversation. It makes no sense for any bogus check to be produced to "cover up" an inexistent malversation. Indeed, no less than the sole witness for the prosecution, audit team leader, Carmelita Antasuda, who conducted the cash count and cash examination of the Pasig Treasury, testified that based on their audit examination, it was only the subject check that brought about the shortage.

The Sandiganbayan relied on the statutory presumption that the "failure of a public officer to have duly forthcoming any public funds with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses." It must be emphasized that the prima facie presumption arises only if there is no issue as to the accuracy, correctness, and regularity of the audit findings and if the fact that funds are missing is indubitably established. In the instant case, audit team leader Carmelita Antasuda could not even equivocally state whether it was cash or check that was lost, if at all there was any, belying the accuracy and correctness of the team's audit report.

There is no showing that the subject check was received by the Pasig Treasury in an official capacity; that there was a duty to receive or collect the said amount; and that there

was an obligation to account for the same. The evidence submitted, just to the contrary, would point out that the subject check was not issued in payment of taxes or obligations due to the municipality and consequently no official receipt was issued for it. Indeed, the subject check never formed a portion of the public funds of the municipality for which either ENRIQUEZ or ESPINOSA are accountable for.

There would appear to have been lapses or deficiencies in the observance of auditing rules and regulations in the handling of the funds of the municipal treasury e.g. delay in deposits of collections, cash balances exceeding cash reserve limit, loose controls and no control records, etc. as pointed out by the audit team, and questions as to how a private check was bundled together with legitimate collections of the Pasig Treasury for transmittal to the Quezon City Treasury, but the same do not warrant a finding of criminal culpability, which requires proof beyond reasonable doubt on the part of ENRIQUEZ and ESPINOSA. However, the Chairman of the Commission on Audit should be apprised of this decision for whatever action he may deem appropriate.

LACSON VS THE EXECUTIVE SECRETARY, SANDIGANBAYANThis is a petition for prohibition and mandamus filed by

petitioner Panfilo M. Lacson and petitioners-intervenors Romeo Acop and Francisco Zubia, Jr. questioning the constitutionality of Sections 4 and 7 of Republic Act 8249 — an Act which further defines the jurisdiction of the Sandiganbayan. They also seek to prevent the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 against them on the ground of lack of jurisdiction. They further argued that if the case is tried before the Sandiganbayan, their right to procedural due process would violate as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under RA 7975, before recourse to the Supreme Court.The Court ruled that the challengers of Sections 4 and 7 of RA 8249 failed to rebut the presumption of constitutionality and reasonableness of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under RA 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. Since it is within the power of the Congress to define the jurisdiction of courts subject to the constitutional limitations, it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Moreover, petitioner's and intervenor's contention that their right to a two-tiered appeal which they acquired under RA 7975 has been diluted by the enactment of RA 8249 is incorrect. The same contention had already been rejected by the Court considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law.The mode of procedure provided for in the statutory right to appeal is not included in the prohibition against ex post facto law. RA 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law.

Anent the issue of jurisdiction, the Court ruled that for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of those accused PNP officers, the offense charged in

the subject criminal cases is plain murder and therefore, within the exclusive jurisdiction of the Regional Trial Court, not the Sandiganbayan. Accordingly, the constitutionality of Sections 4 and 7 of RA 8249 is sustained and the Addendum to the March 5, 1997 resolution of the Sandiganbayan is reversed.

A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office.

Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of [Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's official functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender — that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.

The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or information, and not by the evidence presented by the parties at the trial. As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by public officers and employees, including those in government-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new [1987] Constitution when it declared in Section 4 thereof that the Sandiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law."

The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: "It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. "In (People vs. Montejo (108 Phil. 613 [1960]), wherethe amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policemen and . . . special policemen appointed and provided by him with pistols and high power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed, entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who died in consequence thereof. We held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. "Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose, they spot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factualallegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, not the Sandiganbayan.

ROMUALDEZ VS SANDIGANBAYANThe issues are as follows: (1) whether Section 5 of

Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from

criminal prosecution under then Section 17 of Article VII of the 1973 Constitution.

The petition has no merit.First Issue: The Court holds that the challenged provision is not vague, and that in any event, the “overbreadth” and “void for vagueness” doctrines are not applicable to this case.

Second Issue: While it is fundamental that every element of the offense must be alleged in the information, matters of evidence — as distinguished from the facts essential to the nature of the offense — need not be averred. Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes. In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with such particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary matters that need not be alleged in the Information.

Third Issue: The Sandiganbayan’s actions are in accord also with Raro v. Sandiganbayan, which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed.

Fourth Issue: Act No. 3326, as amended, 65 governs the prescription of offenses penalized by special laws. Its pertinent provision reads:

“Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be 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 jeopardy.”

The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made. The accused is the late President Ferdinand E. Marcos’ brother-in-law. He was charged with intervening in a sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos.Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioner’s alleged involvement in the transaction. It was only after the creation of PCGG and its exhaustive investigations that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense.

Fifth Issue: Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer — specifically, as naval aide-de-camp — of former President Marcos. 70 He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:

“The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure.”As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975.

QUINON VS PEOPLEFor failure to return the two super caliber .38 pistol

and their magazines and one 12-gauge shotgun that were issued to him during his incumbency and by reason of his function as Station Commander of Calinog, Iloilo PC/INP, Pablo N. Quiñon was convicted by the Sandiganbayan of the crime of Malversation of Public Property. Thus, he interposed this petition for review claiming that the Sandiganbayan erred in holding that he is an accountable public officer. The Court ruled that Article 217 of the Revised Penal Code is designed to protect the government and to penalize erring public officials and conspiring private individuals responsible for the loss of public funds and property by reason of corrupt motives or neglect or disregard of duty. Its all encompassing provision cannot be limited by petitioner's absurd interpretation of the provisions of the Administrative Code restricting the application thereof only to government funds and to bonded public officials. Accordingly, the decision of the Sandiganbayan was affirmed.

The elements of malversation, essential for the conviction of an accused under the above penal provision are: 1. That the offender is a public officer; 2. That he has the custody or control of funds or property by reason of the duties of his office; 3. That the funds or property are public funds or property for which he is accountable; and 4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them.

An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. To be liable for malversation, an accountable officer need not be a bonded official. The name or relative importance of the office or employment is not the controlling factor. What is decisive is the nature of the duties that he performs and that as part of, and by reason of said duties, he receives public money or property which he is bound to account.

In the case at bar, the delivery to petitioner of the firearms belonging to the Government, by reason of his office as Station Commander of Calinog, Iloilo, PC-INP, necessarily entailed the obligation on his part to safely keep the firearms, use them for the purposes for which they were entrusted to him, and to return them to the proper authority at the termination of his tenure as commander, or on demand by the owner, the duty to account for said firearms. Thus, in Felicilda v. Grospe, the Court held a police officer accountable for the firearms issued to him and consequently convicted him for malversation of public property when he failed to produce said firearms upon demand by the proper authority.

Article 217 of the Revised Penal Code is designed toprotect the government and to penalize erring public officials and conspiring private individuals responsible for the loss of public funds and property by reason of corrupt motives or neglect or disregard of duty. Its all encompassing provision cannot be limited by petitioner's absurd interpretation of the provisions of the

Administrative Code restricting the application thereof only to government funds and to bonded public officials.

Under Article 217 of the Code, the failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. Considering that petitioner failed to adduce evidence on why he failed to produce, after the expiration of his term and despite lawful demand, the two .38 caliber pistols with Serial Nos. 310136 and 310150 issued to him by reason of his duties as Station Commander of the Calinog, Iloilo, PC-INP, the Sandiganbayan correctly convicted him of malversation of public property.

MENESES VS SANDIGANBAYANArticle 217 of the Revised Penal Code provides that any

public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, shall be guilty of the misappropriation or malversation of such funds or property(Emphasis supplied).

The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against "vale" or chits given in exchange by the borrowers. On the other hand, in Cabello vs. Sandiganbayan, we held that the giving of "vales" by public officers out of their accountable funds is prohibited by P.D. No. 1145, otherwise known as the Government Auditing Code of the Philippines and Memorandum Circular No. 570, dated June 24, 1968 of the General Auditing Office.

CABRERA ET. AL VS MARCELOFacts: Before the Ombudsman, complaints were filed by private respondent Franco P. Casanova against incumbent Taal, Batangas mayor Librado M. Cabrera, his wife, former Mayor Fe M. Cabrera, and Taal Municipal Councilor Luther Leonor, for violation of Article 217 in relation to Articles 171 and 48 of the Revised Penal Code (i.e., the complex crime of Malversation of Public Funds thru Falsification of Public Documents), and Section 3(e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act. The cases pertained to the allegedly unauthorized travels of the spouses Cabrera, and the allegedly anomalous purchase of medicines involving Leonor and the Cabreras. The complaint pertaining to the alleged unauthorized travel, docketed as OMB-1-01- 0873-J, alleges that during his previous term, Librado Cabrera had, on 13 March 1998 and 22 June 1998, collected and received from the Municipal Government of Taal, reimbursement of alleged travel expenses incurred outside of the Province of Batangas in the respective amounts of Thirteen Thousand Six Hundred Seventy Pesos and Twenty-Nine Centavos (P13,670.29) and Thirteen Thousand Nine Hundred Eighty-One Pesos and Fifty Four Centavos (P13,981.54). Likewise, Fe Cabrera, during her own term, obtained reimbursement for alleged travel expenses incurred outside the province of Batangas in the total amount of One Hundred Seventy Thousand Nine Hundred Eighty-Seven Pesos and Sixty-Six Centavos

(P170,987.66). 1 The Cabreras, prior to undertaking the questioned trips, did not secure formal approval from the Provincial Governor of Batangas as required under the Local Government Code. It is also alleged that the Cabreras forged the signature of then Governor Hermilando I. Mandanas in a purported Certification dated 14 December 2000, which appeared to approve the travel orders and expenses incurred by the Cabreras.

Issue: Petitioners claim that the Ombudsman acted without or in excess of his jurisdiction or with grave abuse of discretion in approving the 22 March 2002 Resolution and the 30 October 2002 Memorandum. They allege that there is no sufficient basis in fact or in law to charge petitioners with violations of Section 3(e) of the Anti-Graft and Corrupt Practices Act. They also question the reliance made by the Ombudsman on the COA Audit Report, whichthey point out had not yet become final it being the subject of a pending appeal with the COA head office. They also note that the Ombudsman previously dismissed an administrative complaint lodged by Casanova with the Office of the Ombudsman, involving the same matters.

Ruling: It should be borne in mind that the interest of the COA is solely administrative, and that its investigation does not foreclose the Ombudsman's authority to investigate and determine whether there is a crime to be prosecuted for which a public official is answerable.

An examination though of the Orders of the Ombudsman dismissing the administrative complaint reveal that the dismissal was warranted not because the charges had no merit. In disposing of the administrative complaint, the Office of the Ombudsman noted that since Fe Cabrera was no longer the Mayor of Taal, the administrative complaint against her should be dismissed because the Ombudsman could no longer acquire jurisdiction over her person. 34 In the cases of Librado Cabrera and Luther Leonor, it was observed that since both were subsequently reelected to their incumbent positions in 2001, their reelection, concordant to Aguinaldo v. Santos, operates as a condonation of whatever administrative infraction or misconduct they may have committed during their previous terms. Clearly then, these complaints were dismissed not because the charges were unfounded, but because of prevailing doctrines peculiar to administrative complaints. Besides, it is well settled that condonation of an officer's fault or misconduct during a previous expired term by virtue of his reelection to office for a new term can be deemed to apply only to his administrative and not to his criminal guilt.

It is the Ombudsman's determination that there is probable cause to charge petitioners with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act.

The provision reads: (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The elements of the offense were spelled out in Sistoza v. Desierto: The elements of the offense are: (a) The accused is a public officer or a private person charged in conspiracy with the former; (b) The public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public functions; (c) That he or she causes undue injury to any party, whether the government or a private party; (d) Such undue

injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (e) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable neglect. Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. It is further required that any or all of these modalities ought to result in undue injury to a specified party.

We are convinced that the Ombudsman did not commit a grave abuse of discretion when he found the existence of undue injury, manifest partiality, and evident bad faith, sufficient to establish a prima facie case against the petitioners for violation of the Anti-Graft and Corrupt Practices Act.

All told, we are satisfied with the finding of probable cause as established by the Office of the Ombudsman, and find no grave abuse of discretion on its part that would warrant the allowance of this petition.TABUENA VS SANDIGANBAYANTabuena and Peralta stress that they were being charged with intentional malversation. But they were convicted of malversation by negligence. Their theory is that such variance is a reversible flaw.We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan " where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: ". . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper."

Good faith is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior — the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. In other words, Marcos had a say in matters involving intergovernment agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some

lawful purpose." The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). The MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of theP55 Million of the MIAA funds.

There is no denying that the disbursement, whichTabuena admitted as "out of the ordinary," did not comply with certain auditing rules and regulations. But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditingprocedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal.

The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC. We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office,the sum of FIFTY FIVE MILLION . . .," and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President in as much as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money.

Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million.

MENDIOLA VS PEOPLEREPUBLIC ACT NO. 3019, AS AMENDED (ANTI-GRAFT

LAW); KNOWINGLY GRANTING LICENSE OR PERMIT TO UNQUALIFIED PERSONS, AND CAUSING UNDUE INJURY TO ANY PARTY; A SUBSTANTIAL QUESTION OF LAW MAY BE THE BASIS OF GOOD FAITH; GOOD FAITH, VALID DEFENSE, IN CASE AT BAR. The information for violation of Section 3(j) of R.A. No. 3019, as amended, alleged that Ortillada, Rosales and Blanco were not

legally entitled to "building permits for market stalls" for the reason that "the place or location to where these permits were issued is already covered by a valid and existing building permit previously by accused on March 12, 1987 in favor of the Municipality of Angono, Rizal." The evidence at the trial, showed that when petitioner issued the building permit for the new or Phase II building, he noted the encroachment of the proposed building upon the Phase I market stalls of Ortillada, Rosales and Blanco and had precisely required that the building plan be corrected. The factors tending to show good faith on the part of petitioner Mendiola include the following: Firstly, the permits issued by petitioner to Ortillada, Rosales and Blanco upon their application were merely temporary renovation permits that authorized the renovation of the stalls demolished by the Phase II contractor. As pointed out earlier, these renovation permits were qualified by the terms of an accompanying transmittal letter issued by petitioner Mendiola stating that the renovation permits would become ineffective should the courts or proper higher authority restrain the three (3) permittees from renovating their makeshift market stalls. Secondly, the three (3) permittees were long-time stallholders, having been so at least since the fire which had destroyed the old Angono Public Market. They were not strangers to the Angono Public Market, since they were stallholders, with temporary stalls, in APM-Phase I. Thirdly, the three (3) permittees had outstanding and paid-up municipal business permits when petitioner issued them their stall renovation permits. Fourthly, the permittees' temporary stalls had been demolished without prior hearing or a court order, or a demolition order from the authorized building official which was petitioner Mendiola himself. Thus, whether Ortillada, Rosales and Blanco were legally entitled to the temporary renovation permits presented a substantial question of law and it is well to recall that mistake on a doubtful or difficult question of law may be the basis of good faith. There are other factors, environmental in nature, tending to show good faith on the part of petitioner Mendiola which relate to Resolution No. 7-1987 of theAngono Municipal Council, the enabling Resolution which lay at the heart of the boiling controversy between the Phase I stallholders and the Phase II awardees. Firstly, as already pointed out, the validity of Resolution No. 7-1987 was being litigated before the courts. The record shows that there were at least three (3) cases before the Regional Trial Court of Binangonan involving the validity or enforceability of Resolution No. 7-1987. What was brought up before the Court of Appeals on a petition for certiorari was an interlocutory order of the trial court in one of the cases denying a preliminary writ of injunction stopping the construction of the new building. Secondly, the decision dated 31 August 1988 of the Secretary, DPWH, was not really final since the applicable statute itself provided for an appeal by way of a petition for review before the Office of the President. Contrary to the submission of the Solicitor General, we believe and so hold that all the above factors support the claim of good faith in respect of both the first and second charges against petitioner Mendiola. The question of validity and enforceability of Resolution No. 7-1987 was all pervasive and inevitably affected both the entitlement of the three (3) Phase I stallholders to the temporary renovation permits issued by petitioner Mendiola and the entitlement of the contractor and Phase II awardees to a certificate of partial occupancy of the admittedly incomplete new building. The facts or events surrounding the first charge are so intertwined with those surrounding the second charge as to render it very difficult to separate them, even conceptually.

CAUSING UNDUE INJURY TO ANY PARTY; EVIDENT BAD FAITH, NOT ESTABLISHED IN CASE AT BAR; ABSENCE OF ANY ALLEGATION THAT ACCUSEDRECEIVED MONEY FOR ISSUING THE

QUESTIONED RENOVATION PERMIT. Section 3(e) of R.A. No. 3019, as amended, requires proof of "manifest partiality" or "evident bad faith" or "gross inexcusable negligence." The information for violation of Section 3(e) alleged only "evident bad faith." We believe that, in the totality of the circumstances of this case, the prosecution failed to show beyond reasonable doubt the presence of any of these three (3) elements. Indeed, it appears that the prosecution failed to overcome the presumption of good faith to which every public official, acting in discharge of his official duties, is entitled. The petitioner, caught between two (2) contending groups was constantly trying to specify in writing the reasons for his acts. While one need not agree with all his acts or stated reasons therefor or the wisdom thereof, one cannot say that they were so obviously and palpably sham justifications for merely arbitrary and capricious acts as to warrant a finding of "evident bad faith." No one had claimed that petitioner received any money for issuing the renovation permits or refraining from issuing the demanded certificate(s) of partial occupancy.

ABSENCE OF UNDUE INJURY TO ANY PARTY IN CASE AT BAR. There is also substantial doubt whether the element of "undue injury to any party" required in Section 3(e) was adequately shown by the prosecution. The respondent Sandiganbayan apparently overlooked the circumstance that the Phase II awardees had in fact entered and occupied their respective stalls in the new building, without waiting for the certificate(s) of partial occupancy which they demanded from petitioner Mendiola and without paying heed to Resolution No. 097-1988 of the new Municipal Council warning them not to open up their stalls in the still incomplete new building. The record strongly suggests that petitioner Mendiola had the misfortune of getting caught in the middle of a heated controversy between two (2) local interest groups and between the outgoing OIC municipal officials and the incoming newly elected set of municipal officials. In the course of requiring complete compliance with all formal and documentary requirements for issuance of a certificate of occupancy or partial occupancy, he was charged with violation of R.A. No. 3019 as amended, doubtless at the behest of the Phase II awardees, the contractor and the old or OIC set of municipal officials. Had he in fact issued the demanded certificate(s) of partial occupancy, he in all probability would have been charged criminally by the Samahan of Phase I stallholders and the newly elected municipal officials, probably under the same statutory provisions. The Court of Appeals decision did not pass upon the merits of the question of validity of Resolution No. 7-1987; it merely assumed the validity of that Resolution which was precisely being controverted before the trial court. The DPWH Secretary did not pass upon the grounds relating to Resolution No. 7-1987 urged in the motion for reconsideration of petitioner Mendiola and the new Mayor. Under these circumstances, the filing of the two (2) criminal informations appears quite unfortunate. We note also that, so far as the record would show, petitioner Mendiola was, curiously, the only person or public official criminally charged in connection with the whole affair. That the three (3) Phase I stallholders on whose stalls the new building encroached happened to be relatives or friends of petitioner, appears to us as essentially if not completely co-incidental; the ruling of the Sandiganbayan that petitioner deliberately chose to protect the interests of his relatives and friend and not the interests of the general community appears bereft of basis and as speculative. The standard of proof beyond reasonable doubt was not met.

LAYNO VS PEOPLEThe law on nepotism, as provided in Section 49(a) of

PD No. 807, prohibits the appointing or recommending authority

from making any appointment in the national, provincial, city or municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, in favor of his (appointing or recommending authority's) relative within the third degree of consanguinity or affinity. Thus, in order to guarantee that the law is duly observed, it is required, among others, that the appointment paper should be accompanied by a certification of the appointing or recommending authority stating therein that he is not related to the appointee within the third degree of consanguinity or affinity. Although Section. 49(a) of PD No. 807 does not explicitly provide that the appointing or recommending authority shall disclose his true relationship with the appointee in the form of a certification, nonetheless, in the light of the rulings in People vs. Po Giok To (196 Phil. 913) and People vs. Kho, (CA G.R. No. 03618-CR), the legal obligation of the appointing or recommending authority to state the true facts required to be stated in the certification is inherent in the law on prohibition against nepotism and the nature and purpose of such certification. In the case at bar, since the petitioner was the appointing authority when he made the appointment in favor of his son, Fernando T. Layno, as meat inspector in the office of the municipal treasurer of Lianga, Surigao del Sur, he had the legal obligation to disclose in the certification his true relationship with the appointee.

FALSIFICATION OF PUBLIC DOCUMENTS; DEFENSE OF GOOD FAITH UNAVAILING IN CASE AT BAR. This Court has indeed ruled that good faith is a valid defense in a charge of falsification of public documents by making untruthful statements in a narration of facts. In the present case, however, the petitioner's claim of good faith is unavailing as it is inconsistent with his very defense that he did not sign nor issue the certification in question. As held by the Sandiganbayan — "The plea cannot be accepted. He expressly admitted that Fernando Y. Layno was his legitimate son. Nevertheless, he deliberately disregarded that fact, brazenly certifying that he was not related to him within the third degree of consanguinity. The perversion was designed to conceal his father-son relationship from the Civil Service Commission and thereby deceived it, as it was in fact deceived, in approving the appointment he extended to him. The criminal intent is not only obvious, but is also presumed, from the untruthful narration of fact. The crime of falsification having already been committed, no acts showing subsequent repentance and abandonment of purpose, even if true, can relieve the accused of his penal liability."

FALSIFICATION BY PUBLIC OFFICER; MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACT; REQUISITES; CASE AT BAR. In Syquian vs. The People of the Philippines, (171 SCRA 223), this Court held that: "The offense of falsification by a public officer under Article 171 of the Revised Penal Code is committed by 'any public officer, employee or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: . .. 4. Making untruthful statements in a narration of fact; . . .' It is settled that in this fourth kind of falsification, the following requisites must concur: (a) That the offender makes in a document untruthful statements in a narration of facts; (b) That he has a legal obligation to disclose the truth of the facts narrated by him; and (c) That the facts narrated by the offender are absolutely false (Cabigas v. People, G.R. No. 67472, July 3, 1987, 152 SCRA 18.)" After a thorough review of the records, the Court finds that all the elements of the crime of falsification of public document under Article 171, par. 4, of the Revised Penal Code are present in the case at bar. The petitioner was a public officer being then the incumbent mayor of the Municipality of Lianga, Surigao del Sur,

when he issued on 16 March 1980 the appointment in favor of Fernando Y. Layno as a meat inspector in the office of the municipal treasurer of Lianga. In connection with the said appointment, the petitioner taking advantage of his official position, issued the certification (Exh. B)— a public document — stating therein that he is not related to the appointee within the third degree of consanguinity or affinity; but, as previously discussed, he had the legal obligation to disclose his true relationship with the appointee. The facts narrated by the petitioner in the said certification are absolutely false because the bare fact and naked truth is that the appointee Fernando Y. Layno is his legitimate son.

BANCO FILIPINO VS PURISIMAANTI-GRAFT AND CORRUPT PRACTICES ACT; ADDITIONAL EXCEPTIONS TO RULE AGAINST DISCLOSURE OF BANK DEPOSITS UNDER REPUBLIC ACT NO. 1405. Section 8 of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, on dismissal due to unexplained wealth, is an additional exception under Republic Act No. 1405.

INQUIRY INTO ILLEGALLY ACQUIRED PROPERTY; EXTENDS TO PROPERTY RECORDED IN THE NAME OF OTHER PERSON. The inquiry into illegally acquired property - or property NOT "legitimately acquired" - extends to cases where such property is concealed by being held by or recorded in the name of other persons. This proposition is made clear by R.A. No. 3019 which quite categorically states that the term, "legitimately acquired property of a public officer or employee shall not include . . . property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, respondent's spouse, ascendants, descendants, relatives or any other persons.

RATIONALE. To restrict the inquiry only to property held by or in the name of the government official or employee, or his spouse and unmarried children, would make available to persons in government who illegally acquire property an easy and fool-proof means of evading investigation and prosecution; all they would have to do would be to place the property in the possession or name of persons other than their spouse and unmarried children.

CLARO VS SANDIGANBAYANANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 2

(b) THEREOF; PUBLIC OFFICER DEFINED AND CLASSIFIED; APPLICATION IN CASE AT BAR. Petitioner misconstrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof "includes 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. . .." The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987. Non-career service in particular is characterized by — (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2)

Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. It is quite evident that petitioner fails under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of office became unessential considerations in view of the above-mentioned provision of law clearly including petitioner within the definition of a public officer.

SECTION 3 (b) THEREOF; COMMITTED BY MERE DEMAND; CASE AT BAR. Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, when he could have just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his percentage share of P200,000.00 whether from the contractor's project engineer, Engr. Alexander Resoso or directly from the contractor himself Engr. Jaime Sta. Maria, Sr. That petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently established by the testimony of Engr. Resoso.

ESTABLISHED IN CASE AT BAR. Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his intervention "was not required by law but in the performance of a contract of services entered into by him as a private individual contractor," is erroneous. As discussed above, petitioner falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the contract of services are subsumed under the phrase "wherein the public officer in his official capacity has to intervene under the law." Petitioner's allegation, to borrow a cliche, is nothing but a mere splitting of hairs. Among petitioner's duties as project manager is to evaluate the contractor's accomplishment reports/billings hence, as correctly ruled by the Sandiganbayan he has the "privilege and authority to make a favorable recommendation and act favorably in behalf of the government," signing acceptance papers and approving deductives and additives are some examples. All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore, present. Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit. Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges against him should be rejected for being improbable, unbelievable and contrary to human nature. We disagree. Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral certainty is required or "that degree of proof which produces conviction in an unprejudiced mind." We have extensively reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan.

BERONA VS SANDIGANBAYANFacts: Petitioners were public officers and employees of the Provincial Health Office of Bangued, Abra ("Health Office"). Dr. Demetrio Beroña ("Dr. Beroña") was Provincial Health Officer II,

Dr. Romulo Gaerlan ("Dr. Gaerlan") was Provincial Health Officer I, Aurie Viado-Adriano ("Viado-Adriano") was resident auditor and Vida Labios ("Labios") was an accountant. Petitioners were among the seven 3 charged for violation of Section 3(e) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act ("RA 3019") before the Sandiganbayan in Criminal Case No. 23521. When arraigned, all the accused pleaded not guilty. On 30 April 1999, the prosecution filed an Amended Motion to Suspend the Accused Pendente Lite pursuant to Section 13 of RA 3019 ("Section 13"). The motion sought the suspension of petitioners from any public office which they may be occupying pending trial. After the pre-suspension hearing held on 6 July 1999, the Sandiganbayan suspended the petitioners from office for 90 days. The Sandiganbayan held that preventive suspension is mandatory under Section 13 upon the court's finding that a valid information charges the accused for violation of RA 3019 or Title 7, Book II of the Revised Penal Code or any offense involving public funds or property or fraud on government. The Sandiganbayan observed that a preliminary investigation was duly conducted before the filing of the Information, which the Sandiganbayan found sufficient in form and substance. In the second Resolution, the Sandiganbayan denied petitioners' motion for reconsideration.

Issue: Petitioners would now have this Court strike down the first and second Resolutions as supposedly rendered with grave abuse of discretion and in excess of jurisdiction. Petitioners contend that at the time of their preventive suspension they were no longer holding the positions they were occupying when the transactions, subject of the Information in Criminal Case No. 23521, happened.

Ruling: Suspension pendente lite applies to any office the officer might be currently holding. The Court reiterated this doctrine in Segovia v. Sandiganbayan in this wise:

The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service. It applies to a Public High School Principal; a Municipal Mayor; a Governor; a Congressman; a Department of Science and Technology (DOST) non-career Project Manager; a Commissioner of the Presidential Commission on Good Government (PCGG). The term "office" in Section 13 of the law applies to any office which the officer might currently be holding and not necessarily the particular office in relation to which he is charged. (Emphasis supplied)

Petitioners' other contention that there is no longer any danger that petitioners would intimidate prosecution witnesses since two of the latter's witnesses had already completed their testimonies in court is also untenable. Equally futile is their claim that Dr. Beroña's suspension would deprive his constituents in the Municipality of Pilar the services and leadership of their highest elected municipal official to the greater detriment of public service. These reasons cannot override the mandatory character of Section 13. The possibility that the accused would intimidate witnesses or hamper their prosecution is just one of the grounds for preventive suspension. Another is to prevent the accused from committing further acts of malfeasance while in office. The period imposed by the Sandiganbayan is also in accord with our previous rulings limiting to 90 days the period of preventive suspension under Section 13. Section 13 reinforces the principle that a public office is a public trust. Its purpose is to prevent the accused public officer from hampering his prosecution by intimidating or influencing witnesses, tampering with documentary evidence, or committing further acts of malfeasance while in office. Petitioners' last feeble argument that the prosecution evidence is weak misses the point. They lose sight

of the fact that preventive suspension is not a penalty. The accused public officers whose culpability remains to be proven are still entitled to the constitutional presumption of innocence. 12 The presence or absence of the elements of the crime is evidentiary in nature which the court will pass on after a full-blown trial on the merits.

DOROMAL VS SANDIGANBAYANWHEN THE CHARGE HAS BEEN CHANGED; RIGHT OF

THEACCUSED IS SUBSTANTIAL. The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure. That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial error, in that it subjects the accused to the loss of life, liberty, or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).

ACCUSED ALONE MAY WAIVE THE RIGHT. The SolicitorGeneral's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it.

ABSENCE OF, IS NOT A GROUND TO QUASH THE COMPLAINT; CASE MUST BE REMANDED FOR PRELIMINARY INVESTIGATION. As the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in theSandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus we did rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4.

ANTI-GRAFT AND CORRUPT PRACTICES ACT; PRESENCE OF A SIGNED DOCUMENT, NOT A SINE QUA NON FOR THE PETITIONER TO BE CHARGED. The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed document bearing the signature of accused Doromal as part of the application to bid . . . . is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be charged . . . with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107-108, Rollo)

PARTICIPATION OF PUBLIC OFFICIALS IN ANY BUSINESS; BAN IS SIMILAR TO THE PROHIBITION IN THE CIVIL SERVICE LAW. Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-President, the members of the Cabinet and their deputies or assistants shall not . . . during (their) tenure, . . . directly or indirectly . . . participate in any business." The constitutional ban is similar to the prohibition in the CivilService Law (PD No. 807, Sec. 36, subpar. 24) that "pursuit of private business . . . without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service.

VIOLATION OF PROHIBITION COMMANDS SUSPENSION FROM OFFICE; LEAVE OF ABSENCE IS NOT A BAR TO PREVENTIVE SUSPENSION. Since the petitioner is an incumbent public official

charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent.

CIVIL SERVICE; PREVENTIVE SUSPENSION; MAXIMUM PERIOD IS 90 DAYS. As we held in Layno, Sr. vs. Sandiganbayan , 136 SCRA 536 (1985), a preventive suspension for an indefinite period of time, such as one that would last until the case against the incumbent official shall have been finally terminated, would "outrun the bounds of reason and result in sheer oppression" and a denial of due process. The petitioner herein is no less entitled to similar protection. Since his preventive suspension has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted.

BOLASTIG VS SANDIGANBAYANREPUBLIC ACT NO. 3019; PREVENTIVE SUSPENSION

UNDER SECTION 13 THEREOF MANDATORY. It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law. Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court.

NINETY-DAY PERIOD OF PREVENTIVE SUSPENSION; EXPLAINED. It is indeed true that in some of our decisions the expression "the maximum period of ninety (90) days" is used. But that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive suspension is not found in Sec. 13 of Republic Act No. 3019 but was adopted from Sec. 42 of the Civil Service Decree (P.D. NO. 807), which is now Sec. 52 of the Administrative Code of 1987. . . . The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is decided within that period; otherwise, it will continue for ninety days. The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but not on account of any discretion lodged in the court, taking into account the probability that the accused may use his office to hamper his prosecution.

CONTENTION THAT SUSPENSION WILL DEPRIVE PETITIONER'S CONSTITUENCY OF HIS SERVICES NOT SUFFICIENT BASIS FOR REDUCING MANDATORY PERIOD. The fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, thus rejecting the view expressed in one case that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are deprived of representation.

CABAL VS KAPUNANANTI-GRAFT LAW; FORFEITURE OF UNEXPLAINED

WEALTH; NATURE OF FORFEITURE AS PENALTY. — The purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti- Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property. Such forfeiture has been held, however, to partake of the nature of a penalty.

EXEMPTION OF DEFENDANTS FROM OBLIGATION TO BE WITNESS AGAINST THEMSELVES. Proceedings for forfeiture of property are deemed criminal or penal, and hence, the exemption of defendants in criminal cases from the obligation to be witness against themselves are applicable thereto.

FORFEITURE OF PROPERTY IN SUBSTANCE IS A CRIMINAL PROCEEDING FOR THE PURPOSE OF PROTECTION OF THE RIGHTS OF THE DEFENDANT AGAINST SELF-INCRIMINATION; CASE OF BOYD vs. U.S. and THURSTON vs. CLARK, CITED. In Boyd vs. U.S. (116 U.S. 616, 29 L. ed., 746), it was held that the information, in a proceeding to declare a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding, is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason of criminal proceedings for the purposes of that portion of the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecuted is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is an action, suit or cause instituted to punish an infraction of the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case . . . ."

CASE OF ALMEDA vs. PEREZ, DISTINGUISHED. In Almeda vs. Perez, L-18428 (August 30, 1962) the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding is civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing

on the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination.

REPUBLIC VS SANDIGANBAYAN (2002)The Presidential Commission on Good Government (PCGG) issued a sequestration writ against all the assets, shares of stock, property records and bank deposits of Hans Menzi Holdings and Management, Inc. (HMHMI). The estate of Hans M. Menzi, in behalf of HMHMI, filed with the Sandiganbayan a motion to lift freeze order which was granted by the Sandiganbayan. Thereafter, the Republic of the Philippines filed with the Supreme Court a petition for review assailing the resolution of the Sandiganbayan lifting the freeze order. The Court set aside the Sandiganbayan resolution and remanded the case back to the Sandiganbayan to resolve the issue of the issuance of the writ of sequestration. The Sandiganbayan lifted the writ of sequestration reasoning that there was no prima facie factual basis for its issuance. The Sandiganbayan denied petitioner's motion for reconsideration. Hence, this petition.The Supreme Court ruled that the Sandiganbayan has full authority to decide on all incidents in the ill-gotten case, including the propriety of the writs of sequestration that the PCGG initially issued. In the absence of competent evidence showing thus far that President Marcos or his cronies ever acquired Bulletin shares of the late Hans M. Menzi or HMHMI that might be subject to sequestration, the Supreme Court may not void the resolutions of the Sandiganbayan in question. Moreover, the appellate jurisdiction of the Supreme Court over decisions or final orders of the Sandiganbayan is limited to questions of law. The Supreme Court is not a trier of facts. It is not the Court's function to examine and weigh all over again the evidence presented in the proceedings below.

APPELLATE JURISDICTION OF THE SUPREME COURT OVER DECISIONS OF THE SANDIGANBAYAN, LIMITED TO QUESTIONS OF LAW. It is well settled that the appellate jurisdiction of the Supreme Court over decisions or final orders of the Sandiganbayan is limited to questions of law. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.

QUESTION OF FACT, DEFINED. A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation.

SANDIGANBAYAN HAS FULL AUTHORITY TO DECIDE ON ALL INCIDENTS IN THE ILL-GOTTEN CASE INCLUDING THE PROPRIETY OF THE WRITS OF SEQUESTRATION IN CASE AT BAR. We agree with respondents that the Sandiganbayan has full authority to decide on all incidents in the ill-gotten case, including the propriety of the writs of sequestration that the PCGG initially issued. Based on the evidence the PCGG submitted so far to the Sandiganbayan, the late Hans M. Menzi owned the Bulletin Publishing Corporation almost one hundred (100%) per cent since 1957, except those Bulletin shares sold to U.S. Automotive corporation in 1985, those converted to treasury shares in 1986, and those sold to the general public at public offerings. In the absence of competent evidence showing thus far that President Ferdinand E. Marcos or his cronies ever acquired Bulletin shares

of the late Hans M. Menzi or HMHMI that might be subject to sequestration, we may not void the resolutions of the Sandiganbayan in question.

REPUBLIC VS SANDIGANBAYAN (2003)These consolidated cases stemmed from the

resolutions of the Sandiganbayan (1) ordering the calling and holding of the Eastern Telecommunications, Philippines, Inc.(ETPI) annual stockholders meeting for 1992 under its supervision and (2) authorizing the Presidential Commission on Good Government (PCGG) to cause the holding of a special stockholders' meeting to increase ETPI's authorized capital stock and to vote therein the sequestered Class "A" shares of stock. The Supreme Court ruled that the Members of the Sandiganbayan cannot participate in the stockholders meeting for the election of the ETPI Board of Directors. Neither shall the Clerk of Court be appointed to call such meeting and issue notices thereof. The Sandiganbayan shall appoint, or the parties may agree to constitute, a committee of competent and impartial persons to call, send notices and preside at the meeting for the election of the ETPI Board of Directors. The Court likewise ruled that the PCGG cannot vote sequestered shares to elect the ETPI Board of Directors or to amend the Articles of Incorporation for the purpose of increasing the authorized capital stock unless there is a prima facie evidence showing that said shares are ill-gotten and there is an imminent danger of dissipation. Consequently, the Court referred the petitions at bar to the Sandiganbayan for reception of evidence to determine whether there is a prima facie evidence showing that the sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle the PCGG to vote them in a stockholders' meeting.

SEQUESTERED SHARES; EXCEPTION. The PCGG cannot thus vote sequestered shares, except when there are "demonstrably weighty and defensible grounds" or "when essential to prevent disappearance or wastage of corporate property."

TWO-TIERED TEST IN DETERMINING WHETHER SEQUESTERED SHARES MAY BE VOTED UPON. The principle laid down in Baseco was further enhanced in the subsequent cases of Cojuangco v. Calpo and Presidential Commission on Good Government v. Cojuangco, Jr. , where this Court developed a "two-tiered" test in determining whether the PCGG may vote sequestered shares: The issue of whether PCGG may vote the sequestered shares in SMC necessitates a determination of at least two factual matters: 1. whether there is prima facie evidence showing that the said shares are ill-gotten and thus belong to the state; and 2. whether there is an immediate danger of dissipation thus necessitating their continued sequestration and voting by the PCGG while the main issue pends with the Sandiganbayan.

INAPPLICABLE IN CASES INVOLVING FUNDS OF PUBLICCHARACTER. The two-tiered test, however, does not apply in cases involving funds of "public character." In such cases, the government is granted the authority to vote said shares, namely: (1) Where government shares are taken over by private persons or entities who/which registered them in their own names, and (2) Where the capitalization or shares that were acquired with public funds somehow landed in private hands.

STOCK AND TRANSFER BOOK, SHALL BE THE BASIS OF DETERMINING THE TRUE OWNERS OF THE SHARES OF STOCK, REGARDLESS OF THE PRESENCE OF ALTERATIONS BY SUBSTITUTION THEREIN; CASE AT BAR. This Court sees no grave abuse of discretion on the part of the Sandiganbayan in ruling that: "The charge that there were "alterations by substitution" in

the Stock and Transfer Book is not a matter which should preclude the Stock and Transfer Book from being the basis or guide to determine who the true owners of the shares of stock in ETPI are. If there be any substitution or alterations, the anomaly, if at all, may be explained by the corporate secretary who made the entries therein. At any rate, the accuracy of the Stock and Transfer Book may be checked by comparing the entries therein with the issued stock certificates. The fact is that any transfer of stock or issuance thereof would necessitate an alteration of the record by substitution. Any anomaly in any entry which may deprive a person or entity of its right to vote may generate a controversy personal to the corporation and the stockholder and should not affect the issue as to whether it is the PCGG or the shareholder who has the right to vote. In other words, should there be a stockholder who feels aggrieved by any alteration by substitution in the Stock and Transfer Book, said stockholder may object thereto at the proper time and before the stockholders meeting." Whether the ETPI Stock and Transfer Book was falsified and whether such falsification deprives the true owners of the shares of their right to vote are thus issues best settled in a different proceeding instituted by the real parties-in-interest.

REGISTRATION IS A PREREQUISITE FORVOTING OF SHARES; RATIONALE. Explaining why registration is a prerequisite for the voting of shares, this Court, in Batangas Laguna Tayabas Bus Company, Inc., v. Bitanga, discoursed: "Indeed, until registration is accomplished, the transfer, though valid between the parties, cannot be effective as against the corporation. Thus, the unrecorded transferee cannot vote nor be voted for. The purpose of registration, therefore, is two-fold: to enable the transferee to exercise all the rights of a stockholder, including the right to vote and to be voted for, and to inform the corporation of any change in share ownership so that it can ascertain the persons entitled to the rights and subject to the liabilities of a stockholder. Until challenged in a proper proceeding, a stockholder of record has a right to participate in any meeting; his vote can be properly counted to determine whether a stockholders' resolution was approved, despite the claim of the alleged transferee. On the other hand, a person who has purchased stock, and who desires to be recognized as a stockholder for the purpose of voting, must secure such a standing by having the transfer recorded on the corporate books. Until the transfer is registered, the transferee is not a stockholder but an outsider."

STOCK CERTIFICATES; CONSIDERED AS NON-NEGOTIABLE INSTRUMENTS; CASE AT BAR. With respect to the PCGG's submission that under Section 34 of the Negotiable Instruments Law, it may take title to the shares represented by the blank stock certificates found in Malacañang and vote the same, the same is untenable. The PCGG assumes that stock certificates are negotiable. They are not. ". . . [A]lthough a stock certificate is sometimes regarded as quasi - negotiable, in the sense that it may be transferred by delivery, it is well settled that the instrument is non-negotiable, because the holder thereof takes it without prejudice to such rights or defenses as the registered owner or creditor may have under the law, except insofar as such rights or defenses are subject to the limitations imposed by the principles governing estoppel." That the PCGG found the stock certificates endorsed in blank does not necessarily make it the owner of the shares represented therein. Their true ownership has to be ascertained in a proper proceeding.

NO OTHER COURT THAN THE ONE CONTEMNED WILL PUNISH A GIVEN CONTEMPT; EXCEPTION. "In whatever context it may arise, contempt of court involves the doing of an act, or the failure to do

an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. As a matter of practical judicial administration, jurisdiction has been felt properly to rest in only one tribunal at a time with respect to a given controversy. Partly because of administrative considerations, and partly to visit the full personal effect of the punishment on a contemnor, the rule has been that no other court than the one contemned will punish a given contempt. The rationale that is usually advanced for the general rule that the power to punish for contempt rests with the court contemned is that contempt proceedings are sui generic and are triable only by the court against whose authority the contempts are charged; the power to punish for contempt exists for the purpose of enabling a court to compel due decorum and respect in its presence and due obedience to its judgments, orders and processes; and in order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof, for to submit the question of disobedience to another tribunal would operate to deprive the proceeding of half its efficiency." The above rule is not of course absolute as it admits exception "when the entire case has already been appealed [in which case] jurisdiction to punish for contempt rests with the appellate court where the appeal completely transfers to proceedings thereto or where there is a tendency to affect the status quo or otherwise interfere with the jurisdiction of the appellate court."

GARCIA VS SANDIGANBAYANFacts: On 27 September 2004, Atty. Maria Olivia Elena A. Roxas, Graft Investigation and Prosecution Officer II of the Field Investigation Office of the Office of the Ombudsman, after due investigation, filed a complaint against petitioner with public respondent Office of the Ombudsman, for violation of Sec. 8, in relation to Sec. 11 of Republic Act (R.A.) No. 6713, 3 violation of Art. 183 of the Revised Penal Code, and violation of Section 52 (A)(1), (3) and (20) of the Civil Service Law. Based on this complaint, a case for Violations of R.A. No. 1379, 4 Art. 183 of the Revised Penal Code, and Sec. 8 in relation to Sec. 11 of R.A. No. 6713, docketed as Case No. OMBP- C-04-1132-I, was filed against petitioner. 5 Petitioner's wife Clarita Depakakibo Garcia, and their three sons, Ian Carl, Juan Paolo and Timothy Mark, all surnamed Garcia, were impleaded in the complaint for violation of R.A. No. 1379 insofar as they acted as conspirators, conduits, dummies and fronts of petitioner in receiving, accumulating, using and disposing of his ill-gotten wealth. On the same day, 27 October 2004, the Republic of the Philippines, acting through public respondent Office of the Ombudsman, filed before the Sandiganbayan, a Petition with Verified Urgent Ex Parte Application for the Issuance of a Writ ofPreliminary Attachment 6 against petitioner, his wife, and three sons, seeking the forfeiture of unlawfully acquired properties under Sec. 2 of R.A. No. 1379, as amended. The petition was docketed as Civil Case No. 0193, entitled "Republic of the Philippines vs. Maj. Gen. Carlos F. Garcia, et al." It was alleged that the Office of the Ombudsman, after conducting an inquiry similar to a preliminary investigation in criminal cases, has determined that a prima facie case exists against Maj. Gen. Garcia and the other respondents therein who hold such properties for, with, or on behalf of, Maj. Gen. Garcia, since during his incumbency as a soldier and public officer he acquired huge amounts of money and properties manifestly out of proportion to his salary as such public officer and his other lawful income, if any. Acting on the Republic's prayer for issuance of a writ of preliminary attachment, the Sandiganbayan issued the questioned Resolution granting the relief prayed for. The corresponding writ of preliminary attachment was subsequently issued on 2 November 2004 upon the filing of a bond by the Republic. On 17 November 2004,

petitioner (as respondent a quo) filed a Motion to Dismiss 8 in Civil Case No. 0193 on the ground of lack of jurisdiction of the Sandiganbayan over forfeiture proceedings under R.A. No. 1379. On even date, petitioner filed the present Petition, raising the same issue of lack jurisdiction on the part of the Sandiganbayan.

Issue: Petitioner argues in this Petition that the Sandiganbayan is without jurisdiction over the "civil action" for forfeiture of unlawfully acquired properties under R.A. No. 1379, maintaining that such jurisdiction actually resides in the Regional Trial Courts as provided under Sec. 2 9 of the law, and that the jurisdiction of the Sandiganbayan in civil actions pertains only to separate actions for recovery of unlawfully acquired property against President Marcos, his family, and cronies as can be gleaned from Sec. 4 of Presidential Decree (P.D.) No. 1606, 10 as amended, and Executive Orders (E.O.) Nos. 14 11 and 14-A.

Petitioner further contends that in any event, the petition for forfeiture filed against him is fatally defective for failing to comply with the jurisdictional requirements under Sec. 2, R.A. No. 1379, 14 namely: (a) an inquiry similar to a preliminary investigation conducted by the prosecution arm of the government; (b) a certification to the Solicitor General that there is reasonable ground to believe that there has been violation of the said law and that respondent is guilty thereof; and (c) an action filed by the Solicitor General on behalf of the Republic of the Philippines. 15 He argues that only informations for perjury were filed and there has been no information filed against him for violation of R.A. No. 1379. Consequently, he maintains, it is impossible for the Office of the Ombudsman to certify that there is reasonable ground to believe that a violation of the said law had been committed and that he is guilty thereof. The petition is also supposedly bereft of the required certification which should be made by the investigating City or Provincial Fiscal (now Prosecutor) to the Solicitor General. Furthermore, he opines that it should have been the Office of the Solicitor General which filed the petition and not the Office of the Ombudsman as in this case. The petition being fatally defective, the same should have been dismissed, petitioner concludes.

Ruling: The petition is patently without merit. It should be dismissed.

The Court in Republic v. Sandiganbayan , deduced that jurisdiction over violations of R.A. No. 3019 and 1379 is lodged with the Sandiganbayan. 42 It could not have taken into consideration R.A. No. 7975 43 and R.A. No. 8249 44 since both statutes which also amended the jurisdiction of the Sandiganbayan were not yet enacted at the time. The subsequent enactments only serve to buttress the conclusion that the Sandiganbayan indeed has jurisdiction over violations of R.A. No. 1379. Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original jurisdiction in all cases involving violations of R.A. No. 3019, R.A. No. 1379, andChapter II, Sec. 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions 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 (R.A. No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; (b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic

service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of 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 Commission, 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.

The Court has had occasion to rule that forfeiture of illegally acquired property partakes the nature of a penalty.

It is logically congruent, therefore, that violations of R.A. No. 1379 are placed under the jurisdiction of the Sandiganbayan, even though the proceeding is civil in nature, since the forfeiture of the illegally acquired property amounts to a penalty. The soundness of this reasoning becomes even more obvious when we consider that the respondent in such forfeiture proceedings is a public officer or employee and the violation of R.A. No. 1379 was committed during the respondent officer or employee's incumbency and in relation to his office. This is in line with the purpose behind the creation of the Sandiganbayan, as an anti-graft court — to address the urgent problem of dishonesty in public service.

Ostensibly, it is the Ombudsman who should file the petition for forfeiture under R.A. No. 1379. However, the Ombudsman's exercise of the correlative powers to investigate and initiate the proper action for recovery of ill-gotten and/or unexplained wealth is restricted only to cases for the recovery of ill-gotten and/or unexplained wealth amassed after 25 February 1986. 81 As regards such wealth accumulated on or before said date, the Ombudsman is without authority to commence before the Sandiganbayan such forfeiture action — since the authority to file forfeiture proceedings on or before 25 February 1986 belongs to the SolicitorGeneral — although he has the authority to investigate such cases for forfeiture even before 25 February 1986, pursuant to the Ombudsman's general investigatory power under Sec. 15 (1) of R.A. No. 6770. It is obvious then that respondent Office of the Ombudsman acted well within its authority in conducting the investigation of petitioner's illegally acquired assets and in filing the petition for forfeiture against him. The contention that the procedural requirements under Sec. 2 of R.A. No. 1379 were not complied with no longer deserve consideration in view of the foregoing discussion.

ONG VS SANDIGANBAYANLAW ON FORFEITURE OF ILL-GOTTEN WEALTH;

REPUBLIC ACT 1379; FORFEITURE OF PROPERTY PARTAKES THE NATURE OF A PENALTY. In Republic v. Sandiganbayan, we ruled that forfeiture proceedings under RA 1379 are civil in nature and not penal or criminal in character, as they do not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the State. Moreover, the procedure outlined in the law is that provided for in a civil action,

viz.: . . . . Hence, unlike in a criminal proceeding, there is to be no reading of the information, arraignment, trial and reading of the judgment in the presence of the accused. In the earlier case of Cabal v. Kapunan, however, we declared that forfeiture to the State of property of a public official or employee partakes of the nature of a penalty and proceedings for forfeiture of property, although technically civil in form, are deemed criminal or penal. We clarified therein that the doctrine laid down in Almeda v. Perez that forfeiture proceedings are civil in nature applies purely to the procedural aspect of such proceedings and has no bearing on the substantial rights of the respondents therein. This ruling was reiterated in Katigbak v. Solicitor General, where we held that the forfeiture of property provided for in RA 1379 is in the nature of a penalty. It is in recognition of the fact that forfeiture partakes the nature of a penalty that RA 1379 affords the respondent therein the right to a previous inquiry similar to a preliminary investigation in criminal cases. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well- founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Although the right to a preliminary investigation is not a fundamental right guaranteed by the Constitution but a mere statutory privilege, it is nonetheless considered a component part of due process in criminal justice.

AFFORDS A CO-RESPONDENT WHO IS NOT A PUBLIC OFFICER OR EMPLOYEE THE RIGHT TO A PRELIMINARY INVESTIGATION. RA 1379, entitled "An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for theProcedure Therefor," expressly affords a respondent public officer or employee the right to a previous inquiry similar to preliminary investigation in criminal cases, but is silent as to whether the same right is enjoyed by a co-respondent who is not a public officer or employee. Is this silence to be construed to mean that the right to a preliminary investigation is withheld by RA 1379 from a co-respondent, such as Nelly Ong, who is not herself a public officer or employee? The answer is no. It is a significant fact in this case that the questioned assets are invariably registered under the names of both Jose and Nelly Ong owing to their conjugal partnership. Thus, even as RA 1379 appears to be directed only against the public officer or employee who has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property, the reality that the application of the law is such that the conjugal share of Nelly Ong stands to be subjected to the penalty of forfeiture grants her the right, in line with the due process clause of the Constitution, to a preliminary investigation.

FAILURE TO NOTIFY THE PETITIONERS OF THE PROCEEDINGS AND TO BE PRESENT THEREAT IS A DENIAL OF FUNDAMENTAL FAIRNESS WHICH TAINTS THE PRELIMINARY INVESTIGATION. However, Ong calls the Court's attention to the fact that he was not notified of the subpoenas duces tecum ad testificandum apparently issued to SGV, Allied Bank and the BIR and the proceedings taken thereon. This objection was raised in his Motion dated February 17, 1993, which was, unfortunately, perfunctorily denied. The Rules of Procedure of the Office of the Ombudsman provides that the "preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions: . . . (f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case

which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witness is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath." Ong, therefore, should have been notified of the subpoenas duces tecum ad testificandum issued to SGV, Allied Bank and the BIR. Although there is no indication on record that clarificatory hearings were conducted pursuant to the subpoenas, Ong is entitled to be notified of the proceedings and to be present thereat. The fact that he was not so notified is a denial of fundamental fairness which taints the preliminary investigation.

DOES NOT OFFEND THE BASIC CONCEPT OF FAIRNESS AND THE DUE PROCESS CLAUSE OF THE CONSTITUTION. Finally, the attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of innocence and the right against self incrimination, and breaches the authority and prerogative of the Supreme Court to promulgate rules concerning the protection and enforcement of constitutional rights, are unmeritorious. The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public officer or employee as that "which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property." It also provides a definition of what is legitimately acquired property. Based on these parameters, the public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic concept of fairness and the due process clause of the Constitution.

DOES NOT VIOLATE THE PRESUMPTION OF INNOCENCE CLAUSE; PRINCIPLE OF PRESUMPTION OF INNOCENCE, EXPLAINED. Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that property acquired by a public officer or employee during his incumbency in an amount which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property shall be presumed prima facie to have been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption of innocence, it is merely required of the State to establish a prima facie case, after which the burden of proof shifts to the accused. In People v. Alicante, the Court held: No rule has been better established in criminal law than that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. In a criminal prosecution, therefore, the burden is upon the State to prove every fact and circumstance constituting the crime charged, for the purpose of showing the guilt of the accused. While that is the rule, many of the States have established a different rule and have provided that certain facts only shall constitute prima facie evidence, and that then the burden is put upon the defendant to show or to explain that such facts or acts are not criminal. It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proofby the State of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. . . . The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or

acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.

DOES NOT INFRINGE THE RIGHT AGAINST SELF-INCRIMINATION. The constitutional assurance of the right against self-incrimination likewise cannot be invoked by petitioners. The right is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused's own lips, against his will, admission of his guilt. In this case, petitioners are not compelled to present themselves as witnesses in rebutting the presumption established by law. They may present documents evidencing the purported bank loans, money market placements and other fund sources in their defense.

OMBUDSMAN; MUST BE CIRCUMSPECT IN ITS CONDUCT OF PRELIMINARY INVESTIGATION. The next question is whether we should direct the Ombudsman to rectify the errors committed during the preliminary investigation, i.e., the failure to give Ong notice of the subpoenas issued to SGV, Allied Bank and the BIR and notice of the Resolution directing the filing of the petition for forfeiture. To so order the Ombudsman at this point would no longer serve any useful purpose and would only further delay the proceedings in this case. Verily, petitioners have been allowed to fully plead their arguments before this Court. After all has been said, this case should now be allowed to proceed in its course. Nonetheless, we find this an opportune time to admonish the Ombudsman to be more circumspect in its conduct of preliminary investigation to the end that participants therein are accorded the full measure of their rights under theConstitution and our laws.

POWERS. Petitioners are the first to agree that the Ombudsman is vested with jurisdiction to investigate and prosecute any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. They recognize that the Ombudsman has primary jurisdiction over cases, such as the present one, cognizable by the Sandiganbayan. The problem with petitioners' contention is their assumption that the Ombudsman, a constitutionally-created body, will not perform its functions faithfully. The duality of roles which the Ombudsman exercises does not necessarily warrant a conclusion that it will be given to making a finding of probable cause in every case. At any rate, "[I]n the debates on this matter in the Constitutional Commission, it was stressed by the sponsors of the Office of the Ombudsman that, whereas the original Tanodbayan was supposed to be limited to the function of prosecution of cases against public functionaries, generally for graft and corruption, the former would be considered 'the champion of the citizen,' to entertain complaints addressed to him and to take all necessary action thereon." This should leave no doubt as regards the constitutionality and propriety of the functions exercised by the Ombudsman in this case. Verily, the Court in Republic v. Sandiganbayan, reviewed the powers of theOmbudsman and held: At present, the powers of the Ombudsman, as defined by Republic Act No. 6770 corollary to Section 13, Article XI of the 1987 Constitution, include, inter alia, the authority to: (1) investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any

stage, from any investigatory agency of Government, the investigation of such cases; and (2) investigate and initiate the proper action for the recovery of ill-gotten wealth and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved there. In the same case, we declared that the Ombudsman has the correlative powers to investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth which were amassed after February 25, 1986. There is therefore no merit in petitioners' contention that the absence of participation of the OSG taints the petition for forfeiture with nullity.

SEGOVIA VS SANDIGANBAYANPetitioners who hold regular executive positions in the

National Power Corporation were designated by the NPC Board to compose the Contract Committee for NPC projects. During the pre-qualification and bidding for a project, it declared a failure of bidding and directed a re-bidding. The recommendation was unanimously approved by the NPC Board, but for no apparent reasons, the project was eventually cancelled. Feeling aggrieved by the turn of events, Urban, the lowest bidder in the failed bidding filed a complaint before the Ombudsman. After investigation, an information was accordingly filed with the Sandiganbayan charging petitioners with violation of R.A. 3019. They were suspended pendente lite. The suspension is the subject of this special civil action for certiorari and prohibition before the Supreme Court. Petitioners contend that their suspension was not mandatory considering that the positions they occupy were quite sensitive and had no relations to prequalification of contractors, biddings or awards — which was an additional function temporarily assigned to them. The Supreme Court held that under R.A. 3019, the suspension of a public officer is mandatory after a determination has been made of the validity of the information in a pre-suspension hearing conducted for that purpose. It is also had the occasion to reiterate the rule as was stressed in Libanan v. Sandiganbayan that . . . When the statue is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory, and there are no 'ifs' and 'buts' about it.

PREVENTIVE SUSPENSION; SUSPENSION OF PUBLICOFFICIALS AND EMPLOYEES; NOT PENAL IN CHARACTER BUT MERELY PREVENTIVE MEASURE BEFORE FINAL JUDGMENT. The validity of Section 13, R.A. 3019, as amended — treating of the suspension pendentelite of an accused public officer — may no longer be put at issue, having been repeatedly upheld by this Court. As early as 1984, in Bayot v. Sandiganbayan, the Court held that such suspension was not penal in character but merely a preventive measure before final judgment; hence, the suspension of a public officer charged with one of the crimes listed in the amending law, committed before said amendment, does not violate the constitutional provision against an ex post facto law. The purpose of suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with documentary evidence, or from committing further acts of malfeasance while in office. Substantially to the same effect was the Court's holding, in 1991, in Gonzaga v. Sandiganbayan, that preventive suspension is not violative of the Constitution as it is not a penalty; and a person under preventive suspension remains entitled to the constitutional presumption of innocence since his culpability must still be established.

POWER TO SUSPEND LIES IN THE COURT IN WHICH CRIMINAL CHARGE IS FILED. The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension lies in the court in which the criminal charge is filed; once a case is filed in court, all other acts connected with the discharge of court functions — including preventive suspension — should be acknowledged as within the competence of the court that has taken cognizance thereof, no violation of the doctrine of separation of powers being perceivable in that acknowledgment.

APPLICABILITY OF SUSPENSION PENDENTE LITE. The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service. It applies to a Public High School Principal; a Municipal Mayor; a Governor; a Congressman; a Department of Science and Technology (DOST) non-career Project Manager, a Commissioner of the Presidential Commission on Good Government (PCGG). The term "office" in Section 13 of the law applies to any office which might currently be holding and not necessarily the particular office in relation to which he is charged.

MANDATORY. It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition therefor is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the RevisedPenal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out on Rule 117 of the Rules of Court. But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The court has no discretion, for instance, to hold in abeyance the suspension of the accused official on the pretext that the order denying the latter's motion to quash is pending review before the appellate courts.

PREVENTIVE SUSPENSION; MAY NOT EXCEED NINETY (90) DAYS. However, the preventive suspension may not be of indefinite duration or for an unreasonable length of time; it would be constitutionally proscribed otherwise as it raises, at the very least, questions of denial of due process and equal protection of the laws. The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days in consonance with Presidential Decree No. 807 (the Civil Service Decree), now Section 52 of the Administrative Code of 1987.

PURPOSES OF PREVENTIVE SUSPENSION. The Court's pronouncement in Bolastig v. Sandiganbayan , supra, are germane: "Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioner's other contention that since the trial in theSandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioners would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, to prevent the accused from committing further acts of malfeasance while in office."

SOCRATES VS SANDIGANBAYANTHE CHARACTER OF THE CRIME IS NOT DETERMINED

BY THE TITLE OF THE INFORMATION BUT BY THE FACTS ALLEGED IN THE BODY THEREOF. Axiomatic is the rule that what controls is not the designation of the offense but its description in the complaint or information. The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. It is not the technical name given by the fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the information. This Court has repeatedly held that when the facts, acts and circumstances are set forth in the body of an information with sufficient certainty to constitute an offense and to apprise the defendant of the nature of the charge against him, a misnomer or innocuous designation of a crime in the caption or other parts of the information will not vitiate it. In such a case, the facts set forth in the charge controls the erroneous designation of the offense and the accused stands indicted for the offense charged in the statement of facts. The erroneous designation may be disregarded as surplusage.

WHERE THE OFFENSE MAY BE COMMITTED IN SEVERAL MODES, THE RULE IS IT IS SUFFICIENT TO PROVE THE OFFENSE AS COMMITTED IN ANY ONE OF THEM IN ORDER TO SUSTAIN CONVICTION. It is an old and well-settled rule in the appreciation of indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more of the modes specified, it is sufficient to prove the offense committed through any one of them, provided that it be such as to constitute the substantive offense. Thereafter, a judgment of conviction must be sustained if it appears from the evidence in the record that the accused was guilty as charged of any one of these modes of the offense.

PRELIMINARY INVESTIGATION; ABSENCE THEREOF IS NOT A GROUND FOR THE QUASHAL OF A COMPLAINT OR INFORMATION. It has been consistently held that the absence of a preliminary investigation does not impair the validity of the criminal information or render it defective. Dismissal of the case is not the remedy. It is not a ground for the quashal of a complaint or information. The proper course of action that should be taken is for the Sandiganbayan to hold in abeyance the proceedings upon such information and to remand the case to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation, if the accused actually makes out a case justifying such relief.

AN ORDER DENYING A MOTION TO QUASH IS INTERLOCUTORY ANDNOT APPEALABLE. We have but to reiterate the fundamental rule that an order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. In other words, it cannot be the subject of appeal until the judgment or a final order is rendered. The ordinary procedure to be followed in that event is to enter a plea, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The special civil action for certiorari may be availed of in case there is a grave abuse of discretion or lack of jurisdiction.

REPUBLIC ACT NO. 3019 (ANTI-GRAFT LAW); SUSPENSION OF PUBLIC OFFICER IS MANDATORY AFTER THE VALIDITY OF THE INFORMATION HAS BEEN UPHELD IN A PRE-SUSPENSION HEARING. This Court has ruled that under Section 13 of the anti-graft law, the suspension of a public officer is mandatory after the validity of the information has been upheld in a pre-suspension hearing is conducted to determine basically the validity of the information, from which the court can have a basis to either suspend the accused and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. That hearing may be treated in the same manner as a challenged to the validity of the information by way of a motion to quash. It is evident that upon a proper determination of the validity of the information, it becomes mandatory for the court to immediately issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for interpretation. It is not within the court's discretion to hold in abeyance the suspension of the accused officer on the pretext that the order denying the motion to quash is pending review before the appellate courts. Its discretion lies only during the pre-suspension hearing where it is required to ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the filing of the informations against him, (2) the acts for which he was charged constitute a violation of the provisions of Republic Act No. 3019 or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) informations against him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of Court. Once the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter of court. There are no ifs and buts about it. This is because a preventive suspension is not a penalty. It is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. To further emphasize the ministerial duty of the court under Section 13 of Republic Act No.3019, it is said that the court trying a case has neither discretion nor duty to accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended, he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court.

IT IS THE DUTY OF THE PROSECUTING OFFICER TO FILE CHARGES AGAINST WHOMSOEVER THE EVIDENCE MAY SHOW TO BE RESPONSIBLE FOR AN OFFENSE. The rule under Section 1, Rule

110 of the Rules of Court, as reformulated in Section 2, Rule 110 of the 1985 Rules on Criminal Procedure, is that all criminal actions must be commenced either by complaint or information in the name of the People of the Philippines "against all persons who appear to be responsible for the offense involved." The law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for an offense. This does not mean, however, that they have no discretion at all; their discretion lies in determining whether the evidence submitted justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which conversely implies that those against whom no sufficient evidence of guilt exists are not required to be included.

MOTION TO QUASH; GROUNDS; FAILURE TO ASSERT, MAY BE DEEMED A WAIVER THEREOF. A failure to include other persons who appear to be responsible for the crime charged is not one of the grounds provided under Section 3, Rule 117 for which a motion to quash the information against the accused may be filed, most especially in the case at bar where there is prima facie proof that petitioner is probably guilty of the offense charged, aside from the fact that there is no allegation of conspiracy in the informations. Besides, such an infirmity would neither have the effect of extinguishing or mitigating petitioner's liability if he is subsequently found guilty of the offense charged. Section 8, Rule 117 of the 1985 Rules on Criminal Procedure provides that "the failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy." The failure to include a co-accused is not covered by the exception; hence, the same is deemed waived.

REMEDIES OF THE OFFENDED PARTY IN CASE THE GOVERNMENT PROSECUTOR REFUSES TO FILE INFORMATION. Where the government prosecutor unreasonably refuses to file an information or to include a person as an accused therein despite the fact that the evidence clearly warrants such action, the offended party has the following remedies: (1) in case of grave abuse of discretion, he may file an action for mandamus to compel the prosecutor to file such information; (2) he may lodge a new complaint against the offenders before the Ombudsman and have a new examination conducted as required by law; (3) he may institute administrative charges against the erring prosecutor, or a criminal complaint under Article 208 of the Revised Penal Code, or a civil action for damages under Article 27 of the Civil Code; (4) he may secure the appointment of another prosecutor; or (5) he may institute another criminal action if no double jeopardy is involved.

CASTILLO-CO VS BARBERSCongressman Junie Cua, in the course of the congressional investigation, discovered irregularities in the purchase of heavy equipment by petitioner and the Provincial Engineer constituting overpricing, purchase of reconditioned and not brand new equipments, absence of public bidding and inspection, and advance payment prior to delivery. He filed a complaint against the two before the Office of the Ombudsman for violation of Sections 3(e) and 3 (g) of the Anti-Graft and Corrupt Practices Act, as amended. Petitioner was placed under preventive suspension for 6 months a week after the filing of the complaint. The order was approved by the Deputy Ombudsman for Luzon. Their motions for reconsideration having been denied, petitioner filed

the present recourse contesting the authority of the Deputy Ombudsman to sign the order of preventive suspension, the period of suspension was excessive, and denial of due process.The Supreme Court held that R.A. 7975 (An Act to Strengthen the Functional and Standard Organization of the Sandiganbayan, as amended) does not suggest that only the Ombudsman and not his deputy may order the preventive suspension of officials occupying positions classified as grade 27 or above; that the Ombudsman and his deputy may order preventive suspension pursuant to the provisions of Section 24 of R.A. 6770 and Section 9, Rule 111 of the Rules of Procedure of the Office of the Ombudsman; that preventive suspension, being merely a preliminary step in an administrative investigation, may be decreed even before the charges are heard; and that the six-month suspension of petitioner is within the limits prescribed by Section 24 of R.A. 6770.

PUBLIC OFFICERS; PREVENTIVE SUSPENSION; A PUBLIC OFFICER WITH A SALARY GRADE OF 27 OR ABOVE MAY BE SUSPENDED BY THE OMBUDSMAN OR HIS DEPUTY. Under the provisions of Section 24 of Rep. Act No. 6770 and Section 9, Rule III of the Rules of Procedure of the office of the Ombudsman, there cannot be any doubt that the Ombudsman or his Deputy may preventively suspend an officer or employee, where appropriate, as indicated by the word "or" between the "Ombudsman" and "his Deputy." The word "or" is a disjunctive term signifying disassociation and independence of one thing from each of the other things enumerated. The law does not require that only theOmbudsman himself may sign the order of suspension.

NOT IN THE NATURE OF PENALTY, HENCE, CAN BE DECREED EVEN BEFORE THE CHARGES ARE HEARD. A preventive suspension, however, can be decreed on an official under investigation after charges are brought and even before the charges are heard since the same is not in the nature of a penalty, but merely a preliminary step in an administrative investigation.

IMMEDIATE ISSUANCE THEREOF DOES NOT CONSTITUTE GRAVE ABUSE OF DISCRETION. The fact that the said order was issued seven days after the complaint was filed did not constitute grave abuse of discretion. The immediate issuance of such order is required in order to prevent the subject of the suspension from committing further irregularities. Such prompt action, moreover, is in consonance with Section 15 of R.A. 6770.

PUBLIC OFFICIALS ENJOY THE PRESUMPTION OF REGULARITY OF PERFORMANCE OF DUTIES. We do not give much credence to petitioner's suggestions of a malicious conspiracy between the Deputy Ombudsman Guerrero and Congressman Cua, reputedly petitioner's political adversary, to harass her. The Deputy Ombudsman and the Congressman, being public officials, enjoy the presumption of regularity of performance of duties. Such presumption can be overcome only by strong and convincing evidence. No such evidence exists in this case.

PUBLIC OFFICERS; PREVENTIVE SUSPENSION; CONDITIONS; MET IN CASE AT BAR. Contrary to petitioner's contention, the conditions required to sustain her preventive suspension have been met in this case. These conditions are: (1) That the evidence of guilt is strong; and (2) That any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

DETERMINATION WHETHER THE EVIDENCE OF GUILT ISSTRONG RESTS UPON THE DETERMINATION OF THE OMBUDSMAN. The first requisite rests upon the determination of the disciplining authority, the Office of the Ombudsman in this case: As held in Buenaseda v. Flavier, however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the 'judgment' of the Ombudsman on the basis of the administrative complaint . . . We find no reason to disturb such determination in this case.

EVIDENCE NEED NOT BE ADDUCED TO PROVE THAT PETITIONER MAY INFLUENCE POSSIBLE WITNESSES OR MAY TAMPER WITH PUBLIC RECORDS. Petitioner's high position likewise gives her access to public records and the clout to influence possible witnesses. Her continued stay in office may thus prejudice the prosecution of the case filed against her. It is immaterial that, as petitioner contends, no evidence has been adduced to prove that petitioner may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility.

SUSPENSION FOR SIX (6) MONTHS, WITHIN THE PRESCRIBED LIMITS. Finally, the duration of petitioner's suspension is not excessive. Petitioner's suspension for six (6) months is within the limits prescribed by Section24 of R.A. 6770. The length of the period of suspension within such limits, like the evaluation of the strength of the evidence, lies in the discretion of the Ombudsman.

JARAVATA VS SANDIGANBAYANANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 3

(b) THEREOF; OFFICIAL INTERVENTION BY PUBLIC OFFICER MUST BE REQUIRED BY LAW; CASE AT BAR. Section 3(b) of Republic Act No. 3019, refers to a public officer whose official intervention is required by law in a contract or transaction. There is no law which invests the petitioner with the power to intervene in the payment of the salary differentials of the complainants or anyone for that matter. Far from exercising any power, the petitioner played the humble role of a supplicant whose mission was to expedite payment of the salary differentials. In his official capacity as assistant principal, he is not required by law to intervene in the payment of the salary differentials. Accordingly, he cannot be said to have violated the law afore-cited although he exerted efforts to facilitate the payment of the salary differentials.

QUIBAL VS SANDIGANBAYANANTI-GRAFT AND CORRUPT PRACTICES; ELEMENTS

FORCONVICTION. Violation of Section 3(e) of R.A. 3019 requires proof of the following facts, viz: 1.The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.

ELEMENT OF MANIFEST PARTIALITY AND EVIDENT BAD FAITH, ESTABLISHED IN CASE AT BAR. Petitioners insist that their guilt has not been proved beyond reasonable doubt for they did not act with manifest partiality, evident bad faith or gross, inexcusable negligence nor did they cause any injury or damage to the municipal government for the construction of the municipal market was eventually completed. We reject these contentions. The construction of the municipal market should have been finished on March 7, 1988. At the time of the audit on August 31, 1988, however, only 36.24% of the construction of the market has been completed. Yet, out of the contract price of P652,562.60, petitioners already paid the contractor a total of P650,000.00. In so doing, petitioners disregarded the provision in the contract that payment should be based on the percentage of work accomplishment. Moreover, the contract provided that in case of delay in the completion of the project, the contractor shall be liable for liquidated damages at the rate of 1/10 of 1% of the contract price per day of delay. Petitioners did not impose this provision against the contractor. By their acts, petitioners clearly acted with manifest partiality and evident bad faith relative to the construction of the municipal market.

ELEMENT OF GROSS NEGLIGENCE; CONSTRUED IN CASE AT BAR. Petitioners' acts and omissions are, to say the least, grossly negligent. Gross negligence is the pursuit of a course of conduct which would naturally and reasonably result in injury. It is an utter disregard of or conscious indifference to consequences. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable. In the case at bench, petitioners' acts and omissions demonstrated an utter lack of care in enforcing the contract for the construction of the public market and a reckless disregard of the COA rules and regulations regarding disbursement of municipal funds. Petitioners contend that they released P650,000.00 of the contract price to enable the contractor to take advantage of the low cost of construction materials prevailing at that time. Plainly petitioners' act violates the provision of the contract requiring that payment shall be made on the basis of the percentage of completion of the project . Moreover, as correctly pointed out by the Sandiganbayan: . . . "The escalation of prices of construction materials which allegedly prompted Quibal to pay the contractor prematurely is not a justification that would absolve the accused public officers from criminal liability. The parties could have included an escalation clause in the contract . . . Moreover, there is a law which authorizes the adjustment of contract price (R.A. 5979, as amended by PD No. 454) . . ."

UNDUE INJURY OR DAMAGE CAUSED TO THE GOVERNMENT; ESTABLISHED IN CASE AT BAR. Petitioners also insist that no undue injury or damage was caused to the municipal government considering the later completion of the public market. We cannot share this myopic view. The construction of the municipal market was completed only at the end of December 1989 when it should have been finished by March 7, 1988. This unnecessary delay of almost two (2) years caused considerable monetary loss to the municipal government in the form of monthly rentals. The least that petitioners should have done was to enforce the penalty clause of the contract (providing for payment of liquidated damages in case of breach) when the contractor failed to meet his deadline on March 7, 1988. Instead of doing so, petitioners even made two (2) additional payments to the contractor (on March 14 and April 22, 1988) in the total sum of P250,000.00. Thus,

it cannot be successfully argued that the acts and omissions of petitioners did not cause damage or injury to the municipal government.

WHEN PROVED, REQUEST FOR RE-AUDITING NO LONGER FEASIBLE. To bolster their claim of denial of due process, petitioners cite the case of Tinga v. People of the Philippines (No. L-57650, April 15, 1988, 160 SCRA 483). Petitioners' reliance on the Tinga case is misplaced. In said case, we ruled that Tinga was denied due process when the Commission on Audit refused to conduct a reevaluation of the accountabilities of Tinga. The ruling was based on the Court's finding that COA's evaluation of Tinga's accountabilities was replete with errors. Petitioners also claim that considering the value of the unused stockpile of construction materials and supplies, a re-audit would prove that the payment they made was justified and that the actual cost of the project at the time of the initial inspection is indeed P650,000.00. We hold that the suggested re-audit would not exonerate the petitioners. The re-audit cannot blur the fact that undue damage has already been caused to the municipal government in view of the delay in the construction of the municipal market and the failure of the petitioners to enforce the penalty clause in the construction contract.

RIOS VS SANDIGANBAYANPetitioner, then incumbent Mayor of San Fernando, Romblon, was charged with violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) for alleged unauthorized disposition of confiscated, assorted and sawn tangible lumber without proper authority from DENR and the Sangguniang Bayan. He moved to quash the information on the ground of lack of probable cause and alleged that the disposition of lumber did not result in any "undue injury" because the proceeds of the disposition went to the coffers of the municipal government. On motion by the Office of the Special Prosecutor, petitioner was suspended pendente lite by the Sandiganbayan for a period ninety days. Reconsideration sought by petitioner was denied, hence, the present recourse.The Supreme Court held that the act of disposing confiscated lumber without proper authority from the DENR and the Sangguniang Bayan constituted a violation of Section 3(e) of R.A. 3019. It also held that it was mandatory for the Sandiganbayan to suspend any incumbent public officer charged with violation of R.A. 3019 or any crime committed by public officers or for any offense involving fraud upon government or public funds or property; and that any single preventive suspension of local elective officials should not extend beyond sixty (60) days.

DISPOSAL OF CONFISCATED LUMBER WITHOUT PRIOR AUTHORITY FROM DENR AND THE SANGGUNIANG BAYAN, A VIOLATION OF SECTION 3(e) OF R.A. 3019. The act of disposing of confiscated lumber without prior authority: from DENR and the Sangguniang Bayan constituted a violation of Sec. 3(e) of R.A. 3019. Therefore, there is probable cause to hold petitioner liable for such act, for which the information was validly filed.

PUBLIC OFFICE; PUBLIC OFFICE IS A PUBLIC TRUST. ThisCourt would like to stress adherence to the doctrine that public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Public servants must bear in mind this constitutional mandate at all times to guide them in their actions during their entire tenure in the government service. "The good of the service and the degree of morality with every official and employee in the public service must observe, if respect and confidence are to be maintained by the Government in the enforcement of the law, demand that no untoward conduct on his pan, affecting morality, integrity and efficiency while

holding office should be left without proper and commensurate sanction, all attendant circumstances taken into account."

R.A. 3019; SUSPENSION OF PUBLIC OFFICER VALIDLYCHARGED WITH VIOLATION THEREOF, MANDATORY. The suspension pendent lite meted out by the Sandiganbayan is, without doubt, a proper and commensurate sanction against petitioner. Having ruled that the information filed against petitioner is valid, there can be no impediment to the application of Section 13 of R.A. No. 3019, which states, inter alia: "Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office."

LOCAL GOVERNMENT CODE, PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS; PERIOD SHALL NOT EXCEED SIXTY(60) DAYS. It is settled jurisprudence that the aforequoted provision (Sec. 13, R.A. No. 3019) makes it mandatory for the Sandiganbayan to suspend any public officer who has been validly charged with a violation of R.A. No. 3019, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property. "The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office." This is based on the presumption that unless the public officer is suspended, he may frustrate his prosecution or commit further acts of malfeasance or both. On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in imposing a 90-day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days."

ARIAS VS SANDIGANBAYANThis case presents a conspiracy of silence and inaction where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the million-peso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions; they looked the other way when they should have probed deep into the transaction. Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government.

STATE AUDIT CODE OF THE PHILIPPINES; ASPECTS OF THE AUDITIONAL FUNCTION OF AN AUDITOR. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the agencies under their respective

audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures, and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by Tantuico, 1 982 Ed., p. 57.)

EMINENT DOMAIN; TAX DECLARATION; A GUIDE OR INDICATOR OF THE REASONABLE VALUE OF THE PROPERTY. The acquisition of Agleham's riceland was not done by expropriation but through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning the reasonable value of the land. When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, 149 SCRA 305).

PARTIALITY; MAYBE PROVEN BY ATTENDANT CIRCUMSTANCES IN THE ABSENCE OF DIRECT EVIDENCE. Partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstances.