G.R. No.

195032 February 20, 2013

ISABELO A. BRAZA, Petitioner,

vs.
THE HONORABLE SANDIGANBA Y AN (1st Division), Respondents.

DECISION

MENDOZA, J.:

This is a petition for certiorari filed by petitioner Isabelo Braza (Braza) seeking to reverse and set aside the October 12, 2009 Resolution
1 of the Sandiganbayan in Criminal Case No. SB-08-CRM-0275, entitled People v. Robert G. Lala, et al., as well as its October 22, 2010

Resolution,2 denying his motion for reconsideration.

The Philippines was assigned the hosting rights for the 12th Association of Southeast Asian Nations (ASEAN) Leaders Summit
scheduled in December 2006. In preparation for this international diplomatic event with the province of Cebu as the designated venue,
the Department of Public Works and Highways (DPWH) identified projects relative to the improvement and rehabilitation of roads and
installation of traffic safety devices and lighting facilities. The then Acting Secretary of the DPWH, Hermogenes E. Ebdane, approved
the resort to alternative modes of procurement for the implementation of these projects due to the proximity of the ASEAN Summit.

One of the ASEAN Summit-related projects to be undertaken was the installation of street lighting systems along the perimeters of the
Cebu International Convention Center in Mandaue City and the ceremonial routes of the Summit to upgrade the appearance of the
convention areas and to improve night-time visibility for security purposes. Four (4) out of eleven (11) street lighting projects were
awarded to FABMIK Construction and Equipment Supply Company, Inc. (FABMIK) and these were covered by Contract I.D. Nos.
06H0021, 06H00049, 06H00050, and 06H00052. Contract I.D. No. 06H00050, the subject transaction of this case, involved the supply
and installation of street lighting facilities along the stretch of Mandaue-Mactan Bridge 1 to Punta Engaño Section in Lapu-Lapu City,
with an estimated project cost of ₱83,950,000.00.

With the exception of the street lighting project covered by Contract I.D. No. 06H0021, the three other projects were bidded out only on
November 28, 2006 or less than two (2) weeks before the scheduled start of the Summit. Thereafter, the DPWH and FABMIK executed
a Memorandum of Agreement (MOA) whereby FABMIK obliged itself to implement the projects at its own expense and the DPWH to
guarantee the payment of the work accomplished. FABMIK was able to complete the projects within the deadline of ten (10) days
utilizing its own resources and credit facilities. The schedule of the international event, however, was moved by the national organizers
to January 9-15, 2007 due to typhoon Seniang which struck Cebu for several days.

After the summit, a letter-complaint was filed before the Public Assistance and Corruption Prevention Office (PACPO), Ombudsman –
Visayas, alleging that the ASEAN Summit street lighting projects were overpriced. A panel composing of three investigators conducted
a fact-finding investigation to determine the veracity of the accusation. Braza, being the president of FABMIK, was impleaded as one of
the respondents. On March 16, 2007, the Ombudsman directed the Department of Budget and Management (DBM) and the DPWH to
cease and desist from releasing or disbursing funds for the projects in question. 3

On March 23, 2007, the fact-finding body issued its Evaluation Report4 recommending the filing of charges for violation of Section 3(e)
of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, against the DPWH officials and
employees in Region VII and the cities of Mandaue and Lapu-lapu, and private contractors FABMIK and GAMPIK Construction and
Development, Inc. (GAMPIK). This report was filed before the Office of the Ombudsman-Visayas (OMBVisayas) for the conduct of a
preliminary investigation and was docketed therein as OMB-V-C-07-124-C, entitled PACPO-OMB-Visayas v. Lala, et. al.

After the preliminary investigation, the OMB-Visayas issued its Resolution,5 dated January 24, 2008, finding probable cause to indict the
concerned respondents for violation of Section 3(g) of R.A. No. 3019. It was found that the lampposts and other lighting facilities
installed were indeed highly overpriced after a comparison of the costs of the materials indicated in the Program of Works and
Estimates (POWE) with those in the Bureau of Customs (BOC) documents; and that the contracts entered into between the
government officials and the private contractors were manifestly and grossly disadvantageous to the government.

Subsequently, the OMB-Visayas filed several informations before the Sandiganbayan for violation of Sec. 3(g) of R.A. 3019 against the
officials of DPWH Region VII, the officials of the cities of Mandaue and Lapu-lapu and private contractors, FABMIK President Braza and
GAMPIK Board Chairman Gerardo S. Surla (Surla). The Information docketed as SB-08- CRM-02756 (first information) which involved
the street lighting project covered by Contract I.D. No. 06H00050 with FABMIK, was raffled to the First Division of the Sandiganbayan.
It was alleged therein that Braza acted in conspiracy with the public officials and employees in the commission of the crime charged.

On June 6, 2008, Braza was arraigned as a precondition to his authorization to travel abroad. He entered a plea of "not guilty."

On August 14, 2008, the motions for reinvestigation filed by Arturo Radaza (Radaza), the Mayor of Lapu-lapu City, and the DPWH
officials were denied by the Sandiganbayan for lack of merit. Consequently, they moved for the reconsideration of said resolution. 7 On
August 27, 2008, Braza filed a motion for reinvestigation 8 anchored on the following grounds: (1) the import documents relied upon by
the OMB-Visayas were spurious and falsified; (2) constituted new evidence, if considered, would overturn the finding of probable cause;
and (3) the finding of overpricing was bereft of factual and legal basis as the same was not substantiated by any independent canvass
of prevailing market prices of the subject lampposts. He prayed for the suspension of the proceedings of the case pending such
reinvestigation. The Sandiganbayan treated Braza's motion as his motion for reconsideration of its August 14, 2008 Resolution.

On November 13, 2008, Braza filed a manifestation 9 to make of record that he was maintaining his previous plea of "not guilty" without
any condition.

During the proceedings held on November 3, 2008, the Sandiganbayan reconsidered its August 14, 2008 resolution and directed a
reinvestigation of the case.10 According to the anti-graft court, the allegations to the effect that no independent canvass was conducted
and that the charge of overpricing was based on falsified documents were serious reasons enough to merit a reinvestigation of the
case. The Sandiganbayan said that it could be reasonably inferred from the July 30, 2008 Order of the Ombudsman in OMB-V-C-07-
0124-C that the latter would not object to the conduct of a reinvestigation of all the cases against the accused.

Braza filed his Manifestation,11 dated February 2, 2009, informing the Sandiganbayan of his intention to abandon his previous motion for
reinvestigation. He opined that the prosecution would merely use the reinvestigation proceedings as a means to engage in a second
unbridled fishing expedition to cure the lack of probable cause.

On March 23, 2009, Braza filed a motion12 in support of the abandonment of reinvestigation with a plea to vacate Information, insisting
that the further reinvestigation of the case would only afford the prosecution a second round of preliminary investigation which would be
vexatious, oppressive and violative of his constitutional right to a speedy disposition of his case, warranting its dismissal with prejudice.

After concluding its reinvestigation of the case, the OMB-Visayas issued its Resolution,13 dated May 4, 2009, (Supplemental Resolution)
which upheld the finding of probable cause but modified the charge from violation of Sec. 3(g) of R.A. No. 3019 14 to violation of Sec.
3(e)15 of the same law. Accordingly, the prosecution filed its Manifestation and Motion to Admit Amended Information16 on May 8, 2009.

On July 1, 2009, Braza filed his Comment (to the motion to admit amended information) with Plea for Discharge and/or Dismissal of the
Case.17 He claimed that the first information had been rendered ineffective or had been deemed vacated by the issuance of the
Supplemental Resolution and, hence, his discharge from the first information was in order. By way of an alternative prayer, Braza
sought the dismissal of the case with prejudice claiming that his right to a speedy disposition of the case had been violated and that the
Supplemental Resolution failed to cure the fatal infirmities of the January 24, 2008 Resolution since proof to support the allegation of
overpricing remained wanting. Braza averred that he could not be arraigned under the second information without violating the
constitutional proscription against double jeopardy.

On October 12, 2009, the Sandiganbayan issued the first assailed resolution admitting the Amended Information, 18 dated May 4, 2009,
(second Information) and denying Braza's plea for dismissal of the criminal case. The Sandiganbayan ruled that Braza would not be
placed in double jeopardy should he be arraigned anew under the second information because his previous arraignment was
conditional. It continued that even if he was regularly arraigned, double jeopardy would still not set in because the second information
charged an offense different from, and which did not include or was necessarily included in, the original offense charged. Lastly, it found
that the delay in the reinvestigation proceedings could not be characterized as vexatious, capricious or oppressive and that it could not
be attributed to the prosecution. The dispositive portion of the said resolution reads:

WHEREFORE, premises considered, the Motion to Admit Attached Amended Information filed by the prosecution is hereby GRANTED.
The Amended Information charging all the accused therein with violation of Sec. 3 (e) of R.A. 3019, being the proper offense, is hereby
ADMITTED.

Consequently, accused Braza's Alternative Relief for Dismissal of the Case is hereby DENIED.

Let the arraignment of all the accused in the Amended Information be set on November 18, 2009, at 8:30 in the morning.

SO ORDERED.19

On November 6, 2009, Braza moved for reconsideration with alternative motion to quash the information 20 reiterating his arguments that
his right against double jeopardy and his right to a speedy disposition of the case were violated warranting the dismissal of the criminal
case with prejudice. In the alternative, Braza moved for the quashal of the second information vigorously asserting that the same was
fatally defective for failure to allege any actual, specified and quantifiable injury sustained by the government as required by law for
indictment under Sec. 3(e) of R.A. 3019, and that the charge of overpricing was unfounded.

On October 22, 2010, the Sandiganbayan issued the second assailed resolution stating, among others, the denial of Braza's Motion to
Quash the information. The anti-graft court ruled that the Amended Information was sufficient in substance as to inform the accused of
the nature and causes of accusations against them. Further, it held that the specifics sought to be alleged in the Amended Information
were evidentiary in nature which could be properly presented during the trial on the merits. The Sandiganbayan also stated that it was
possible to establish the fact of overpricing if it would be proven that the contract price was excessive compared to the price for which
FABMIK purchased the street lighting facilities from its supplier. Braza was effectively discharged from the first Information upon the
filing of the second Information but said discharge was without prejudice to, and would not preclude, his prosecution for violation of Sec.
3(e) of R.A. No. 3019. It added that his right to speedy disposition of the case was not violated inasmuch as the length of time spent for
the proceedings was in compliance with the procedural requirements of due process. The Sandiganbayan, however, deemed it proper
that a new preliminary investigation be conducted under the new charge. Accordingly, the Sandiganbayan disposed:

WHEREFORE, in the light of all the foregoing, the separate omnibus motions of accused-movant Radaza and accused-movants
Bernido, Manggis and Ojeda, insofar as the sought preliminary investigation is concerned is GRANTED.

Accordingly, this case is hereby remanded to the Office of the Ombudsman/Special Prosecutor for preliminary investigation of violation
of Section 3(e) of RA 3019. The said office/s are hereby ordered to complete the said preliminary investigation and to submit to the
Court the result of the said investigation within sixty (60) days from notice.

However, the Motion for Bill of Particulars of accusedmovants Lala, Dindin Alvizo, Fernandez, Bagolor, Galang and Diano, the Motion
for Quashal of Information of accused-movants Bernido, Manggis and Ojeda, and accused-movant Braza's Motion to Quash, are
hereby DENIED for lack of merit.

SO ORDERED.21

ISSUES

Undaunted, Braza filed this petition for certiorari ascribing grave abuse of discretion on the Sandiganbayan for issuing the Resolutions,
dated October 12, 2009 and October 22, 2010, respectively. Braza raised the following issues:

A) The Sandiganbayan committed grave abuse of discretion in sustaining the withdrawal of the Information in
violation of the constitutional guarantee against double jeopardy, the petitioner having entered a valid plea and
vigorously objected to any further conduct of reinvestigation and amendment of Information.

B) The Sandiganbayan acted with grave abuse of discretion in allowing the withdrawal and amendment of the
Information without prejudice, the proceedings being fraught with flip-flopping, prolonged and vexatious
determination of probable cause, thereby violating petitioner's constitutional right to speedy disposition of his case,
warranting his discharge with prejudice regardless of the nature of his previous arraignment.

C) The Sandiganbayan acted with grave abuse of discretion in denying the motion to quash Amended Information,
there being no allegation of actual, specified, or quantifiable injury sustained by the government as required by law
(in cases involving Sec. 3 (e) of RA 3019) with the Reinvestigation Report itself admitting on record that the
government has not paid a single centavo for the fully-implemented project.

D) The Sandiganbayan acted with grave abuse of discretion in sustaining the new indictment under Sec. 3(e) of R.A.
3019 without threshing out the fatal infirmities that hounded the previous finding of overpricing – the erroneous
reliance on spurious import documents and lack of price canvass to establish prevailing market price – thereby
rendering the new Resolution fatally defective.22

Essentially, Braza posits that double jeopardy has already set in on the basis of his "not guilty" plea in the first Information and, thus, he
can no longer be prosecuted under the second Information. He claims that his arraignment was unconditional because the conditions in
the plea were ineffective for not being unmistakable and categorical. He theorizes that the waiver of his constitutional guarantee against
double jeopardy was not absolute as the same was qualified by the phrase "as a result of the pending incidents." He argues that even
granting that his arraignment was indeed conditional, the same had become simple and regular when he validated and confirmed his
plea of "not guilty" by means of a written manifestation which removed any further condition attached to his previous plea.

Braza submits that the prolonged, vexatious and flip-flopping determination of probable cause violated his right to a speedy disposition
of the case which would justify the dismissal of the case with prejudice. Further, he assails the sufficiency of the allegation of facts in
the second Information for failure to assert any actual and quantifiable injury suffered by the government in relation to the subject
transaction. He points out that the admission in the Reinvestigation Report to the effect that the government had not paid a single
centavo to FABMIK for the fully implemented project, had rendered as invalid, baseless and frivolous any indictment or prosecution for
violation of Sec. 3(e) of R.A. 3019. Braza insists that the Supplemental Resolution of the OMB-Visayas was fatally defective considering
that the Ombudsman did not conduct an independent price canvass of the prevailing market price of the subject lampposts and merely
relied on the spurious and false BOC documents to support its conclusion of overpricing.

By way of comment,23 the Office of the Special Prosecutor (OSP) retorts that the withdrawal of the first information and the subsequent
filing of the second information did not place Braza in double jeopardy or violate his right to speedy disposition of the case. The OSP
reasons that Braza waived his right to invoke double jeopardy when he agreed to be conditionally arraigned. It further argues that even
granting that the arraignment was unconditional, still double jeopardy would not lie because the charge of violation of Section 3(e) of
R.A. 3019 in the second information is a different offense with different elements from that of the charge of violation of Sec. 3(g) in the
first Information. The OSP posits that his right to a speedy disposition of the case was not violated as the delay in the proceedings
cannot be considered as oppressive, vexatious or capricious. According to the OSP, such delay was precipitated by the many
pleadings filed by the accused, including Braza, and was in fact incurred to give all the accused the opportunities to dispute the
accusation against them in the interest of fairness and due process.

The OSP also submits that proof of the actual injury suffered by the government and that of overpricing, are superfluous and immaterial
for the determination of probable cause because the alleged mode for committing the offense charged in the second Information was by
giving any private party unwarranted benefit, advantage or preference. The second Information sufficiently alleges all the elements of
the offense for which the accused were indicted.

The Court’s Ruling

Simply put, the pivotal issue in this case is whether the Sandiganbayan acted with grave abuse of discretion in denying Braza's plea for
the dismissal of Case No. SB-08-CRM-0275 and his subsequent motion to quash the second Information, particularly on the grounds of
double jeopardy, violation of his right to a speedy disposition of the case, and failure of the Information to state every single fact to
constitute all the elements of the offense charged.

The petition is devoid of merit.

It is Braza’s stance that his constitutional right under the double jeopardy clause bars further proceedings in Case No. SB-08-CRM-
0275. He asserts that his arraignment under the first information was simple and unconditional and, thus, an arraignment under the
second information would put him in double jeopardy.

The Court is not persuaded. His argument cannot stand scrutiny.

The June 6, 2008 Order24 of the Sandiganbayan reads:

This morning, accused Isabelo A. Braza was summoned to arraignment as a precondition in authorizing his travel. The arraignment of
the accused was conditional in the sense that if the present Information will be amended as a result of the pending incidents
herein, he cannot invoke his right against double jeopardy and he shall submit himself to arraignment anew under such
Amended Information. On the other hand, his conditional arraignment shall not prejudice his right to question such Amended
Information, if one shall be filed. These conditions were thoroughly explained to the accused and his counsel. After consultation with his
counsel, the accused willingly submitted himself to such conditional arraignment.

Thereafter, the accused, with the assistance of counsel, was arraigned by reading the Information to him in English, a language
understood by him. Thereafter, he pleaded Not Guilty to the charge against him. [Emphases supplied]

While it is true that the practice of the Sandiganbayan of conducting "provisional" or "conditional" arraignment of the accused is not
specifically sanctioned by the Revised Internal Rules of the Procedure of the Sandiganbayan or by the regular Rules of Procedure, this
Court had tangentially recognized such practice in People v. Espinosa,25 provided that the alleged conditions attached to the
arraignment should be "unmistakable, express, informed and enlightened." The Court further required that the conditions must be
expressly stated in the order disposing of arraignment, otherwise, it should be deemed simple and unconditional. 26

A careful perusal of the record in the case at bench would reveal that the arraignment of Braza under the first information was
conditional in nature as it was a mere accommodation in his favor to enable him to travel abroad without the Sandiganbayan losing its
ability to conduct trial in absentia in case he would abscond. The Sandiganbayan's June 6, 2008 Order clearly and unequivocally states
that the conditions for Braza's arraignment as well as his travel abroad, that is, that if the Information would be amended, he shall waive
his constitutional right to be protected against double jeopardy and shall allow himself to be arraigned on the amended information
without losing his right to question the same. It appeared that these conditions were duly explained to Braza and his lawyer by the anti-
graft court. He was afforded time to confer and consult his lawyer. Thereafter, he voluntarily submitted himself to such conditional
arraignment and entered a plea of "not guilty" to the offense of violation of Sec. 3(g) of R.A. No. 3019.

Verily, the relinquishment of his right to invoke double jeopardy had been convincingly laid out. Such waiver was clear, categorical and
intelligent. It may not be amiss to state that on the day of said arraignment, one of the incidents pending for the consideration of the
Sandiganbayan was an omnibus motion for determination of probable cause and for quashal of information or for reinvestigation filed
by accused Radaza. Accordingly, there was a real possibility that the first information would be amended if said motion was granted.
Although the omnibus motion was initially denied, it was subsequently granted upon motion for reconsideration, and a reinvestigation
was ordered to be conducted in the criminal case.

Having given his conformity and accepted the conditional arraignment and its legal consequences, Braza is now estopped from
assailing its conditional nature just to conveniently avoid being arraigned and prosecuted of the new charge under the second
information. Besides, in consonance with the ruling in Cabo v. Sandiganbayan,27 this Court cannot now allow Braza to renege and turn
his back on the above conditions on the mere pretext that he affirmed his conditional arraignment through a pleading denominated as
Manifestation filed before the Sandiganbayan on November 13, 2008. After all, there is no showing that the anti-graft court had acted
on, much less noted, his written manifestation.
Assuming, in gratia argumenti, that there was a valid and unconditional plea, Braza cannot plausibly rely on the principle of double
jeopardy to avoid arraignment under the second information because the offense charged therein is different and not included in the
offense charged under the first information. The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution,
which reads:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance conviction
or acquittal under either shall constitute a bar to another prosecution for the same act.

This constitutionally mandated right is procedurally buttressed by Section 17 of Rule 117 28 of the Revised Rules of Criminal Procedure.
To substantiate a claim for double jeopardy, the accused has the burden of demonstrating the following requisites: (1) a first jeopardy
must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be
for the same offense as in the first.29 As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment, (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted,
or the case was dismissed or otherwise terminated without his express consent. 30 The test for the third element is whether one offense
is identical with the other or is an attempt to commit it or a frustration thereof; or whether the second offense includes or is necessarily
included in the offense charged in the first information.

Braza, however, contends that double jeopardy would still attach even if the first information charged an offense different from that
charged in the second information since both charges arose from the same transaction or set of facts. Relying on the antiquated ruling
of People v. Del Carmen,31 Braza claims that an accused should be shielded against being prosecuted for several offenses made out
from a single act.

It appears that Braza has obviously lost sight, if he is not altogether aware, of the ruling in Suero v. People32 where it was held that the
same criminal act may give rise to two or more separate and distinct offenses; and that no double jeopardy attaches as long as there is
variance between the elements of the two offenses charged. The doctrine of double jeopardy is a revered constitutional safeguard
against exposing the accused from the risk of being prosecuted twice for the same offense, and not a different one.

There is simply no double jeopardy when the subsequent information charges another and different offense, although arising from the
same act or set of acts.33 Prosecution for the same act is not prohibited. What is forbidden is the prosecution for the same offense.

In the case at bench, there is no dispute that the two charges stemmed from the same transaction. A comparison of the elements of
violation of Sec. 3(g) of R.A. No. 3019 and those of violation of Sec. 3(e) of the same law, however, will disclose that there is neither
identity nor exclusive inclusion between the two offenses. For conviction of violation of Sec. 3(g), the prosecution must establish the
following elements:

1. The offender is a public officer;

2. He entered into a contract or transaction in behalf of the government; and

3. The contract or transaction is manifestly and grossly disadvantageous to the government.34

On the other hand, an accused may be held criminally liable of violation of Section 3(e) of R.A. No. 3019, provided that the following
elements are present:

1. The accused must be a public officer discharging administrative, judicial or official functions;

2. The accused must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and

3. His action caused undue injury to any party, including the government or gave any private party unwarranted benefits,
advantage or preference in the discharge of his functions. 35

Although violation of Sec. 3(g) of R.A. No. 3019 and violation of Sec. 3(e) of the same law share a common element, the accused being
a public officer, the latter is not inclusive of the former. The essential elements of each are not included among or do not form part of
those enumerated in the other. For double jeopardy to exist, the elements of one offense should ideally encompass or include those of
the other. What the rule on double jeopardy prohibits refers to identity of elements in the two offenses. 36

Next, Braza contends that the long delay that characterized the proceedings for the determination of probable cause has resulted in the
transgression of his constitutional right to a speedy disposition of the case. According to him, the proceedings have unquestionably
been marred with vexatious, capricious and oppressive delay meriting the dismissal of Case No. SB-08-CRM-0275. Braza claims that it
took the OMB more than two (2) years to charge him and his co-accused with violation of Section 3(e) in the second information.

The petitioner's contention is untenable.

Section 16, Article III of the Constitution declares in no uncertain terms that "[A]ll persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies." The right to a speedy disposition of a case is deemed violated
only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial
are asked for and secured, or when without cause or justifiable motive, a long period of time is allowed to elapse without the party
having his case tried.37 The constitutional guarantee to a speedy disposition of cases is a relative or flexible concept. 38 It is consistent
with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays
which render rights nugatory.39

In Dela Peña v. Sandiganbayan,40 the Court laid down certain guidelines to determine whether the right to a speedy disposition has
been violated, as follows:

The concept of speedy disposition is relative or flexible. A mere mathematical reckoning of the time involved is not sufficient. Particular
regard must be taken of the facts and circumstances peculiar to each case. Hence, the doctrinal rule is that in the determination of
whether that right has been violated, the factors that may be considered and balanced are as follows: (1) the length of the delay; (2) the
reasons for the delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.

Using the foregoing yardstick, the Court finds that Braza’s right to speedy disposition of the case has not been infringed.

Record shows that the complaint against Braza and twenty-three (23) other respondents was filed in January 2007 before the PACPO-
Visayas. After the extensive inquiries and data-gathering, the PACPO-Visayas came out with an evaluation report on March 23, 2007
concluding that the installed lampposts and lighting facilities were highly overpriced. 41 PACPO-Visayas recommended that the
respondents be charged with violation of Section 3(e) of R.A. No. 3019. Thereafter, the investigatory process was set in motion before
the OMB-Visayas where the respondents filed their respective counter-affidavits and submitted voluminous documentary evidence to
refute the allegations against them. Owing to the fact that the controversy involved several transactions and varying modes of
participation by the 24 respondents and that their respective responsibilities had to be established, the OMB-Visayas resolved the
complaint only on January 24, 2008 with the recommendation that the respondents be indicted for violation of Section 3(g) of R.A.
3019. The Court notes that Braza never decried the time spent for the preliminary investigation. There was no showing either that there
were unreasonable delays in the proceedings or that the case was kept in idle slumber.

After the filing of the information, the succeeding events appeared to be part of a valid and regular course of the judicial proceedings
not attended by capricious, oppressive and vexatious delays. On November 3, 2008, Sandiganbayan ordered the reinvestigation of the
case upon motion of accused Radaza, petitioner Braza and other accused DPWH officials. In the course of the reinvestigation, the
OMB-Visayas furnished the respondents with the additional documents/papers it secured, especially the Commission on Audit Report,
for their verification, comment and submission of countervailing evidence. 42 Thereafter, the OMB-Visayas issued its Supplemental
Resolution, dated May 4, 2009, finding probable cause against the accused for violation of Section 3(e) of R.A. 3019.

Indeed, the delay can hardly be considered as "vexatious, capricious and oppressive." The complexity of the factual and legal issues,
the number of persons charged, the various pleadings filed, and the volume of documents submitted, prevent this Court from yielding to
the petitioner’s claim of violation of his right to a speedy disposition of his case. Rather, it appears that Braza and the other accused
were merely afforded sufficient opportunities to ventilate their respective defenses in the interest of justice, due process and fair
investigation. The re-investigation may have inadvertently contributed to the further delay of the proceedings but this process cannot be
dispensed with because it was done for the protection of the rights of the accused. Albeit the conduct of investigation may hold back the
progress of the case, the same was essential so that the rights of the accused will not be compromised or sacrificed at the altar of
expediency.43 The bare allegation that it took the OMB more than two (2) years to terminate the investigation and file the necessary
information would not suffice.44 As earlier stated, mere mathematical reckoning of the time spent for the investigation is not a sufficient
basis to conclude that there was arbitrary and inordinate delay.

The delay in the determination of probable cause in this case should not be cause for an unfettered abdication by the anti-graft court of
its duty to try and determine the controversy in Case No. SB-08-CRM-0275. The protection under the right to a speedy disposition of
cases should not operate to deprive the government of its inherent prerogative in prosecuting criminal cases.

Finally, Braza challenges the sufficiency of the allegations in the second information because there is no indication of any actual and
quantifiable injury suffered by the government. He then argues that the facts under the second information are inadequate to support a
valid indictment for violation of Section 3(e) of R.A. No. 3019.

The petitioner's simple syllogism must fail.

Section 3 (e) of R.A. No. 3019 states:

Sec. 3. Corrupt practices of public officers – In addition to acts or omission of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(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 wi th the
grant of licenses or permits or other concessions.

In a catena of cases, this Court has held that there are two (2) ways by which a public official violates Section 3(e) of R.A. No. 3019 in
the performance of his functions, namely: (1) by causing undue injury to any party, including the Government; or (2) by giving any
private party any unwarranted benefit, advantage or preference. 45 The accused may be charged under either mode or under both. The 1âwphi1

disjunctive term "or" connotes that either act qualifies as a violation of Section 3(e) of R.A. No. 3019. 46 In other words, the presence of
one would suffice for conviction.

It must be emphasized that Braza was indicted for violation of Section 3(e) of R.A. No. 3019 under the second mode. "To be found
guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official,
administrative and judicial functions."47 The element of damage is not required for violation of Section 3(e) under the second mode. 48

In the case at bench, the second information alleged, in substance, that accused public officers and employees, discharging official or
administrative function, together with Braza, confederated and conspired to give F ABMIK unwarranted benefit or preference by
awarding to it Contract I.D. No. 06H00050 through manifest partiality or evident bad faith, without the conduct of a public bidding and
compliance with the requirement for qualification contrary to the provisions of R.A. No. 9184 or the Government Procurement Reform
Act. Settled is the rule that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held
liable for the pertinent offenses under Section 3 of R.A. No. 3 019.49 Considering that all the elements of the offense of violation of Sec.
3(e) were alleged in the second information, the Court finds the same to be sufficient in form and substance to sustain a conviction.

At any rate, the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be
passed upon after a full-blown trial on the merits.50 It is not proper, therefore, to resolve the issue right at the outset without the benefit
of a full-blown trial. This issue requires a fuller ventilation and examination.

All told, this Court finds that the Sandiganbayan did not commit grave abuse of discretion amounting to lack or excess of jurisdiction,
much less did it gravely err, in denying Braza's motion to quash the information/dismiss Case No. SB-08-CRM-0275. This ruling,
however, is without prejudice to the actual merits of this criminal case as may be shown during the trial before the court a quo.

WHEREFORE, the petition for certiorari is DENIED. The Sandiganbayan is hereby DIRECTED to dispose of Case No. SB-08-CRM-
0275 with reasonable dispatch.

SO ORDERED.
 G.R. No. 126995. October 6, 1998]

IMELDA R. MARCOS, petitioner, vs. The Honorable SANDIGANBAYAN (First

Division), and THE PEOPLE OF THE PHILIPPINES, respondents.

RESOLUTION
PURISIMA, J.:

This scenic Philippine archipelago is a citadel of justice, due process and rule of law. Succinct
and clear is the provision of the constitution of this great Republic that every accused is presumed
innocent until the contrary is proved. [Art. 111, Sec. 14(2)]. As held in People of the Philippines vs.
Ellizabeth Ganguso y Decena (G.R. No 115430, November 23, 1995, 250 SCRA 268, 274-275):
An accused has in his favor the presumption of innocence which the Bill of Rights guarantees.
Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt
standard is demanded by the due process clause of the Constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime
with which he is charged. The burden of proof is on the prosecution, and unless it discharges that
burden the accused need not even offer evidence in his behalf, and he would be entitled to an
acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as,
excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied
that the accused is responsible for the offense charged.
So also, well-settled, to the point of being elementary, is the doctrine that when inculpatory facts
are susceptible to two or more interpretations, one of which is consistent with the innocence of the
accused, the evidence does not fulfill or hurdle the test of moral certainty required for conviction.
(People of the Philippines vs. Eric F. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364,
373 citing People vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248;
People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562; People vs. Salangga, 234
SCRA 407)
Mindful of and guided by the aforecited constitutional and legal precepts, doctrines and principles
prevailing in this jurisdiction, should petitioners Motion for Reconsideration be granted?
Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information indicting
Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(g) of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act, alleges:
That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro-
Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R.
MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman,
respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under
Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their
official functions, taking advantage of their positions and committing the crime in relation to their
offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on
behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property
located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.
CONTRARY TO LAW.
The case was raffled off to the First Division of the Sandiganbayan, with Presiding Justice Francis
E. Garchitorena, as Chairman and Justices Jose S. Balajadia and Narciso T. Atienza, as members.
On September 15, 1993, when the First Division failed to comply with the legal requirement of
unanimity of its three members due to the dissent of Justice Narciso T. Atienza, Presiding Justice
Garchitorena issued Administrative Order No. 288-93 constituting a Special Division of five and
designating Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members.
On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena requesting that he
be given fifteen (15) days to send in his Manifestation. However, on the same day, September 21,
1993, when Justice Balajadia and Presiding Justice Garchitorena agreed with the opinion of Justice
Del Rosario, Presiding Justice Garchitorena issued Administrative Order No. 293-93, dissolving the
Special Division of Five, without waiting for Justice Amores manifestation. Justice Garchitorena
considered the said request of Justice Amores as pointless because of the agreement of Justice
Balajadia and the undersigned to the conclusion reached by Justice Atienza. Thus, on September 24,
1993, the now assailed decision was handed down by the First Division of the Sandiganbayan.
Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr.
with a violation of Section 3(g) of RA 3019, the following elements of the offense charged must be
proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject
Contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the
government.
There is no dispute that sometime in the year 1984, the herein petitioner, Imelda R. Marcos, was
Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of Transportation and
Communication. The two served as ex oficio Chairman and Vice Chairman, respectively, of the Light
Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of the Board of Trustees of the
Philippine General Hospital Foundation, Inc. (PGHFI).
On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI, and Jose P. Dans, Jr. as Vice
Chairman of LRTA, signed the Lease Agreement (Exhibit B) by virtue of which LRTA leased to
PGHFI subject lot with an area of 7,340 square meters, at a monthly rental of P102,760.00 for a
period of twenty-five (25) years.
On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and Transnational
Construction Corporation, represented by its President Ignacio B. Gimenez, signed the Sub-lease
Agreement (Exhibit D), wherein said lessee rented the same area of 7,340 square meters for
P734,000.00 a month, for a period of twenty-five (25) years.
For executing the aforesaid Lease Agreement (Exhibit B), petitioner and Jose P. Dans, Jr. were
indicted in the said Information, for conspiring and confederating with each other in entering into
subject Lease Agreement alleged to be manifestly and grossly disadvantageous to the government.
After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and Jose P. Dans, Jr.
of the offense charged.
On June 29, 1998, the Third Division of this court came out with its decision affirming the
judgment, as against petitioner Imelda R. Marcos, in G.R. No. 126995, but reversing the same
judgment, as against Jose P. Dans, Jr., in G.R. No. 127073.
In affirming the judgment of conviction against petitioner, the Third Division found the rental price
stipulated in the Lease Agreement, (Exhibit B) unfair and unreasonably low, upon a comparison with
the rental rate in the Sub-lease Agreement (Exhibit D), which contract petitioner subsequently signed
on behalf of PGHFI, with TNCC. Undaunted, the petitioner interposed the present Motion for
Reconsideration.
The pivot of inquiry here is whether all the elements of the offense charged have been duly
substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease
Agreement marked Exhibit B as a public officer? As clearly stated on the face of the subject contract
under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human
Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said
Contract, as ex-officio Vice-Chairman of LRTA. Although petitioner was the ex-officio Chairman of
LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of
LRTA authorized and approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that
petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA
3019 and, therefore, the first element of the offense charged is wanting.
It bears stressing, in this connection, that Jose P. Dans, Jr., the public officer who signed the said
Lease Agreement (Exhibit B) for LRTA, was acquitted.
As regards the second element of the offense - that such Lease Agreement is grossly and
manifestly disadvantageous to the government, the respondent court based its finding thereon
against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the
Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease
Agreement is P734,000.00. After comparing the two rental rates aforementioned, the respondent
court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and
disadvantageous to the government.
But Exhibit B does not prove that the said contract entered into by petitioner is manifestly and
grossly disadvantageous to the government. There is no established standard by which Exhibit Bs
rental provisions could be adjudged prejudicial to LRTA or the entire government. Exhibit B standing
alone does not prove any offense. Neither does Exhibit B together with the Sub-lease Agreement
(Exhibit D) prove the offense charged.
At most, it creates only a doubt in the mind of the objective readers as to which (between the
lease and sub-lease rental rates) is the fair and reasonable one, considering the different
circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA
nor the Government suffered any injury. There is, therefore, insufficient evidence to prove petitioners
guilt beyond reasonable doubt.
Verily, it is too obvious to require an extended disquisition that the only basis of the respondent
court for condemning the Lease Agreement (Exhibit B) as manifestly and grossly disadvantageous to
the government was a comparison of the rental rate in the Lease Agreement, with the very much
higher rental price under the Sub-lease Agreement (Exhibit D). Certainly, such a comparison is purely
speculative and violative of due process. The mere fact that the Sub-lease Agreement provides a
monthly rental of P734,000.00 does not necessarily mean that the rental price of P102,760.00 per
month under the Lease Agreement (Exhibit B) is very low, unreasonable and manifestly and grossly
disadvantageous to the government. There are many factors to consider in the determination of what
is a reasonable rate of rental.
What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was inked, the
rental rate therein provided was based on a study conducted in accordance with generally accepted
rules of rental computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate appraiser who
testified in the case as an expert witness and whose impartiality and competence were never
impugned, assured the court that the rental price stipulated in the Lease Agreement under scrutiny
was fair and adequate. According to him, witness, the reasonable rental for subject property at the
time of execution of Exhibit B was only P73,000.00 per month.
That the Sub-lease Agreement (Exhibit D) was for a very much higher rental rate of P734,000.00
a month is of no moment. This circumstance did not necessarily render the monthly rental rate of
P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed
to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous
to the government. Not even a single lease contract covering a property within the vicinity of the said
leased premises was offered in evidence. The disparity between the rental price of the Lease
Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the
prosecution, that the Lease Agreement in question is manifestly and grossly disadvantageous to the
government. Gross is a comparative term. Before it can be considered gross, there must be a
standard by which the same is weighed and measured.
All things viewed in proper perspective, it is decisively clear that there is a glaring absence of
substantiation that the Lease Agreement under controversy is grossly and manifestly
disadvantageous to the government, as theorized upon by the prosecution.
Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate of P734,000.00 a
month, did not result in any disadvantage to the government because obviously, the rental income
realized by PGHFI from the Sub-lease Agreement (Exhibit D) augmented the financial support for and
improved the management and operation of the Philippine General Hospital, which is, after all, a
government hospital of the people and for the people.
Another sustainable ground for the granting of petitioners motion for reconsideration is the failure
and inability of the prosecution to prove that petitioner was present when the Board of Directors of
LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex oficio
chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there
is no evidence whatsoever to show that she attended the board meeting of LRTA which deliberated
and acted upon subject Lease Agreement (Exhibit B). It is thus beyond cavil that petitioner signed the
said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and
not as a public officer.
Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found
without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of
petitioner with Dans, the act of the latter cannot be viewed as an act of the former. Petitioner is only
answerable for her own individual act. Consequently, petitioner not having signed Exhibit B as a
public officer, there is neither legal nor factual basis for her conviction under Section 3 (g) of Rep Act
3019.
It bears repeating that apart from the Lease Agreement and Sub-lease Agreement marked
Exhibits B and D, respectively, the prosecution offered no other evidence to prove the accusation at
bar.
What makes petitioners stance the more meritorious and impregnable is the patent violation of
her right to due process, substantive and procedural, by the respondent court. Records disclose that:
(a) the First Division of the Sandiganbayan composed of Presiding Justice Garchitorena and
Associate Justices Balajadia and Atienza could not agree on whether to convict or acquit the
petitioner in the five (5) criminal cases pending against her. Justice Atienza was in favor of
exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452. Justices Garchitorena and
Balajadia wanted to convict her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there
there was no unanimity of votes in Criminal Case Nos. 17451 and 17452; (b) on September 15, 1993,
in accordance with Sec. 5 of P. D. No. 1606, Presiding Justice Garchitorena issued Adm. Order No.
288-93 constituting a Special Division of five (5) justices, and naming thereto, Justices Augusto M.
Amores and Cipriano A. del Rosario; (c) on September 21, 1993, Justice Amores sent a written
request to Presiding Justice Garchitorena asking that he be given fifteen (15) days to submit his
Manifestation; (d) on the same day, September 21, 1993, however, Presiding Justice Garchitorena
and Justices Balajadia and del Rosario, after attending a hearing of the Committee of Justice of the
House of Representatives, lunched together in a Quezon City restaurant where they discussed
petitioners cases in the absence of Justices Atienza and Amores and in the presence of a non-
member of the Special Division. Thereat, Presiding Justice Garchitorena, and Justices Balajadia and
del Rosario agreed with the position of Justice Atienza to acquit petitioner in Criminal Case Nos.
17449, 17451 and 17452 and to convict her in the other cases; and (e) when the Justices returned to
the official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order No. 293-
93 dissolving the Special Division.
Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its
decision convicting petitioner for the following reasons, viz:
First. Section 4, Rule VI categorically provides that sessions of the Sandiganbayan, whether en
banc or division, shall be held in its principal office in the Metropolitan Manila where it shall try and
determine all cases filed with it x x x. This rule reiterates Sec. 2 of P.D. No. 1606, as amended,
creating the Sandiganbayan.
Second, The rules of Sandiganbayan do not allow unscheduled discussion of cases. We take
judicial notice of the procedure that cases in all courts are carefully calendared and advance notices
are given to judges and justices to enable them to study and prepare for deliberation. The calendaring
of cases cannot be the subject of anybodys whims and caprices.
Third. The rules of Sandiganbayan do not also allow informal discussion of cases. The
deliberations in case at bar did not appear on record. The informal discussion of the three justices
came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction
by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled Response,
revealed for the first time the informal discussion of petitioners cases at an unnamed restaurant in
Quezon City. There is no way to know how the discussion was conducted as it was not minuted.
Fourth. The rules of the Sandiganbayan do not allow the presence of a non-member in the
deliberation of cases. In the case at bar, a certain justice was present when Presiding Justice
Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioners cases while taking
their lunch in a Quezon City restaurant.
Fifth. The rules of the Sandiganbayan do not allow the exclusion of a member of a Division,
whether regular or special, in the deliberation of cases. Justices Atienza and Amores were members
of the Special Division but were not present when petitioners cases were discussed over lunch in a
Quezon City restaurant. They were not notified of the informal, unscheduled meeting. In fact, Justice
Amores had a pending request for 15 days to study petitioners cases. In effect, Atienza and Amores
were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner.
These irregularities violated the right of petitioner to be tried by a collegial court. Under PD No.
1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted
except upon the vote of three justices, regardless of whether her cases are before a regular division
of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three
(3) justices is the process by which they arrive at their vote. It is indispensable that their vote be
preceded by discussion and deliberation by all the members of the division. Before the deliberation by
all, any opinion of a justice is but tentative and could be changed. It is only after all the justices have
been heard should the justices reach a judgment. No one opinion can be denigrated in importance for
experience shows that an opinion that starts as a minority opinion could become the majority opinion
after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard
by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its
members.
In the case at bar, Presiding Justice Garchitorena had already created the Special Division of five
(5) justices in view of the lack of unanimity of the three (3) justices in the First Division. At that stage,
petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the
persons of Justices Amores and del Rosario who may have a different view of the cases against her.
At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree
with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested
right to the opinion of Justices Amores and del Rosario. It may be true that Justice del Rosario had
already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant
but as aforestated, that opinion is not the opinion contemplated by law. But what is more, petitioner
was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena
dissolved the Special Division.
We reject the rationalization that the opinion of Justice Amores was of de minimis importance as
it cannot overturn the votes of the three justices convicting the petitioner. This is a mere guesswork.
The more reasonable supposition is that said opinion could have changed the opinions of the other
justices if it is based on an unbiased appreciation of facts and an undistorted interpretation of
pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and
Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the
petitioner despite a better opinion.
Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the
acquittal of the petitioner, that opinion will have an added value when petitioner appeals her
conviction to this Court. Again, depending on its scholarship, that minority opinion could sway the
opinion of this Court towards the acquittal of petitioner.
Prescinding from those premises, it is indisputable that the decision of the First Division of the
respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and
procedural due process of law.
It is opined, however, that this case should be remanded to the respondent Sandiganbayan for
re-decision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal
of an accused. The case ought to be remanded to the court of origin for further proceedings for a void
judgment does not expose an accused to double jeopardy. But the present case deserves a different
treatment considering the great length of time it has been pending with our courts. Records reveal
that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years
passed but petitioners prosecution is far from over. To remand the case to the Sandiganbayan will not
sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution
assures all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies. This right expands the right of an accused to have a speedy,
impartial, and public trial x x x in criminal cases guaranteed by Section 14(2) of Article III of the
Constitution. It has a broadening effect because Section 16 covers the periods before, during and
after trial whereas Section 14(2) covers only the trial period.i Heretofore, we have held that an
accused should be acquitted when his right to speedy trial has been violated. Thus, in the early 1936
case of People vs. Castaeda, et al. 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held:
A strict regard for the constitutional rights of the accused would demand, therefore, that the case
be remanded to the court below for new trial before an impartial judge. There are vital considerations,
however, which in the opinion of this court render this step unnecessary. In the first place, the
Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a
speedy trial. This criminal proceeding has been dragging on for almost five (5) years now. The
accused have twice appealed to this court for redress from the wrong that they have suffered at the
hands of the trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had been
confined in prison from July 20, 1932 to November 27, 1934 for inability to post the required bond of
P3,000 which was finally reduced to P300. The Government should be the last to set an example of
delay and oppression in the administration of justice and it is the moral and legal obligation of this
court to see that the criminal proceedings against the accused to come to an end and that they be
immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650).
We reiterated this rule in Acebedo vs. Sarmiento , viz:ii
2. More specifically, this Court has consistently adhered to the view that a dismissal based on the
denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at
continuing the prosecution or starting a new one would fall within the prohibition against an accused
being twice put in jeopardy. The extensive opinion of Justice Castro in People vs. Obsania noted
 earlier made reference to four Philippine decisions, People vs. Diaz, People vs. Abao, People vs.
Robles, and People vs. Cloribel. In all of the above case, this Court left no doubt that a dismissal of
the case, though at the instance of the defendant grounded on the disregard of his right to a speedy
trial was tantamount to an acquittal. In People vs. Diaz, it was shown that the case was set for hearing
twice and the prosecution without asking for postponement or giving any explanation failed to appear.
In People vs. Abao, the facts disclosed that there were three postponements. Thereafter, at the time
the resumption of the trial was scheduled, the complaining witness as in this case was absent, this
Court held that respondent Judge was justified in dismissing the case upon motion of the defense and
that the annulment or setting aside of the order of dismissal would place the accused twice in
jeopardy of punishment for the same offense. People vs. Robles likewise presented a picture of
witnesses for the prosecution not being available, with the lower court after having transferred the
hearings on several occasions denying the last plea for postponement and dismissing the case. Such
order of dismissal, according to this Court is not provisional in character but one which is tantamount
to acquittal that would bar further prosecution of the accused for the same offense. This is a summary
of the Cloribel case as set forth in the above opinion of Justice Castro. In Cloribel, the case dragged
for three years and eleven months, that is, from September 27, 1958 when the information was filed to
August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of
the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of
defendants, the case was dismissed. This Court held, that the dismissal here complained of was not
truly a dismissal but an acquittal. For it was entered upon the defendants insistence on their
constitutional right to speedy trial and by reason of the prosecutions failure to appear on the date of
trial. (Italics supplied) There is no escaping the conclusion then that petitioner here has clearly made
out a case of an acquittal arising from the order of dismissal given in open court.
The rationale for both Section 14(2) and section 16 of Article III of the Constitution is the same:
justice delayed is justice denied. Violation of either section should therefore result in the acquittal of
the accused.
There are other reasons why the case should not be remanded to the court a quo. Three justices
of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding
Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed
by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice
Garchitorenas undue interference in the examination of witness Cuervo revealed his bias and
prejudice against petitioner.iii As Mr. Justice Francisco observed the court questions were so
numerous which as per petitioner Dans count totaled 179 compared to prosecutor Querubins
questions which numbered merely 73. More noteworthy, however, is that the court propounded
leading, misleading, and baseless hypothetical questions rolled into one. iv Mr. Justice Franciscos
opinion was concurred by Mr. Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice
Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice
Franciscos observations on the lack of impartiality of Presiding Justice Garchitorena. They
disregarded Mr. Ramon F. Cuervos testimony and based the conviction of petitioner purely on the
documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are
now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same
evidence has been passed upon by the Third Division of this Court in formulating its judgment of
affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand
the case for a Special Division of five of the Sandiganbayan to render another decision in the case,
with respect to the herein petitioner.
I consider this opinion incomplete without quoting herein the following portion of the concurring
and dissenting opinion of former Associate Justice Ricardo J. Francisco dated January 29, 1998:
Thus, purely from the legal standpoint, with the evident weakness of the prosecutions case and
the procedural aberrations that marred the trial, it is simply unsound and impossible to treat differently
each petitioner who found themselves in one and the same situation. Indeed, our regained
democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it
expects that government efforts in going after the plunderers of that dark past remain unrelenting and
 decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal
justice system is not a popularity contest where freedom and punishment are determined merely by
the fame or infamy of the litigants. The scales of justice, it has been aptly said,v must hang equal and,
in fact, should even be tipped in favor of the accused because of the constitutional presumption of
innocence. Needless to stress, this right is available to every accused, whatever his present
circumstance and no matter how dark and repellent his past. Culpability for crimes must always take
its bearing from evidence and universal precepts of due process - lest we sacrifice in mocking shame
once again the very liberties we are defending.
IN VIEW OF THE FOREGOING, the Motion for Reconsideration under consideration is hereby
GRANTED and petitioner Imelda R. Marcos is hereby ACQUITTED of the offense charged. Costs de
oficio.
SO ORDERED.
BELEN A. SALVACION, G. R. No. 175006

Petitioner,

Present:

YNARES-SANTIAGO, J.,
- versus -
Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.
SANDIGANBAYAN (FIFTH
DIVISION) AND LEO H.
MANLAPAS,
Promulgated:
Respondents.

November 27, 2008

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

DECISION
CHICO-NAZARIO, J.:

In this Petition for Certiorariv under Rule 65 of the Revised Rules of Court, petitioner Belen A.
Salvacion (Salvacion) urges us to annul and set aside the 23 February 2006v and 4 August 2006v Resolutionsv
of the Sandiganbayan, Fifth Division, reversing its 11 November 2005 Resolutionv which affirmed (a) the 7
February 2005 Resolutionv and 12 May 2005 Order,v both of the Deputy Ombudsman for Luzon, finding
reasonable ground to charge respondent Leo H. Manlapas (Manlapas), then Municipal Mayor of Baleno,
Masbate, with violation of Section 3, paragraphs (e) and (f) of Republic Act No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, as amended; and (b) the Information thereafter filed before respondent
Sandiganbayan, docketed as Criminal Case No. 28111. Consequently, petitioner Salvacion also seeks in the
present Petition the reinstatement of Criminal Case No. 28111 before the Sandiganbayan, Fifth Division.

The antecedents are not complicated.

In preparation for her impending retirement on 31 December 2002, petitioner Salvacion, Bookkeeper of
the Municipality of Baleno, Masbate, prepared all the pertinent documents and clearance for her permanent
separation from government service. One such document was an applicationv for the payment of her retirement
benefits and terminal leave pay filed on 10 December 2002. Said application was duly acted upon and approved
by respondent Manlapas as the Municipal Mayor of Baleno, Masbate, and the authorized official to act upon it.

On 18 March 2003, petitioner Salvacion submitted to the Office of the Municipal Mayor, for payment, a
Disbursement Voucherv duly signed and approved for payment by respondent Manlapas, and accompanied by
supporting documents, in the amount of P162,291.46 representing her Terminal Leave Pay for 815.226 unused
leave credits.

In the intervening time, according to petitioner Salvacion, she made numerous follow-ups for the
disbursement of her Terminal Leave Pay; to no avail.
 On 10 September 2003, a few days short of six months from the day she submitted the afore-mentioned
Disbursement Voucher and its supporting documents to the Office of the Municipal Mayor, petitioner Salvacion
sent, via registered mail, a letter requesting the release of fund for payment of my terminal leave pay x x x I will
be going to Manila for medical check-up, so that Im in dire need of money.v No response was made by
respondent Manlapas.

On 17 February 2004, petitioner Salvacion filed a sworn Complaintv before the Office of the Provincial
Prosecutor, Masbate, charging respondent Manlapas with violation of Section 3, paragraphs (e) and (f), of
Republic Act No. 3019, as amended, which state that:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices of any
public officer and are hereby declared unlawful:

xxxx

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

(f) Neglecting or refusing, after due demand or request, without sufficient

justification to act within a reasonable time on any matter pending before him for the purpose of
obtaining directly or indirectly, from any person interested in the matter some pecuniary or
material benefit or advantage, or for purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other interested party.

The Complaint was docketed as I.S. No. 04-17546 (DF).

In his Counter-Affidavit,v respondent Manlapas denied the charges against him. He averred that
complainant had been following up the payment of her terminal leave pay as alleged x x x, however, I did not
make any promise to release the payment after a weeks (sic) time, the truth of the matter being that I really
refused immediately (not negligently) to order payment of her Terminal Leave Pay with legal, factual and
sufficient justification because upon inquiry from the OIC Municipal Treasurer and contrary to the Certification
issued by the previous OIC Municipal Treasurer, Mr. Ismael C. Adoptante in cohort with the complainant, Mrs.
Belen A. Salvacion she is not free from money and/or property responsibilities, x x x.

On 19 April 2004, the 4th Assistant Provincial Prosecutor of Masbate, Richard R. Riveral, resolvedv to
dismiss the Complaint. The fiscal chose to believe the account of respondent Manlapas that his failure to release
petitioner Salvacions retirement benefits was due to the latters supposed failure to remit the amount of
P7,564.38 to the Municipal Government of Baleno.

Aggrieved, petitioner Salvacion filed a Petition for Review before the Office of the Deputy Ombudsman
for Luzon, where it was docketed as Case No. OMB-L-C-04-1034-K.

In a Review Resolutionv dated 7 February 2005, issued after due proceedings, the Office of the Deputy
Ombudsman for Luzon recommended the reversal of the finding of the Provincial Prosecutor, and thereby
declared that there was probable cause to hold respondent Manlapas liable for the violation of Section 3,
paragraphs (e) and (f) of Republic Act No. 3019. The pertinent portion of said Resolution reads:

Records of this case show that complainant had retired from government service on
December 31, 2002 and was subsequently issued all the pertinent documents and clearances
appurtenant to her claim for payment of her terminal leave amounting to P162,291.46, with the
corresponding certification from the OIC Municipal Treasurer, ESMAEL C. ADOPTANTE that
sufficient funds exist to cover for the payment of the same. Ironically and without valid reason,
respondent denied payment of the same alleging among others, that complainant had failed to
remit some of her collections amounting to P7,564.38 as contained in a new certification issued
by the new acting Municipal Treasurer, MR. CEFERINO D. CORTES, JR. on February 23,
2004, a year and two months after complainants severance from service. The averment by the
respondent that he immediately ordered the non-payment of the terminal leave pay of the
complainant despite her repeated demands based on an alleged cash shortage as certified to by
the new OIC Municipal Treasurer only on February 23, 2004 is a flimsy excuse to cover up for
his baseless and malicious act. After all, it was only on February 23, 2004 that an alleged
shortage was found out. Hence, it was only on even date that he would have had a valid ground
to refuse payment of the same. As the Local Chief Executive, herein respondent should have
 pursued the legal means to collect the alleged cash shortage allegedly owed by the complainant
from the municipality. He could have substantiated his claim by filing a case against the
complainant and not place the complainant in a stalemate position as regards the payment of the
terminal leave pay of which she is entitled to receive, to her damage and prejudice. The more
than a years delay in the payment of what one had lawfully earned and is rightfully due seem to
be a punishment and not a reward for more than two (2) decades of government service, as in
this case. Respondent himself admitted that follow-ups on her claim were made by the
complainant.

Respondent Manlapas moved for the reconsideration of the aforequoted Review Resolution. He argued
that his refusal to release petitioner Salvacions Terminal Leave Pay was essentially prompted by good faith, i.e.,
to protect the interest of the people of Baleno, Masbate, from being defrauded by petitioner Salvacion. He
narrated that on the 7th and 8th of January 2003, petitioner Salvacion usurped the functions of revenue collectors
by collecting tax payments from tax payers at Baleno, Masbate, amounting to P7,564.38, and issuing the
corresponding Official Receipts, but failing to remit the same to the Office of the Municipal Treasurer. In
support of his defense, respondent Manlapas submitted, as newly discovered evidence, photocopies of several
Official Receipts dated 7 and 8 January 2003. Further, respondent Manlapas pointed out that the certification
issued by the officer-in-charge (OIC) Municipal Treasurer Ismael C. Adoptante (Adoptante) that petitioner
Salvacion had no more accountabilities with the Municipality of Baleno, Masbate, was invalid, considering that
the same was issued at the time when Adoptante had already been relieved of his duties as OIC Municipal
Treasurer by virtue of Bureau of Local Government Finance (BLGF) Regional Special Personnel Order No. 1-
2002 dated 2 December 2002.

Despite the aforementioned arguments, in an Orderv dated 12 May 2005, the Office of the Deputy
Ombudsman for Luzon resolved respondent Manlapas prayer for reconsideration in the negative. The
dispositive portion of said order reads:

WHEREFORE, in view of the foregoing, it is hereby recommended that the instant

Motion for Reconsideration filed by respondent be denied for lack of merit. Accordingly, the
Review Resolution dated 07 February 2005 which recommended that an Information for
violation of Sec. 3(f) of RA 3019 be filed against the latter stands.
 In affirming the Review Resolution, the Office of the Deputy Ombudsman for Luzon reasoned that:

It could not have possibly escaped respondents attention that complainant has sought the
payment of her terminal leave pay considering that he signed the corresponding disbursement
voucher certifying that the same is necessary and lawful and even approved its payment
amounting to P162,291.46 x x x. Having presented said document for his signature, it should
have prompted him to verify first if there is no impediment in the payment of such claim of
complainant. And it appears that indeed there was none, otherwise he could not have signed the
same. But now, he is now justifying his refusal of not giving complainant her terminal leave pay
because the amount of P7,564.38 of her collection is missing. To this, we are not convinced
because, aside from the fact that the same is uncorroborated, the purported acts of complainant of
usurping the functions of the revenue collectors and misappropriating the amount of P7,564.38
transpired immediately on the month after complainant has retired. If the same is factual,
immediate action thereon could have been taken and that it should have been relayed at once to
complainant and not after a year. With respect to the supposed newly discovered evidence
submitted by respondent, we find that the photocopied receipts issued by the municipality only
confirms the fact that certain amounts were collected but not to the fact that it was complainant
who collected the same and not remit it to the coffers of the municipality. Finally, with respect to
the alleged invalidity of the certification made by Adoptante, it was as early as December 2002
that respondent was apprised of the latters relief as OIC Municipal Treasurer. As such, he should
have called complainants attention of such fact right away and not raised it at this point in time
had he be (sic) sincere in acting on the claim of complainant.

On 29 April 2005, bearing the approval of Dennis M. Villa-Ignacio, Special Prosecutor, Office of the
Ombudsman, an Informationv was filed with the Sandiganbayan, and raffled to its Fifth Division, charging
respondent Manlapas with having violated Section 3, paragraph (f) of Republic Act No. 3019, as amended, with
the accusatory portion of the same reading as follows:

That on December 31, 2002, and for sometime prior or subsequent thereto, in the
Municipality of Baleno, Masbate, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, LEO H. MANLAPAS, a high ranking public officer, being
then the Mayor of Baleno, Masbate, while in the performance of his official administrative
functions and acting in relation thereto, with grave abuse of authority, did then and there
willfully, unlawfully and criminally fails and refuses without sufficient justification, to order and
cause within a reasonable period of time, the payment of the terminal leave pay benefits in the
amount of ONE HUNDRED SIXTY TWO THOUSAND TWO HUNDRED NINETY ONE
PESOS AND FORTY SIX CENTAVOS (P162,291.46) of BELEN A. SALVACION, a retired
municipal employee, after several follow-ups and due demand, the last of which was in
September 2003 and requests and thereby discriminating against said BELEN A. SALVACION,
to the prejudice of the latter.
 The Information was docketed as Criminal Case No. 28111 before the Sandiganbayan, Fifth Division. A
Hold Departure Order was issued by the Sandiganbayan, Fifth Division, directing the Bureau of Immigration to
hold the departure of respondent Manlapas and include him in the Bureaus Hold Departure List.v Likewise, an
Order of Arrest was issued by the same division commanding the arrest of respondent Manlapas.v

Respondent Manlapas subsequently filed the sufficient bail bondv for his provisional liberty which was
duly approved by the Executive Judge of the Regional Trial Court (RTC), City of Masbate, on 1 June 2005.v

The arraignment of the accused, respondent Manlapas, was set on 29 July 2005. Before said date,
however, respondent Manlapas filed an Omnibus Motion [(1) For Determination and/or Review of Finding of
Probable Cause and/or Reinvestigation; and (2) To Defer/Suspend Arraignment] on the ground that new and
material evidence has been discovered which the accused could not, with reasonable diligence, have discovered
and produced during the preliminary investigation and which, if produced and submitted during the preliminary
investigation, would have certainly established the lack of probable cause and, therefore, would have changed
the conclusions and findings of the investigating prosecutors.v He claimed that he was recently informed that as
early as 1 September 2003, petitioner Salvacion had already withdrawn her terminal leave application and its
supporting documents. In view of said development, petitioner Salvacions terminal leave pay was not included
in the budget appropriation for Calendar Year 2003-2004. He explained that [h]aving withdrawn her application
for terminal leave benefits as early as 01 September 2003, or MORE THAN five (5) months BEFORE the filing
of the complaint-affidavit, complainant had no right to demand for the approval of her terminal leave
application from herein accused. In other words, complainant had no cause of action against herein accused at
the time of the filing of her complaint for the simple reason that it would have been PHYSICALLY
IMPOSSIBLE for herein accused to approve or even act upon a NON-EXISTENT application for terminal
leave benefits.v He then concluded that [t]hus, complainant Belen A. Salvacion could not have suffered damage
or injury by reason of the non-payment of her terminal leave benefits; and herein accused could not have
committed a crime for not approving the payment of said benefits in the absence of any application therefor.v
 Petitioner Salvacion opposed the omnibus motion, denying the imputation that she withdrew her
Terminal Leave Application. She declared that it was only on 27 January 2004 that she took home her
disbursement voucher, after she went to see respondent Manlapas at his office to again plead for the release of
her Terminal Leave Pay, and after being told by the Municipal Mayor then that since [petitioner Salvacions]
family could not support [respondent Manlapas] in the forthcoming May, 2004 election, [petitioner Salvacions]
request (for payment) could not be granted.v Further, petitioner Salvacion claimed that the accused Leo H.
Manlapas further told private complainant that she should just keep her documents and wait for a new mayor to
be elected because her Terminal Leave will definitely not be (sic) paid by him.v Hence, she had no choice but to
bring home her voucher for fear that it might get lost in the Office of the Mayor.v

The Sandiganbayan subsequently promulgated a Resolution on 11 November 2005 denying for lack of
merit respondent Manlapas Omnibus Motion. The graft court found correct the position of the prosecution that
respondent Manlapas was basically asking the Sandiganbayan to assess the evidence presented by the parties,
and on the basis thereof, make a conclusion as to whether or not there is probable cause to indict the accused for
the offense charged x x x. However, as pointed out by the Supreme Court x x x this is not a function which the
Court must be called upon to perform as this function pertains exclusively to the public prosecutor. Moreover,
the prosecutors finding of probable cause is entitled to highest respect.v The fallo of said Resolution provides:

WHEREFORE, premises considered, the instant Omnibus Motion 1) For Determination

and/or Review of Finding of Probable Cause and/or Reinvestigation; and 2) to Defer/Suspend
Arraignment is hereby denied for lack of merit. Arraignment of the accused will proceed as
previously scheduled on November 11, 2005.v

Respondent Manlapas moved for the reconsideration of the foregoing Resolution maintaining that
[s]ince the [petitioner Salvacion] had no right to apply for terminal leave benefits, the accused was under no
obligation to process or approve her application.v

On 23 February 2006, the Sandiganbayan reversed itself, thereby dismissing the case against respondent
Manlapas. The graft court ruled that:
 WHEREFORE, finding no probable cause to sustain the present indictment, the present
Motion for Reconsideration filed by the accused LEO H. MANLAPAS is hereby granted. The
Resolution of this Court promulgated on November 11, 2005 is hereby set aside and the instant
case against him is hereby ordered dismissed.

The cash bond posted by the accused to obtain his provisional liberty is hereby ordered
returned to him subject to the usual auditing and accounting procedures. The Hold Departure
Order issued by this Court against the person of the accused on May 10, 2005 is hereby
cancelled.v

The finding that there was no probable cause to hold respondent Manlapas liable to stand trial for the
violation of Section 3, paragraph (f) of Republic Act No. 3019 was based on the ratiocination that:

In the present case, the prosecution committed grave abuse of discretion in finding that
there is probable cause against the accused. There is no sufficient evidence adduced before the
Office of the Ombudsman that a violation of Section 3(f) of Republic Act No. 3019 was
committed by the accused x x x.

xxxx

Admittedly, the elements of the offense are that:

a) The offender is a public officer;

b) The said officer has neglected or has refused to act without sufficient
justification after due demand or request has been made on him;

c) Reasonable time has elapsed from such demand or request without the
public officer having acted on the matter pending before him; and

d) Such failure to so act is for the purpose of obtaining, directly or

indirectly, from any person interested in the matter some pecuniary or
material benefit or advantage in favor of an interested party, or
discriminating against another x x x.

xxxx

The second element is absent. There is sufficient justification for the accused in refusing
to release the monetary benefits in favor of the private complainant after due demand by the
latter. It has been established and even the reviewing prosecutors has (sic) recognized that when
Ismael C. Adoptante issued the Certification on December 31, 2002, certifying that Ms.
Salvacion is free from money and/or property responsibility, he was no longer authorized to do
 so. The accused knew this fact at the time of the alleged commission of the crime x x x. In BLGF
Regional Special Personnel Order No. 1-2002 dated December 2, 2002, Atty. Veronica Bombase
King, Regional Director of the Bureau of Local Government Finance, immediately designated
Ceferino D. Cortes as OIC Municipal Treasurer of Baleno, Masbate, before Mr. Adoptante
issued his certification on December 31, 2002, that the private complainant had then no money
accountability. Therefore, knowing the lack of authority of Mr. Adoptante to issue the said
clearance in favor of private complainant Belen A. Salvacion, accused mayor was justified in
refusing to pay the terminal leave pay benefits of Ms. Salvacion.v

Thus, the Sandiganbayan concluded that:

The absence of an essential element of the crime being imputed against the accused
cannot sustain a finding of guilt of the accused. Hence, this Court has no option but to desist
from inflicting upon the accused mayor the trauma of going through a trial and to dismiss the
instant case.v

Petitioner Salvacion and the People of the Philippines, through the Public Prosecutor, separately moved
for the reconsideration of the latest ruling of the Sandiganbayan, but both motions were denied by the said court
in a Resolution dated 4 August 2006 which was received by petitioner Salvacion on 22 August 2006.

On 14 March 2006, or within the reglementary period of 15 days within which to file a motion for
reconsideration, Petitioner Salvacion filed the same but it was denied in another Resolution dated 3 August
2006 and received by her on 22 August 2006.

Hence, this Petition for Certiorari of petitioner Salvacion filed under Rule 65 of the Revised Rules of
Court and anchored on the following arguments:

I.

PUBLIC RESPONDENT SANDIGANBAYAN (FIFTH DIVISION) COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS IN (SIC) JURISDICTION
IN HOLDING THAT ISMAEL ADOPTANTE IS NOT AUTHORIZED AS MUNICIPAL
TREASURER AT THE TIME THE MONEY/PROPERTY CLEARANCE OF PRIVATE
COMPLAINANT WAS SIGNED BY MERELY BASING ON BLGF REGIONAL SPECIAL
PERSONNEL ORDER NO. 1-2002 DATED DECEMBER 2, 2002;
 II.

SAME PUBLIC RESPONDENT GROSSLY LOST SIGHT OF THE CONTINUING

REFUSAL OF PRIVATE RESPONDENT TO PAY THE COMPLAINANT OF (SIC) HER
TERMINAL LEAVE BENEFITS WHICH AMOUNTED TO GRAVE ABUSE OF
DISCRETION; AND

III.

SAME PUBLIC RESPONDENT HAD UNJUSTIFIABLY AND UNDULY INTERFERED

WITH THE FINDINGS OF PROBABLE CAUSE MADE BY THE OFFICE OF THE DEPUTY
OMBUDSMAN FOR LUZON.v

Petitioner Salvacion maintains that [t]he reliance of Honorable Sandiganbayan (Fifth

Division) on BLGF Regional Special Personnel Order [N]o. 1-2002 dated December 2, 2002 to
justify the act of the accused constitute therefore as grave abuse of discretion amounting to lack
or excess in jurisdiction.v Moreover, she insists that the demand to pay the said terminal
benefits is a continuing one,v such that from the time the approved disbursement voucher was
submitted (to the) respondent Mayor to the time the written demand was given to respondent
Mayor and until thereafter, respondent Mayor is, in effect, continuously refusing, without
justifiable reason, to release the money claims of petitioner x x xv; and this fact, according to
petitioner Salvacion, had escaped the attention of the Honorable Sandiganbayan.v In
conclusion, petition Salvacion declares that the Honorable Sandiganbayan (Fifth Division) had
unjustifiably and unduly interfered with the findings of probable cause made by the Office of
the Deputy Ombudsman for Luzon.v

Without cause to go into the merits of the case at bar, we hereby dismiss this petition.

As a consequence of filing this special civil action for certiorari in place of an ordinary
appeal under Rule 45 of the Revised Rules of Court, petitioner Salvacion went against the
fundamental precepts of procedural law.
 The Revised Rules of Court specifically provides that an appeal by certiorari from a
judgment or final order or resolution of the Sandiganbayan is by verified petition for review on
certiorari and shall raise only questions of law. Specifically, Section 1, Rule 45 of the Rules of
Court dictates that:

SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by

certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file
with the Supreme Court a verified petition for review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth.

Note that what is being assailed in this original action are the Resolutions of the
Sandiganbayan dated 23 February 2006 and 4 August 2006 reversing the Ombudsmans finding
of probable cause to hold respondent Manlapas liable to stand trial for violation of Section 3,
paragraph (f) of Republic Act No. 3019, as amended, and ordering the dismissal of Criminal
Case No. 28111. There is no question that these Resolutions already constitute a final
disposition of Criminal Case No. 28111, for after ordering the dismissal of said case, there is
nothing more for the graft court to do therein. These Resolutions, therefore, are fit to be subjects
of an appeal to this Court via a Petition for Review on Certiorari under Rule 45.

However, the present Petition is one for certiorari under Rule 65 of the Revised Rules
of Court. Under Rule 65, a party may only avail himself of the special remedy of certiorari
under the following circumstances:
 SECTION 1. Petition for Certiorari. When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

The writ of certiorari issues for the correction of errors of jurisdiction only or grave
abuse of discretion amounting to lack or excess of jurisdiction. It cannot be legally used for any
other purpose. Its function is only to keep the inferior court within the bounds of its jurisdiction
or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of
jurisdiction. It may issue only when the following requirements are alleged in the petition and
established: (1) the writ is directed against a tribunal, a board or any officer exercising judicial
or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.
Excess of jurisdiction as distinguished from absence of jurisdiction, means that an act, though
within the general power of a tribunal, a board or an officer is not authorized, and is invalid
with respect to the particular proceeding, because the conditions which alone authorize the
exercise of the general power in respect of it are wanting. Without jurisdiction means lack or
want of legal power, right or authority to hear and determine a cause or causes, considered
either in general or with reference to a particular matter. It means lack of power to exercise
authority.v

Contrasting the two remedies, a petition for review is a mode of appeal, while a special
civil action for certiorari is an extraordinary process for the correction of errors of jurisdiction.
It is basic remedial law that the two remedies are distinct, mutually exclusive, and antithetical.
The extraordinary remedy of certiorari is proper if the tribunal, board, or officer exercising
judicial or quasi-judicial functions acted without or in grave abuse of discretion amounting to
lack or excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy
in law. A petition for review, on the other hand, seeks to correct errors of judgment committed
by the court, tribunal, or officer. When a court, tribunal, or officer has jurisdiction over the
person and the subject matter of the dispute, the decision on all other questions arising from the
case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of said
jurisdiction are merely errors of judgment. Under prevailing procedural rules and jurisprudence,
errors of judgment are not proper subjects of a special civil action for certiorari. For if every
error committed by the trial court or quasi-judicial agency were to be the proper subject of
review by certiorari, then trial would never end and the dockets of appellate courts would be
clogged beyond measure.v

Although petitioner Salvacion made general allegations in her Petition for Certiorari that
the Sandiganbayan, Fifth Division, committed grave abuse of discretion amounting to lack or
excess of jurisdiction, a closer scrutiny of her arguments would reveal that she is actually
challenging the Resolutions dated 23 February 2006 and 4 August 2006 based on purported
errors of judgment, and not jurisdiction. It is irrefragable that the Sandiganbayan, Fifth
Division, had jurisdiction over the subject matter and the parties in Criminal Case No. 28111.
Petitioner Salvacion utterly failed to convince this Court that the graft court abused its
discretion in issuing the assailed Resolutions grave enough to have ousted it of jurisdiction over
Criminal Case No. 28111 for which she may avail herself of the special remedy of certiorari.

It is equally elementary in remedial law that the use of an erroneous mode of appeal is
cause for dismissal of the petition for certiorari. A writ of certiorari will not issue where the
remedy of appeal is available to an aggrieved party. By its nature, a petition for certiorari lies
only where there is no appeal, and no plain, speedy and adequate remedy in the ordinary course
of law.v A remedy is considered "plain, speedy and adequate" if it will promptly relieve the
petitioners from the injurious effects of the judgment and the acts of the lower court or agency.v
In this case, appeal was not only available but also a speedy and adequate remedy.v The
availability to petitioner Salvacion of the remedy of a petition for review on certiorari under
Rule 45 from the resolutions of the Sandiganbayan effectively foreclosed her right to resort to a
petition for certiorari.

And while it is true that in accordance with the liberal spirit pervading the Rules of Court
and in the interest of substantial justice,v we have, before,v treated a petition for certiorari as a
petition for review on certiorari, but only when the former was filed within the reglementary
period for filing the latter. Regrettably, this exception is not applicable to the present factual
milieu. The present Petition for Certiorari was filed well beyond the reglementary period for
filing a petition for review, and without any reason being offered therefor.

Pursuant to Sec. 2, Rule 45 of the Revised Rules of Court:

SEC. 2. Time for filing; extension. The petition shall be filed within fifteen (15) days
from notice of the judgment or final order or resolution appealed from, or of the denial of the
petitioners motion for new trial or reconsideration filed in due time after notice of the judgment.
x x x.

A party litigant wishing to file a petition for review on certiorari must do so within 15
days from receipt of the judgment, final order or resolution sought to be appealed. In this case,
the resolution of the Sandiganbayan dated 23 February 2006, denying the motions for
reconsideration of both petitioner Salvacion and the People, was received by petitioner
Salvacion on 22 August 2006.v The instant Petition was filed only on 17 October 2006; thus,
at the time of the filing of this Petition, 56 days had already elapsed, way beyond the 15-day
period within which to file a petition for review under Rule 45 of the Revised Rules of
Procedure; and even beyond an extended period of 30 days, the maximum period to be granted
by this Court had one been actually sought by petitioner Salvacion. As the facts stand, petitioner
Salvacion has already lost the right to appeal via Rule 45.

Concomitant to a liberal application of the rules of procedure should be an effort on the

part of the party invoking liberality to at least explain its failure to comply with the rules.v
Herein, petitioner Salvacions recourse to this Court is bereft of any explanation, meritorious or
otherwise, as to why she failed to properly observe the rules of procedure.

Allowing appeals, although filed late in some rare cases, may not be applied to petitioner
Salvacion for this rule is, again, qualified by the requirement that there must be exceptional
circumstances to justify the relaxation of the rules.v We cannot find any such exceptional
circumstances in this case and neither has petitioner Salvacion endeavored to allude to the
existence of any. This being so, another fundamental rule of procedure applies, and that is the
doctrine that perfection of an appeal within the reglementary period is not only mandatory but
also jurisdictional, so that failure to do so renders the questioned decision final and executory
and deprives the appellate court of jurisdiction to alter the final judgment, more so, to entertain
the appeal.v

WHEREFORE, in light of the foregoing, the Petition for Certiorari is DISMISSED. No

cost.

SO ORDERED.
GR No. 180363 Teves v COMELEC

The issue for resolution is whether the crime of which petitioner Edgar Y. Teves was
convicted in Teves v. Sandiganbayanv involved moral turpitude.

The facts of the case are undisputed.

Petitioner was a candidate for the position of Representative of the 3rd legislative district
of Negros Oriental during the May 14, 2007 elections. On March 30, 2007, respondent
Herminio G. Teves filed a petition to disqualifyv petitioner on the ground that in Teves v.
Sandiganbayan,v he was convicted of violating Section 3(h), Republic Act (R.A.) No. 3019, or
the Anti-Graft and Corrupt Practices Act, for possessing pecuniary or financial interest in a
cockpit, which is prohibited under Section 89(2) of the Local Government Code (LGC) of 1991,
and was sentenced to pay a fine of P10,000.00. Respondent alleged that petitioner is
disqualified from running for public office because he was convicted of a crime involving moral
turpitude which carries the accessory penalty of perpetual disqualification from public office.v
The case was docketed as SPA No. 07-242 and assigned to the COMELECs First Division.

On May 11, 2007, the COMELEC First Division disqualified petitioner from running for
the position of member of House of Representatives and ordered the cancellation of his
Certificate of Candidacy.v
 Petitioner filed a motion for reconsideration before the COMELEC en banc which was
denied in its assailed October 9, 2007 Resolution for being moot, thus:

It appears, however, that [petitioner] lost in the last 14 May 2007 congressional elections for the
position of member of the House of Representatives of the Third district of Negros Oriental thereby
rendering the instant Motion for Reconsideration moot and academic.

WHEREFORE, in view of the foregoing, the Motion for Reconsideration dated 28 May 2007 filed
by respondent Edgar Y. Teves challenging the Resolution of this Commission (First Division) promulgated
on 11 May 2007 is hereby DENIED for having been rendered moot and academic.

SO ORDERED.v

Hence, the instant petition based on the following grounds:

I.

THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, WHEN THE
COMELEC EN BANC DEMURRED IN RESOLVING THE MAIN ISSUE RAISED IN PETITIONERS MOTION FOR
RECONSIDERATION, WHETHER PETITIONER IS DISQUALIFIED TO RUN FOR PUBLIC OFFICE TAKING INTO
CONSIDERATION THE DECISION OF THE SUPREME COURT IN G.R. NO. 154182.

II.

THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE RESOLUTION THEREOF WILL
DETERMINE PETITIONERS QUALIFICATION TO RUN FOR OTHER PUBLIC POSITIONS IN FUTURE
ELECTIONS.
 III.

THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, WHEN THE
COMELEC EN BANC IN EFFECT AFFIRMED THE FINDINGS OF THE FIRST DIVISION WHICH RULED THAT
PETITIONERS CONVICTION FOR VIOLATION OF SECTION 3(H) OF R.A. 3019 AND THE IMPOSITION OF FINE
IS A CONVICTION FOR A CRIME INVOLVING MORAL TURPITUDE.

A.

THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME INVOLVING MORAL

TURPITUDE SHOULD BE RESOLVED TAKING INTO CONSIDERATION THE FINDINGS OF THE
SUPREME COURT IN G.R. NO. 154182.

B.

THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT THAT SUPPORTS THE
FINDINGS OF THE FIRST DIVISION OF THE COMELEC, THAT BASED ON THE TOTALITY OF
FACTS DOCTRINE, PETITIONER WAS CONVICTED OF A CRIME INVOLVING MORAL
TURPITUDE.v

The petition is impressed with merit.

The fact that petitioner lost in the congressional race in the May 14, 2007 elections did
not effectively moot the issue of whether he was disqualified from running for public office on
the ground that the crime he was convicted of involved moral turpitude. It is still a justiciable
issue which the COMELEC should have resolved instead of merely declaring that the
disqualification case has become moot in view of petitioners defeat.

Further, there is no basis in the COMELECs findings that petitioner is eligible to run again
in the 2010 elections because his disqualification shall be deemed removed after the
expiration of a period of five years from service of the sentence. Assuming that the elections
would be held on May 14, 2010, the records show that it was only on May 24, 2005 when
petitioner paid the fine of P10,000.00 he was sentenced to pay in Teves v. Sandignbayan.v
Such being the reckoning point, thus, the five-year disqualification period will end only on May
25, 2010. Therefore he would still be ineligible to run for public office during the May 14, 2010
elections.

Hence, it behooves the Court to resolve the issue of whether or not petitioners violation
of Section 3(h), R.A. No. 3019 involves moral turpitude.

Section 12 of the Omnibus Election Code reads:

Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than eighteen months, or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be deemed removed upon the
declaration by competent authority that said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless within the same period he again
becomes disqualified. (Emphasis supplied)

Moral turpitude has been defined as everything which is done contrary to justice,
modesty, or good morals; an act of baseness, vileness or depravity in the private and social
duties which a man owes his fellowmen, or to society in general.v
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
 Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

xxxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from having any interest.

The essential elements of the violation of said provision are as follows: 1) The accused is
a public officer; 2) he has a direct or indirect financial or pecuniary interest in any business,
contract or transaction; 3) he either: a) intervenes or takes part in his official capacity in
connection with such interest, or b) is prohibited from having such interest by the Constitution
or by law.v

Thus, there are two modes by which a public officer who has a direct or indirect
financial or pecuniary interest in any business, contract, or transaction may violate Section
3(h) of R.A. 3019. The first mode is when the public officer intervenes or takes part in his
official capacity in connection with his financial or pecuniary interest in any business, contract,
or transaction. The second mode is when he is prohibited from having such an interest by the
Constitution or by law.v

In Teves v. Sandiganbayan,v petitioner was convicted under the second mode for having
pecuniary or financial interest in a cockpit which is prohibited under Sec. 89(2) of the Local
Government Code of 1991. The Court held therein:

However, the evidence for the prosecution has established that petitioner Edgar Teves, then
mayor of Valencia, Negros Oriental, owned the cockpit in question. In his sworn application for
 registration of cockpit filed on 26 September 1983 with the Philippine Gamefowl Commission, Cubao,
Quezon City, as well as in his renewal application dated 6 January 1989 he stated that he is the owner
and manager of the said cockpit. Absent any evidence that he divested himself of his ownership over the
cockpit, his ownership thereof is rightly to be presumed because a thing once proved to exist continues
as long as is usual with things of that nature. His affidavit dated 27 September 1990 declaring that
effective January 1990 he turned over the management of the cockpit to Mrs. Teresita Z. Teves for the
reason that [he] could no longer devote a full time as manager of the said entity due to other work
pressure is not sufficient proof that he divested himself of his ownership over the cockpit. Only the
management of the cockpit was transferred to Teresita Teves effective January 1990. Being the owner
of the cockpit, his interest over it was direct.

Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife,
still he would have a direct interest thereon because, as correctly held by respondent Sandiganbayan,
they remained married to each other from 1983 up to 1992, and as such their property relation can be
presumed to be that of conjugal partnership of gains in the absence of evidence to the contrary. Article
160 of the Civil Code provides that all property of the marriage is presumed to belong to the conjugal
partnership unless it be proved that it pertains exclusively to the husband or to the wife. And Section
143 of the Civil Code declares all the property of the conjugal partnership of gains to be owned in
common by the husband and wife. Hence, his interest in the Valencia Cockpit is direct and is, therefore,
prohibited under Section 89(2) of the LGC of 1991, which reads:

Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be unlawful
for any local government official or employee, directly or indirectly, to:

xxxx

(2) Hold such interests in any cockpit or other games licensed by a local
government unit. [Emphasis supplied].

The offense proved, therefore, is the second mode of violation of Section 3(h) of the Anti-Graft
Law, which is possession of a prohibited interest.v

However, conviction under the second mode does not automatically mean that the
same involved moral turpitude. A determination of all surrounding circumstances of the
violation of the statute must be considered. Besides, moral turpitude does not include such
acts as are not of themselves immoral but whose illegality lies in their being positively
prohibited, as in the instant case.

Thus, in Dela Torre v. Commission on Elections,v the Court clarified that:

Not every criminal act, however, involves moral turpitude. It is for this reason that as to what
crime involves moral turpitude, is for the Supreme Court to determine. In resolving the foregoing
question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude,
while crimes mala prohibita do not, the rationale of which was set forth in Zari v. Flores, to wit:

It (moral turpitude) implies something immoral in itself, regardless of the fact

that it is punishable by law or not. It must not be merely mala prohibita, but the act
itself must be inherently immoral. The doing of the act itself, and not its prohibition by
statute fixes the moral turpitude. Moral turpitude does not, however, include such acts
as are not of themselves immoral but whose illegality lies in their being positively
prohibited.

This guideline nonetheless proved short of providing a clear-cut solution, for in International
Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.
There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime
involves moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of the statute. (Emphasis supplied)

Applying the foregoing guidelines, we examined all the circumstances surrounding

petitioners conviction and found that the same does not involve moral turpitude.

First, there is neither merit nor factual basis in COMELECs finding that petitioner used
his official capacity in connection with his interest in the cockpit and that he hid the same by
transferring the management to his wife, in violation of the trust reposed on him by the
people
 The COMELEC, in justifying its conclusion that petitioners conviction involved moral
turpitude, misunderstood or misapplied our ruling in Teves v. Sandiganbayan. According to the
COMELEC:

In the present case, while the crime for which [petitioner] was convicted may per se not involve
moral turpitude, still the totality of facts evinces [his] moral turpitude. The prohibition was intended to
avoid any conflict of interest or any instance wherein the public official would favor his own interest at
the expense of the public interest. The [petitioner] knew of the prohibition but he attempted to
circumvent the same by holding out that the Valencia Cockpit and Recreation Center is to be owned by a
certain Daniel Teves. Later on, he would aver that he already divested himself of any interest of the
cockpit in favor of his wife. But the Supreme Court saw through the ruse and declared that what he
divested was only the management of the cockpit but not the ownership. And even if the ownership is
transferred to his wife, the respondent would nevertheless have an interest thereon because it would
still belong to the conjugal partnership of gains, of which the [petitioner] is the other half.

[Petitioner] therefore maintained ownership of the cockpit by deceit. He has the duty to divest
himself but he did not and instead employed means to hide his interests. He knew that it was prohibited
he nevertheless concealed his interest thereon. The facts that he hid his interest denotes his malicious
intent to favor self-interest at the expense of the public. Only a man with a malevolent, decadent,
corrupt and selfish motive would cling on and conceal his interest, the acquisition of which is prohibited.
This plainly shows his moral depravity and proclivity to put primacy on his self interest over that of his
fellowmen. Being a public official, his act is also a betrayal of the trust reposed on him by the people.
Clearly, the totality of his acts is contrary to the accepted rules of right and duty, honesty and good
morals. The crime, as committed by the [petitioner], plainly involves moral turpitude.v

On the contrary, the Courts ruling states:

The Sandiganbayan found that the charge against Mayor Teves for causing the issuance of the
business permit or license to operate the Valencia Cockpit and Recreation Center is not well-founded.
This it based, and rightly so, on the additional finding that only the Sangguniang Bayan could have issued
a permit to operate the Valencia Cockpit in the year 1992. Indeed, under Section 447(3) of the LGC of
1991, which took effect on 1 January 1992, it is the Sangguniang Bayan that has the authority to issue a
license for the establishment, operation, and maintenance of cockpits. Unlike in the old LGC, Batas
Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the Sangguniang Bayan,
under the LGC of 1991, the mayor is not so anymore and is not even a member of the Sangguniang
Bayan. Hence, Mayor Teves could not have intervened or taken part in his official capacity in the
issuance of a cockpit license during the material time, as alleged in the information, because he was not
a member of the Sangguniang Bayan.v
 Thus, petitioner, as then Mayor of Valencia, did not use his influence, authority or
power to gain such pecuniary or financial interest in the cockpit. Neither did he intentionally
hide his interest in the subject cockpit by transferring the management thereof to his wife
considering that the said transfer occurred before the effectivity of the present LGC
prohibiting possession of such interest.

As aptly observed in Teves v. Sandiganbayan:

As early as 1983, Edgar Teves was already the owner of the Valencia Cockpit. Since then until 31
December 1991, possession by a local official of pecuniary interest in a cockpit was not yet
prohibited. It was before the effectivity of the LGC of 1991, or on January 1990, that he transferred
the management of the cockpit to his wife Teresita. In accordance therewith it was Teresita who
thereafter applied for the renewal of the cockpit registration. Thus, in her sworn applications for
renewal of the registration of the cockpit in question dated 28 January 1990 and 18 February 1991, she
stated that she is the Owner/Licensee and Operator/Manager of the said cockpit. In her renewal
application dated 6 January 1992, she referred to herself as the Owner/Licensee of the cockpit. Likewise
in the separate Lists of Duly Licensed Personnel for Calendar Years 1991 and 1992, which she submitted
on 22 February 1991 and 17 February 1992, respectively, in compliance with the requirement of the
Philippine Gamefowl Commission for the renewal of the cockpit registration, she signed her name as
Operator/Licensee.v (Emphasis supplied)

Second, while possession of business and pecuniary interest in a cockpit licensed by the
local government unit is expressly prohibited by the present LGC, however, its illegality does
not mean that violation thereof necessarily involves moral turpitude or makes such possession
of interest inherently immoral. Under the old LGC, mere possession by a public officer of
pecuniary interest in a cockpit was not among the prohibitions. Thus, in Teves v.
Sandiganbayan, the Court took judicial notice of the fact that:

x x x under the old LGC, mere possession of pecuniary interest in a cockpit was not among the
prohibitions enumerated in Section 41 thereof. Such possession became unlawful or prohibited only
upon the advent of the LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves stands
charged with an offense in connection with his prohibited interest committed on or about 4 February
1992, shortly after the maiden appearance of the prohibition. Presumably, he was not yet very much
aware of the prohibition. Although ignorance thereof would not excuse him from criminal liability, such
 would justify the imposition of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of
1991.v (Italics supplied)

The downgrading of the indeterminate penalty of imprisonment of nine years and

twenty-one days as minimum to twelve years as maximum to a lighter penalty of a fine of
P10,000.00 is a recognition that petitioners violation was not intentionally done contrary to
justice, modesty, or good morals but due to his lack of awareness or ignorance of the
prohibition.

Lastly, it may be argued that having an interest in a cockpit is detrimental to public

morality as it tends to bring forth idlers and gamblers, hence, violation of Section 89(2) of the
LGC involves moral turpitude.

Suffice it to state that cockfighting, or sabong in the local parlance, has a long and
storied tradition in our culture and was prevalent even during the Spanish occupation.v While
it is a form of gambling, the morality thereof or the wisdom in legalizing it is not a justiciable
issue. In Magtajas v. Pryce Properties Corporation, Inc., it was held that:

The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is
generally considered inimical to the interests of the people, there is nothing in the Constitution
categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to
Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may
prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling
and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and
monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has
consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it
been said that courts do no sit to resolve the merits of conflicting theories. That is the prerogative of the
political departments. It is settled that questions regarding the wisdom, morality, or practicability of
statutes are not addressed to the judiciary but may be resolved only by the legislative and executive
departments, to which the function belongs in our scheme of government. That function is exclusive.
Whichever way these branches decide, they are answerable only to their own conscience and the
constituents who will ultimately judge their acts, and not to the courts of justice.

WHEREFORE, the petition is GRANTED. The assailed Resolutions of the Commission on

Elections dated May 11, 2007 and October 9, 2007 disqualifying petitioner Edgar Y. Teves from
running for the position of Representative of the 3rd District of Negros Oriental, are REVERSED
and SET ASIDE and a new one is entered declaring that the crime committed by petitioner
(violation of Section 3(h) of R.A. 3019) did not involve moral turpitude.

SO ORDERED.

G.R. No. 70332-43 November 13, 1986

GENEROSO TRIESTE, SR., petitioner,

vs.
SANDIGANBAYAN (SECOND DIVISION), respondent.

Arturo M. de Castro for petitioner.

The Solicitor General for respondent.

ALAMPAY, J.:

The present case relates to an appeal by way of a Petition for Review of the decision promulgated on November 6, 1984, by the
Sandiganbayan convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12) separate violations of Section 3 paragraph (h) of
Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices - Act, which petitioner were accused of in Criminal Cases
Nos. 6856-6867 of said Court. Petitioner's motion for reconsideration and/or new trial was denied by the respondent Sandiganbayan
under its Resolution of March 11, 1985.

The twelve (12) separate Informations filed by the Tanodbayan against the herein petitioner for violation of Section 3 (h) of the Anti-
Graft Law are all similarly worded as the information presented in Criminal Case No. 6856 which is hereunder quoted:

That on or about the month of July, 1980 and some time subsequent thereto, in the municipality of
Numancia, Aklan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
being then the Municipal Mayor and member of the Committee on Award of the Municipality of Numancia,
Aklan and as such, had administrative control of the funds of the municipality and whose approval is
required in the disbursements of municipal funds, did then and there wilfully and unlawfully have financial or
pecuniary interest in a business, contract or transaction in connection with which said accused intervened or
took part in his official capacity and in which he is prohibited by law from having any interest, to wit the
purchases of construction materials by the Municipality of Numancia, Aklan from Trigen Agro-Industrial
Development Corporation, of which the accused is the president, incorporator, director and major
stockholder paid under Municipal Voucher No. 211-90-10-174 in the amount of P558.80 by then and there
awarding the supply and delivery of said materials to Trigen Agro-Industrial Development Corporation and
approving payment thereof to said corporation in violation of the Anti-Graft and corrupt Practices Act.

except only as to the dates of the commission of the offense, voucher numbers, and amounts involved.

Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were allegedly committed in July, 1980; Criminal Cases Nos. 6863
and 6864, in August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867 in October, 1980. The separate vouchers involved in the
twelve (12) cases are said to be the following:

Crim. Case #6856, Vchr #211-90-10-174 at P558.80

 Crim. Case #6857, Vchr #211-80-10-187 at 943.60

Crim. Case #6858, Vchr #211-80-10-189 at 144.00

Crim. Case #6859, Vchr #211-80-10-190 at 071.30

Crim. Case #6860, Vchr #211-80-10-191 at 270.00

Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00

Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80

Crim. Case #6863, Vchr #211-80-10-407 at 150.00

Crim. Case #6864, Vchr #211-80-12-494 at 500.00

Crim. Case #6865, Vchr #211-81-04-61 at 840.00

Crim. Case #6866, Vchr #211-81-04-62 at 787.00

Crim. Case #6867, Vchr #211-81-04-63 at 560.00

T o t a l - - - - P7,730.50

(Consolidated Comment, pg. 4; Rollo, 325)

After trial, the Sandiganbayan rendered the challenged decision dated November 6, 1984, convicting the petitioner in all the twelve (12)
criminal cases, (Rollo, pp. 324-325) and in each case he was sentenced,"...to suffer the indeterminate penalty of imprisonment ranging
from THREE (3) YEARS and ONE (1) DAY as the minimum, to SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer
perpetual disqualification from the public office, and to pay the cost of the action." (pp. 37-40, Decision; Rollo, 322).

After the petition for review was filed in this case and pending the submission by respondent of its comment to the petition, herein
petitioner presented to this Court on June 7, 1985, an urgent petition to lift the order of the Sandiganbayan dated September 12, 1983,
suspending him from Office as the elected Municipal Mayor of Numancia, Aklan. His term was to expire in 1986. No objection to the
petition for the lifting of the suspension order was interposed by the Solicitor General. Accordingly, and pursuant to the resolution of this
Court dated October 1, 1985, petitioner's preventive suspension was lifted and his reinstatement as Municipal Mayor of Numancia,
Aklan was ordered to take effect immediately.

A supplemental petition, dated October 10, 1985, was later filed by petitioner's new counsel in collaboration with the original counsel on
record of petitioner. In this supplemental pleading, it was vigorously stressed that the petitioner did not, in any way, intervene in making
the awards and payment of the purchases in question as he signed the voucher only after all the purchases had already been made,
delivered and paid for by the Municipal Treasurer. It was further pointed out that there was no bidding at all as erroneously adverted to
in the twelve informations filed against herein petitioner because the transactions involved were emergency direct purchases by
personal canvass.

Upon leave of the Court given, the former Solicitor General filed a consolidated comment dated November 4, 1984, to the original
petition filed in this case dated April 30, 1985 as well as on the supplemental petition dated October 10, 1985. He argued the dismissal
of the petition on the ground that the same raise factual issues which are, therefore, non-reviewable (Consolidated Comment, pg. 20;
Rollo, 341). The submission made by the Office of the Solicitor General in the Consolidated Comment dated November 4, 1986, are
hereunder quoted:

xxx xxx xxx

The impugned decision convicted petitioner for violation of Section 3 (h), paragraph (h) of the Anti-Graft and
Corrupt Practices Act which reads as follows:

SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already
penalized by existing laws, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxx xxx xxx

 (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in
connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.

The elements essential in the commission of the crime are:

a) The public officer has financial or pecuniary interest in a business, contract or transaction;

b) In connection with which he intervenes in his official capacity.

Concurrence of both elements is necessary as the absence of one will not warrant conviction. (Rollo, pp.
338-339).

The earlier view taken by the Solicitor General's Office was that petitioner's evidence of divestment of interest in Trigen 'Corporation,
which is said to have been effected on February 25, 1980, before the petitioner assumed the Mayorship, should have been presented
at the earliest opportunity before the Tanodbayan and because this was not done by him the resolution of the Tanodbayan finding a
prima facie case against petitioner should be sustained. Furthermore, petitioner was faulted because the transfer of his interest in the
corporate stock of Trigen Corporation should have been recorded in the Securities and Exchange Commission but no evidence of this
sort, was presented. The consolidated comment also played up the advertisement of Trigen Corporation in the program of the Rotary
Club of Kalibo, Aklan, showing the printed name of petitioner as the President-Manager of the said corporation. (Consolidated
Comment; Rollo, pp. 340-341)

Petitioner filed a Reply controverting the allegations and arguments recited in the aforestated Consolidated Comment of the Solicitor
General.

After considering the pleadings filed and deliberating on the issues raised in the petition and supplemental petition for review on
certiorari of the decision of the Sandiganbayan, as well as the consolidated comment and the reply thereto filed by petitioner's counsel,
the Court in its resolution of January 16, 1986, gave due course to the petition and required the parties to file their respective briefs.

Petitioner's exhaustive and well-reasoned out Brief which was filed with the Court on April 14, 1986, raised the following legal
questions.

xxx xxx xxx

From the foregoing recital of facts, the following legal questions arise:

1. Does the mere signing by a Municipal Mayor of municipal vouchers and other supporting papers covering
purchases of materials previously ordered by the Municipal Treasurer without the knowledge and consent of
the former, subsequently delivered by the supplier, and, thereafter paid by the same Municipal Treasurer
also without the knowledge and consent of the Municipal Mayor, constitute a violation of the provisions of
Section 3 (h) of Rep. Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act?

2. Does the mere signing of the mere documents above constitute the kind of intervention of taking part in
(his) official capacity within the context of the above-mentioned law?

3. Was damage or prejudice, as an element of the offense under Section 3 (h) of the said law, caused to the
Government or the Municipality of Numancia as a result of the contracts in question and as a corollary
thereto, was undue advantage and gained by the transacting corporation?

4. Was there divestment on the part of the herein petitioner of his shares in Trigen Agro-Industrial
Development Corporation long before the questioned transactions? (Appellant's Brief, page 15)

It was then discus and argued by the petitioner that the prosecution failed to establish the presence of all the elements of the offense,
and more particularly to adduce proof that petitioner has, directly or indirectly, a financial or pecuniary interest in the imputed business
contracts or transactions.

Discussion of petitioner's arguments in this regard will not however, be recited anymore as this was obviated when a new Solicitor
General, after seeking and obtaining several extensions of time to file its Brief in this case at bar, filed on October 7, 1986, a
"Manifestation For Acquittal" (in lieu of the People's Brief). Rollo, 293).

The new Solicitor General's Office after adopting the statement of facts recited in the consolidated comment of the former Solicitor
General's Office moved for the acquittal of the petitioner, upon acknowledging and concluding that:
 xxx xxx xxx

Petitioner has divested his interest with Trigen

Petitioner sought to establish that before he assumed office as mayor on March 3, 1980, he had already
sold his shares with Trigen to his sister Mrs. Rosene Trieste-Tuason. The sale was made by corresponding
indorsements to her stock certificate which was duly recorded in the stock and transfer book of the
corporation.

Respondent Sandiganbayan however doubts the sale because the same was not reported to the SEC. SEC
records, as the prosecution evidence show, do not reflect the sale and petitioner still appears as the firm's
President.

The prosecution's evidence to establish non-divestment of petitioner's interest with Trigen is weak. Anyway,
Trigen has not updated its reports to the SEC since 1976. It have not even submitted its financial annual
report ever since. Absence of the sales report in the SEC does not mean that the sale did not take place.
Reporting the sale is not a mandatory requirement.

Sales of stocks need not be reported to SEC

In any event, the law only requires submission of annual financial reports, not sales or disposal of stocks
(Section 141, Corporation Code of the Philippines).

Upholding the evidence of petitioner's divestment of his interest with Trigen would necessarily allow him to
act freely in his official capacity in the municipality's dealings or transactions with Trigen. That in itself is
sufficient to acquit him of the crimes charged. (Rollo, pp. 299-300).

In the matter of the alleged intervention of petitioner, the Office of the Solicitor General itself subscribes to and on its own volition place
on record the following observations:

Prosecution failed to prove charges; evidence discloses absence of bidding and award

The prosecution's lone witness, Treasurer Aniceto Vega, testified that there never was a public bidding
conducted because all the transactions were made by direct purchases from Trigen.

Q. In other words, in all these transactions there never really was any public bidding?

A. Yes, Sir. There was no public bidding.

Q. And these purchases were made by direct purchases from the establishment of
Trigen?

A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983)

In the absence of a public bidding and as emphatically declared by the prosecution's sole witness Vega that
all the transactions were on direct purchases from Trigen, how can one ever imagine that petitioner has
awarded the supply and delivery of construction materials to Trigen as specifically charged in the twelve (12)
informations? The charges are of course baseless and even contradict the evidence of the prosecution itself.

Even the respondent Court finally found that petitioner did not intervene during the bidding and award, which
of course is a false assumption because of Vega's testimony that there was no public bidding at all.
Respondent Court said:

. . . . In short, accused's intervention may not be present during the bidding and award, but his liability may
also come in when he took part in said transactions such as signing the vouchers under certifications 1, 2
and 3 thereof, to make it appear that the transactions were regular and proper. (Resolution dated March 11,
1985 denying petitioner's motion for reconsideration/new trial, page 7).

No evidence to prove petitioner approved payment

Now, did petitioner intervene by approving payments to Trigen as also charged in the information? Can
there be intervention after payment.

Vega testified that petitioner signed the twelve (12) municipal vouchers (Exhibits A to L) for the purchase
and payment of construction materials. It was sometime after delivery of the construction materials that he
(Vega) signed and paid the twelve (12) -municipal vouchers (pages 5 to 7), decision of respondent
Sandiganbayan dated November 2, 1984). The prosecution has not presented evidence to show as to when
petitioner signed the twelve (12) municipal vouchers. But it can safely be assumed as a matter of procedure
that petitioner had signed the voucher after Treasurer Vega signed and paid them., (Rello, pp. 301-303)

xxx xxx xxx

Testimonial and documentary evidence confirms that petitioner signed vouchers after payment

Additional facts which respondent Court failed to consider and which could have altered the outcome of the
case in the following uncontroverted testimony of Josue Maravilla:

Q. When these municipal vouchers were prepared by the municipal treasurer, as you said,
and then presented to Mayor Trieste for his signature, were the purchases in question
already paid?

A. They had already been paid for, sir.

Q. Previously, prior to the signature of Mayor Trieste?

A. Yes, sir.

A.J. ESCAREAL:

Q. Under what authority were they paid?

A. Under official receipt issued by Trigen.

Q. Who authorized the payment?

A. The municipal treasurer who paid the materials.

ATTY. CONSULTA:

Q. You said they had already been paid for. Do you know of any receipts issued by Trigen
to indicate that at the time these municipal vouchers were signed by Mayor Trieste, the
materials had already been delivered and paid by the municipality to Trigen?

xxx xxx xxx

A. Yes, sir

Q. Now, what exhibits particularly do you know were issued

by Trigen to indicate that payments were made prior to the signing of the municipal
vouchers by Mayor Trieste?

A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H.

xxx xxx xxx

Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which are Trigen receipts
showing payments long before the municipal vouchers were prepared, what can you say
about the other municipal vouchers in this case in reference to payments made by Trigen
to the municipality?
 ESCAREAL:

Payment made by Trigen?

ATTY. CONSULTA:

I am sorry, Your Honor, made to Trigen by the municipality?

A. Official receipts issued by Trigen also indicate that when municipal vouchers marked
Exhibits E, B, C, D, F, G, H, I were prepared, they had already been delivered and the
amounts indicated therein were already prepared by the municipal treasurer.

Q. Did you say already made by the municipal treasurer-the amounts were already paid
by the municipal treasurer?

A. Already paid.

Q. Who disbursed the funds evidenced by the Trigen official receipts?

A. The municipal treasurer, then Mr. Vega.

Q. Now, do you know why Mr. Vega asked that those municipal vouchers be nevertheless
signed in spite of the fact that he knew that the amounts had already been disbursed and
paid by him to Trigen?

A. He said that the municipal vouchers for record purposes is necessary to be signed by
the mayor. (Tsn., Mar. 5, 1984, pp. 19-49).

Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's
signature on the vouchers after payment is not, we submit the kind of intervention contemplated under
Section 3(h) of the Anti-Graft Law.

xxx xxx xxx

What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which
one has financial or pecuniary interest in order that liability may attach. (Opinion No. 306, Series 1961 and
Opinion No. 94, Series 1972 of the Secretary of Justice). The official need not dispose his shares in the
corporation as long as he does not do anything for the firm in its contract with the office. For the law aims to
prevent the don-tenant use of influence, authority and power (Deliberation on Senate Bill 293, May 6, 1959,
Congressional Record, Vol. 11, page 603).

There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his influence, power, and
authority in having the transactions given to Trigen. He didn't ask anyone-neither Treasurer Vega nor
Secretary Maravilla for that matter, to get the construction materials from Trigen.

Trigen did not gain any undue advantage in the transaction

Petitioner should not be faulted for Trigen's transaction with the municipality, which by the way, has been
dealing with it even before petitioner had assumed the mayorship on March 3, 1980. Personal canvasses
conducted found that Trigen's offer was the lowest, most reasonable, and advantageous to the municipality.
. . . (Rollo, pp. 307-308; Emphasis supplied).

It is also an acknowledged fact that there was no complaint for non-delivery, underdelivery or overpricing regarding any of the
transactions.

Considering the correct facts now brought to the attention of this Court by the Solicitor General and in view of the reassessment made
by that Office of the issues and the evidence and the law involved, the Court takes a similar view that the affirmance of the decision
appealed from cannot be rightfully sustained. The conscientious study and thorough analysis made by the Office of the Solicitor
General in this case truly reflects its consciousness of its role as the People's Advocate in the administration of justice to the end that
the innocent be equally defended and set free just as it has the task of having the guilty punished. This Court will do no less and,
therefore, accepts the submitted recommendation that the decision and resolution in question of the respondent Sandiganbayan be
reversed and that as a matter of justice, the herein petitioner be entitled to a judgment of acquittal.

WHEREFORE, the decision rendered by the Sandiganbayan, dated November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding
the herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section 3 paragraph (h) of Republic Act 3019, as amended, is
hereby set aside and reversing the appealed judgment, a new judgment is now rendered ACQUITTING Generoso Trieste, Sr., of said
offenses charged against him with costs de oficio.

SO ORDERED.

G.R. No. 124067. March 27, 1998]

PERLA A. SEGOVIA, REYNALDO C. SANTIAGO and WINIFREDO SM.

PANGILINAN, petitioners vs. The SANDIGANBAYAN, PEOPLE OF THE
PHILIPPINES, and the PRESIDENT of the NATIONAL POWER
CORPORATION, respondents.

DECISION
NARVASA, C.J.:

The special civil action of certiorari and prohibition at bar seeks nullification of two (2) Resolutions
of the Second Division of the Sandiganbayan issued in Criminal Case No. 21711 -- in which
petitioners are prosecuted for violation of the Anti-Graft and Corrupt Practices Act : Republic Act No.
3019, as amended. The resolution assailed are:
1) that dated February 1, 1996, which ordered petitioners preventive suspension for ninety (90) days in
accordance with Section 13 of said R.A 3019; and
2) that dated February 23, 1996, which denied petitioners motion for reconsideration of the suspension
order.
The primary issue raised is whether it is mandatory or discretionary for the Sandiganbayan to
place under preventive suspension public officers who stand accused before it, pursuant to said
Section 13 of the law. Section 13 reads:
Sec. 13 Suspension and Loss of benefits. -- Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon government or public funds or propertty, whether
as a simple or as a complex offense in whatever stage of execution and mode of participation, is
pending in court, shall be suspended from office. ** **
It is petitioners' submission that preventive suspension under this section rest in the sound
discretion of the Sandiganbayan despite the ostensibly mandatory language of the statute, and that
that discretion was gravely abused by the Sandiganbayan, or it exceeded its jurisdiction, when it
decreed their suspension.
Petitioners -- Perla Segovia, Reynaldo Santiago, and Winifredo SM Pangilinan -- all hold regular
executive positions in the National Power Corporation (NPC). They -- together with two other officers
who have since resigned from the NPC, namely: Gilberto A. Pastoral and Cecilia D. Vales -- were
designated by the NPC Board to compose the Contracts Committee for said NPCs Mindanao Grid
LDC & SCADA/EMS System Operation Control Center and Facilities Project.
The Contracts Committee thus constituted conducted the prequalification and bidding procedures
for the project. The lowest and second lowest bidders were the Joint Venture of INPHASE and T & D,
and Urban Consolidated Constructors, Inc., respectively. The Technical Task Force on Bid Evaluation
of the NPC reviewed all the bids submitted and recommended approval of the results. The contracts
Committee, however, declared the lowest bidder (Joint Venture) disqualified after verification from the
Philippines Contractors Accredition Board that that group, as well as the second lowest bidder
(Urban) had been downgraded, thereby rending both ineligible as bidders.
The Contracts Committee also stated that since a review of relevant factors disclosed that the
other bids had exceeded the Approved Agency Estimates and the Allowable Government Estimates
for Options A and B of the Project, it was was needful for the NPC Board to declare a failure of
bidding and direct a re-bidding. The recommendation was unanimously approved by the NPC Board;
but for reasons not appearing on record (and, in any event, not relevant to the inquiry), the project
was eventually cancelled.
Obviously feeling aggrieved by the turn of events, Urban filed a complaint with the Office of the
Ombudsman against the Chairman and Members of the Board of Directors of NPC; the Chairman
(Gilberto Pascual) and Members of the NPC Contracts Awards Committee; the Chairman (Perla
Segovia) of the Pre-Qualification Bids & Awards Committee; the Manager (Cecilia D. Vales) of the
Contracts Management Office, and two others.v Urban alleged that before the bidding, Joint Venture
had been disqualified, but the Contracts Committee, without basis and in order to favor it,
reconsidered its disqualification and thus enabled it to take part in the bidding and in fact to submit
the lowest bid; that the NPC was already poised to award the contract to Joint Venture but because
Urban protested, it was compelled to "post-disqualify" the former; however, intead of awarding the
contract for the project to Urban as the second lowest bidder, the Committee and the NPC Board
declared a failure of bidding and ultimately cancelled the project. These acts, it is claimed, constituted
a violation of the Anti-Graft and Corrupt Practices Act.
A preliminary investigation was conducted by the Ombudsmans Office after which Graft
Investigation Officer A.A. Amante submitted a Resolution dated August 2, 1994vrecommending,
among others, that:
1) petitioners Perla Segovia, Reynaldo Santiago, Winifredo SM Pangilinan, as well as Gilberto Pastoral
and Cecilia Vales be charged with a violation of Section 3 (e) of RA 3019 of having in one way or the other
extended undue advantage to Joint Venture through manifest partiality, evident bad faith and gross
inexcusable negligence; and
2) the NPC President, NPC charman and Members of the Board of Directors be cleared of the **
complaint as their official actuation of sustaining a failure of bidding and the consequent re-bidding is
supported by factual and legal basis.
Assistant Ombudsman Abelardo L. Aportadera, Jr., favorably endorsed the recommendation
which was eventually approved on December 6, 1994 by Hon. Conrado M. Vasquez, then the
Ombudsman.v
An information was accordingly filed with the Sandiganbayan against petitioners Segovia,
Santiago, and Pangilinan, as well as Pastoral and Vales, docketed as Criminal Case No. 21711. They
were charged with infringement of Section 3 (e) of RA 3019: i,e., causing undue injury to any party,
including the Government, or giving any party any unwarranted benefits, advantage or preference in
the discharge of his official, administrative or judicial function through manifest partiality, evident bad
faithy or gross inexcusable negligence.
Petioners sought and obtained a reinvestigation of their case but gained no benefit thereby. For
although the reinvestigating officer made a recommendation on March 7, 1995 that the information
against petitioners be withdrawn -- because the prima facie case had already been overthrown,
considering that, as it now stands, the evidence at hand cannot stand judicial scrunity v -- and that
recommendation met with the aprroval of the Special Prosecutor, it was ultimately turned down by the
chief Special Prosecutorv on April 18, 1995, and on April 20, 1995, by the Ombudsman himself.v
The case thus proceeded in the Sandiganbayan. The accused were arraigned and entered pleas
of not guilty; and a pre-trial was held which resulted in stipulation of facts embodied in an order dated
January 11, 1996.v
Earlier, the People had filed a Motion to Suspend Accused Pendente Lite dated October 24,
1995, invoking Section 13 of RA 3019., as amended, and relevant jurisprudence, and alleging that the
information/s is /are valid.v
Petitioner opposed the motion.v In their pleading dated November 28, 1995, the theorized that the
explicit terms of the law notwithstanding, their suspension was not mandatory in the premises. They
claimed that the admissions at the pre-trial show that the transactions in question resulted in no
unwarranted benefits, advantage or preference, or injury, to anyone; that two of the five accused were
no longer employees of the NPC; that two of the five accused were no longer employees of the NPC;
that the positions that Segovia, Pangilinan and Santiago continued to occupy in the NPC were quite
sentitive and had no relation to prequalification of contractors, biddings or awards -- which was an
additional function temporarily assigned to them and for which the received no compensation at all --
and their suspension might cause delay of vital projects of the NPC; and that under the
circumstances obtaining, they were in no position to tamper with any evidence.
Petitioners opposition was overruled. On January 31, 1996 the Sandiganbayan v handed down its
Resolution suspending them for a period of ninety (90) days. v The Sandiganbayan held that the
suspension was mandated under the law upon a finding that a proper preliminary investigation had
been conducted , the information was valid, and the accused were charged with any of the crimes
specified in the law; and stressed that its authority and power to suspend the accused had been
repeatedly upheld in several precedents. It subsequently denied petitioners motion for
reconsideration dated February 14, 1996, (c)onsidering the paucity of the(ir) arguments ** and in the
light of the mass of jurisprudence involving the power and authority of this Court to issue orders for
preventive suspension of the accused **.v
Petitioners would now have this Court strike down these resolution because supposedly rendered
in excess of jurisdiction or with grave abuse of discretion. The court will not do so. In no sense may
the challeged resolutions be stigmatized as so clearly capricious, whimsical, oppressive, egregiously
erroneous or wanting in logic as to call for invalidation by the extraordinary writ of certiorari. On the
contrary, in promulgating those resolution, the Sandiganbayan did but adhere to the clear command
of the law and what it calls a mass of jurispudence emanating from this Court, sustaining its authority
to decree suspension of public officials and employees indicted before it. Indeed, that the theory of
discretionary suspension should still be advocated to this late date, despite the mass of jurisprudence
relevant to the issue, it little short of amazing, bordering on contumacious disregard of the solemn
magisterial pronouncements of the Highest court of the land.
Republic Act no. 3019 was enacted by Congress more than 37 years ago, on August 17, 1960,
becoming effective on the same date. The law was later amended by Republic Act No. 3047,
Presidential Decree 677 and Presidential Decree No. 1288. The last amendment -- to Section 13
thereof -- was introduced by Batas Pambansa Bilang 195, approved on March 16, 1972.
The validity of Section 13, R.A. 3019, as amended -- treating of the suspension pendente lite of
an accused public officer -- may no longer be put at issue, having been repeatedly upheld by this
Court. As early as 1984, in Bayot v. Sandiganbayan,v the Court held by this Court. As suspension
was not penal in character but merely a preventive measure before final judgement; hence, the
suspension of a public officer charged with one of the crimes listed in the amending law, committed
before said amendment, does not violate the constitutional provision against an ex post facto law.
The purpose of suspension is to prevent the accused public officer from frustrating or hampering his
prosecution by intimidating or influencing witnesses or tampering with documentary evidence, or from
committing further acts of malfeasance while in office.v Substantially to the same effect was the
Courts holding in 1991, in Gonzaga v. Sandiganbayan,v that preventive suspension is not violative
suspension remains entitled to the constitutional presumption of innocence since his culpability must
still be established.
The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive
suspension lies in the court in which the criminal charge is filed; once a case is filed in court, all other
acts connected with the discharge of court functions -- including preventive suspension -- should be
aknowledged as within the competence of the court that has taken cognizance thereof, no violation of
the doctrine of separation of powers being perceivable in that acknowledgment. v
The provision of suspension pendente lite applies to all persons indicated upon a valid
information under Act, whether they be appointive or elective officials; or permenent or temporary
employees, or pertaining to the career or non-career service.v It appears to a Public High School
Principal;v a Municipal Mayor;v a Governor;v a Congressman;v a Department of Science and
Technology (DOST) non-career Project Manager;v a Commissioner of the Presidential Commission
on Good Government (PCGG).v The term office in Section 13 of the law applies to any office in
relation to which he is charged.v
It is mandatory for the court to place under preventive suspension a public officer accused before
it.v Imposition of suspension, however, is not automatic or self-operative. A precondition therefor is
the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in
accord with the spirit of the law, considering the serious and far-reaching consequences of a
suspension of a public official even before his conviction, and the demands of public interest for
speedy determination of the issues involved in the case.v The purpose of the pre-suspension hearing
is basically to detrmine the validity of the information and thereby furnish the court with a basis to
either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension
of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. 27
The accused should be given adequate oppurtunity to challege the validity or regularity of the criminal
proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation;
that he has not been afforded the right to due preliminary investigation; that the acts imputed to him
do not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his
mandatory suspension from office under Section 13 of the Act; or that the information is subject to
quashal on any of the grounds set out in Rule 117 of the Rules of Court. 28 But once a proper
determination of the validity of the Information has been made, it becomes the ministerial duty of the
court to forthwith issue the order of preventive suspension of the accused official on the pretext that
the order denying the latters motion to quash is pending review before the appellate courts. 29
However, the preventive suspension may not be of indefinite duration or for an unreasonable
length of time; it would be constitutionally proscribed otherwise as it raises, at the very least,
questions of denial of due process and equal protection of the laws. 30 The Court has thus laid down
the rule that preventive suspension may not exceed the maximum period of ninety (90) days in
consonance with Presidential Decree No. 807 (the Civil Service Decree), noew Section 52 of the
Administrative Code of 1987.31
While petitioners concede that this Court has almost consistently ruled that the preventive
suspension contemplated in Section 13 of RA 3019 is mandantory in character, they nonetheless
urge the Court to consider their case an exception because of the peculiar circumstances thereof.
They assert that the evils sought to be avoidedby seperating a public official from the scene of his
alleged misfeasance while the same is being investigated 32 -- e.g., to preclude the abuse of the
prerogative of ** (his) office, such as through intimidation of witnesses,33 or the tampering with
documentary evidence -- will not occur in the present situation where:
1. The Project has been cancelled.
2. (Their) ** official duties no longer pertain, in any manner, to the prequalification of contractors
dealing with the NPC. Neither are they now involved in any bidding for or awarding of contracts, ** it
(being) emphasized (in this connection) that they were merely designated as ad hoc members of the
Committee without additional compensation for their additional duties.
3. All the relevant documentary evidence had been submitted either to the Ombudsman or the
Honorable Sandiganbayan.
They conclude that their preventive suspension at this point would actually be purposeless, as
there is no more need for precautionary measures against their abuse of the prerogatives of their
office.
The arguments are not new. They have been advanced and rejected in earlier cases. They will
again be so rejected in this case.
The Courts pronouncements in Bolastig v. Sandiganbayan, supra.,34 are germane:
Our holding that, upon the filing of a valid information charging violation of Republic Act No. 30
19, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the
duty of the court to place the accused under preventive suspension disposes of petitioners other
contention that since the trial in the Sandiganbayan is now over with respect to the presentation of
evidence for the prosecution there is no longer any danger that petitioner would intimidate
prosecutions witnesses. The fact is that the possibility that the accused would intimidate witnesses or
otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one
is, ** to prevent the accused from committing further acts of malfeasance while in office.
Bolastig also disposes of the other contention that vital projects of NPC may be delayed by their
preventive suspension, viz.:35
Finally, the fact that petitioners preventive suspension may deprive the people of Samar of the
services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what
is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected
by them, will act as governor. (The Local Government Code of 1991, sec. 46[a]) Indeed, even the
Constitution authorizes the suspension for not more than sixty days of members of Congress found
guilty of disorderly behavior, (Art. VI, sec. 16[3]) thus rejecting the view expressed in one case
(Alejandrino v. Quezon. 46 Phil. 83, 96 [1924]) that members of the legislature could not be
suspended because in the case of suspension, unlike in the case of removal, the seat remains filled
but the constitutents are deprived of reprensation.
The firmly entrenched doctrine is that under Section 13 of the Anti-Graft and Corrupt Practices
Law, the suspension of a public officer is mandatory after a determination has been made of the
validity of the information in a pre-suspension hearing conducted for that purpose.
 In Socrates v. Sandiganbayan, et al.,36 decided fairly recently, the Court again expatiated on the
mandatory character of suspension pendente lite under Section 13 of R.A. No. 3019 and the nature of
the pre-suspension hearing.
This Court has ruled that under Section 13 of the anti-graft law, the suspension of a public officer
is mandatory after the validity of the information has been upheld in a pre-suspension hearing
conducted for that purpose. This pre-suspension hearing is conducted to determine basically the
validity of the information, from which the Court can have a basis to either suspend the accused and
proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismissed
the case, or correct any part of the proceeding which impairs its validity. That hearing may be treated
in the same manner as a challenge to the validity of the information by way of a motion to quash (See
People vs. Albano, etc., et. al., L-45376-77, July 28, 1988, 163 SCRA 511)
In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187),
we have set out the guidelines to be followed by the lower courts in the exercise of the power of
suspension under Section 13 of the law, to wit:
(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension
from office of public officers charged under a valid information under the provisions of Republic Act
No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section 13 of
said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an
order with proper notice requiring the accused officer to show cause at a specific date of hearing why
he shoud not be ordered suspended from office pursuant to the cited mandatory provisions of the Act.
Where either the prosecution seasonably files a motion for an order of suspension or the accused in
turn files a motion to quash the information or challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear
the parties at a hearing held for determining the validity of the information, and thereafter hand down
its ruling, issuing the corresponding order of suspension should it uphold the validity of the
information or withhold such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the criminal
proceedings against him, e.g., that he has not been afforded the right of due preliminary investigation,
the act for which he stands charged do not constitute a violation of the provisions of Republic Act No.
3019 or of bribery provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under Section 13 of the Act, or he may present a motion to quash the
information on any of the grounds provided in the Rule 117 of the Rules of Court. The mandatory
suspension decreed by the act upon determination of the pendency in court or crimianl prosecution
for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that
the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not
to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the
validity of the information and setting the same for trial on the merits.
With the aforequoted jurisrudential authority as the basis, it is evident that upon a proper
determination of the validity of the information, it bacomes mandatory for the court to immmediately
issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for
interpretation. It is not within the courts discretion to hold in abeyance the suspension of the accused
officer on the pretext that the order denying the motion to quash is pending review before the
appellate courts. Its discretion lies only during the pre-suspension hearing where it is required to
ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the
filling of the information against him, (2) the acts for which he was charged constitute a violation of the
provisions of Republic Act. No. 3019 or of the provisions of title 7, Book II of the revised Penal Code,
or (3) the information against him can be quashed, under any of the grounds provided in Section 2,
Rules 117 of the Rules of Court. (People vs. Albana, etc., at al. Supra, fn. 26)
Once the information is found to be sufficient in form and substance, then the court must issue
the order of suspension as a matter of course. There are no ifs and buts about it. This is because a
preventive suspension is not penalty. It is not imposed as a result of judicial proceedings. In fact, if
acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits
which he failed to receive during suspension. In view of this latter provisions, the accused elective
public officer does not stand to be prejudiced by the immediate enforcement of the suspension order
in the event that the information is subsequently declared null and void on appeal and the case
dismissed as against him. Taking into consideration the public policy involved in preventively
suspending a public officer charged under a valid information, the protection of public interest will
definitely have to prevail over the private interest of the accused. (Bayot vs. Sandiganbayan, et al.,
G.R. Nos. 61776-61861, March 23, 1984, 128 SCRA 383)
To further emphasize the ministerial duty of the court under Section 13 of Republic Act No. 3019,
it is said that the court trying the case has neither discretion nor duty to determine whether or not a
preventive suspension is required to prevent the accused from using his office to intimidate witnesses
or frustrate his prosecution or continue commiting malfeasance in office. The presumption is that
unless the accused is suspended, he may frustrate his prosecution or commit further acts of
malfeasance or do both, in same way that upon a finding that there is probable cause to believe that
a crime has been committed and that the accused is probably guilty thereof, the law requires the
judge to issue a warrant for the arrest of the accused. The law does not require the court to determine
whether the accused is likely to escape or evade the jurisdiction of the court.
The Court is satisfied that the Second Division of the Sandiganbayan, after upholding the validity
of the information against petitioners, correctly ordered their preventive suspension from any public
office for period of ninety (90) days.
As was stressed in Libanan v. Sandiganbayan 37

** When the statute is clear and explicit, there is hardly room for any extended court ratiocination
or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a
public official from office pending a criminal prosecution against him. This Court has repeatedly held
that such preventive suspension is mandatory **, and there are no ifs and buts about it.
WHEREFORE, the petition in this case is hereby DISMISSED for lack of merit. Cost against
petitioners.
SO ORDERED.
 G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and

PEOPLE OF THE PHILIPPINES, respondents.

DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights
of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably
acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is
justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of
any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of
a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the
end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-
observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of
contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled
and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism,
often outright collision, between the law as the expression of the will of the State, and the zealous attempts by
its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are
pitted against State authority that judicial conscience is put to its severest test.
 Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),v as amended by RA 7659,v wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the
constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the
crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it
dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of
mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of
the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or project
or by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and
their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in
Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty
of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said
public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating
circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and
all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived
from the deposit or investment thereof forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par.
(e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of
Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees);
(d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565,
for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the
accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause.
Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of
offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the
vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating
the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of
the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1)
offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or
on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the
rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum,
and if so, whether it is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the
basic principle that a legislative measure is presumed to be in harmony with the Constitution.v Courts invariably
train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the
postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the
idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another.
Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate
branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the
majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts
should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must
be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing
therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to
sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranonv we held that as long as there is some basis for the
decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided
on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally
deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity
of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."v And petitioner has
miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of
the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would
enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of
the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable
certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt
or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of
pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of
the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to
the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future employment in any business enterprise
or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking
advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least
P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who are subject to it
what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth
of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder
Law.
In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses
former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG
SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio,
Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this
Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully,
unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES
OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE
AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND
JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of
Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES & JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR
LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION
ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED
SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR
HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS
ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY
REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR
LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,
KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide adequate contrast between the innocent and the
prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the
Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due
process.
 The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms without defining them; v much
less do we have to define every word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of
expression of its will, and its inability to so define the words employed in a statute will not necessarily result in
the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,v unless it is evident that the legislature intended a
technical or special legal meaning to those words.v The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed.
Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words
"combination" and "series:"
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such
close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder
Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or
number one and something else are included, how about a series of the same act? For example, through
misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
 REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that
two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series
of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in
such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read,
therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series.
Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts
of plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par.
(d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under
the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the
public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically
providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan v that this term is sufficiently defined
in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts
enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal
acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire
ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common
goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In
the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the
overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is
manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the
effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked
against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a
saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. v But the
doctrine does not apply as against legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly
applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge
may be mounted as against the second whenever directed against such activities.v With more reason, the
doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct when measured by common understanding and
practice.v It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the
statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in
its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be
impossible to provide all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial
review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law."v The overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."v
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible
"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent
value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a
statute drawn with narrow specificity."v The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for
testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have
not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."v In Broadrick v. Oklahoma,v
the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act would be valid."v As for the vagueness doctrine, it
is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct
of others."v
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their
faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made
to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to
whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might be unconstitutional." v As has
been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a
particular defendant."v Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law
on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be
applied to parties not before the Court whose activities are constitutionally protected.v It constitutes a departure from the
case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings
and in sterile abstract contexts.v But, as the U.S. Supreme Court pointed out in Younger v. Harrisv
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort,"v and is generally disfavored.v In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.v
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the
want of scientific precision in the law. Every provision of the law should be construed in relation and with
reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of
what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be
aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of
which he even registered his affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage.
 The parallel case of Gallego v. Sandiganbayanv must be mentioned if only to illustrate and emphasize the
point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and
deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In
that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft
and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information
charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest
partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their official function and that their
right to be informed of the nature and cause of the accusation against them was violated because they were left
to guess which of the three (3) offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act
does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad
faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense
penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized
(Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers,
Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978,
Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful
the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public
officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage
or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate
to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing
unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable
doubt that culpability lies, the accused is entitled to an acquittal.v The use of the "reasonable doubt" standard is
indispensable to command the respect and confidence of the community in the application of criminal law. It is
critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned. It is also important in our free society that every individual going
about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense
without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which
protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.v The following exchanges between Rep. Rodolfo Albano and
Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are
elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information
must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of the accused especially so if the amount
committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million
since there is malversation, bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt.
What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces
of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a
crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved
two. Now, what is required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount
is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of
bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1
million. Now, when we add the totality of the other acts as required under this bill through the interpretation on
the rule of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a
need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the
amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration
the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will
sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum
of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of
doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a
dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable
doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in
the Information to have been committed by the accused in furtherance of the overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is
charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The
prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the
raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.v
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to
prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of
the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no
other explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a
very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the accused cannot be convicted of
plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying
Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not
plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without
applying Section 4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable
doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are
concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder
and that cannot be avoided by the prosecution.v
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and
understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of
the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law.
Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the
prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to
prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4
is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the
provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can
supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons
or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the
nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of
the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed
"willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims
the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for
each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to
commit this crime of plunder.v
However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of
Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this
kind of cases?
SENATOR TAADA: Yes, Mr. President . . .v
Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove
each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable
doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must
be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal
Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the
Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the
offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that
it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the
generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."v
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the
affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua
to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups
of heinous crimes, this Court held in People v. Echegaray:v
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital
crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is
raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape,
 parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three
days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a
minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua
to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal
acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that
bankrupted the government and impoverished the population, the Philippine Government must muster the political will to
dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even
the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting
in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be
allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For
when the acts punished are inherently immoral or inherently wrong, they are mala in sev and it does not matter that such
acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se.
Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of
the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v. Echegarayv to the archives of jurisprudential
history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the
State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places
which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the
corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers
of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated,
extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder
Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked,
will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The
Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and
thus secure society against the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a
wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call
for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is
DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 111399. September 27, 1996]

ODON PECHO, petitioner, vs. PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, respondents.

RESOLUTION

DAVIDE, JR., J.:

In our decision of 14 November 1994, we modified the appealed judgment of the Sandiganbayan in Criminal
Case No. 14844 by holding the petitioner guilty of the complex crime of attempted estafa through falsification
of official and commercial documents, and sentencing him to suffer an indeterminate penalty ranging from two
(2) years, four (4) months, and one (1) day of prision correccional as minimum to ten (10) years and one (1)
day of prision mayor as maximum and to pay a fine of Two Thousand Pesos (P2,000.00).

In short, we held that although the petitioner could not be convicted of the crime charged, viz., violation of
Section 3(e) of R.A. No. 3019, as amended -- because the said section penalizes only consummated offenses
and the offense charged in this case was not consummated -- he could, nevertheless, be convicted of the
complex crime of attempted estafa through falsification of official and commercial documents, which is
necessarily included in the crime charged.

Unable to accept our verdict, the petitioner seasonably filed a motion for reconsideration on the ground that
after having been acquitted of the violation of Section 3(e) of R.A. No. 3019, a special law, he could not be
convicted anymore of attempted estafa through falsification of official and commercial documents, an offense
punishable under the Revised Penal Code, a general law; otherwise, the constitutional provision on double
jeopardy would be violated. In other words, his acquittal of the crime charged precludes conviction for the
complex crime of attempted estafa through falsification of official and commercial documents, because both
offenses arose from the same overt act as alleged in the information in Criminal Case No. 14844.

In its Comment on the motion for reconsideration signed only by Assistant Solicitor General Romeo C. de la
Cruz and Solicitor Josette Sonia Holgado-Marcilla, the Office of the Solicitor General disagrees with the
petitioner and asserts that the rule on double jeopardy cannot be successfully invoked in this case considering
that no new information for estafa through falsification of public document was filed against the petitioner; only
one information was filed against him and his co-accused. For double jeopardy to exist, there must be such new
information and the accused must be able to show that (1) he has been previously brought to trial, (2) in a court
of competent jurisdiction, (3) upon a valid complaint or information sufficient in form and substance, (4) for the
same offense or an attempt to or frustration thereof as that charged in the new information, and that (5) the case
has been dismissed or terminated without his consent or after he had pleaded to the information but before
judgment was rendered.v

Nevertheless, the Office of the Solicitor General joins the petitioner in the latters plea for his acquittal, but for
another ground, namely, insufficiency of evidence.

In the resolution of 22 August 1995, we directed the Solicitor General to inform the Court whether he agrees
with the recommendation of Assistant Solicitor General De la Cruz and Solicitor Holgado-Marcilla. In his
Manifestation of 14 September 1995, the Solicitor General not only expressed full agreement with the said
recommendation, but even added the following observations:

10. After reading the Courts Decision, the Solicitor General has noted that petitioners conviction is based on
circumstantial evidence.

11. The law and a host of the Courts ruling declare that circumstantial evidence is sufficient for conviction if
the following conditions concur:

(1) There is more that one circumstance;

(2) The facts from which the inferences are derived are proven; and

(3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt
(Section 3, Rule 133, Rules of Court).

12. In this case, it should be stressed that the inference that petitioner falsified documents appears to be
based on another inference, i.e., that he was in possession of the same because he accompanied his co-accused
Catre in the transactions. However, other than accompanying Catre, there is no evidence on record that
petitioner had custody of the falsified documents.

13. As to the conspiracy angle, there is likewise no showing that petitioner interceded for Catre. In fact, it
was Catre who talked to Calica. (p. 19-20, TSN, August 26, 1991) Neither was it shown that petitioner had a
hand in the processing of the import entry declaration for the release of the shipment from the Bureau of
Customs. It was not also proven that he was instrumental in the approval of the import entry declaration.

14. The elements of conspiracy, like the physical acts constituting the crime itself, must be proven beyond
reasonable doubt. (People vs. Manuel, 234 SCRA 532). To hold an accused guilty as co-principal by reason of
conspiracy, it must be shown that he performed an overt act in pursuance or furtherance of the conspiracy.
(People vs. Roxas, 241 SCRA 369). In this regard, it is respectfully submitted that there is no overt act
conclusively attributable to petitioner which would pin him down as a co-conspirator.

15. Thus, it is the inexorable duty of the Solicitor General to recommend petitioners acquittal, as he so
recommends, inasmuch as the People was not able to adduce evidence sufficient to overcome the constitutional
presumption of petitioners innocence.

We then required the parties to submit their respective memoranda on the following issues:
(a) the sufficiency of the evidence for the complex crime of attempted estafa through falsification of public
and commercial documents, and

(b) the validity of the conviction therefor under an information for the violation of Section 3(e) of R.A. No.
3019, as amended, vis-a-vis the constitutional right of the accused to be informed of the nature and cause of the
accusation against him.

In their respective memoranda, the petitioner and the Office of the Solicitor General are one in asserting that the
petitioner could not be convicted based entirely on circumstantial evidence because of the failure of the
prosecution to satisfy the requisites set forth in Section 4, Rule 133 of the Rules of Court, namely, (a) there is
more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The petitioner
further cited portions of the transcripts of the stenographic notes of the testimony of Customs Broker
Constantino Calica which prove that it was Catre alone who made the introduction to Calica that they were
agents of Eversun Commercial Trading, and that it was Catre who did all the talking and directly transacted
with Calica regarding the terms and conditions of the particular engagement and who actually delivered the
documents to him. There is no evidence that the petitioner had a hand in the processing of the import entry
declaration for the release of the shipment from the Bureau of Customs or was instrumental in the approval of
the import entry declaration. Thus:

Q Now, did Mr. Odon Pecho actually engage your services?

A They are two, sir, Mr. Joe Catre and Mr. Odon Pecho.

Q Who actually transacted with you with regards to your services, is it Mr. Catre or Mr. Pecho?

A Mr. Joe Catre, sir.

Q So it was Joe Catre?

A Yes, sir.

Q And not Odon Pecho, is that right?

A Well, he is the companion of Mr. Catre and they introduced themselves to me that they are the
authorized representative of the importer.

Q That is right. Who introduced to you?

A Mr. Catre was the one who talks [sic] to me, sir.

Q But in your testimony, the person who delivered to you the documents, the bill of lading, the commercial
invoices, the packing list, the importers sworn statement, etc. which was made the basis of the, of your
preparation for the processing of the import entry, who delivered to you these documents that you mentioned?

A Mr. Catre, sir.

Q And who talked to you about the terms and conditions of this engagement or contracts?

A Mr. Catre, sir.

Q And not Mr. Odon Pecho?

A Yes, sir.

Q Who actually delivered to you the documents, Mr. Catre or Mr. Pecho?

A It was Mr. Catre, sir, he was the one handling the case.

AJ ESCAREAL

Q [To] Whom did you talk first?

A Mr. Catre, Your Honor, he was the one handling the case, the documents, Your Honor.

Q Do you know how they introduced themselves to you?

A That is the only thing that I remember Your Honor that they came to my office and told me that they are
the importers representatives and that they are engaging my services.

Q Who said that?

A Mr. Catre, Your Honor.

Q How about Mr. Pecho?

A No, Your Honor.

Q Did he say anything?

A At that time your Honor, it was Mr. Catre who was doing that talking.

Q Did Mr. Catre give his name to you?

A Yes, Your Honor.

Q How did he introduce himself?

A That he is Mr. Joe Catre, Your Honor.

Q How about his companion, did his companion introduce himself to you or he was introduced by Mr.
Catre to you?

A He did not introduce himself to me Your Honor.

Q So during that meeting you do not know that the name of the companion of Mr. Catre is Odon Pecho.

A Yes, your Honor.

Q And how did your son attend to it?

A Two days after Your Honor, Mr. Catre called our office to assist and help them in the preparation of the
cargo at the arrastre operator because that is usually being done by the broker when the shipment goes for
examination. (t.s.n., Hearing of August 26, 1991)

As to the second issue, the Office of the Solicitor General rejects the theory of the petitioner and submits that
the information in this case contains the essential ingredients of estafa through falsification of public and
commercial documents; therefore, assuming there is sufficient evidence, the petitioner could be convicted of the
complex crime of attempted estafa through falsification of public and commercial documents without violating
Section 14(2), Article III of the Constitution on the right of the accused to be informed of the nature and cause
of the accusation against him.

We shall first take up the second issue since it involves a constitutional right of the accused.

On the assumption that the prosecutions evidence had satisfied the quantum of proof for conviction for the
complex crime of attempted estafa through falsification of public and commercial documents, there is
absolutely no merit in the petitioners claim that he could not be convicted of the said crime without offending
his right to be informed of the nature and cause of the accusation against him, which is guaranteed by the Bill of
Rights.v Such right, an ancient bulwark of the liberties of men, has its origin in the Bill of Rights which the
people of Great Britain demanded and received from the Prince and Princess of Orange on 13 February 1688. It
was adopted by the Constitution of the United States and was extended to the Philippines by Act No. 235, or the
Philippine Bill of 1902.v It was later carried into the Jones Law and, ultimately, enshrined in the Constitutions
of 1935, 1973, and 1987. It has the following objectives:

First. To furnish the accused with such a description of the charge against him as will enable him to make
his defense; second, to avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if one should be had (United States vs.
Cruikshank, 92 U.S. 542). In order that this requirement may be satisfied, facts must be stated; not
conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the
complaint with reasonable particularity of time, place, names (plaintiff or defendant), and circumstances. In
short, the complaint must contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged.v

Conformably therewith, the Rules of Court has prescribed the appropriate rules.v

What determines the real nature and cause of accusation against an accused is the actual recital of facts stated in
the information or complaint and not the caption or preamble of the information or complaint nor the
specification of the provision of law alleged to have been violated, they being conclusions of law.v An incorrect
caption is not a fatal mistake.v

It follows then that an accused may be convicted of a crime which, although not the one charged, is necessarily
included in the latter. Section 4, Rule 120 of the Rules of Court thus provides:

SEC. 4. Judgment in case of variance between allegation and proof. -- When there is variance between the
offense charged in the complaint or information, and that proved or established by the evidence, and the offense
as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the
offense proved included in that which is charged, or of the offense charged included in that which is proved.
The succeeding Section 5 prescribes the rule in determining when an offense includes or is included in another.
We have shown in the challenged decision why the complex crime of attempted estafa through falsification of
public and commercial documents is included in the offense charged. Moreover, we held that the information in
this case can also be considered as charging two offenses: the violation of Section 3(e) of R.A. No. 3019 and the
complex crime of attempted estafa through falsification of official and commercial documents, and since the
petitioner failed to object before trial to such duplicity,v he could be validly convicted of both or either of the
offenses charged and proved.v

II

We shall now turn to the first issue: whether the evidence adduced by the prosecution had established beyond
reasonable doubt the guilt of the petitioner for the complex crime of attempted estafa through falsification of
public and commercial documents. In light of the consistent and persistent negative stance of the Office of the
Solicitor General, personally confirmed and reinforced by the Solicitor General in his separate Manifestation,
we re-evaluated the evidence.

In our decision of 14 November 1994, we based the conviction of the petitioner on conspiracy.

The question that logically crops up then is not whether the combination of the circumstantial evidence proved
in this case against the petitioner had established beyond reasonable doubt that he is guilty of the complex crime
of attempted estafa through falsification of public and commercial documents, as asseverated by him and the
public respondent. Rather, the question is whether the prosecution had discharged its duty to establish
conspiracy between the petitioner and Catre.

The informationv charges the petitioner and his co-accused Joe Catre as principalsv who conspir[ed],
confabulat[ed], conniv[ed], confederat[ed], and mutually help[ed] one another, with Catre representing himself
to be a representative of Eversun Commercial Trading of Cotabato City, a corporation, firm or partnership
which turned out to be non-existent, fake or fictitious. The evidence for the prosecution, as admitted by the
respondent, only showed that it was Catre who possessed the falsified documents, contracted the services of
Calica, and delivered the documents to the latter for processing. In the absence of satisfactory explanation,
Catre, being the one in possession of the forged documents, is presumed to be the forger.v Catre, however,
could not provide the explanation because only the petitioner was tried. The information states that his address
is unknown, and the record does not show that a warrant for his arrest was issued. The only warrant of arrest
that was issued was that for the petitioner.v Assuming that such evidence and the others adduced by the
prosecution are to be admitted to prove the commission of the crime, a prima facie case enough to prove the
guilt of Catre with moral certainty was duly established against Catre as a principal. Accordingly, if conspiracy
were proven, the petitioner would be equally guilty of the offense proved. For, in a conspiracy, every act of one
of the conspirators in furtherance of a common design or purpose of such a conspiracy is, in contemplation of
law, the act of each of them.v

There is conspiracy when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it.v Direct proof of previous agreement to commit a crime is not necessary. Conspiracy
may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of
the accused themselves when such point to a joint purpose and design, concerted action, and community of
interest.v It is, however, settled that the same degree of proof required for establishing the crime is likewise
required to support a finding of conspiracy. In other words, conspiracy must be shown to exist as clearly and as
convincingly as the commission of the offense itself in order to uphold the fundamental principle that no one
shall be found guilty of a crime except upon proof beyond reasonable doubt.v

It is also essential for one to be a party to a conspiracy as to be liable for the acts of the others that there be
intentional participation in the transaction with a view to the furtherance of the common design.v Except when
he is the mastermind in a conspiracy, it is necessary that a conspirator should have performed some overt act as
a direct or indirect contribution in the execution of the crime planned to be committed.v The overt act may
consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance
to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the
other co-conspirators.v

Since conspiracy must be established by proof beyond reasonable doubt, then the next inquiry would be
whether the prosecution was able to adduce such proof against the petitioner. It is in this respect that we agree
with the People and the petitioner that the prosecution had only circumstantial evidence against the petitioner.

Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a)
there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the
combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. As
jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if
the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion
pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven must
be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time
inconsistent with any other hypothesis except that of guilty.v

In the instant case, all that the prosecution was able to prove insofar as the petitioner is concerned is that he and
co-accused Catre are from Surigao del Norte; that he accompanied Catre in contracting the services of customs
broker Constantino Calica; and that he also was with Catre when the latter went with Dennis Calica, son of
Constantino Calica, to the Manila International Container Port. In all these instances, however, it was Catre who
transacted the business and did all the talking. As a matter of fact, the petitioner was not even introduced to
Calica. As recapitulated by the Office of the Solicitor General in its Memorandum:

[T]here is no evidence that petitioner interceded for Catre. Prosecution witness Calica testified that it was
Catre and not petitioner, who introduced themselves as agents of Eversun Commercial Trading. He also
testified that it was Catre who did all the talking and directly transacted with him (Calica) regarding the
terms and conditions of the particular engagement and it was also Catre, and not petitioner, who actually
delivered the documents to him (tsn, August 26, 1991). There is no evidence that petitioner had a hand in
the processing of the import entry declaration for the release of the shipment from the Bureau of Customs.
There is also no evidence that petitioner was instrumental in the approval of the import entry declaration. In
short, there is no showing that petitioner performed an overt act in furtherance of alleged conspiracy.v

The evidence for the prosecution likewise failed to prove that the petitioner (1) personally represented himself
as an agent of Eversun Commercial Trading; (2) knew of the falsity of any of the public and commercial
documents in question; and (3) had, at any time, possession of all or some of the said documents.

Otherwise stated, there is no sufficient circumstantial evidence to prove conspiracy between the petitioner and
Catre to commit the complex crime of estafa through falsification of public and commercial documents. Neither
is there evidence of petitioners active participation in the commission of the crime. The concordant combination
and cumulative effect of the acts of the petitioner as proven by the prosecutions evidence fails to satisfy the
requirements of Section 4, Rule 133 of the Rules of Court. There is reasonable doubt as to his guilt. And since
his constitutional right to be presumed innocent until proven guiltyv can be overthrown only by proof beyond
reasonable doubt,v the petitioner must then be acquitted even though his innocence may be doubted.v

WHEREFORE, the petitioners motion for reconsideration is GRANTED. Our decision of 14 November 1994
is SET ASIDE, and another is hereby rendered REVERSING the challenged decision of 28 June 1993 and
resolution of 12 August 1993 of the Sandiganbayan in Criminal Case No. 14844 and ACQUITTING petitioner
ODON PECHO of the complex crime of attempted estafa through falsification of official and commercial
documents, without, however, prejudice to any appropriate administrative action which his office may take
against him as may be warranted by the circumstances in this case.

SO ORDERED.

ROLANDO E. SISON v People of the Philippines G.R. Nos. 170339, 170398-403

The requirements of the law on government procurements should never be taken for

granted because grave consequences await those who violate them.

Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro, a

fourth-class municipality,v from July 1, 1992 to Junev 30, 1995, while Rigoberto de Jesus was

the municipal treasurer. On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit

investigation which revealed that during petitioner’s incumbency, no public bidding was

conducted for the purchase of a Toyota Land Cruiser, 119 bags of Fortune cement, an electric

generator set, certain construction materials, two Desert Dueler tires, and a computer and its

accessories. Pajayon also found out that there were irregularities in the documents supporting

the acquisitions.
 Thus, on June 4, 1998, petitioner and de Jesus were indicted before the Sandiganbayan

in seven separate Informationsv for seven counts of violation of Section 3(e) of Republic Act

(RA) 3019.v

On June 24, 1999, petitioner pleaded not guilty to all the Informations. Accused de Jesus

has remained at large.

Trial on the merits ensued. Pajayon was the lone witness for the prosecution. She

narrated the State’s version of the facts as above stated. The prosecution thereafter rested its

case and formally offered its exhibits.

When it was the turn of the defense to present evidence, petitioner was called to the

witness stand where he admitted that indeed, no public bidding was conducted insofar as the

purchases he was being accused of were concerned. When asked how the purchases were

made, he answered that they were done through personal canvass. When prodded why

personal canvass was the method used, he retorted that no public bidding could be conducted

because all the dealers of the items were based in Manila. It was therefore useless to invite

bidders since nobody would bid anyway. The defense thereafter rested its case and formally

offered its exhibits.

On November 14, 2005, the Sandiganbayan found petitioner guilty as charged.v As such,

he was meted in each Information an imprisonment term ranging from six years and one

month as minimum to ten years as maximum and perpetual disqualification from holding
public office. The Sandiganbayan also ordered that an alias warrant of arrest be issued against

accused de Jesus.

Petitioner appealedv to this Court, praying for an acquittal because his guilt was

allegedly not proven beyond reasonable doubt.

We dismiss the appeal.

NON-COMPLIANCE WITH THE REQUIREMENTS OF

PERSONAL CANVASS

RA 7160v explicitly provides that, as a rule, “acquisitions of supplies by local

government units shall be through competitive bidding.”v By way of exception, no bidding is

required in the following instances:

(1) personal canvass of responsible merchants;

(2) emergency purchase;

(3) negotiated purchase;

(4) direct purchase from manufacturers or exclusive distributors and

(5) purchase from other government entities.v

 Since personal canvass (the method availed of by petitioner) is an exception to the rule

requiring public bidding, Section 367 of RA 7160 provides for limitations on the resort to this

mode of procurement:

Sec. 367. Procurement through Personal Canvass.—Upon approval by the Committee on

Awards, procurement of supplies may be affected after personal canvass of at least three (3) responsible
suppliers in the locality by a committee of three (3) composed of the local general services officer or the
municipal or barangay treasurer, as the case may be, the local accountant, and the head of office or
department for whose use the supplies are being procured. The award shall be decided by the
Committee on Awards.

Purchases under this Section shall not exceed the amounts specified hereunder for all items in
any one (1) month for each local government unit:

xxx

Municipalities:

First Class First Class —One hundred fifty thousand pesos (P150,000.00)

Second and Third Class —Forty thousand pesos (P40,000.00)

Fourth Class and Below —Twenty thousand pesos (P20,000.00)

(emphasis
supplied)

In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.—There shall be in every province, city or municipality a
Committee on Awards to decide the winning bids and questions of awards on procurement and disposal
of property.
 The Committee on Awards shall be composed of the local chief executive as chairman, the local
treasurer, the local accountant, the local budget officer, the local general services officer, and the head
of office or department for whose use the supplies are being procured, as members. In case a head of
office or department would sit in a dual capacity a member of the sanggunian elected from among its
members shall sit as a member. The Committee on Awards at the barangay level shall be the
sangguniang barangay. No national official shall sit as member of the Committee on Awards. (emphasis
supplied)

Note that the law repeatedly uses the word “shall” to emphasize the mandatory nature

of its provisions.

This Court is not a trier of facts. The resolution of factual issues is a function exercised

by lower courts, whose findings on these matters are received with respect and are in fact

binding on the Court except only where it is shown that the case falls under the accepted

exceptions.v Petitioner failed to establish that his case falls under those exceptions. Hence, we

have no other option but to uphold the Sandiganbayan’s factual findings.

Insofar as the purchase of the Toyota Land Cruiserv is concerned, the Sandiganbayan

found that the personal canvass was effected solely by petitioner, without the participation of

the municipal accountant and petitioner’s co-accused de Jesus, the municipal treasurer.

Worse, there was no showing that that the award was decided by the Committee on Awards.

Only an abstract of canvass supported the award, signed by petitioner and de Jesus, without

the required signatures of the municipal accountant and budget officer.

To reiterate, RA 7160 requires that where the head of the office or department

requesting the requisition sits in a dual capacity, the participation of a Sanggunian member
(elected from among the members of the Sanggunian) is necessary. Petitioner clearly

disregarded this requirement because, in all the purchases made, he signed in a dual

capacity—as chairman and member (representing the head of office for whose use the

supplies were being procured). That is strictly prohibited. None of the regular members of the

Committee on Awards may sit in a dual capacity. Where any of the regular members is the

requisitioning party, a special member from the Sanggunian is required. The prohibition is

meant to check or prevent conflict of interest as well as to protect the use of the procurement

process and the public funds for irregular or unlawful purchases.

The same flaws attended the procurement of 119 bags of Fortune cement,v electric

power generator set,v various construction materials,v two Desert Dueler tiresv and a

computer and its accessories.v

With the kind of items purchased by petitioner, he also clearly spent more than

P20,000—or beyond the threshold amount per month allowed by Section 367 of RA 7160 as

far as purchases through personal canvass by fourth-class municipalities (like Calintaan) are

concerned.

VIOLATION OF SECTION 3(E) OF RA 3019

Section 3(e) of RA 3019 provides:

Section 3. Corrupt practices of public officers—In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:
 xxx

(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative or
judicial functions through manifest impartiality, evident bad faith or gross inexcusable negligence. xxx.
(emphasis supplied)

To be found guilty under said provision, the following elements must concur:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officer’s official, administrative or
judicial functions;

(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable
negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or
gave any unwarranted benefits, advantage or preference.v (emphasis supplied)

It is undisputed that the first two elements are present in the case at bar. The only

question left is whether the third and fourth elements are likewise present. We hold that they

are.

The third element of Section 3 (e) of RA 3019 may be committed in three ways, i.e.,

through manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of

these three in connection with the prohibited acts mentioned in Section 3(e) of RA 3019 is

enough to convict.v
 Explaining what “partiality,” “bad faith” and “gross negligence” mean, we held:

“Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as
they are wished for rather than as they are.” “Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud.” “Gross
negligence has been so defined as negligence characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally
with a conscious indifference to consequences in so far as other persons may be affected. It is the
omission of that care which even inattentive and thoughtless men never fail to take on their own
property.” v (citations omitted)

In the instant case, petitioner was grossly negligent in all the purchases that were made

under his watch. Petitioner’s admission that the canvass sheets sent out by de Jesus to the

suppliers already contained his signatures because he pre-signed these formsv only proved his

utter disregard of the consequences of his actions. Petitioner also admitted that he knew the

provisions of RA 7160 on personal canvass but he did not follow the law because he was

merely following the practice of his predecessors.v This was an admission of a mindless

disregard for the law in a tradition of illegality. This is totally unacceptable, considering that as

municipal mayor, petitioner ought to implement the law to the letter. As local chief executive,

he should have been the first to follow the law and see to it that it was followed by his

constituency. Sadly, however, he was the first to break it.

Petitioner should have complied with the requirements laid down by RA 7160 on

personal canvass, no matter how strict they may have been. Dura lex sed lex. The law is

difficult but it is the law. These requirements are not empty words but were specifically

crafted to ensure transparency in the acquisition of government supplies, especially since no

public bidding is involved in personal canvass. Truly, the requirement that the canvass and

awarding of supplies be made by a collegial body assures the general public that despotic,

irregular or unlawful transactions do not occur. It also guarantees that no personal preference

is given to any supplier and that the government is given the best possible price for its

procurements.

The fourth element is likewise present. While it is true that the prosecution was not able

to prove any undue injury to the government as a result of the purchases, it should be noted

that there are two ways by which Section 3(e) of RA 3019 may be violated—the first, by

causing undue injury to any party, including the government, or the second, by giving any

private party any unwarranted benefit, advantage or preference. Although neither mode

constitutes a distinct offense,v an accused may be charged under either mode or both.v The

use of the disjunctive “or” connotes that the two modes need not be present at the same

time. In other words, the presence of oneasdasdasdasda would suffice for conviction.v

Aside from the allegation of undue injury to the government, petitioner was also

charged with having given unwarranted benefit, advantage or preference to private suppliers.v

Under the second mode, damage is not required.

The word “unwarranted” means lacking adequate or official support; unjustified;

unauthorizedv or without justification or adequate reason.v “Advantage” means a more

favorable or improved position or condition; benefit, profit or gain of any kind; benefit from
some course of action.v “Preference” signifies priority or higher evaluation or desirability;

choice or estimation above another.v

In order to be found guilty under the second mode, it suffices that the accused has given

unjustified favor or benefit to another, in the exercise of his official, administrative or judicial

functions. Petitioner did just that. The fact that he repeatedly failed to follow the

requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or

preference was given to the winning suppliers. These suppliers were awarded the

procurement contract without the benefit of a fair system in determining the best possible

price for the government. The private suppliers, which were all personally chosen by

respondent, were able to profit from the transactions without showing proof that their prices

were the most beneficial to the government. For that, petitioner must now face the

consequences of his acts.

PROPRIETY OF THE PENALTY

Any person guilty of violating Section 3 (e) of RA 3019 is punishable with imprisonment

for not less than six years and one month nor more than fifteen years and perpetual

disqualification from public office.v Thus, the penalty imposed by the Sandiganbayan which is

an imprisonment term ranging from six years and one month as minimum to ten years as

maximum and perpetual disqualification from holding public office for each count of the

offense, is in accord with law.

 WHEREFORE, the petition is hereby DENIED. Petitioner Rolando E. Sison is hereby found

guilty of seven counts of violation of Section 3(e) of RA 3019. As such, he is hereby sentenced

for each count of the offense with imprisonment of six years and one month as minimum to

ten years as maximum and perpetual disqualification from holding public office.

Costs against petitioner.

SO ORDERED.

G.R. No. 136082. May 12, 2000]

FRANKLIN P. BAUTISTA, petitioner, vs. SANDIGANBAYAN (Third Division), OFFICE

OF THE OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.: lex

This petition seeks to set aside the 13 March 1998 Resolution of the Sandiganbayan v denying
petitioner's Motion to Quash Crim. Case No. 24276 and its 9 October 1998 Resolution denying
reconsideration. The petition also prays for the issuance of a writ of preliminary injunction and/or
temporary restraining order to restrain and enjoin public respondents from proceeding in any manner
with Crim. Case No. 24276 during the pendency of the petition. Jksm

An anonymous, unverified and unsigned letter-complaint dated 20 November 1996 allegedly

prepared by the Contractors Association of Davao del Sur and the Good Government Employees v of
Davao del Sur initiated this case. It was filed with the Office of the Ombudsman for Mindanao
charging petitioner Franklin P. Bautista, incumbent mayor of the Municipality of Malita, Davao del Sur,
for violation of Sec. 3, par. (e), of RA 3019, as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act.v The letter-complaint alleged, among others, that petitioner caused the hiring of
one hundred and ninety-two (192) casual employees in the municipal government for political
considerations and that the payment of their honoraria and salaries was charged to the peace and
order fund despite meager savings of the municipality.v

Acting on the letter-complaint, Graft Investigation Officer II (GIO II) Corazon A. Arancon issued on 16
January 1997 an Order directing respondent Franklin P. Bautista, petitioner herein, to submit his
counter-affidavit.v In his counter-affidavit of 26 February 1997 petitioner, answering the charges
against him, claimed that the complaint, which was unsigned, was fictitious and fabricated as shown
by the affidavits of Enrique Ponce De Leon, President of the Contractor's Association of Davao del
Sur;v Rogelio E. Llanos, Governor for Davao del Sur;v Eduardo M. Masiwel Vice Mayor of Malita,
Davao del Sur;v Engineer Antonio P. Cayoca, Department of Public Works and Highways, 2nd
District, Davao del Sur;v Juanito A. Itorralba, Assistant Provincial Treasurer of Davao del Sur;v Juan L.
de Guzman and Felipe D. Macalinao,v both teachers, therein attached, which disclaimed any
knowledge of the institution of the complaint nor cause of its filing. He further argued that the hiring of
the one hundred ninety-two (192) casuals and the payment of their honoraria and wages did not
justify the filing of any charge against him.

After due consideration, GIO II Arancon in his Resolution dated 27 May 1997 found a prima facie
case for violation of Sec. 3, par. (e), of RA 3019, as amended, against petitioner and forwarded the
resolution to the Ombudsman for approval. Chief

On 3 October 1997 the Ombudsman approved the resolution. Thereafter, an Information for violation
of Sec. 3, par. (e), of RA 3019, as amended, was filed against petitioner before the Sandiganbayan,
docketed as Crim. Case No. 24276,v which read -

That sometime in 1995 or sometime prior thereto, in the Municipality of Malita, Davao
del Sur, and within the jurisdiction of this Honorable Court, the above-named accused, a
high ranking public officer, being the Mayor, Municipality of Malita, Davao del Sur, while
in the performance of his official functions, taking advantage of his position and
committing the offense in relation to his office, with manifest partiality, did then and
there willfully, unlawfully and criminally caused the hiring of some one hundred ninety-
two (192) casual employees in flagrant disregard of Secs. 288 and 289 of the
Government Accounting and Auditing Manual (GAAM), the honoraria and salaries of
whom were charged to the peace and order fund and to the project component and
other services activity fund, respectively and which represented 72.5% of the total
personnel services expenditures, thereby giving unwarranted benefits, advantage and
preference to the said casuals, causing undue injury to the Municipality of Malita.

On 13 November 1997 petitioner filed a Motion to Quash the Information anchored on the ground that
the acts charged therein did not constitute the offense indicated in Sec. 3, par. (e), of RA 3019, as
amended, and that more than one (1) offense was charged in the Information. After the filing of the
opposition, the Sandiganbayan denied on 13 March 1998 the Motion to Quash stating that all
essential elements of the crime charged were sufficiently alleged in the Information which charged
only one offense. On 13 April 1998 petitioner filed a motion for reconsideration but on 9 October 1998
his motion was denied.

Petitioner assails in this petition the denial of his Motion to Quash despite failure of the Ombudsman
to properly establish a cause of action. He asserts that there was no legal basis for the Ombudsman
to conduct a preliminary investigation in Case No. CPL-MIN-96-180, much less file the Information in
Crim. Case No. 24276, as the Ombudsman failed to direct the complainants to reduce their evidence
into affidavits before requiring him to submit his counter-affidavit. Petitioner invokes Sec. 4, Rule II, of
the Rules of Procedure of the Ombudsman which requires that for purposes of conducting a
preliminary investigation the complainant must submit his affidavit and those of his witnesses before
respondent can be required to submit his counter-affidavit and other supporting documents.v
Conformably with such rule, the Ombudsman should have first required the Contractor's Association
of Davao del Sur and the Good Government Employees of Davao del Sur to submit their respective
affidavits before requiring him as respondent to submit his counter-affidavit, especially since the
letter-complaint was unsigned and unverified; hence, there was no valid cause of action against
petitioner. Esmsc
Petitioner cites Olivas v. Office of the Ombudsmanv where the Court declared that in preliminary
investigation of cases it is incumbent upon the complainants to submit their evidence in affidavit form
and it is only after such submission that respondent may be required to explain and submit his
counter-affidavit, also under oath.

This issue has long been laid to rest in Olivas where the Court explained that while reports and even
raw information obtained from anonymous letters may justify the initiation of an investigation, this
stage of the preliminary investigation can be held only after sufficient evidence, derived from
submitted affidavits from the complainants and his witnesses, shall have been duly gathered and
evaluated, and only thereafter can the respondent be required to submit his affidavits and other
documents to explain, also under oath.v It is from such affidavits and counter-affidavits that the
Ombudsman can determine whether there is a probable cause for bringing the case to court.

However, despite its wisdom, we must rule that the principle enunciated in Olivas has no bearing in
the instant petition. What was assailed therein was the order of the Ombudsman compelling petitioner
Olivas to file his counter-affidavit in answer to the charges against him, he having refused to do so
since the order was not accompanied by a single affidavit from the complainants as mandated by law;
while in the instant case, petitioner Bautista had already filed his counter-affidavit before the
Ombudsman and only questioned the latters failure to require the complainants to submit affidavits
prior to the submission of his own counter-affidavit after the preliminary investigation had ended and
an Information already filed before the Sandiganbayan. The issue therefore of requiring the
complainants to submit their affidavits before respondent can be obliged to submit his counter-
affidavit is moot and academic in light of Bautistas submission of his counter-affidavit despite
absence of the complainants affidavits.

Criminal Case No. 24276 before the Sandiganbayan stemmed from the letter allegedly sent by the
Contractors Association of Davao del Sur and the Good Government Employees of Davao del Sur
addressed to the Office of the Ombudsman for Mindanao. It may be true that GIO II Arancon in his
Order of 16 January 1997 directed herein petitioner to submit his counter-affidavit thereto without
requiring the complainants to submit theirs which were significantly necessary because of the
unverified, unsigned and anonymous nature of their letter. However, despite the Ombudsman's
noncompliance with the affidavit requirement, petitioner filed his counter-affidavit on 26 February
1997 and answered the charges against him. Hence, having submitted himself to the jurisdiction of
the Ombudsman and having allowed the proceedings to go on until the preliminary investigation was
terminated and the Information filed at the Sandiganbayan, petitioner is deemed to have waived
whatever right he may otherwise have to assail the manner in which the preliminary investigation was
conducted. Consequently, petitioner is likewise estopped from questioning the validity of the
Information filed before the Sandiganbayan. Esmmis

Petitioner likewise avers that the Sandiganbayan gravely abused its discretion in denying his Motion
to Quash the Information as there were at least two (2) offenses charged - the giving of unwarranted
benefits, advantage and preference to the casual employees in question, and causing undue injury to
the Municipality of Malita. Petitioner invokes Santiago v. Garchitorenav where it was held that there
were two (2) ways of violating Sec. 3, par. (e), of RA 3019, namely, (a) by causing undue injury to any
party, including the Government, and (b) by giving any private party any unwarranted benefit,
advantage or preference, and as such, he argues that each constitutes two (2) distinct offenses that
should be charged in separate informations.

Indeed, Sec. 3, par. (e), RA 3019, as amended, provides as one of its elements that the public officer
should have acted by causing any undue injury to any party, including the government, or by giving
any private party unwarranted benefits, advantage or preference in the discharge of his functions. v
The use of the disjunctive term "or" connotes that either act qualifies as a violation of Sec. 3, par. (e),
or as aptly held in Santiago, as two (2) different modes of committing the offense. This does not
however indicate that each mode constitutes a distinct offense, but rather, that an accused may be
charged under either mode or under both.

In Santiago petitioner therein assailed the failure of respondent to include the phrase "causing of
undue injury to any party, including the Government" in the amended informations filed against her.
Refuting the claim, the Court cited the minute resolution in Uy v. Sandiganbayanv and clarified that the
"act of giving any private party any unwarranted benefit, advantage or preference" is not an
indispensable element of the offense of "causing any undue injury to any party," although there
maybe instances where both elements concur. Thus, in Pareo v. Sandiganbayanv the information
charged the public officers with "willfully and unlawfully causing undue injury to the Government and
giving unwarranted benefits to Tanduay Distillery, Inc." by failing to verify and act on the validity
and/or veracity of the claim for tax credit filed by the corporation before the BIR. Es-mso

In Pilapil v. Sandiganbayanv petitioner Pilapil was only charged with having "willfully caused undue
injury to the Municipality of Tigaon, Camarines Sur, when he failed to deliver the ambulance received
by him on behalf of the municipality in a Deed of Donation executed by the Philippine Charity
Sweepstakes Office in its favor, to the prejudice and damage of the municipal government."

Likewise, in Diaz v. Sandiganbayanv the PCGG Commissioners as public officers were charged only
with having given Enrique Razon, Jr., a stockholder or officer of the sequestered corporation Metro
Port, unwarranted benefits and/or advantage by the approval of his loan application for
P5,000,000.00 belonging to the same sequestered corporation.

By analogy, Gallego v. Sandiganbayanv finds application in the instant case. There, petitioners
claimed that the Information charged the accused with three (3) distinct offenses, to wit: (a) the giving
of "unwarranted" benefits through manifest partiality; (b) the giving of "unwarranted" benefits through
evident bad faith; and, (c) the giving of "unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official and/or administrative functions; and thus moved for the quashal
of the Information. The Sandiganbayan denied the motion to quash and held that the phrases
"manifest partiality," "evident bad faith" and "gross inexcusable negligence" merely described the
different modes by which the offense penalized in Sec. 3, par. (e), of RA 3019, as amended, could be
committed, and the use of all these phrases in the same Information did not mean that the indictment
charged three (3) distinct offenses.

In the instant case, the Information against petitioner read in part -

x x x unlawfully and criminally caused the hiring of some one hundred ninety-two (192)
casual employees in flagrant disregard of Secs. 288 and 289 of the Government
Accounting and Auditing Manual (GAAM), the honoraria and salaries of whom were
charged to the peace and order fund and to the project component and other services
activity fund, respectively, and which represented 72.5%, of the total personnel services
expenditures, thereby giving unwarranted benefits, advantage and preference to the
said casuals, causing undue injury to the Municipality of Malita. Ms-esm

The use of the phrase "causing undue injury" therein can either be interpreted as another mode of
violating the statute, in addition to the giving of unwarranted benefits, advantage and preference to
the casuals, or as a consequence of the act of giving unwarranted benefits, advantage and
preference. Specifically, for hiring some one hundred and ninety-two (192) casuals and the charging
of their honoraria and salaries to the peace and order fund, petitioner gave them unwarranted
benefits, advantage and preference and caused undue injury to the Municipality of Malita; or thereby
caused undue injury to the Municipality of Malita. In either case, the Information will not suffer any
defect, as it is clear that petitioner is charged with violation of Sec. 3, par. (e), of RA 3019, as
amended, with either mode of commission obtaining or with both manners of violation concurring.

Finally, petitioner finds exception in the term "private party" as used in Sec. 3, par. (e), of RA 3019, as
amended, and argues that the casuals alleged to have been appointed by him and thus recipients of
unwarranted benefits could not qualify as private parties since they are in actuality public officers
within the contemplation of Sec. 2, par. (b), of RA 3019, as amended. Citing Philnabank Employees
Association v. Auditor General,v petitioner points out that "the employees of a government
corporation, regardless of the latter's functions, are government employees and, therefore, they are
not 'private party or entity;"' and as such, one of the elements constituting the offense under Sec. 3,
par. (e), of RA 3019, as amended, is missing thus warranting the dismissal of the Information. E-xsm

The term "private party" or "private person" may be used to refer to persons other than those holding
public office.v However, petitioner is charged with causing the hiring of some one hundred ninety-two
(192) casual employees, and the consequent awarding of their honoraria and salaries taken from the
peace and order fund of the municipality. The reckoning period is before the casual employees'
incumbency when they were still private individuals, and hence, their current positions do not affect
the sufficiency of the Information.

WHEREFORE, the petition is DISMISSED. The Resolution of the Sandiganbayan of 13 March 1998
denying petitioner Franklin P. Bautista's Motion to Quash in Crim. Case No. 24276 and its Resolution
of 9 October 1998 denying reconsideration are AFFIRMED. Consequently, public respondents
Sandiganbayan (Third Division) and the Office of the Ombudsman are directed to proceed with the
hearing and trial of Crim. Case No. 24276 against petitioner until terminated.

SO ORDERED. Ky-le
 G.R. No. 123045. November 16, 1999]

DEMETRIO R. TECSON, petitioner, vs. SANDIGANBAYAN AND PEOPLE OF THE

PHILIPPINES, respondents.

DECISION
QUISUMBING, J.:

This petition for review on certiorari, under Rule 45 of the Rules of Court, seeks to nullify the Decision
dated June 30, 1995 and the Resolution dated December 20, 1995 of the Sandiganbayan, First Division, in
Criminal Case No. 18273. Petitioner was found guilty of violating Section 3[c] of R.A. No. 3019, in the assailed
decision which reads as follows:
WHEREFORE, the Court finds Demetrio Tecson y Robles guilty beyond reasonable doubt of the crime defined in
Section 3[c] of Republic Act 3019 and charged in the Information. Accordingly, the Court imposes upon him the penalty
of imprisonment of SIX (6) YEARS and ONE (1) MONTH, and perpetual disqualification from public office. No civil
indemnity is awarded for the reason that Tecson and Mrs. Salvacion D. Luzana entered into a compromise agreement
waiving his/her claims against the other.
So Ordered.v
Petitioner was, at the time of the commission of the offense charged in the Information, the Municipal
Mayor of Prosperidad, Agusan del Sur.
Private complainant before the Sandiganbayan, Mrs. Salvacion Luzana, is a resident of Poblacion,
Prosperidad, Agusan del Sur. She is a neighbor of the petitioner. She claims to be a housewife who occasionally
dabbles in farming.v
The antecedent facts, which gave rise to the instant case, were synthesized by the Sandiganbayan as
follows:
In the last week of September 1989, upon the offer of Tecson, he and Mrs. Luzana agreed to engage in an investment
business. They would sell tickets at P100.00 each which after 30 days would earn P200.00 or more. She would buy
appliances and cosmetics at a discount, with the use of the proceeds of the sales of tickets, and resell them. No other
details were disclosed on how the business would operate, and Tecson does not appear to have contributed any monetary
consideration to the capital. On September 27, 1989, they began selling tickets.
Tecson also acted as agent selling tickets. He got on that day early in the morning two booklets of tickets, for which
he signed the covers of the booklets to acknowledge receipt. Before noon of the same day he returned after having already
sold 40 tickets in the amount of P4,000.00, bringing with him a Mayors Permit in the name of Mrs. Luzana for their
business called LD Assurance Privileges. He asked for a cash advance of P4,000.00 which he would use during the fiesta
on September 29, 1989, and he would not release the Mayors Permit unless the cash advance was given him. Mrs. Luzana
reluctantly acceded, saying that it was not the due date yet, so he was getting the cash advances on his share. Tecson
signed for the cash advance.
On October 3, 1989, Mrs. Luzana secured a Business Permit in accordance with the instructions of Tecson. The
permit was in her name but the same was for the operation of Prosperidad Investment and Sub-Dealership, the new name
of the business. In the session of the Sangguniang Bayan of Prosperidad, Agusan del Sur on October 17, 1989 presided
over by Tecson, Resolution No. 100 was passed revoking the business permit at the instance of the Provincial Director of
the Department of Trade and Industry.v
With the revocation of her business permit, private complainant below filed an administrative case against
petitioner, for violation of Section 3 [c], R.A. No. 3019 and Section 60 of B.P. Blg. 337 (then Local
Government Code) with the Department of Interior and Local Government (DILG). The complaint was
docketed as Adm. Case No. SP-90-01 and referred to the Sangguniang Panlalawigan of Agusan del Sur for
appropriate action.
Not content with having instituted administrative proceedings, private complainant below also filed a civil
case against petitioner for damages with the Regional Trial Court, Branch 6, of Prosperidad, Agusan del Sur.
This action was docketed as Civil Case No. 716.
A complaint was likewise filed with the Ombudsman for violation of R.A. No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act. This complaint was docketed as OMB Case No. 3-8-02919. It was
subsequently referred to the Sandiganbayan, which took jurisdiction. The Information filed on October 28, 1992
reads:
That on or about September 23, 1989, in the Municipality of Prosperidad, Province of Agusan del Sur, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Municipal
Mayor of Prosperidad, Agusan del Sur, while in the performance of his administrative and official functions and
committing the offense in relation to his office, did then and there willfully, unlawfully, and criminally request and
receive for his benefit the amount of P4,000.00, for and in consideration of the issuance of a permit to operate an
investment business, in favor of one Salvacion Luzana, a person for whom the accused has in fact received and obtained a
mayors permit or license.
Contrary to law.v
On July 29, 1991, the Sangguniang Panlalawigan of Agusan del Sur dismissed the administrative case.
On October 28, 1991, a compromise agreement was reached between the litigants in Civil Case No. 716.
The trial court approved the same on December 6, 1991.
On November 3, 1992, the Sandiganbayan issued an order for petitioners arrest. He was immediately
apprehended, but after posting a property bond on December 2, 1992, was released on provisional liberty.
On February 23, 1993, Tecson was arraigned with the assistance of counsel de parte. He entered a plea of
not guilty. Trial then proceeded on the merits.
On June 30, 1995, the Sandiganbayan, First Division rendered the assailed decision convicting appellant of
violating R.A. No. 3019. Petitioner seasonably filed a motion for reconsideration. The respondent court denied
the same in its resolution dated December 20, 1995.
Hence, this instant petition. Petitioner contends that:
THE RESPONDENT COURT/SANDIGANBAYAN (1st DIVISION) GRAVELY ABUSED ITS DISCRETION,
TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION
A- IN RULING UNREASONABLY THAT THE GUILT OF THE ACCUSED HAD BEEN PROVEN
BEYOND REASONABLE DOUBT DESPITE THE CLEAR AND CONVINCING TESTIMONY OF THE
NBI EXPERT SHOWING THAT THE DOCUMENTS PRESENTED BY COMPLAINANTS AND
SUBJECTED FOR EXAMINATION BY NBI ARE DIFFERENT FROM THE HANDWRITING OF THE
ACCUSED, AND THEREFORE FABRICATED.
B- IN PROCEEDING WITH THE TRIAL AND CONVICTION DESPITE THE EXISTENCE OF
JUDGMENT OF ACQUITTAL RENDERED BY THE SANGGUNIANG PANLALAWIGAN
EXONERATING THE ACCUSED.
C- IN IGNORING THE DOCTRINE OF RES JUDICATA AND THE CONSTITUTIONAL PROVISIONS OF
DOUBLE JEOPARDY.v
Otherwise stated, the issues are:
(1) Whether or not the decision of the Sangguniang Panlalawigan exonerating the accused serves as a bar by
prior judgment to the decision of the Sandiganbayan;
(2) Whether or not there was a violation of the Constitutional right of the accused against double jeopardy; and
(3) Whether or not the guilt of the petitioner was proven beyond reasonable doubt.
The issues shall be discussed in seriatim.
Anent the first issue, petitioner contends that the dismissal of the administrative case before the
Sangguniang Panlalawigan of Agusan del Sur is conclusive and binding upon the parties. Relying on our ruling
in B.F. Goodrich Philippines, Inc. v. Workmens Compensation Commission,v he theorizes that the rule, which
prohibits the reopening of matters already determined by competent judicial authority, applies to quasi-judicial
bodies or administrative offices. 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.
Petitioners 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
v

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.v 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.
As to the amicable settlement in Civil Case No. 716 with the Regional Trial Court, Branch 6, of
Prosperidad, Agusan del Sur, it is settled that a complaint for misconduct, malfeasance or misfeasance against a
public officer or employee cannot just be withdrawn at any time by the complainant. This is because there is a
need to maintain the faith and confidence of the people in the government and its agencies and
instrumentalities.v The inescapable conclusion, therefore, is that the order of the trial court dismissing Civil
Case No. 716 did not bar the proceedings before the Sandiganbayan.
Regarding the second issue, petitioner contends that being tried before the Sandiganbayan violated his
constitutional protection against double jeopardy since the Sangguniang Panlalawigan of Agusan del Sur had
already cleared him of all charges.
Article III, Section 21 of the Constitution provides:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted or
the case was dismissed or otherwise terminated without the express consent of the accused. v None of the
foregoing applies to the hearings conducted by the Sangguniang Panlalawigan of Agusan del Sur in Adm. Case
No. SP 90-01. It must be stressed that the said proceedings were not criminal, but administrative in nature.
Hence, double jeopardy will not lie.
With respect to the third issue, petitioner argues that the Sandiganbayan erred in merely relying upon the
alleged positive testimony of the prosecution witnesses when it rendered the judgment of conviction against
him. He theorizes that such testimony failed to prove his guilt beyond reasonable doubt. He further contends
that it was error for the respondent court to ignore the findings and conclusions of the NBI handwriting expert,
especially as of the nine standard signatures, five were not established to be genuine signatures. He submits that
the Sandiganbayan should have applied the rule of falsus in uno, falsus in omnibus in considering the
documentary evidence against him.
Section 3 of R.A. No. 3019 states:
In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and hereby declared to be unlawful:
xxx
c. Directly or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will
secure or obtain, any government permit or license in consideration for the help given or to be given, without prejudice to
Section thirteen of this Act.
The crime charged has four elements, namely:
(1) The accused is a public officer;
(2) That in any manner or capacity he secured or obtained, or would secure or obtain, for a person any
government permit or license;
(3) That he directly or indirectly requested or received from said person any gift, present or other pecuniary or
material benefit for himself or for another; and
(4) That he requested or received the gift, present or other pecuniary or material benefit in consideration for the
help given or to be given.
As correctly pointed out by the Sandiganbayan, all of the aforementioned elements concur in the instant
case. Its findings on this concurrence are as follows:
First, Tecson was in September 1989 a public officer, being then the Municipal Mayor of Prosperidad, Agusan del
Sur.
Second, in his official capacity as Mayor, he signed and issued on September 27, 1989, a Mayors Permit to and in the
name of Mrs. Luzana for their investment business in which he does not appear to have made any contribution to the
capital.
 Third, before he released the Mayors Permit to Mrs. Luzana, he requested and received on that same day, September
27, 1989, at about 11:00 a.m., the amount of P4, 000.00 to be used by him in the fiesta to be held on September 29, 1989.
And, fourth, Tecson requested and received the amount of P4, 000.00 as cash advance in consideration of the help he
gaveviz, issuance of Mayors Permit which he would not deliver to Mrs. Luzana unless she acceded to his request.
Although Tecson expected to have a share in the profits of the business as partner of Mrs. Luzana, the same was not yet
due. In fact, there was as yet no profits to speak of, for they began operating only in the morning of September 27, 1989,
the very day the cash advance was requested and received.v
The Supreme Court is not a trier of factsv and the factual findings of the Sandiganbayan are conclusive
upon the Supreme Court. The exceptions are: (1) where the conclusion is a finding grounded entirely on
speculation, surmise and conjectures; (2) where the inference made is manifestly mistaken; (3) where there is
grave abuse of discretion; (4) where the judgment is based on misapprehension of facts, and the findings of fact
of the Sandiganbayan are premised on the absence of evidence and are contradicted by evidence on record.v We
have meticulously scrutinized the records of this case and find that petitioner has shown no cause for this Court
to apply any of the foregoing exceptions. We find that the evidence on record amply supports the findings and
conclusions of the respondent court.
Petitioners assault on the credibility of the prosecution witnesses is unavailing. It is a time-tested doctrine
that the trial courts assessment of the credibility of a witness is entitled to great weight and is even conclusive
and binding upon appellate courts.v The Supreme Court will not interfere with the trial courts assessment of the
credibility of the witnesses, absent any indication or showing that the trial court has overlooked some material
facts or has gravely abused its discretion.v Absent a showing that the prosecution witnesses were actuated by
any improper motive, their testimony is entitled to full faith and credit.v Recourse to the records shows 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 prosecutions witnesses as opposed to petitioners bare denials. Denial, like alibi, is a weak
defense, which becomes even weaker in the face of positive testimony by prosecution witnesses. v Denial is a
self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses
who testified on affirmative matters.v Time-tested is the rule that between the positive assertions of prosecution
witnesses and the negative averments of the accused, the former indisputably deserves more credence and is
entitled to greater evidentiary weight.v
With regards the NBI experts testimony, the respondent court found that:
[T]he function of a handwriting expert witness is to place before the court data upon which the court can form its
own opinion. The value of the opinions of experts on handwritings depends largely upon the ground upon which they base
their opinions and clearness with which they can demonstrate their correctness. So that in order that opinions of experts
may have weight, the experts should go into the details of their examinations of the writings which they have compared.
In this case Cruz was not asked to testify on the grounds, data or details on which he based his conclusion, except
generally that the questioned signatures were written in a slow drawn manner while the standard signatures were executed
in a free and continuous manner and that there is a pen stop in the questioned signatures in the letter s. He did not testify
on other different characteristics such as pressure of the pen, loops in the strokes, general alignment, structural formation,
height of the letters, whether the letters were standing, slanting forward or backward, etc. His testimony is therefore not of
much help in determining the genuineness of the questioned signatures.v
Given these circumstances, petitioners reliance on the doctrine of falsus in uno, falsus in omnibus will be
unavailing. The maxim is a rule of evidence. In affirming a rebuttable presumption of fact, the trier of facts,
must consider all the evidence, other than that found to be false and it is his duty to give effect to so much of it,
if any, as found to be true.v The rule is merely permissive and not mandatory.v It does not relieve the trier of
facts from passing on credibility of the whole testimony or evidence presented or excuse him from weighing the
whole of the testimony or evidence.v In the instant case, the records show that the Sandiganbayan, as the trier of
facts, considered the entirety of the evidence against appellant and the latters conviction was not based solely on
the genuineness of the signatures testified to by the NBI expert. The elements of the offense charged having
been proven beyond reasonable doubt, petitioners conviction must therefore stand.
 WHEREFORE, the instant petition is DENIED, and the assailed Decision and Resolution of the
Sandiganbayan in Criminal Case No. 18273 are AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 136266. August 13, 2001]

EUTIQUIO A. PELIGRINO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION
PANGANIBAN, J.:

To convict the accused in a prosecution for the violation of Section 3(b) of the Anti-Graft Law, mere
receipt of a gift or any other benefit is enough, even without any express demand for it. The duration of the
possession is not controlling. Important are the appellants words, action and reactions showing acceptance
thereof. These are factual in nature and, absent any arbitrariness, abuse of discretion, or palpable error, the trial
courts assessment of their presence or absence is generally binding on appellate review.

The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the August
24, 1998 Decisionv and the November 16, 1998 Resolutionv of the Sandiganbayan, First Division, in Criminal
Case No. 17086. The dispositive portion of the assailed Decision reads:
WHEREFORE, premises considered judgment is hereby rendered, finding accused EUTIQUIO A. PELIGRINO,
GUILTY beyond reasonable doubt, as principal, of having violated Sec. 3(b) of R.A. 3019 as charged, and hereby
imposes upon him in the absence of any modifying circumstances affecting criminal liability, an indeterminate prison
term of SIX (6) YEARS and ONE (1) MONTH as minimum, to NINE (9) YEARS as maximum, with all the accessories
of the law, to suffer perpetual disqualification from office, and to pay the cost.
 There is no pronouncement as to civil liability it being apparently clear that the amount of Three Thousand
(P3,000.00) used in the entrapment has been returned to the offended party.
Accused ATTY. BUENAVENTURA V. BUENAFE, on the other hand[,] is ACQUITTED on the basis of reasonable
doubt, with cost de oficio.
His bond is ordered cancelled and any Hold[-] Departure Order issued in this case is set aside and ordered lifted as to
him.v
The assailed Resolution denied the Motion for Reconsideration as follows:
There being no adequate cause to set aside the decision herein, more particularly since the points raised by the
accused in his motion for reconsideration dated September 2, 1998 have been adequately taken up in the decision, the said
motion for reconsideration is denied.v
This case originated from the Information filed on October 17, 1991 by Special Prosecution Officers Carlos
D. Montemayor and Edna Herrera-Batacan. The accusatory portion reads thus:
That on or about October 15, 1991, in Makati, Metro Manila, and within the jurisdiction of this Honorable Court,
accused EUTIQUIO PELIGRINO y ALAAN, a public officer being then an Examiner II of Region IV-A of the Bureau of
Internal Revenue, and as such [was] tasked among others, to examine or investigate Books of Accounts for Income and
Business [t]ax [r]eturns earned by professionals (medical practitioners) in order to determine their compliance and/or tax
deficiencies and to collect payments thereof, while in the performance of his official duties as such public officer, did then
and there, willfully, unlawfully and criminally demand the amount of P200,000.00 from Dr. Antonio N. Feliciano, a
practicing [g]enetology [d]octor holding office at Pasong Tamo, Makati, Metro Manila, found by the accused to have
incurred an allege[d] deficiency income tax assessment of P500,000.00 for the calendar years 1988-1989, received
P200,000.00, P51,858.57 was in the form of Prudential Bank Check No. 914077 dated October 15, 1991 payable to the
Bureau of Internal Revenue as full payment of Dr. Felicianos tax liabilities and the remaining balance to be appropriated
to himself, to the damage and prejudice of Dr. Antonio Feliciano in the amount of P148,141.43 and the government in the
amount equal to the deficiency income tax due it.v
On February 25, 1992, the Information was amended to include Buenaventura V. Buenafe as co-accused. It
is reproduced below:
That on or about October 15, 1991 and/or for sometime prior thereto, in Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, accused EUTIQUIO PELIGRINO y ALAAN and BUENAVENTURA V.
BUENAFE, both public officers, being then Examiner II and Supervisor, respectively, both of Region IV-A of the Bureau
of Internal Revenue, Makati, Metro Manila, and as such are tasked, among others, to examine or investigate the Books of
Accounts for Income and Business Tax and other accounting records of professionals (medical practitioners) and to
determine their compliance and/or tax deficiencies after assessment, and to collect payments thereof, taking advantage of
their public positions, while in the performance of said official duties as such public officers, conspiring, confederating
and mutually helping each other, did then and there wil[l]fully, unlawfully and criminally demand directly from taxpayer
Antonio N. Feliciano, a practicing [g]enetology [d]octor holding office at Pasong Tamo, Makati, Metro Manila, found by
both accused to have incurred an alleged deficiency income tax assessment of P500,000.00 for the calendar years 1988
and 1989, the amount of P200,000.00 Philippine currency, for the purpose of applying a portion thereof in the amount of
P51,858.57 as full payment for deficiency income tax due from said taxpayer for fiscal years 1988 & 1989 and the
balance of P148,141.43 to be appropriated by both accused for themselves as gift or consideration for their promise to
make as they did lower assessment for said fiscal years 1988 & 1989 in the amount of P51,858.57, which request or
demand for money was in connection with a transaction between the government and Dr. Antonio N. Feliciano wherein
both accused in their official capacities had to intervene under the law, and thereafter, accused Eutiquio A. Peligrino
wil[l]fully, unlawfully and criminally received the amount of P200,000.00 in behalf of both accused, to the damage and
prejudice of Dr. Antonio Feliciano in the amount of P148,141.43 and the government in the amount equal to the
deficiency income tax due it.v (Underscoring in the original.)
On August 28, 1992, the two accused, assisted by their respective lawyers, v were arraigned. Both pleaded
not guilty.v On April 24, 1998, after full trial, the Sandiganbayan convicted petitioner of the offense charged, but
acquitted his co-accused.
 The Facts
Version of the Prosecution

The Sandiganbayan narrated the evidence of the prosecution in this wise:

Stripped of the non-essentials, the prosecutions evidence shows that about the last week of July or early August of
1991, accused Atty. Buenafe delivered a letter of authority dated July 4, 1991 (Exhibit K) to complainant Dr. Antonio N.
Feliciano in the latters office at Valgozon Bldg., Pasong Tamo, Makati. Said Exhibit K is addressed to Dr. Antonio [N.]
Feliciano signed by one Eufracio D. Santos a [d]eputy [c]ommissioner of the BIR stating inter alia that x x x the bearer(s)
hereof Revenue Officer Eutiquio Peligrino to be supervised by Buenaventura Buenafe is/are authorized to examine your
books of accounts and other accounting records for income and business for the calendar/fiscal year(s) ending 1988&
1989 x x x. Atty. Buenafe was referred to the accountant of the complaining witness.
About two weeks later, the complainant received a telephone call from accused Atty. Buenafe asking him if his
accountant had not told him anything, and when he (complainant) inquired from his accountant Ellen Quijano about the
matter, he was informed that the accused were demanding half a million pesos. Surprised about the demand, since the
books were not even examined, he instructed Ellen Quijano to further clarify the matter. Thereafter about Sept. 1991,
Atty. Buenafe called him up requesting for a meeting in his (complainants) office.
On October 10, 1991 accused Eutiquio Peligrino and Atty. Buenaventura Buenafe appeared in the complainants
office and told the latter that his tax deficiencies would amount to [f]ive [h]undred [t]housand [p]esos (P500,000.00)[.]
Flabbergasted, because his books were not even examined, complainant entertained the idea that it was the beginning
of an extortion, and he tried to negotiate for a smaller amount, and finally the two (2) accused agreed to the amount of
[t]wo [h]undred [t]housand, of which [f]ifty [t]housand [p]esos would be paid to the BIR, and the rest to them. The pay-
off would take place on that coming Monday. He immediately wrote a letter to the NBI (Exhibit A) requesting for
assistance, and an NBI Agent Atty. Rafael Ragos, went to his office where they talked and arranged for an entrapment
which was set on October 14. At around noon-time of the said date, he provided the NBI with the pay-off money
consisting of [t]hree [t]housand (P3,000.00) pesos as the entrapment was scheduled at 4:00 p.m. Prior to this, he had
executed an affidavit (Exhibit C). On the said entrapment date, October 14, 1991 neither accused appeared. The
complainant further testified:
[]Q What happened next after October 14[?]
A We set it for the next day and I told the NBI people that I ha[d] a feeling that they [would] show up the next day
and so early on the next morning the NBI came to my office.
PJ GARCHITORENA
Q On Monday, how many NBI agents came to your office?
A About two or three, Your Honor.
PROS. CAOILI
Q Now, at about what time did the NBI c[o]me to your office?
A They came before noon, sir.
Q And did the accused Atty. Buenafe and Mr. Peligrino appear on that date, October 15, 1991?
A Atty. Buenafe did not appear but Mr. Peligrino appeared at 4:00 p.m. in my office.
Q When Mr. Peligrino appeared in your office at 4:00 p.m., of October 15, 1991, what transpired?
A By this time I was already ready with the planted money in an envelope, brown Manila envelope and the NBI
agents were already positioned and we ha[d] a pre-arranged signal that if I buzz[ed] or made a buzzer in the
intercom that mean[t] that the money was accepted and they [would] come out and arrest Mr. Peligrino.
Q Now, were you able to hand the money to Mr. Peligrino?
 A Yes, sir.
Q What did he do when he took hold of the money?
A He accepted the envelope and opened it and look inside and saw the money then close[d] it again and place[d] it
in front of him.
Q What happened next?
PJ GARCITORENA
Q And after you turned over the envelope to him, you still ha[d] a conversation with him?
A No, your Honor, I immediately [pressed] the buzzer and then the NBI immediately c[a]me out.
PJ GARCHITORENA
Mr. Caoili.
PROS. CAOILI
Q When the NBI agents came to your room after pressing the button, what happened next?
A There was a commotion, sir, and it happened so fast that I dont remember anymore but they brought him out of
my office with an instruction for me to follow.
Q Did you understand where to follow[?]
A Yes, sir, in the NBI office at Taft Avenue.
Q And did you do that Mr. Witness?
A Yes, sir.
Q Then what happened at the NBI office?
A I was asked to make an affidavit of what happened which I [did] and I signed it.
(TSN August 12, 1993 pp. 19-21)[]
Corroborating the declaration of the complaining witness, witness Rafael Z. Ragos an NBI Agent testified that on
October 11, 1991 he was handed a letter ([E]xhibit A) by NBI Deputy Director Antonio Aragon with instruction to handle
the complaint of the author Dr. Antonio Feliciano. He then contacted the physician complainant and requested him to
execute an affidavit (Exhibit C). After studying the affidavit, he decided together with other NBI agents to conduct an
entrapment operation. Thus, 30 pieces of one-hundred peso bills were secured and submitted to the Forensic Chemist
Section for marking. He made arrangement with Dr. Feliciano that on October 14, 1991, he, with the members of his team
would standby at the office of the said doctor to conduct the entrapment. Nothing came out of their plan as the two (2)
accused did not appear. The following day, he with 8 or 10 NBI agents returned to the office before lunch time and waited
for the two (2) suspects. The arrangement was that, the NBI agents would stay in one of the rooms of the clinic, would
wait for the signal of the Doctor which [was] the sound of the buzzer, and when the buzzer [was] heard they would
proceed to arrest the subject of the operation.
At around 4:30 p.m., accused Peligrino arrived, and so upon hearing the sound of the buzzer, he [Ragos], together
with his co-NBI agents immediately proceeded to the room of Dr. Feliciano, and on seeing the accused in possession of
the brown envelope which contained the marked money, arrested him, and made a body search on him. An inventory of
the things found in the possession of the accused was made (Exhibit T). The following were seized from accused
Peligrino:
1. Prudential Check No. 914077;
2. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P14,092.92;
3. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P23,760.35;
4. BIR Authority to Issue Payment Order dated 28 August 1991 with stated amount of P14,005.30;
 5. Worksheet labeled COMMITTEE ON SPECIAL PROJECTS with [L]ist of Taxpayers [who were] Doctors;
6. 1988 and 1989 [P]rovisional Computation (DR. FELICIANO) Tax Assessment;
7. List of Dr. A. FELICIANOs withheld taxes for 1989;
8. Computation of Dr. FELICIANO[s] 1989 Sales of Clinic Supplies and Number of Patients;
9. Computation of Dr. Felicianos Number of Patients;
10. BIR Letter of Authority No. 0456962 addressed to Dr. ANTONIO N. FELICIANO;
11 Photocopy of Dr. FELICIANOs 1989 Income Tax Return and its attached Auditors Report, Balance Sheet,
Profit and Loss Statement and Schedule of Salaries and Wages;
12. DR. FELICIANOs 1989 Confirmation Receipts;
13. Photocopy of Dr. FELICIANOs 1988 Income Tax Return and its attachments;
14. DR. FELICIANOs Worksheet for 1989 transactions;
15. DR. FELICIANOs Worksheet for 1988 transactions;
16. Big-brown envelope containing the Bogus Money with (30) pcs. of marked One Hundred [Peso b]ills.
The accused was then brought to the NBI Office in Manila where he was examined for the detection of the
fluorescent powder [o]n his hands and body. He then prepared his report (Exhibit Q) after the complainant executed a
written statement.
NBI agent Raul A. Ancheta also took the witness stand and declared that on October 14, 1991 Agent Ragos assigned
him to get the statement of Dr. Feliciano, after which he was instructed to prepare boodle money to be submitted to the
Forensic Chemist Division of the NBI in preparation for the entrapment. Accordingly, with thirty (30) pieces of genuine
money, he submitted the same to the Forensic Chemist for dustings and proper markings. He was present in the initial
process of dusting the articles with fluorescent powder but did not witness the entire proceedings. He thereafter retrieved
the money from the Forensic Chemist, placed it in an envelope, and delivered the same to Agent Ragos.
[O]n the morning of October 14, Agent Ragos called all the members of the entrapment team and made the necessary
briefings. They, thereafter proceeded to the office of Dr. Feliciano, and waited for the accused but nobody appeared, and
Agent Ragos instructed the members of the team to be on the stand by status the following day.
The next day, October 15, the NBI agents posted themselves at the different parts of the clinic and waited for the BIR
examiners. His [Agent Ragos] assignment was [at] the main door of the clinic to secure the team members from outside
forces. By 4:00 p.m., only accused Eutiquio Peligrino arrived. He saw him enter the clinic, [go] directly to the secretary
who picked up the phone, and then he saw Dr. Feliciano going out of the room and conferr[ing] with the accused.
Thereafter, they entered the room of Dr. Feliciano. About 15 to 20 minutes, he saw the other members of the team rushing
to the office of the doctor, and after a short while, they came out from the office with accused Peligrino. Agent Ragos
handed him the brown envelope and the blue bag of the accused, and then they proceeded to the NBI office where he
brought the accused to the Office of the Forensic Chemist who examined him upon presentation of the request (Exhibit E-
I). After the examination, he was given a certification by the Forensic Chemist (Exhibit E).
Dimpna Dacudao Bermejo, a Forensic Chemist of the NBI declared:
[]Q Miss Witness, do you remember whether you were in your office on October 15, 1991?
A Yes, sir.
Q Did you give any technical assistance during that date?
A Yes, sir.
Q What kind of technical assistance did you give on that date?
A [At] 5:00 of October 15, a certain agent Raul Ancheta came to my laboratory with a letter request asking for a
detection of fluorescent powder [on] a person.
 xxx xxx xxx
PROS. CAOILI
May I request, Your Honor, that this letter request for Chemistry examination, disposition form dated October 15,
1991 be marked as Exhibit E-1[.]
xxx xxx xxx
Q What did you do upon getting this request for examination Miss Witness?
A I examined the letter request whether the contents [were] in order, then I asked him to bring the subject in my
presence and I right away proceeded to my examination.
Q Are you familiar with the subject?
A Yes, sir.
Q If he is in this Court, will you be able to identify him?
A Yes, sir.
xxx xxx xxx
(Witness pointing to a person in Court who when asked gave his name as Mr. Eutiquio Peligrino.)
Q How did you conduct the examination?
A I brought the person [to] our dark room and then I exposed his left and right arms[,] palm[a]r aspect[,] under the
UV light.
PJ GARCHITORENA
Q What is UV light?
A Ultra-Violet light.
PROS. CAOILI
Q What [were] your findings?
A The said Peligrino was found to be positive [for] the presence of fluorescent powder.
Q Did you [put] your findings in writing?
A Yes, sir.
Q There is already here a certification which is already marked as Exhibit E signed by one Dimpna Bermejo. Will
you please go over the same and tell me if you know this document?
A Yes, I was the one who made that document.
xxx xxx xxx
Q It states here that this is only a temporary certification and [the] official report follows. Did you make that official
report?
A Yes, sir.
Q Where is it now?
A Witness presenting a document to the Fiscal which is entitled Physics Report Number P-91-140 dated 17 October
1991.
Q On this report, there is a signature above the typewritten name Dimpna Bermejo[;] whose signature is that?
A My signature, sir.
 PROS. CAOILI
May I request your Honor, that this Physics Report No. P91-140 be marked as Exhibit E-2.
Q Aside from your report, did you prepare any diagnosis showing where you found this fluorescent powder in the
person of Mr. Peligrino?
A Yes, sir.
xxx xxx xxx
PROS. CAOILI
Your Honor, may I request that these two (2) diagnos[e]s presented by the witness be marked as Exhibit E-3 for
[the] dorsal portion and Exhibit E-4 for the palm[a]r side.
xxx xxx xxx
Q There is a note written in pencil in Exhibit E-3, [on] the bottom portion. Will you please explain to the Honorable
Court what is that note?
A That note states that subject was found to have fluorescent powder [o]n the front shirt, pants and right arm.
xxx xxx xxx
Q Miss Witness, whose hands are those which were examined supposed to [be]?
A [They] belonged to the subject Peligrino.
Q How about the palm[a]r section, does it also belong to the subject Eutiquio Peligrino?
A Yes, sir.[]
The records disclose that the prosecution presented documentary evidence consisting of Exhibit A which is a letter-
complaint dated 10/11/91 of the complaining witness addressed to Director Alfredo Lim of the NBI[;] Exhibit B an NBI
routine slip emanating from Asst. Director Aragon; two (2) sworn statements of Dr. Feliciano marked as Exhibit[s] C and
D which were all offered as part of the testimony of the said doctor; Exhibit E which is a certification dated October 15,
1991 by the NBI Forensic Chemist Dimpna Bermejo together with her Physics Report No. P91-140 (Exhibit E-2); all
offered as part of the declaration of witness Bermejo; Exhibit F xerox copy of the genuine thirty P100 bill[;] three
authorities to issue payment order (Exhibits H, I & J); a letter of authority issued by BIR Director Viray (Exhibit K);
Exhibit L which is the Joint Affidavit of Arrest of NBI Agents; Exhibits M and N[,] the booking sheet and Arrest Report
and Arrest Information Sheet respectively for accused Peligrino; Exhibits O and P[,] the booking sheet & Arrest Report
and Arrest Information Sheet respectively for accused Buenafe; Exhibit Q[;] the Report of the Arresting NBI Agents
regarding the entrapment; Exhibit R which [consists of] some notes of Dr. Feliciano; Exhibit S which is a letter dated
11/26/92 of BIR Deputy Commissioner Santos to Dr. Feliciano; Exhibit T[,] the inventory/list of documents seized from
accused Peligrino[;] and [Exhibit] U[,] the referral letter of Director Alfredo Lim of the NBI to the Ombudsman. These
exhibits were admitted as part of the testimonies of the witnesses who testified thereon.v

Version of the Defense

Inasmuch as petitioner did not submit his version of the facts, we quote the Sandiganbayans narration of the
defense evidence as follows:
The defense was abject denial. Stoutly asserting their innocence, and abjuring the inculpation with vehemence, both
accused took the witness stand, and presented Prosecutor Carlos Montemayor of the Office of the Special Prosecutor to
drive [home] their point. They also submitted as documentary evidence Exhibits 1 to 21 which were admitted by the Court
in its Resolution of October 28, 1994.
The testimony of accused Buenaventura V. Buenafe may be capsulized as follows:
That he is 59 years old, married and a Revenue Officer IV with designation of Supervisor in the Bureau of
 Internal Revenue; that he first came to know Dr. Feliciano when he served a letter of authority for the
examination of the 1988-89 books of account of the doctor to establish his tax liability; that said letter of
authority was issued by the [d]eputy [c]ommissioner of [i]nternal [r]evenue (Exhibit 9) which has a [life-time]
of 30 days within which to be served and since Examiner Eutiquio Peligrino was on leave he took it upon
himself to serve the same personally on the doctor at the latters office; that since the letter of authority came
about pursuant to a letter of denunciation of the doctor-complainant, he was checking on the veracity of the said
letter of denunciation and except for the item in the said letter of denunciation about his ownership of ten (10)
cars as the doctor said he ha[d] only three expensive cars [but] he was able to confirm that the subject [was]
living in Forbes Park, ha[d] been treating more than thirty (30) patients a day, ha[d] a share in Puerto Azul,
ha[d] an island off Atimonan, and ha[d] many househelps; that he charged P200.00 per consultation from low
income patients but with respect to foreigners he asked for a package-deal $1000 for consultation, laboratory
examination, etc.
After the interview, he was told by the complainant that the latters accountant would be coming to his
office later on, and true to form, one Elen Quijencio representing herself as accountant of the doctor, came to his
office, bringing some papers but not the book of accounts. He referred him to his co-accused Eutiquio Peligrino,
and after their examination, he found out that instead of the reported income of [o]ne [m]illion [pesos]
(P1,000,000.00) a year the doctor [should] have reported [t]hree [m]illion pesos (P3,000,000.00) per year. He
told the accountant of his computation who retorted that she would inform the doctor of the same.
About the end of August 1991, the accountant called him in his office and relayed the information that the
doctor [was] amenable to pay fifty thousand ([P]50,000.00) pesos more or less, and so he consulted his superior
and assessing that it was reasonable, [an] authority to issue payment order (ATIPO) was prepared. (Exhibits H,
K and J also Exhibits 10, 10-A & 10-B respectively). The aggregate amount to be paid by the complainant
including surcharges, interest and compromises as appearing in the three ATIPO [was] P51,858.57.
On October 10, 1991 upon invitation of the complainant, he and co-accused went to the formers office
bringing with them the ATIPOs in anticipation of the payment, but the complainant requested x x x
postponement of the payment, and told them to come back the following day; the next day, the complainant-
doctor pleaded again for postponement. He then left the ATIPO [with] his co-accused Peligrino.
On October 16, thirty minutes after arrival in his office, he was called by the new [d]irector at the latters
office where an NBI agent was waiting. He was then invited to the NBI office to identify the papers or
documents seized from Mr. Peligrino. At the NBI Office, he was informed that he was the mastermind of the
extortion aborted by the entrapment laid by the NBI and the complainant on Mr. Peligrino, and when he denied
the same, he was brought before Prosecutor Carlos Montemayor in the Office of the Ombudsman where he saw
the NBI Agent presenting the boodle money, and where he was told by the Prosecutor to go home when the NBI
agent could not answer the Prosecutors question why he (Buenafe) was there.
On the other hand, accused Eutiquio A. Peligrino, 51 years old, married and a BIR examiner made the following
declaration:
That he ha[d] been a BIR examiner for thirteen (13) years, and sometime in June or July 1991 he was
assigned as examiner at Revenue District 22, Manila and at the same time one of the members of the Special
Project Committee supervised by his co-accused; that he came to know Dr. Feliciano in the early part of July
1991 when he was assigned to examine the latters books of accounts, that when the accountant of the said doctor
went to his office she brought only the working sheets, list of employees and some of the withholding taxes, and
not the most vital document which [was] the books of accounts[;] nonetheless he made a preliminary assessment
based on the information given by his superior co-accused Buenafe; that when the accountant [came] back, he
told her that if she want[ed] to make a compromise she [could] talk to his superior.
On October 10, 1991 co-accused Buenafe told him that they had to go to the clinic of Dr. Feliciano in order
to present the [A]uthority to [I]ssue Payment Order. They were entertained by the Doctor who told him that the
check for the payment was not yet prepared, and requested them to return the following day. Again when they
went there the next day, the Doctor informed them the check [was] not yet ready since he was very busy.
On October 15, 1991 while in his Manila District Office 22, co-accused Buenafe gave him three (3) copies
of [A]uthority to [I]ssue [P]ayment [O]rder and instructed him to deliver the same to Dr. Feliciano, and get the
check if it is already prepared. He arrived at the Office of the Doctor at around 4:00 to 4:30 p.m. and went
 directly to the reception hall where he told the receptionist that his purpose in going there [was] to inform the
Doctor of the due date of the ATIPO, and to pick up the check if it [was] already ready.
He was allowed to enter the clinic where he gave the Doctor the copies of ATIPO. The Doctor asked the
whereabouts of Atty. Buenafe and requested the copies of the ATIPO for xeroxing. While waiting for the
ATIPO to be xeroxed, Dr. Feliciano asked him if he would accept payment in cash to which he said No and he
would accept only check payable to the BIR. Thereafter, the Doctor took a brown envelope from his drawer,
threw it in front of him and said yan ang bayad. The envelope landed close to his arms and so he pushed it
asking: What is that sir? My purpose in coming here is to get the check in payment for the BIR. Instead of
answering him, the Doctor stood up and told him he [was] going to get the xerox copy of the ATIPO.
The Doctor returned followed by two (2) persons one of whom grabbed his hands from behind while the
other standing behind him wanted him to hold the envelope but he resisted[,] placing his hands against his chest,
and since the two men realized he [could] not be forced to hold the envelope, they let him go, picked the
envelope and pressed it against his breast.
He was brought to the NBI office where in one room, a chemist examined him to detect the presence of
fluorescent powder. During the examination, he asked the chemist which of his hand[s was] contaminated and
the chemist answered none. Then, she looked up to the escort behind him, and after that, started examining his
hands, shirt and pants, and then began encircling portions on the diagram in front of her. Then he was
fingerprinted.
The following day, October 16, 1991 his co-accused arrived and they were brought before Fiscal
Montemayor of the Ombudsman who asked the NBI why the envelope supposedly containing the money was
still sealed. He [could] not remember how the NBI agents replied, but Fiscal Montemayor let go [of] his co-
accused while he was asked to post bail.
The defense also presented Carlos Montemayor, 59 years old, married and a Special Prosecutor III in the Office of
the Special Prosecutor, Ombudsman[,] who testified as follows:
[]Q Mr. Witness, can you tell us whether a big brown envelope was presented to you by the NBI during the inquest
preliminary investigation?
A I can not exactly remember if there was an envelope submitted by the NBI during the inquest investigation. What
I remember having x x x seen and [having been] presented by the NBI [were the] xeroxed copy of the marked
money and several affidavits.
Q You mentioned that what [were] presented were only xeroxed copies of the marked money. Did you see the
original of the marked money?
A I am not sure whether it was presented to me or not.
Q How about the diagram of the hands of the alleged persons [and] the presence of fluorescent powder, can you tell
if you have seen them on that day?
A No, what was presented to me was the Forensic Chemistry Report.[]
Answering the queries of the Court, he declared:
[]PJ GARCHITORENA
Q Mr. Montemayor, at that time that you were conducting the inquest examination[,] was the accused Peligrino
presented to you?
A Yes, your Honor.
Q Did you ask him any question?
A Well, my companions asked [him] questions x x x because we were three who conducted the inquest examination.
xxx xxx xxx
Q Was there any question addressed by the panel to Mr. Peligrino at the time with respect to the evidence?
A Yes, your Honor.
xxx xxx xxx
Q Was Mr. Peligrino asked about the entrapment itself?
A I believe so.
Q Was he confronted in some way with the findings of the NBI with regard to the forensic powder?
A I can not remember anymore, sir.
Q Was the Forensic Report of the NBI presented [in] his presence?
A Yes, sir.
Q Did he protest in anyway the process by which the forensic examination was conducted?
A No, because he waived the right to preliminary investigation.
Q Be that as it may, did he in any way [protest] the proceedings or [protest] that the forensic examination was
irregular or otherwise. . .
A No protest whatsoever.
Q Was he confronted with any statement?
A He was confronted with the testimony or allegations of Dr. Feliciano[.]
Q Did he make any comment?
A He denied [them].
Q Was the denial general or specific?
A General.
Q He denied any attempt to extort money from Dr. Feliciano?
A Yes, Your Honor.
Q Did he make any protest [or] misbehavior by the NBI?
A No, sir.
Q Did you see him under [some] kind of fear or stress about the NBI? Did he feel afraid?
A I have not noticed any unusual appearance of the accused Peligrino, Your Honor.
xxx xxx xxx
Q And in this particular case Mr. Peligrino was calm and apparently not at all unsettled?
A Yes, Your Honor.
Q He was calm in other words?
A Yes, Your Honor.
Q And in his calm condition he did not say the NBI maltreated him?
A No, Your Honor.
Q Or that the entrapment or any of the proceedings were conducted in any manner different from what the NBI
should do?
A He did not protest.[]
The documentary evidence adduced by the defense consist[s] of Exhibits 1 and 2, [which are] the affidavits of
accused Buenafe dated Nov. 7 and December 18, 1991 respectively; Exhibits 3 and 4, which are the affidavits of Felicidad
Viray[,] then Regional Director of the BIR and that of Antonio Panuncialman[,] then [c]oordinator of the Special Project
Committee of the BIR; Exhibits 5 and 6, the certifications of BIR Revenue District Officer Mamerto Silang, Cruz[;] and
Exhibit 7 the affidavit of one Roselyn Dy all tending to show the efficiency of accused Buenafe as a BIR employee. To
prove the extent of Dr. Felicianos practice, Exhibits 8 and 8-a consisting of [a] letter of some concerned doctors OB-
Gyne, and a brochure were presented. The letters of authority already marked as Exhibits K, H, J & I were adopted by the
defense as Exhibits 9, 10, 10-A & 10-B[;] while Exhibits M, N, O, & P of the prosecution were adduced by the accused as
their Exhibits 11, 11-A, 12 and 12-A. Exhibit 13 is the Counter-affidavit of accused Peligrino while Exhibits 14 is a copy
of a Memorandum for Hon. Mauro Castro[,] the Provincial Prosecutor of Rizal[; Exhibit] 14-a is a copy of an information
charging Dr. Feliciano [with] the crime of Simple Slander, [Exhibit] 14-B is another information also charging the doctor
[with] Simple Slander[;] Exhibit 15 is another Memorandum for Provincial Fiscal Mauro Castro recommending dismissal
of the charges of Falsification of Private Document and Use of Falsified document against Dr. Feliciano[; Exhibit]15-A is
a copy of another Memorandum for Provincial Fiscal Mauro Castro recommending dismissal of the three charges for
perjury against the doctor[;] Exhibit 16 is another Memorandum for dismissal of the charge of perjury against the
complainant-doctor[;] while Exhibit 17 is a certification by the Office of the Provincial Prosecutor of Rizal certifying the
filing of five (5) criminal charges against the doctor[;] Exhibit 18 is a copy of the complaint (civil case) of the doctor
against his own children Dr. Antonio Feliciano Jr. and Ma. Isabel Feliciano all these Exhibits (14 to 18 inclusive) were
submitted to show that complainant [was] a very troublesome person. [The a]ccused also presented Exhibits 19, 20 and 21
[which are a] certification of the Dismissal of the Administrative case filed by Dr. Feliciano against accused Buenafe, as
well as [a] certification anent his semestral accomplishment, and a letter of the Metropolitan Hospital Administrator to x x
x BIR [C]ommissioner Ong commending Buenafe respectively.
While Exhibits 1 to 21 were admitted by the Court in its Minute Resolution of October 28, 1994 there was nothing
said of Exhibits 22 and 23 but considering that they were annexes to the Joint Stipulation of Facts, the Court is
constrained to consider them even if virtually they were not the object of a formal offer. Exhibit 22 is Revenue Special
Order No. 30-91 dated April 2, 1991 signed by BIR Com. Jose Ong appointing Antonio Panuncialman and Buenaventura
Buenafe as Head & Team Leader respectively of the Committee on Special Projects, Revenue Region 4-A Manila, while
Exhibit 23 is the same as Exhibit 21.v

Ruling of the Sandiganbayan

In its well-written 40-page Decision, the Sandiganbayan ruled that all the elements of the offense described
in Section 3, paragraph (b) of Republic Act 3019 (Anti-Graft and Corrupt Practices Act),v had been proven.
Being a public officer, specifically an examiner of the BIR, Peligrino had the right to intervene in the subject
transaction. He was a member of the Special Project Committee tasked to verify the tax liabilities of
professionals, particularly physicians, within the jurisdiction of Revenue Region No. 4-A, Manila.
Based on the testimony of private complainant, the NBI agents entrapment scheme, and the positive results
of the chemical examination done on petitioner, the latter was found by the anti-graft court to have demanded
and received money for his personal benefit in connection with private complainants tax liabilities. After noting
that they had no improper motive to testify against petitioner, the court a quo accorded full faith and credence to
the testimonies of the NBI agents and the complaining witness.
As regards Buenafe, however, the Sandiganbayan held that there was no sufficient proof that he had
conspired with petitioner: [A]ll told, as to this accused, there were whispers of doubt anent his culpability,
which the prosecution despite its commendable efforts, has failed to still. Such doubt must set him free.v
Hence, this Petition by Peligrino.

Issues

In his Memorandum, petitioner raises the following issues:

 I. That the Sandiganbayan erred in finding that petitioner demanded and received the envelope with the boodle
money;
II. That the Sandiganbayan erred in convicting the petitioner on the basis of the lone testimony of Dr. Feliciano,
an admittedly discredited witness;
III. That petitioner was denied his right to equal protection of the law.v

This Courts Ruling

The Petitionv has no merit.

First Issue:
Demand and Receipt of Boodle Money

Section 3(b) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) provides:
SEC. 3. Corrupt practices of public officers. -- In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction between the Government and any other party, wherein the
public officer in his official capacity has to intervene under the law.
xxx xxx x x x.
The elements of this offense were summed up in Mejia v. Pamaran,v and we restate them here: (1) the
offender is a public officer (2) who requested or received a gift, a present, a share, a percentage, or a benefit (3)
on behalf of the offender or any other person (4) in connection with a contract or transaction with the
government (5) in which the public officer, in an official capacity under the law, has the right to intervene.
Petitioner is a BIR examiner assigned to the Special Project Committee tasked x x x to undertake
verification of tax liabilities of various professionals particularly doctors within the jurisdiction of Revenue
Region No. 4-A, Manila x x x. Since the subject transaction involved the reassessment of taxes due from private
complainant, the right of petitioner to intervene in his official capacity is undisputed. Therefore, elements (1),
(4) and (5) of the offense are present.
However, petitioner disputes the prosecution evidence establishing that he demanded and received grease
money in connection with the transaction.
Specifically, he contends that the Sandiganbayans conclusion that he demanded money from complainant
was based merely on an assumption that was not supported by any evidence. He avers that he merely informed
complainant of his tax deficiencies, and that it was the latter who requested the reduction of the amount
claimed.
We are not convinced. Section 3(b) of RA 3019 penalizes three distinct acts -- (1) demanding or requesting;
(2) receiving; or (3) demanding, requesting and receiving -- any gift, present, share, percentage, or benefit for
oneself or for any other person, in connection with any contract or transaction between the government and any
other party, wherein a public officer in an official capacity has to intervene under the law. These modes of
committing the offense are distinct and different from each other. Proof of the existence of any of them suffices
to warrant conviction.v The lack of demand is immaterial. After all, Section 3(b) of RA 3019 uses the word or
between requesting and receiving.
Averring that the incident in complainants clinic was a frame-up, petitioner contends that there could not
have been any payoff, inasmuch as there was no demand.
Like bribery, this crime is usually proved by evidence acquired during an entrapment, as the giver or briber
is usually the only one who can provide direct evidence of the commission of this crime. Thus, entrapment is
resorted to in order to apprehend a public officer while in the act of obtaining undue benefits. v However, we
have to distinguish between entrapment and instigation.
In instigation, officers of the law or their agents incite, induce, instigate or lure the accused into committing
an offense, which the latter otherwise would not commit and has no intention of committing. In entrapment, the
criminal intent or design to commit the offense charged originates in the mind of the accused, and the law
enforcement officials merely facilitate the commission of the crime.v
Frame-up, like alibi, is invariably viewed with disfavor because, as a line of defense in most criminal
prosecutions of this nature, it is easily concocted, common or standard.v
Petitioner denies that he received payoff money from complainant. According to him, receive, as
contemplated in the offense charged, connotes a voluntary act coupled with knowledge. Hence, where the
giving of the money affords the accused no opportunity either to refuse or to return it to the giver, no punishable
offense ensues.v Petitioner claims that the 40 seconds or less that the boodle money was in his hands was merely
a momentary possession that could not prove receipt, which the law requires for the offense charged to be
consummated.
We disagree. In Cabrera v. Pajares, acceptance was established because the accused judge placed the bribe
money between the pages of his diary or appointment book, despite his protestations that the money bills landed
on the open pages of his diary, only after he had flung them back to the complainant.v
In Formilleza v. Sandiganbayan,v this Court overruled the finding of acceptance, because it was improbable
for the accused to accept bribe money in front of her office mates and in a public place, even if the money had
been handed to her under the table. Furthermore, the accused therein shouted at the complainant, What are you
trying to do to me? That is not the normal reaction of one with a guilty conscience.
Furthermore, the Court held in the said case that there must be a clear intention on the part of the public
officer to take the gift so offered and consider it as his or her own property from then on. Mere physical receipt
unaccompanied by any other sign, circumstance or act to show acceptance is not sufficient to lead the court to
conclude that the crime has been committed. To hold otherwise would encourage unscrupulous individuals to
frame up public officers by simply putting within their physical custody some gift, money or other property. v
The duration of the possession is not the controlling element in determining receipt or acceptance. In the
case at bar, petitioner opened the envelope containing the boodle money, looked inside, closed it and placed the
envelope beside him on the table. Such reaction did not signify refusal or resistance to bribery, especially
considering that he was not supposed to accept any cash from the taxpayer. The proximity of the envelope
relative to petitioner, as testified to by NBI Agent Ragos, also belies petitioners contention that he refused the
bribe.
A person found in possession of a thing taken from the recent execution of a wrongful act is presumed to be
both the taker and the doer of the whole act.v

Second Issue:
Credibility of Complaining Witness

Petitioner faults the Sandiganbayan with inconsistency. Supposedly, while stating on the one hand that
complainant was not a credible witness on account of his character, on the other hand it accorded credibility to
his testimony that petitioner had received the boodle money. Likewise, petitioner adds, the same court found
complainants testimony insufficient to establish Buenafes complicity, yet deemed the same testimony sufficient
to prove petitioners guilt.
The Sandiganbayan findings adverted to are as follows:
While the Court is reluctant to consider this declaration of the offended party as satisfactory proof that the accused
[therein petitioner] requested or demanded x x x the sum of P200,000 not only because it was vehemently denied by the
accused but likewise considering the nature and character x x x [or] person of the said offended party (Exhibit 14 to 18),
we are at a loss why in the ensuing event, particularly in the entrapment laid out by the complainant and the NBI agents,
this accused was present and x x x a brown envelop[e] containing the boodle money was retrieved [from him]. x x x.v
Obviously, the anti-graft court did not tag complainant as a discredited witness. It simply said that his
testimony by itself was not sufficient evidence of the commission of the offense. But, taken together with the
other pieces of corroborating evidence, it established a quantum of evidence strong enough to convict petitioner.
While the case is weakened by the many suits filed for and against complainant, the court a quo did not say that
he was not at all worthy of belief.
We see no cause to fault the lower court. The assessment of the credibility of a witness is primarily the
function of a trial court, which had the benefit of observing firsthand the demeanor or deportment of the
witness. It is well-settled that this Court will not reverse the trial courts assessment of the credibility of
witnesses in the absence of arbitrariness, abuse of discretion or palpable error.v
It is within the discretion of the Sandiganbayan to weigh the evidence presented by the parties, as well as to
accord full faith to those it regards as credible and reject those it considers perjurious or fabricated. v
Petitioner further contends that he tested positive for fluorescent powder, because the NBI agents had
pressed the envelope to his body.
We are not persuaded. Petitioner failed to ascribe to the NBI agents any ill motive to deliberately implicate
him. No malice was imputed, either, to the chemist who had examined and found him positive for the chemical;
thus, we see no cogent reason to disbelieve her testimony. In the absence of any controverting evidence, the
testimonies of public officers are given full faith and credence, as they are presumed to have acted in the regular
performance of their official duties.v

Third Issue:
Right of the Accused to the Equal Protection of the Law

Petitioner asserts that he should be accorded the same treatment and, thus, acquitted because of his right to
the equal protection of the law. After all, the Sandiganbayan believed the testimony of Buenafe that the latter
had not asked for any payoff money; and he was, thus, cleared of the charge against him.
We disagree. Petitioner alludes to the doctrine that if the conviction of the accused rests upon the same
evidence used to convict the co-accused, the acquittal of the former should benefit the latter.v Such doctrine does
not apply to this case. The strongest pieces of evidence against petitioner were the ones obtained from the
entrapment, in which Buenafe was not involved. Hence, the evidence against petitioner and that against his co-
accused were simply not at par with each other.
All in all, petitioner failed to show that Sandiganbayan had committed any reversible error. Quite the
contrary, it had acted judiciously and correctly. Hence, this recourse must fail.
WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution AFFIRMED. Costs
against petitioner.
 SO ORDERED.

G.R. No. 192685 July 31, 2013

OSCAR R. AMPIL, Petitioner,

vs.
THE HON. OFFICE OF THE OMBUDSMAN, POLICARPIO L. ESPENESIN, Registrar, Register of Deeds, Pasig City, FRANCIS
SERRANO, YVONNE S. YUCHENGCO, and GEMA O. CHENG, Respondents.

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

G.R. No. 199115

OSCAR R. AMPIL, Petitioner,

vs.
POLICARPIO L. ESPENESIN, Respondent.

DECISION

PEREZ, J.:

No less than the Constitution maps out the wide grant of investigatory powers to the Ombudsman. 1 Hand in hand with this bestowal, the
Ombudsman is mandated to investigate and prosecute, for and in behalf of the people, criminal and administrative offenses committed
by government officers and employees, as well as private persons in conspiracy with the former.2 There can be no equivocation about
this power-and-duty function of the Ombudsman.

Before us are consolidated petitions separately filed by Oscar R. Ampil (Ampil): (1) one is for certiorari under Rule 65 of the Rules of
Court docketed as G.R. No. 192685; and (2) the other is for review on certiorari under Rule 45 of the Rules of Court docketed as G.R.
No. 199115.

Challenged in the petition for certiorari is the Resolution3 of the Ombudsman in OMB-C-C-07-0444-J, dismissing the criminal complaint
filed by Ampil against respondents Policarpio L. Espenesin (Espenesin), Francis Serrano (Serrano), Yvonne S. Yuchengco
(Yuchengco) and Gema O. Cheng (Cheng), and the Order4 denying Ampil’s motion for reconsideration thereof. Ampil’s complaint
charged respondents with Falsification of Public Documents under Article 171(6) of the Revised Penal Code and violation of Sections
3(a) and (e) of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act, as amended.
The appeal by certiorari, on the other hand, assails the Decision of the Court of Appeals in CA G.R. SP No. 113171, which affirmed the
Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J on the administrative aspect of the mentioned criminal complaint
for Falsification and violation of Republic Act No. 3019 against the Registrar of Deeds, respondent Espenesin. Initially, the Ombudsman
issued a Decision dated 30 April 2008, finding Espenesin guilty of Simple Misconduct and meting on Espenesin the penalty of one (1)
month suspension. On motion for reconsideration of Ampil, the Ombudsman favored Espenesin’s arguments in his Opposition, and
recalled the one-month suspension the Ombudsman had imposed on the latter.

These consolidated cases arose from the following facts.

On 9 November 1995, ASB Realty Corporation (ASB) and Malayan Insurance Company (MICO) entered into a Joint Project
Development Agreement (JPDA) for the construction of a condominium building to be known as "The Malayan Tower." Under the
JPDA, MICO shall provide the real property located at the heart of the Ortigas Business District, Pasig City, while ASB would construct,
and shoulder the cost of construction and development of the condominium building.

A year thereafter, on 20 November 1996, MICO and ASB entered into another contract, with MICO selling to ASB the land it was
contributing under the JPDA. Under the Contract to Sell, ownership of the land will vest on ASB only upon full payment of the purchase
price.

Sometime in 2000, ASB, as part of the ASB Group of Companies, filed a Petition for Rehabilitation with Prayer for Suspension of
Actions and Proceedings before the Securities and Exchange Commission (SEC). As a result, the SEC issued a sixty (60) day
Suspension Order (a) suspending all actions for claims against the ASB Group of Companies pending or still to be filed with any court,
office, board, body, or tribunal; (b) enjoining the ASB Group of Companies from disposing of their properties in any manner, except in
the ordinary course of business, and from paying their liabilities outstanding as of the date of the filing of the petition; and (c) appointing
Atty. Monico V. Jacob as interim receiver of the ASB Group of Companies. 5 Subsequently, the SEC, over the objections of creditors,
approved the Rehabilitation Plan submitted by the ASB Group of Companies, thus:

PREMISES CONSIDERED, the objections to the rehabilitation plan raised by the creditors are hereby considered unreasonable.

Accordingly, the Rehabilitation Plan submitted by petitioners is hereby APPROVED, except those pertaining to Mr. Roxas’ advances,
and the ASB-Malayan Towers. Finally, Interim Receiver Mr. Fortunato Cruz is appointed as Rehabilitation Receiver. 6 (Emphasis
supplied).

Because of the obvious financial difficulties, ASB was unable to perform its obligations to MICO under the JPDA and the Contract to
Sell. Thus, on 30 April 2002, MICO and ASB executed their Third contract, a Memorandum of Agreement (MOA), 7 allowing MICO to
assume the entire responsibility for the development and completion of The Malayan Tower. At the time of the execution of the MOA,
ASB had already paid MICO ₱427,231,952.32 out of the ₱640,847,928.48 purchase price of the realty.8

The MOA specifies the entitlement of both ASB and MICO to net saleable areas of The Malayan Tower representing their investments.
It provides, in pertinent part:

Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party shall be entitled to
such portion of all the net saleable area of the Building that their respective contributions to the Project bear to the actual construction
cost. As of the date of the execution hereof, and on the basis of the total costs incurred to date in relation to the Remaining
Construction Costs (as defined in Section 9(a) hereof), the parties shall respectively be entitled to the following (which entitlement shall
be conditioned on, and subject to, adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost
of construction exceeds the Remaining Construction Cost):

(i) MICO – the net saleable area particularly described in Schedule 2 hereof.

(ii) ASB – the following net saleable area:

(A) the net saleable area which ASB had pre-sold for an aggregate purchase price of ₱640,085,267.30 as
set forth in Schedule 1 (including all paid and unpaid proceeds of said presales);

(B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon
completion of the Project; and,

(C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost,
the net saleable area particularly described in Schedule 4 hereof which shall be delivered to ASB upon
completion of the Project and determination of its actual construction costs. If the actual remaining
construction costs exceed the Remaining Construction Cost, sub-paragraph (b) of this Section 4 shall apply.
 (b) In the event that the actual remaining construction costs exceed the Remaining Construction Cost as represented and
warranted by ASB to MICO under Section 9(a) hereof, and MICO pays for such excess, the pro-rata sharing in the net
saleable area of the Building, as provided in sub-paragraph (a) of this Section 4 shall be adjusted accordingly. In such event,
MICO shall be entitled to such net saleable area in Schedule 4 that corresponds to the excess of the actual remaining cost
over the Remaining Construction Cost.

(c) To ensure the viability of the Project, the parties agree on a single pricing system, which MICO shall have the exclusive
right to fix and periodically adjust based on prevailing market conditions in consultation with, but without need of consent of,
ASB, for each party’s primary sale or other disposition of its share in the net saleable area of the Building. In accordance with
the immediately preceding provision, MICO hereby adopts the selling prices set forth in Schedule 5 hereof. Each party or its
officers, employees, agents or representatives shall not sell or otherwise dispose any share of said party in the net saleable
area of the Building below the prices fixed by MICO in accordance with this Section 4 (c). MICO shall have the exclusive right
to adopt financing and discounting schemes to enhance marketing and sales of units in the Project and such right of MICO
shall not be restricted or otherwise limited by the foregoing single pricing system provision.

(d) Each party shall bear the profits earned and losses incurred as well as any and all taxes and other expenses in connection
with the allocation or sale of, or other transaction relating to, the units allotted to each party.9

On 11 March 2005, Condominium Certificates of Title (CCTs) for 38 units 10 and the allotted parking spaces were issued in the name of
ASB. On even date but prior to its release, another set of CCTs covering the same subject units but with MICO as registered owner
thereof, was signed by Espenesin in his capacity as Registrar of Deeds of Pasig City. Notably, Espenesin had likewise signed the CCTs
which were originally issued in ASB’s name.

On 2 April 2006, counsel for ASB wrote Espenesin calling his attention to the supposed amendment in the CCTs which he had
originally issued in ASB’s name.11 Counsel for ASB demanded that Espenesin effect in the second set of CCTs, the registration of the
subject units in The Malayan Tower back to ASB’s name.

On 17 May 2006, Espenesin replied and explained, thus:

The registration of the Malayan-ASB Realty transaction, from its inception up to the issuance of titles, were all handled by respondent
Atty. Francis Serrano. He therefore appeared and we have considered him the legitimate representative of both parties (sic). His
representation, we gathered, covers the interest of both MICO and ASB in as far as the titling of the condominium units are concerned.

Sometime ago Serrano requested that condominium titles over specified units be issued in consonance with the sharing in the joint
venture MOA. Titles were correspondingly issued as per request, some in the name of MICO and some in the name of ASB. Before its
release to the parties, Atty. Serrano came back and requested that some titles issued in the name of ASB be changed to MICO
because allegedly there was error in the issuance.

Believing it was a simple error and on representation of the person we came to know and considered the representative of both parties,
we erased the name ASB Realty Corporation on those specified titles and placed instead the name Malayan Insurance Company.

To our mind, the purpose was not to transfer ownership but merely to rectify an error committed in the issuance of titles. And since they
were well within our capacity to do, the titles not having been released yet to its owner, we did what we believed was a simple act of
rectifying a simple mistake.12

After learning of the amendment in the CCTs issued in ASB’s name, Ampil, on 23 January 2007, wrote respondents Yuchengco and
Cheng, President and Chief Financial Officer of MICO, respectively, introducing himself as an unsecured creditor of ASB Holdings, Inc.,
one of the corporations forming part of the ASB Group of Companies. 13 Ampil averred that MICO had illegally registered in its name the
subject units at The Malayan Tower which were reserved for ASB under the MOA, and actually, already registered in ASB’s name with
the Register of Deeds of Pasig City. Ampil pointed out that the "condominium units should have benefited him and other unsecured
creditors of ASB because the latter had categorically informed them previously that the same would be contributed to the Asset Pool
created under the Rehabilitation Plan of the ASB Group of Companies." Ultimately, Ampil demanded that Yuchengco and Cheng rectify
the resulting error in the CCTs, and facilitate the registration of the subject units back to ASB’s name.

Respondents paid no heed to ASB’s and Ampil’s demands.

As previously adverted to, Ampil charged respondents with Falsification of Public Documents under Article 171(6) of the Revised Penal
Code and violation of Sections 3(a) and (e) of Republic Act No. 3019 before the Office of the Ombudsman, alleging the following:

1. Respondents, in conspiracy, erased the name of ASB, and intercalated and substituted the name of MICO under the entry
of registered owner in the questioned CCTs covering the subject units of The Malayan Tower;
 2. The alterations were done without the necessary order from the proper court, in direct violation of Section 10814 of
Presidential Decree No. 1529;

3. Respondents violated Article 171(6) of the Revised Penal Code by:

3.1 Altering the CCTs which are public documents;

3.2 Effecting the alterations on genuine documents;

3.3 Changing the meaning of the CCTs with MICO now appearing as registered owner of the subject units in Malayan
Tower; and

3.4 Effectively, making the documents speak something false when ASB is the true owner of the subject units, and
not MICO.

4. Ampil, as unsecured creditor of ASB, was unjustly prejudiced by the felonious acts of respondents;

5. Respondents violated Sections 3(a) and (e) of Republic Act No. 3019:

5.1 Respondent Espenesin, as Registrar of the Pasig City Registry of Deeds, committed an offense in connection
with his official duties by allowing himself to be persuaded, induced or influenced by respondent Serrano into altering
the questioned CCTs; and

5.2 The actions of respondent Espenesin demonstrate manifest partiality, evident bad faith and/or, at the least, gross
inexcusable negligence.

6. Respondents Yuchengco and Cheng, being responsible officers of MICO, as principals by inducement and conspirators of
Espenesin and Serrano, are likewise liable for falsification of the CCTs and violation of Sections 3(a) and (e) of Republic Act
No. 3019.15

As required by the Ombudsman, respondents filed their counter-affidavits: Espenesin and Serrano filed individually, while Yuchengco
and Cheng filed jointly. Respondents’ respective counter-affidavits uniformly denied petitioner’s charges and explicated as follows:

Respondent Espenesin countered, among others, (i) that their intention was only to cause the necessary rectification on certain errors
made on the CCTs in issue; (ii) that since the CCTs were not yet issued and released to the parties, it is still within his authority, as part
of the registration process, to make the necessary amendments or corrections thereon; (iii) that no court order would be necessary to
effect such changes, the CCTs still being within the control of the Register of Deeds and have not yet been released to the respective
owners; (iv) that the amendments were made not for the purpose of falsifying the CCTs in issue but to make the same reflect and
declare the truth; and (v) that he merely made the corrections in accordance with the representations of respondent Serrano who he
believed to be guarding and representing both the interests of MICO and ASB.

Respondent Serrano, on the other hand, argued: (i) that the units in issue are not yet owned by ASB; (ii) that these units were
specifically segregated and reserved for MICO in order to answer for any excess in the estimated cost that it will expend in the
completion of the Malayan Tower; (iii) that ASB is only entitled to these reserved units only after the Malayan Tower is completed and
that the units are not utilized to cover for the increase in the cost expended by MICO pursuant to Section 4(c) of the MOA; (iv) that the
Malayan Tower was still incomplete at the time when the alterations were made on the CCT, hence, the claim of ownership of ASB over
the reserved units is premature and totally baseless; (v) that prior to the fulfillment of the resolutory condition, that is, after the
completion of the Malayan Tower and there remains a balance in the Remaining Construction Cost, the units still rightfully belongs to
MICO; and (vi) that the alteration was made merely for the purpose of correcting an error.

Respondents Cheng and Yuchengco, while adopting the foregoing arguments of Espenesin and Serrano, further averred that: (i) Ampil
has no legal personality to file this suit, he being merely an unsecured creditor of ASB whose interest was not definitively shown to have
been damaged by the subject controversy; (ii) that their participation as respondents and alleged co-conspirators of Serrano and
Espenesin was not clearly shown and defined in the complaint; (iii) the CCTs issued in the name of ASB have not yet been entered in
the Registration Book at the time when the alterations were effected, hence, the same could still be made subject of appropriate
amendments; (iv) that the CCTs in issue named in favor of ASB were mere drafts and cannot legally be considered documents within
the strict definition of the law; (v) that court order authorizing to amend a title is necessary only if the deed or document sought to be
registered has already been entered in the registration book; and (vi) that MICO is the duly registered owner of the land on which
Malayan Tower stands and ASB was merely referred to as the developer. 16

Thereafter, the Ombudsman issued the assailed Resolution in G.R. No. 192685 dismissing Ampil’s complaint. For the Ombudsman, the
resolution of whether respondents falsified the CCTs must be prefaced by a determination of who, between MICO and ASB, is the
rightful owner of the subject units. The Ombudsman held that it had no authority to interpret the provisions of the MOA and, thus,
refrained from resolving the preliminary question of ownership. Given the foregoing, the Ombudsman was hard pressed to make a
categorical finding that the CCTs were altered to speak something false. In short, the Ombudsman did not have probable cause to
indict respondents for falsification of the CCTs because the last element of the crime, i.e., that the change made the document speak
something false, had not been established.

Significantly, the Ombudsman did not dispose of whether probable cause exists to indict respondents for violation of Sections 3(a) and
(e) of Republic Act No. 3019.

Ampil filed a Motion for Reconsideration. However, in yet another setback, the Ombudsman denied Ampil’s motion and affirmed the
dismissal of his complaint.

On the administrative litigation front and as previously narrated, the Ombudsman found Espenesin liable for Simple Misconduct.
However, on motion for reconsideration of Ampil praying for a finding of guilt against Espenesin for Grave Misconduct and Dishonesty,
the Ombudsman reconsidered its earlier resolution and recalled the one-month suspension meted on Espenesin.

Thereafter, Ampil filed a petition for review under Rule 43 of the Rules of Court before the appellate court. And as already stated, the
appellate court affirmed the Ombudsman’s resolution absolving Espenesin of not just Grave Misconduct and Dishonesty, but also of
Simple Misconduct.

Hence, this dual recourse by Ampil: first, alleging grave abuse of discretion in the Ombudsman’s failure to find probable cause to indict
respondents for Falsification of Public Documents under Article 171(6) of the Revised Penal Code, and for their commission of corrupt
practices under

Sections 3(a) and (e) of Republic Act No. 3019; and second, raising grievous error of the Court of Appeals in affirming the
Ombudsman’s absolution of Espenesin from administrative liability.

To obviate confusion, we shall dispose of the first issue, i.e., whether probable cause exists to indict respondents for Falsification of
Public Documents under Article 171(6) of the Revised Penal Code and for their commission of corrupt practices under Sections 3(a)
and (e) of Republic Act No. 3019.

Despite the Ombudsman’s categorical dismissal of his complaint, Ampil is adamant on the existence of probable cause to bring
respondents to trial for falsification of the CCTs, and for violation of Sections 3(a) and (e) of Republic Act No. 3019. In fact, he argues
that Espenesin has been held administratively liable by the Ombudsman for altering the CCTs. At the time of the filing of G.R. No.
192685, the Ombudsman had not yet reversed its previous resolution finding Espenesin liable for simple misconduct. He insists that the
admission by respondents Espenesin and Serrano that they altered the CCTs should foreclose all questions on all respondents’
(Espenesin’s, Serrano’s, Yuchengco’s and Cheng’s) liability for falsification and their commission of corrupt practices, under the
Revised Penal Code and Republic Act No. 3019, respectively. In all, Ampil maintains that the Ombudsman’s absolution of respondents
is tainted with grave abuse of discretion.

G.R. No. 192685 is partially impressed with merit. Accordingly, we find grave abuse of discretion in the Ombudsman’s incomplete
disposition of Ampil’s complaint.

That the Ombudsman is a constitutional officer duty bound to "investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient"17 brooks no objection. The Ombudsman’s conduct of preliminary investigation is both power and duty. Thus, the
Ombudsman and his Deputies, are constitutionalized as protectors of the people, who "shall act promptly on complaints filed in any
form or manner against public officials or employees of the government x x x, and shall, x x x notify the complainants of the action taken
and the result thereof."18

The raison d'être for its creation and endowment of broad investigative authority is to insulate the Office of the Ombudsman from the
long tentacles of officialdom that are able to penetrate judges’ and fiscals’ offices, and others involved in the prosecution of erring public
officials, and through the execution of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and
misfeasances committed by public officers.19

Plainly, the Ombudsman has "full discretion," based on the attendant facts and circumstances, to determine the existence of probable
cause or the lack thereof.20 On this score, we have consistently hewed to the policy of non-interference with the Ombudsman’s exercise
of its constitutionally mandated powers.21 The Ombudsman’s finding to proceed or desist in the prosecution of a criminal case can only
be assailed through certiorari proceedings before this Court on the ground that such determination is tainted with grave abuse of
discretion which contemplates an abuse so grave and so patent equivalent to lack or excess of jurisdiction. 22

However, on several occasions, we have interfered with the Ombudsman’s discretion in determining probable cause:
 (a) To afford protection to the constitutional rights of the accused;

(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

(c) When there is a prejudicial question which is sub judice;

(d) When the acts of the officer are without or in excess of authority;

(e) Where the prosecution is under an invalid law, ordinance or regulation;

(f) When double jeopardy is clearly apparent;

(g) Where the court has no jurisdiction over the offense;

(h) Where it is a case of persecution rather than prosecution;

(i) Where the charges are manifestly false and motivated by the lust for vengeance. 23 (Emphasis supplied).

The fourth circumstance is present in G.R. No. 192685.

While we agree with the Ombudsman’s disquisition that there is no probable cause to indict respondents for Falsification of Public
Documents under Article 171(6) of the Revised Penal Code, we are puzzled why the Ombudsman completely glossed over Ampil’s
charge that respondents committed prohibited acts listed in Sections 3(a) and (e) of Republic Act No. 3019. Nowhere in the Resolution
or in the Order denying reconsideration thereof did the Ombudsman tackle and resolve the issue of whether respondents violated the
particular provisions of Republic Act No. 3019.

Curiously, the Ombudsman docketed Ampil’s complaint-affidavit as one "for: Falsification of Public Documents and Violation of Sections
3(a) and (e) of Republic Act No. 3019, as amended." 24 The Ombudsman even prefaced the Resolution, thus: "this has reference to the
complaint filed by Oscar Ampil on 17 September 2007 against respondents, for Falsification of Public Documents and Violation of
Sections 3, paragraphs (a) and (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as
amended."25

The Ombudsman’s silence on the component anti-graft charges is pointed up by the specific allegations in Ampil’s complaint-affidavit
that:

18. The acts of ATTY. ESPENESIN and his co-conspirators are clear violations of Section 3 paragraph (a) and/or (e) of Republic Act
No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act x x x;

xxxx

19. On the basis of the evidence x x x and the admissions of the conspirators themselves, ATTY. ESPENESIN is liable under both pars.
(a) and (e) thereof or either of the two. By maliciously and feloniously altering the subject CCT’s (sic), contrary to law and to the
prejudice of ASB and Ampil, ATTY. ESPENESIN committed an offense in connection with his official duties and he admitted having
done so in conspiracy with his co-respondents. x x x ATTY. ESPENESIN allowed himself to be persuaded, induced or influenced into
committing such violation or offense which is the substance of par. (a) of RA 3019;

20. In committing such unauthorized and unlawful alterations on the subject CCT’s (sic), ATTY. ESPENESIN caused undue injury to
ASB and to AMPIL as an unsecured creditor, who is ultimately one of the beneficiaries of said CCT from the ASSET POOL created by
the SEC, and gave MICO unwarranted benefits, advantage or preference in the discharge of his official duties as Register of Deeds of
Pasig City. Such acts were admitted by ATTY. ESPENESIN in his letter to ASB x x x. Such acts, taken together with his admission,
indubitably show ATTY. ESPENESIN’s manifest partiality, evident bad faith and/or, at the least, his gross inexcusable negligence in
doing the same;

21. ATTY. ESPENESIN is liable under Section 3 pars. (a) and/or (e) of RA 3019, as well as under Article 171 par. 6 of the RPC. ATTY.
SERRANO, YVONNE S. YUCHENGCO and (sic) GEMMA O. CHENG are also liable for violation of the said provisions of law in
conspiracy with ATTY. ESPENESIN, the latter as a principal via direct participation, ATTY. SERRANO, as principal by inducement and
YUCHENGCO and CHENG, also by inducement, who being responsible officers of MICO ultimately benefited from said unlawful act.26
and the pith of the Resolution which carefully and meticulously dissected the presence of the first three definitive elements of the crime
of falsification under Article 171(6) of the Revised Penal Code:

The first three definitive elements of the crime, albeit present, are defeated by the absence of the fourth.
The respondents readily admitted that an alteration was indeed made on the CCTs in issue allegedly for the purpose of correcting a
mistake in the name of the registered owner of the condominium units involved. Said alteration had obviously changed the tenor of the
CCTs considering that ASB, the initially named owner, was changed into MICO. The first and third elements are undeniably present.

Anent the second element, the respondents argued that the CCTs in issue were mere drafts and are not legally considered "genuine
documents" within the strict definition of the law. Albeit the contention is partially true, no proof has been shown to prove that the CCTs
issued in favor of ASB were mere drafts.

The CCTs of ASB are obviously complete. If we are to compare it with the appearance and contents of the CCTs issued in favor of
MICO, one will notice no definitive difference between the two except that one set was named in favor of ASB and the other set, in favor
of MICO. Nothing is shown that will clearly prove that the former were mere drafts and the latter are the final copies. As far as the
appearance of the CCTs of ASB is concerned, all appear to be complete and genuine. Proof to the contrary must be shown to prove
otherwise.

Delivery of the titles to the named owners is not a pre-requisite before all these CCTs can be legally categorized as genuine
documents. The fact that the same had already been signed by respondent Espenesin in his capacity as Registrar of Deeds of Pasig
City and the notations imprinted thereon appeared to have been entered on March 11, 2005 at 11:55 a.m. at the Registry Books of
Pasig City, the CCTs in issue are bound to be treated as genuine documents drafted and signed in the regular performance of duties of
the officer whose signature appears thereon.27

On the whole, the Ombudsman’s discussion was straightforward and categorical, and ultimately established that Espenesin, at the
urging of Serrano, altered the CCTs issued in ASB’s name resulting in these CCTs ostensibly declaring MICO as registered owner of
the subject units at The Malayan Tower.

Despite the admission by Espenesin that he had altered the CCTs and the Ombudsman’s findings thereon, the Ombudsman abruptly
dismissed Ampil’s complaint-affidavit, resolving only one of the charges contained therein with nary a link regarding the other charge of
violation of Sections 3(a) and (e) of Republic Act No. 3019. Indeed, as found by the Ombudsman, the 4th element of the crime of
Falsification of Public Documents is lacking, as the actual ownership of the subject units at The Malayan Tower has yet to be resolved.
Nonetheless, this circumstance does not detract from, much less diminish, Ampil’s charge, and the evidence pointing to the possible
commission, of offenses under Sections 3(a) and (e) of the Anti-Graft and Corrupt Practices Act.

Sections 3(a) and (e) of Republic Act No. 3019 reads:

Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly
promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense.

xxxx

(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 Section 3(a) of Republic Act No. 3019 are:

(1) the offender is a public officer;

(2) the offender persuades, induces, or influences another public officer to perform an act or the offender allows himself to be
persuaded, induced, or influenced to commit an act;

(3) the act performed by the other public officer or committed by the offender constitutes a violation of rules and regulations
duly promulgated by competent authority or an offense in connection with the official duty of the latter. (Emphasis supplied).

Whereas, paragraph (e) of the same section lists the following elements:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officer’s official, administrative or judicial functions;
 (3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits,
advantage or preference.28

As Registrar of the Registry of Deeds of Pasig City, Espenesin is tasked, among others, to review deeds and other documents for
conformance with the legal requirements of registration. 29 Section 10 of Presidential Decree No. 1529, Amending and Codifying the
Laws Relative to Registration of Property and for Other Purposes provides:

Section 10. General functions of Registers of Deeds. – The office of the Register of Deeds constitutes a public repository of records of
instruments affecting registered or unregistered lands and chattel mortgages in the province or city wherein such office is situated.

It shall be the duty of the Register of Deeds to immediately register an instrument presented for registration dealing with real or
personal property which complies with all the requisites for registration. He shall see to it that said instrument bears the proper
documentary and science stamps and that the same are properly cancelled. If the instrument is not registerable, he shall forthwith deny
registration thereof and inform the presentor of such denial in writing, stating the ground or reason therefore, and advising him of his
right to appeal by consulta in accordance with Section 117 of the Decree.

Most importantly, a Registrar of the Registry of Deeds is charged with knowledge of Presidential Decree No. 1529, specifically Sections
5730 and 108.31

In the instant case, the elements of the offenses under Sections 3(a) and (e) of Republic Act No. 3019, juxtaposed against the functions
of a Registrar of the Registry of Deeds establish a prima facie graft case against Espenesin and Serrano only. Under Section 3(a) of
Republic Act No. 3019, there is a prima facie case that Espenesin, at the urging of Serrano, allowed himself to be persuaded to alter
the CCTs originally issued in ASB’s name, against the procedure provided by law for the issuance of CCTs and registration of property.
In addition, under Section 3(e) of the same law, there is likewise a prima facie case that Espenesin, through gross inexcusable
negligence, by simply relying on the fact that all throughout the transaction to register the subject units at The Malayan Tower he liaised
with Serrano, gave MICO an unwarranted benefit, advantage or preference in the registration of the subject units.

In Sison v. People of the Philippines, we expounded on Section 3(e) of Republic Act No. 3019:

The third element of Section 3 (e) of RA 3019 may be committed in three ways, i.e., through manifest partiality, evident bad faith or
gross inexcusable negligence. Proof of any of these three in connection with the prohibited acts mentioned in Section 3(e) of RA 3019
is enough to convict.

Explaining what "partiality," "bad faith" and "gross negligence" mean, we held:

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they
are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross
negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as
other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own
property."

In the instant case, petitioner was grossly negligent in all the purchases that were made under his watch. Petitioner’s admission that the
canvass sheets sent out by de Jesus to the suppliers already contained his signatures because he pre-signed these forms only proved
his utter disregard of the consequences of his actions. Petitioner also admitted that he knew the provisions of RA 7160 on personal
canvass but he did not follow the law because he was merely following the practice of his predecessors. This was an admission of a
mindless disregard for the law in a tradition of illegality. This is totally unacceptable, considering that as municipal mayor, petitioner
ought to implement the law to the letter. As local chief executive, he should have been the first to follow the law and see to it that it was
followed by his constituency. Sadly, however, he was the first to break it.

Petitioner should have complied with the requirements laid down by RA 7160 on personal canvass, no matter how strict they may have
been. Dura lex sed lex. The law is difficult but it is the law. These requirements are not empty words but were specifically crafted to
ensure transparency in the acquisition of government supplies, especially since no public bidding is involved in personal canvass. Truly,
the requirement that the canvass and awarding of supplies be made by a collegial body assures the general public that despotic,
irregular or unlawful transactions do not occur. It also guarantees that no personal preference is given to any supplier and that the
government is given the best possible price for its procurements.

The fourth element is likewise present. While it is true that the prosecution was not able to prove any undue injury to the government as
a result of the purchases, it should be noted that there are two ways by which Section 3(e) of RA 3019 may be violated—the first, by
causing undue injury to any party, including the government, or the second, by giving any private party any unwarranted benefit,
advantage or preference. Although neither mode constitutes a distinct offense, an accused may be charged under either mode or both.
The use of the disjunctive "or’ connotes that the two modes need not be present at the same time. In other words, the presence of one
would suffice for conviction.

Aside from the allegation of undue injury to the government, petitioner was also charged with having given unwarranted benefit,
advantage or preference to private suppliers. Under the second mode, damage is not required.

The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate
reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some
course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.

In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the
exercise of his official, administrative or judicial functions. Petitioner did just that. The fact that he repeatedly failed to follow the
requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or preference was given to the winning
suppliers. These suppliers were awarded the procurement contract without the benefit of a fair system in determining the best possible
price for the government. The private suppliers, which were all personally chosen by respondent, were able to profit from the
transactions without showing proof that their prices were the most beneficial to the government. For that, petitioner must now face the
consequences of his acts.32 (Emphasis supplied).

We stress that the Ombudsman did not find probable cause to indict respondents for falsification simply because the Ombudsman
could not categorically declare that the alteration made the CCT speak falsely as the ownership of the subject units at The Malayan
Tower had yet to be determined. However, its initial factual findings on the administrative complaint categorically declared, thus:

x x x Espenesin justified his action by asseverating that since the CCTs were still under the possession and control of the Register of
Deeds and have not yet been distributed to the owners, amendments can still be made thereon.

It is worthy to note that the CCTs of ASB, at the time when the amendment was made, were obviously complete. From its face, we can
infer that all have attained the character of a binding public document. The signature of Espenesin is already affixed thereon, and on its
face, it was explicitly declared that the titles have already been entered in the Registration Book of the Register of Deeds of Pasig City
on March 11, 2005 at 11:55 a.m. Allegations to the contrary must be convincingly and positively proven, otherwise, the presumption
holds that the CCTs issued in the name of ASB were regular and the contents thereon binding.

Stated in a different light, delivery of the titles to the named owners is not a pre-requisite before all these CCTs can be legally
categorized as genuine documents. The fact that the same had already been signed by x x x Espenesin in his capacity as Register of
Deeds of Pasig City and the notations imprinted thereon appeared to have been entered on March 11, 2005 at 11:55 a.m. at the
Registry Books of Pasig City, the CCTs in issue are bound to be treated as genuine documents drafted and signed in the regular
performance of duties of the officer whose signature appears thereon. The law has made it so clear that it is the entry of the title in the
Registration Book that controls the discretion of the Register of Deeds to effect the necessary amendments and not the actual delivery
of the titles to the named owners.

This being the case, strict compliance with the mandates of Section 108 of P.D. 1529 is strictly called for. The provision is clear that
upon entry of a certificate of title (which definitely includes Condominium Certificate of Title) attested to by the Register of Deeds, no
amendment shall be effected thereon except upon lawful order of the court.

In the instant case, it became obvious that after the CCTs of ASB were entered in the Registration Book on March 11, 2005 at exactly
11:55 a.m., the notations thereon were thereafter amended by Espenesin when Atty. Serrano purportedly informed him of the alleged
error inscribed therein. The proper remedy that should have been undertaken by Espenesin soon after he was informed of the error is
to either initiate the appropriate petition himself or to suggest to the parties to the MOA to file said petition in court for the amendment of
the CCTs. An amendment by way of a shortcut is not allowed after entry of the title in the Registration Book.

xxxx

If the Regional Trial Court sitting as a land registration court is not legally authorized to determine the respective rights of the parties to
the MOA when deciding on the petition for amendment and cancellation of title, all the more with the Registrar of Deeds who is legally
not empowered to make such determination and to cause an automatic amendment of entries in the Registration Book on the basis of
his unauthorized determination.

Espenesin’s liability is grounded on the untimely and unauthorized amendment of the CCTs in issue. This is regardless of whether the
amendment had made the CCTs speak of either a lie or the truth. What defines his error is his inability to comply with the proper
procedure set by law.33 (Emphasis supplied).

We likewise stress that the determination of probable cause does not require certainty of guilt for a crime. As the term itself implies,
probable cause is concerned merely with probability and not absolute or even moral certainty; 34 it is merely based on opinion and
reasonable belief.35 It is sufficient that based on the preliminary investigation conducted, it is believed that the act or omission
complained of constitutes the offense charged. Well-settled in jurisprudence, as in Raro v. Sandiganbayan, 36 that:

x x x Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.37

Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of facts in the prosecutor's
mind as would lead a person of ordinary caution and prudence to believe — or entertain an honest or strong suspicion — that it is so.38

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is
enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither
on evidence establishing absolute certainty of guilt. 39

A finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge. 40

A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable
belief. x x x Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. 41 (Emphasis
and italics supplied).

In this instance, Espenesin explains and categorically admits that he altered, nay corrected, 38 certificates of title which we again
reproduce for easy reference:

Sometime ago Serrano requested that condominium titles over specified units be issued in consonance with the sharing in the joint
venture MOA. Titles were correspondingly issued as per request, some in the name of MICO and some in the name of ASB. Before its
release to the parties, Atty. Serrano came back and requested that some titles issued in the name of ASB be changed to MICO
because allegedly there was error in the issuance.

Believing it was a simple error and on representation of the person we came to know and considered the representative of both parties,
we erased the name ASB Realty Corporation on those specified titles and placed instead the name Malayan Insurance Company.

To our mind, the purpose was not to transfer ownership but merely to rectify an error committed in the issuance of titles. And since they
were well within our capacity to do, the titles not having been released yet to its owner, we did what we believed was a simple act of
rectifying a simple mistake.42

The letter of Espenesin itself underscores the existence of a prima facie case of gross negligence:

1. Serrano transacted the registration of the units in The Malayan Tower with the Office of the Register of Deeds, Pasig City;

2. Serrano had previously presented a joint venture agreement, the MOA, which Espenesin followed in the initial preparation
and issuance of the titles;

3. Before some CCTs initially issued in ASB’s name were released, Serrano returned and requested that some titles issued in
the name of ASB be changed to MICO because those titles were supposedly erroneously registered to ASB; and

4. Just on Serrano’s utterance and declaration which Espenesin readily believed because he considered Serrano the
representative of both parties, and without any other documentation to base the amendment on, Espenesin erased the name
of ASB on those specified titles and replaced it with the name of MICO.

Espenesin, a Registrar of Deeds, relied on Serrano’s word alone that a supposed error has been committed. Even if ownership of the
units covered by the amended CCTs has not been categorically declared as ASB’s given the ongoing dispute between the parties, the
MOA which Espenesin had previously referred to, allocates those units to ASB:

Section 4. Distribution and Disposition of Units. (a) As a return of its capital investment in the Project, each party shall be entitled to
such portion of all the net saleable area of the Building that their respective contributions to the Project bear to the actual construction
cost. As of the date of the execution hereof, and on the basis of the total costs incurred to date in relation to the Remaining
Construction Costs (as defined in Section 9(a) hereof), the parties shall respectively be entitled to the following (which entitlement shall
be conditioned on, and subject to, adjustments as provided in sub-paragraph (b) of Section 4 in the event that the actual remaining cost
of construction exceeds the Remaining Construction Cost):

(i) MICO – the net saleable area particularly described in Schedule 2 hereof.

(ii) ASB – the following net saleable area:

(A) the net saleable area which ASB had pre-sold for an aggregate purchase price of ₱640,085,267.30 as set forth in
Schedule 1 (including all paid and unpaid proceeds of said pre-sales);

(B) the net saleable area particularly described in Schedule 3 hereof which shall be delivered to ASB upon completion of the
Project; and,

(C) provided that the actual remaining construction costs do not exceed the Remaining Construction Cost, the net saleable
area particularly described in Schedule 4 hereof which shall be delivered to ASB upon completion of the Project and
determination of its actual construction costs. If the actual remaining construction costs exceed the Remaining Construction
Cost, sub-paragraph (b) of this Section 4 shall apply.43

The MOA even recognizes and specifies that:

E. ASB has pre-sold a number of condominium units in the Project to certain buyers as set forth in Schedule 1 hereof, and in order to
protect the interests of these buyers and preserve the interest in the Project, the goodwill and business reputation of Malayan, Malayan
has proposed to complete the Project, and ASB has accepted such proposal, subject to the terms and conditions contained herein,
including the contribution to the Project (a) by Malayan of the Lot and (b) by ASB of its interest as buyer under the Contract to Sell.

xxxx

Section 3. Recognition of ASB’s Investment. The parties confirm that as of the date hereof, ASB invested in the Project an amount
equivalent to its entitlement to the net saleable area of the Building under Section 4 below, including ASB’s interest as buyer under the
Contract to Sell.44

One fact deserves emphasis. The ownership of the condominium units remains in dispute and, by necessary inference, does not lie as
well in MICO. By his baseless reliance on Serrano’s word and representation, Espenesin allowed MICO to gain an unwarranted
advantage and benefit in the titling of the 38 units in The Malayan Tower.

That a prima facie case for gross negligence amounting to violation of Sections 3(a) and (e) of Republic Act No. 3019 exists is amply
supported by the fact that Espenesin disregarded the well-established practice necessitating submission of required documents for
registration of property in the Philippines:

Documents Required for Registration of Real Property with the Register of Deeds:

1. Common Requirements

o Original copy of the Deed or Instrument (Original Copy + 2 duplicate copies)If the original copy cannot be produced, the
duplicate original or certified true copy shall be presented accompanied with a sworn affidavit executed by the interested party
why the original copy cannot be presented.

o Owner’s copy of the Certificate of Title or Co-owner’s copy if one has been issued. (Original Copy + 2 duplicate copies)

o Latest Tax Declaration if the property is an unregistered land. (Original Copy + 2 duplicate copies)

2. Specific Requirements

1. Deed of Sale/Transfer

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 For Corporation

1. Secretary’s Certificate or Board Resolution to Sell or Purchase (Original Copy + Duplicate Copy)
 2. Articles of Incorporation (for transferee corporation) (1 Certified Copy of the Original)

3. Certificate of the Securities and Exchange Commission (SEC) that the Articles of Incorporation had been
registered . (1 Certified Copy of the Original)

4. For Condominium or Condominium Certificate of Transfer, affidavit/certificate of the Condominium Corporation that
the sale/transfer does not violate the 60-40 rule.(Original Copy + 1 Duplicate Copy)

5. Subsequent transfer of CCT requires Certificate of the Condominium Management. (Original Copy)

6. Sale by a Corporation Sole, court order is required.(Original copy of the Court Order)

Additional Requirements

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11. Condominium Projects

 Master Deed (Original Copy + 1 Duplicate Copy)

 Declaration of Restriction (Original Copy + 1 Duplicate Copy)

 Diagrammatic Floor Plan (Original Copy + 1 Duplicate Copy)

If the Condominium Certificate of Title is issued for the first time in the name of the registered owner, require the following:

o Certificate of Registration with the Housing and Land Use Regulatory Board (Original Copy + 1 Duplicate Copy)

o Development Permit (Original Copy + 1 Duplicate Copy)

o License to Sell (Original Copy + 1 Duplicate Copy)45

Espenesin, by his own explanation, relied on nothing more than Serrano, who he "came to know and considered as representative of
both parties," and Serrano’s interpretation of the MOA that Serrano had brought with him.

On the whole, there is sufficient ground to engender a well-founded belief that respondents Espenesin and Serrano committed
prohibited acts listed in Sections 3(a) and (e) of Republic Act No. 3019.

As regards Yuchengco and Cheng, apart from Ampil’s general assertions that the two, as officers of MICO, benefited from the alteration
of the CCTs, there is a dearth of evidence pointing to their collective responsibility therefor. While the fact of alteration was admitted by
respondents and was affirmed in the Ombudsman’s finding of fact, there is nothing that directly links Yuchengco and Cheng to the act.

We are aware that the calibration of evidence to assess whether a prima facie graft case exists against respondents is a question of
fact. We have consistently held that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of
certiorari where neither questions of fact nor law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of
discretion.46 In this case, however, certiorari will lie, given that the Ombudsman made no finding at all on respondents possible liability
for violation of Sections 3(a) and (e) of Republic Act No. 3019.

We hasten to reiterate that we are only dealing herein with the preliminary investigation aspect of this case. We do not adjudge
respondents’ guilt or the lack thereof. The assertions of Espenesin and Serrano on the former’s good faith in effecting the alteration and
the pending arbitration case before the Construction Industry Arbitration Commission involving the correct division of MICO’s and ASB’s
net saleable areas in The Malayan Tower are matters of defense which they should raise during trial of the criminal case.

As regards the administrative liability of Espenesin, the basic principle in the law of public officers is the three-fold liability rule, which
states that the wrongful acts or omissions of a public officer, Espenesin in these cases, may give rise to civil, criminal and administrative
liability. An action for each can proceed independently of the others. 47

On this point, we find that the appellate court erred when it affirmed the Ombudsman’s last ruling that Espenesin is not administratively
liable.
Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence
by a public officer.48

In Grave Misconduct, as distinguished from Simple Misconduct, the elements of corruption, clear intent to violate the law or flagrant
disregard of established rules, must be manifest49 and established by substantial evidence. Grave Misconduct necessarily includes the
lesser offense of Simple Misconduct.50 Thus, a person charged with Grave Misconduct may be held liable for Simple Misconduct if the
misconduct does not involve any of the elements to qualify the misconduct as grave.51

In (G.R. No. 199115), the elements particular to Grave Misconduct are, by the Ombudsman’s own finding, present. Corruption, as an
element of Grave Misconduct, consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or
character to procure some benefit for himself or for another person, contrary to duty and the rights of others. 52 This has already been
demonstrated as discussed above. And, there is here a manifest disregard for established rules on land registration by a Register of
Deeds himself. As he himself admits in his letter, Espenesin erased the name of ASB on the specified CCTs because he believed that
Serrano’s request for the re-issuance thereof in MICO’s name constituted simple error.

Section 108 of Presidential Decree No. 1529 provides:

Section 108. Amendment and alteration of certificates. No erasure, alteration, or amendment shall be made upon the registration book
after the entry of a certificate of title or of a memorandum thereon and the attestation of the same be Register of Deeds, except by order
of the proper Court of First Instance. A registered owner of other person having an interest in registered property, or, in proper cases,
the Register of Deeds with the approval of the Commissioner of Land Registration, may apply by petition to the court upon the ground
that the registered interests of any description, whether vested, contingent, expectant or inchoate appearing on the certificate, have
terminated and ceased; or that new interest not appearing upon the certificate have arisen or been created; or that an omission or error
was made in entering a certificate or any memorandum thereon, or, on any duplicate certificate; or that the same or any person on the
certificate has been changed; or that the registered owner has married, or, if registered as married, that the marriage has been
terminated and no right or interests of heirs or creditors will thereby be affected; or that a corporation which owned registered land and
has been dissolved has not convened the same within three years after its dissolution; or upon any other reasonable ground; and the
court may hear and determine the petition after notice to all parties in interest, and may order the entry or cancellation of a new
certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms and conditions,
requiring security or bond if necessary, as it may consider proper; Provided, however, That this section shall not be construed to give
the court authority to reopen the judgment or decree of registration, and that nothing shall be done or ordered by the court which shall
impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs and assigns, without his or
their written consent. Where the owner's duplicate certificate is not presented, a similar petition may be filed as provided in the
preceding section.

The foregoing clearly speaks of a court order prior to any erasure, alteration or amendment upon a certificate of title.

In reversing its prior ruling, the Ombudsman cavalierly dismisses the fact of Espenesin already signing the CCTs issued in ASB’s name
as "only a part of the issuance process because the final step in the titling procedure is indeed the release of the certificate of title."53
The Ombudsman further ruled:

Considering that prior to the release of titles, Espenesin merely rectified what was represented to this office as error in the preparation
of typing or the certificates, hence, it is wrong to subject him to an administrative sanction. This is bolstered by the fact that, at the time
of release (and perhaps even up to the present time), there was no final determination yet from the land registration court as to who has
a better right to the property in question.54 (Emphasis supplied).

This statement of the Ombudsman is virtually a declaration of Espenesin’s misconduct. It highlights Espenesin’s awareness and
knowledge that ASB and MICO are two different and separate entities, albeit having entered into a joint venture for the building of "The
Malayan Tower."

As Registrar of Deeds, Espenesin was duty bound to inquire and ascertain the reason for Serrano’s new instruction on those specific
set of CCTs and not just heed Serrano’s bidding. He heads the Office of Register of Deeds which is constituted by law as "a public
repository of records of instruments affecting registered or unregistered lands x x x in the province or city wherein such office is
situated." He should not have so easily taken Serrano’s word that the amendment Serrano sought was to correct simple and innocuous
error. Espenesin could have then easily asked, as he is obliged to, for a contract or an authenticated writing to ascertain which units
and parking slots were really allotted for ASB and MICO. His actions would then be based on what is documented and not merely by a
lame claim of bona fides mistake.

Moreover, Espenesin was previously presented a MOA, and consulted this same MOA, in the initial preparation and issuance of the 38
CCTs in ASB’s name. Certainly, a Registrar of Deeds who is required by law to be a member of the legal profession,55 possesses
common sense and prudence to ask for documents on which to base his corrections. Reliance on the mere word of even the point
person for the transaction, smacks of gross negligence when all transactions with the Office of the Register of Deeds, involving as it
does registration of property, ought to be properly recorded and documented.
That the Office of the Register of Deeds requires documentation in the registration of property, whether as an original or a subsequent
registration, brooks no argument. Again, and it cannot be overlooked that, Espenesin initially referred to a MOA albeit Serrano worked
on the registration transaction for both ASB and MICO. Subsequently, Serrano returns, bearing ostensible authority to transact even for
ASB, and Espenesin fails to ask for documentation for the correction Serrano sought to be made, and simply relies on Serrano’s word.

We are baffled by the Registrar of Deeds’ failure to require documentation which would serve as his basis for the correction. The
amendment sought by Serrano was not a mere clerical change of registered name; it was a substantial one, changing ownership of 38
units in The Malayan Tower from one entity, ASB, to another, MICO. Even just at Serrano’s initial request for correction of the CCTs, a
red flag should have gone up for a Registrar of Deeds. 1âwphi1

Espenesin splits hairs when he claims that it is "in the Registration Book where the prohibition to erase, alter, or amend, without court
order, applies." We disagree with Espenesin. Chapter IV on Certificate of Title of Presidential Decree No. 1529, 56 specifically Sections
40, 42 and 43 belie the claim of Espenesin:

Section 40. Entry of Original Certificate of Title. Upon receipt by the Register of Deeds of the original and duplicate copies of the original
certificate of title the same shall be entered in his record book and shall be numbered, dated, signed and sealed by the Register of
Deeds with the seal of his office. Said certificate of title shall take effect upon the date of entry thereof. The Register of Deeds shall
forthwith send notice by mail to the registered owner that his owner's duplicate is ready for delivery to him upon payment of legal fees.

Section 42. Registration Books. The original copy of the original certificate of title shall be filed in the Registry of Deeds. The same shall
be bound in consecutive order together with similar certificates of title and shall constitute the registration book for titled properties.

Section 43. Transfer Certificate of Title. The subsequent certificate of title that may be issued by the Register of Deeds pursuant to any
voluntary or involuntary instrument relating to the same land shall be in like form, entitled "Transfer Certificate of Title", and likewise
issued in duplicate. The certificate shall show the number of the next previous certificate covering the same land and also the fact that it
was originally registered, giving the record number, the number of the original certificate of title, and the volume and page of the
registration book in which the latter is found.

Recording or entry of the titles, whether an original or a subsequent transfer certificate of title in the record, is simultaneous with the
signing by the Register of Deeds. The signature on the certificate by the Registrar of Deeds is accompanied by the dating, numbering
and sealing of the certificate. All these are part of a single registration process. Where there has been a completed entry in the Record
Book, as in this case where the Ombudsman found that "the signature of Espenesin is already affixed on the CCTs, and on its face, it
was explicitly declared that the titles have already been entered in the Registration Book of the Register of Deeds of Pasig City on
March 11, 2005 at 11:55 a.m.," the Register of Deeds can no longer tamper with entries, specially the very name of the titleholder. The
law says that the certificate of title shall take effect upon the date of entry thereof.

To further drive home the point, as Registrar of Deeds, Espenesin knew full well that "there is no final determination yet from the land
registration court as to who has a better right to the property in question." Espenesin’s attempt to minimize the significance of a
Registrar of Deed’s signature on a CCT only aggravates the lack of prudence in his action. The change in the titleholder in the CCTs
from ASB to MICO was an official documentation of a change of ownership. It definitely cannot be characterized as simple error.

Grave misconduct, of which Espenesin has been charged, consists in a public officer’s deliberate violation of a rule of law or standard
of behavior. It is regarded as grave when the elements of corruption, clear intent to violate the law, or flagrant disregard of established
rules are present.57 In particular, corruption as an element of grave misconduct consists in the official’s unlawful and wrongful use of his
station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.58

In sum, the actions of Espenesin clearly demonstrate a disregard of well-known legal rules.59 The penalty for Grave Misconduct is
dismissalfrom service with the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, and perpetual
disqualification from reemployment in the government service, including government-owned or controlled corporation.60

WHEREFORE, the petition in G.R. No. 192685 is PARTIALLY GRANTED. The Resolution of the Ombudsman dated 30 April 2008 in
OMB-C-C-07-0444-J is REVERSED and SET ASIDE. The Ombudsman is hereby directed to file the necessary Information for violation
of Sections 3(a) and (e) of Republic Act No. 3019 against public respondent Policarpio L. Espenesin and private respondent Francis
Serrano.

The petition in G.R. No. 199115 is GRANTED. The Decision of the Court of Appeals dated 28 September 2011 in CA-G.R. SP No.
113171 and the Order dated 13 July 2009 of the Ombudsman in OMB-C-A-07-0474-J are REVERSED and SET ASIDE. Respondent
Policarpio L. Espenesin is GUlLTY of Grave Misconduct and we, thus, impose the penalty of DIMISSAL from service. However, due to
his retirement from the service, we order forfeiture of all his retirement pay and benefits.

SO ORDERED.
G.R. No. 93885 May 14, 1991

FELIX H. CABELLO, petitioner,

vs.
SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, respondents.

Jurado Law Office for petitioner.

REGALADO, J.:

In this petition for review on certiorari, petitioner argues for the reversal of respondent court's decision in Criminal Case No. 12244,
1

dated June 28, 1990, convicting him of the crime of malversation of public funds penalized under Article 217 of the Revised Penal
Code.

As found by respondent court, petitioner, in his official capacity as postmaster of San Juan, Southern Leyte, was audited of his cash
and accounts for the period from August 29, 1984 to May 28, 1985. The audit examination disclosed that petitioner incurred a shortage
of P160,905.63. Required to produce immediately the missing funds and to explain in writing within seventy-two (72) hours the fact of
shortage, petitioner neither restituted the missing sum nor made any written explanation. 2

As a consequence, petitioner was charged with malversation of public funds before respondent Sandiganbayan, allegedly committed as
follows.

That on or about May 28, 1985, and for sometime prior thereto, in the Municipality of San Juan, Province of Southern
Leyte, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, as Postmaster of
said municipality, and as such accountable for the public funds collected and received by reason of his position, in the
way of fees, charges and stamps, wilfully, unlawfully and feloniously and with grave abuse of confidence did then and
there misappropriate, misapply, embezzle and convert to his own personal use and benefit from said funds in the
total amount of P 160,905.63, Philippine Currency, to the damage and prejudice of public interest. 3

Arraigned on May 4, 1989, with the assistance of counsel, petitioner pleaded not guilty to the crime charged. After trial, however,
respondent Sandiganbayan rendered a judgment of conviction, the decretal portion of which reads:
 WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Felix H. Cabello GUILTY
as principal of the crime of malversation of public funds defined and penalized under Article 217 of the Revised Penal
Code. Absent any mitigating or aggravating circumstances, and applying the Indeterminate Sentence Law, he is
hereby sentenced to an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor, as
minimum, to EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, to
suffer perpetual special disqualification, to pay a fine of P160,905.63 and to indemnify the Government in the said
aforesaid sum of P160,905.63. Costs against the accused. 4

Petitioner has now come before us with the postulate that he cannot be convicted of intentional malversation since there is no evidence
showing that he appropriated the funds for his personal use. While the failure of an accountable public officer to have duly forthcoming
any public fund or property with which he is chargeable upon demand by any duly authorized officer is prima facie evidence that the
former has put such fund or property to his personal use, petitioner contends that he has sufficiently overthrown said presumption by
his account of the items for which the funds were supposedly expended, to wit:
1âw phi1

1 Personal "vales" of postal employees 128,182.77

2 "Vales" for food, drinks, office

supplies and other miscellaneous items 8,725.30

3 Unremitted collections for the use of

Postage Meter Machine 19,295.76

4 Unreimbursed travel allowance 2,325.19

5 Stale checks 2,364.07

TOTAL 160,893.07

Corollarily, petitioner argues that he can neither be convicted of malversation through negligence since the information does not charge
such mode of commission, hence "(o)f that mode of committing malversation, he was not legally informed." He theorizes that an
accused charged with intentional malversation cannot be convicted of malversation through negligence. 5

We find petitioner's contentions devoid of merit. His present recourse must fail.

Article 217 of the Revised Penal Code provides that any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, shall be guilty of the misappropriation
or malversation of such funds or property. It further declares that the failure of that public officer to have duly forthcoming said public
funds or property, upon demand by any duly authorized officer, shall be prima facie evidence that he has put the same to personal use.

Malversation may thus be committed either through a positive act of misappropriation of public funds or property of passively through
negligence by allowing another to commit such misappropriation. Nonetheless, all that is necessary to prove in both acts are the
following: (a) that the defendant received in his possession public funds or property (b) that he could not account for them and did not
have them in his possession when audited; and (c) that he could not give a satisfactory or reasonable excuse for the disappearance of
said funds or property. An accountable officer may thus be convicted of malversation even if there is no direct evidence of
misappropriation and the only evidence is that there is a shortage in the officer's accounts which he has not been able to explain
satisfactorily.
6

There is no dispute that the presumption of malversation under said Article 217 of the Code is merely prima facie and rebuttable; and,
in line with the cases of Villacorta vs. People of the Philippines, et al., and Quizo vs. Sandiganbayan, et al., the presumption is deemed
7 8

overthrown if the accountable public officer satisfactorily proves that not a single centavo of the missing funds was used by him for his
personal interest but that the funds were extended as cash advances to co-employees in good faith, in the belief that they were for
legitimate purposes, with no intent to gain and out of goodwill considering that it was a practice tolerated in the office.

It must be borne in mind, however, that the circumstances obtaining in the said cases do not obtain in the one at bar as to warrant the
application of the doctrine therein laid down. As pointed out by respondent court, in the aforesaid two cases there was full restitution
made within a reasonable time while in the instant case there was none, a distinguishing feature we also took into consideration in
Mahinay vs. Sandiganbayan, et al, in convicting the accused therein.
9

Thus, in Villacorta this court found that the cash in the possession of the accused therein was found short because of the disallowance
by the audit team. The items comprising the shortage were paid to government personnel either as wages, travelling expenses,
salaries, living allowances, commutations of leave, terminal leaves and for supplies. The accused therein did not put the missing funds
to personal use; in fact, when he demanded payment from said personnel, they redeemed their chits and made restitution.
Furthermore, at the time of the audit, the accused had an actual balance deposit with the provincial treasurer in the sum of P64,661,75.

In Quizo the therein accused incurred a shortage in the total sum of P17,421.74 because the audit team disallowed P16,720.00 in cash
advances he granted to some employees, P700.00 representing accommodated private checks, and an actual cash shortage of P1.74.
On the same day when the audit was conducted, P406.18 was reimbursed by the accused, P10,515.56 three days thereafter and the
balance of P6,500.00 another three days later. This Court, in a spirit of leniency, held that the accused had successfully overthrown the
presumption of guilt. None of the funds was used by him for his personal interest. The reported shortage represented cash advances
given in good faith and out of goodwill to co-employees, the itemized list of which cash advances was verified to be correct by the audit
examiner. There was no negligence, malice or intent to defraud; and the actual cash shortage was only P1.74 which, together with the
disallowed items, was fully restituted within a reasonable time.1âwphi 1

While we do not wish it to appear that the mere fact of restitution suffices to exculpate an accountable public officer, as each case
should be decided on the basis of the facts thereof, it appears that the Court was of the persuasion that the confluence of the
circumstances in the Villacorta and Quizo cases destroyed the prima facie presumption of peculation and criminal intent provided for in
said Article 217. In the case at bar, petitioner has failed to prove good and valid reasons for his failure to justify how the amount of
P160,905.63 was spent, aside from the fact that the same remains unpaid. He cannot exculpate himself on the bare asseveration that
most of the missing funds were "vales'' to postal personnel since he was thoroughly aware that the giving of such "vales" was violative
of post office rules and regulations. Indeed, that a stringent application of such proscription be imposed on accountable public officers is
indicated and the rule extending favorable consideration whenever restitution is made should be reassessed.

Respondent court categorically found that petitioner knew that his granting of "chits" and "vales" which constituted the bulk of the
shortage, as earlier shown in the itemization thereof, was a violation of the postal rules and regulations. This is confirmed by petitioner's
own memorandum to his employees exhorting them to pay their cash advances and stressing that the practice indeed constituted such
violation. As further pointed out by respondent court, such practice is also prohibited by Memorandum Circular No. 570, dated June 29,
1968, of the General Auditing Office of which fact petitioner could not be unaware. Parenthetically, in the course of the audit, petitioner
10

merely gave the audit team a typewritten list of letter carriers with "vales" and the corresponding amounts thereof, but he did not
produce the "vales" and "chits" he claimed to have in his possession. 11

It is also noteworthy that giving "vales" is proscribed under Presidential Decree No. 1445, otherwise known as the Government Auditing
Code of the Philippines, specifically Section 69 thereof, which provides that postmasters are only allowed to use their collections to pay
money orders, telegraphic transfers and withdrawals from the proper depository bank whenever their cash advances for the purpose
are exhausted. And, as held in Macarampat vs. Sandiganbayan, et al.: 12

As an accountable officer, the accused cannot profess ignorance of the above-cited rules and regulations for it is
required that he must update his knowledge with whatever laws or any memorandum circular that may be issued by
the Commission on Audit as he has to deal from time to time with its auditors especially in the audit of his cash and
accounts.

We find this disquisition of respondent court on the unaccounted collections for the use of the postage meter machine sufficient to hold
petitioner personally liable:

Regarding the collections for the use of the Postage Meter Machine that were unaccounted for, the accused cannot
avoid responsibility therefor on the pretext that the collections were made when he was on official travel and that the
designated stamp tellers spent the amounts for their personal needs instead of turning them over to him. As
Postmaster and Accountable Officer of the Post Office—

. . . he was responsible for all the collections made by the [Court]. Any loss or shortage resulting from non-
remittance, unlawful deposit or mis-application thereof, whether he has a hand or not, shall be for his
account. It is not an excuse that his designated collection clerk was the one who failed to remit the
questioned amount on time because it is incumbent upon him to exercise the strictest supervision on the
person he designated, otherwise, he would suffer the consequences of the acts of his designated employee
through negligence. (Office of the Court Administrator vs. Soriano, Adm. Matter No. 2864-P, May 16, 1985,
136 SCRA 461, 464, 13

As earlier mentioned, petitioner insists that he cannot be convicted of intentional malversation on the basis of the evidence of the
prosecution, nor can he be convicted of malversation through negligence as he is not so charged in the information.

Rejoining thereto, the Solicitor General stresses that petitioner was charged with and convicted of intentional malversation, hence any
discussion anent the claim that he should not be held liable for malversation through negligence would have no relevance whatsoever
to this case. This is correct.
14

A reading of the information filed in and the decision rendered by respondent court readily reveals that intentional, and not merely
culpable, malversation is imputed to petitioner. The information is clear in its allegation that the accused "wilfully, unlawfully and
feloniously and with grave abuse of confidence did then and there misappropriate, embezzle and convert to his own personal use and
benefit from said funds in the total amount of P160,905.63, . . . ."

On the other hand, petitioner contends that the bulk of said amount represented "vales" he granted to the postal employees and the
minor portion consisted of unremitted, unreimbursed or uncollected amounts. His very own explanation, therefore, shows that the
embezzlement, as claimed by the prosecution, or the expenditures, as posited by him, were not only unauthorized but intentionally and
voluntarily made. Under no stretch of legal hermeneutics can it be contended that these funds were lost through abandonment or
negligence without petitioner's knowledge as to put the loss within a merely culpable category. .From the contention of either party, the
misappropriation was intentional and not through negligence.

Besides, even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the
information was for intentional malversation, under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in
the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper. A possible exception would be when the mode of commission
alleged in the particulars of the indictment is so far removed from the ultimate categorization of the crime that it may be said due
process was denied by deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice was
occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this case.

In Samson vs. Court of Appeals, et al., we held that an accused charged with willful or intentional falsification can validly be convicted
15

of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willfull crime, as we held in Quizon vs. Justice of the Peace
of Bacolor, G.R. No. L-6641, July 28, 1955, but a distinct crime in our Penal Code, designated as a quasi offense in
our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the
situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing
of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate
means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a
case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the
cases decided by tills Tribunal.

xxx xxx xxx

Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense
charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be
established to constitute the crime proved. . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for
here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven
beneficial to Mm. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at
the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept
of negligence.

Subsequently, we ruled in People vs. Consigna, et al. that the aforestated rationale and arguments also apply to the felony of
16

malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved
in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the
latter mode of perpetrating the offense.

Hence, even on the hypothesis of petitioner that there is a divergence between the alternative modes of commission as alleged in the
prosecutorial indictment and as found in the judicial adjudication, which variance does not really exist in this case, there would
nonetheless be no reversible flaw in the judgment of respondent court. It also bears mention that unlike the other felonies in the
Revised Penal Code, wherein a lower penalty is imposed when the offense is committed through negligence, either because it is so
specified in the particular provision defining and punishing that felony or by force of Article 365 of the Code, in the crime of malversation
the penalty is the same whether the mode of commission is with intent or by negligence. Petitioner, therefore, cannot also fault
respondent court on a pretension that there would be a disparity in the resultant sanctions if his submission were to be upheld.

WHEREFORE, the instant petition is DENIED and the judgment of respondent Sandiganbayan is hereby AFFIRMED.

SO ORDERED.
ZENON R. PEREZ, G.R. No. 164763
Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.

PEOPLE OF THE PHILIPPINES Promulgated:

and SANDIGANBAYAN,
Respondents. February 12, 2008

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

DECISION

REYES, R.T., J.:

 PETITIONER Zenon R. Perez seeks a reviewv of his conviction by the Sandiganbayanv for
malversation of public fundsv under Article 217 of the Revised Penal Code.

This is not a big case but its implications are wide-ranging and the issues We resolve
include the rights to speedy trial and speedy disposition of a criminal case, the balancing test,
due process, and cruel and unusual punishment.

The Facts

On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin, Provincial
Auditors Office, Bohol,v conducted a cash examination on the account of petitioner, who was
then the acting municipal treasurer of Tubigon, Bohol.

Petitioner was absent on the first scheduled audit at his office on December 28, 1988. A
radio message was sent to Loon, the town where he resided, to apprise him of the on-going
audit. The following day, the audit team counted the cash contained in the safe of petitioner in
his presence. In the course of the audit, the amount of P21,331.79 was found in the safe of
petitioner.

The audit team embodied their findings in the Report of Cash Examination,v which also
contained an inventory of cash items. Based on the said audit, petitioner was supposed to
have on hand the total amount of P94,116.36, instead of the P21,331.79, incurring a shortage
of P72,784.57.v

The report also contained the Cash Production Noticev dated January 4, 1989, where
petitioner was informed and required to produce the amount of P72,784.57, and the cash
count sheet signed and acknowledged by petitioner indicating the correctness of the amount
of P21,331.79 found in his safe and counted in his presence. A separate demand letterv dated
January 4, 1989 requiring the production of the missing funds was sent and received by
petitioner on January 5, 1989.

When asked by the auditing team as to the location of the missing funds, petitioner
verbally explained that part of the money was used to pay for the loan of his late brother,
another portion was spent for the food of his family, and the rest for his medicine.v

As a result of the audit, Arlene R. Mandin prepared a memorandumv dated January 13,
1989 addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate
criminal case against petitioner.

On January 16, 1989, petitioner remitted to the Office of the Provincial Treasurer of
Bohol the amounts of P10,000.00 and P15,000.00, respectively. On February 14, 1989,
petitioner again remitted to the Provincial Treasurer an additional amount of P35,000.00,
followed by remittances made on February 16, 1989 in the amounts of P2,000.00 and
P2,784.00.

An administrative case was filed against petitioner on February 13, 1989. He filed an
Answerv dated February 22, 1989 reiterating his earlier verbal admission before the audit
team.

On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the Provincial
Treasurer of Bohol. Petitioner had then fully restituted his shortage in the amount of
P72,784.57. The full restitution of the missing money was confirmed and shown by the
following receipts:v

Official Receipt No. Date Issued and Received Amount

8266659 January 16, 1989 P10,000.00

8266660 January 16, 1989 P15,000.00

8266662 February 14, 1989 P35,000.00

8266667 February 16, 1989 P 2,000.00

8266668 February 16, 1989 P 2,784.00

8266675 April 17, 1989 P 8,000.00

TOTAL - P72,784.57
 Later, petitioner was charged before the Sandiganbayan with malversation of public
funds, defined and penalized by Article 217 of the Revised Penal Code in an Information that
read:

That on or about the period covering from December 28, 1988 to January 5, 1989, and for
sometime prior thereto, in the Municipality of Tubigon, Province of Bohol, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused Zenon R. Perez, a public officer being
then Acting Municipal Treasury of the said Municipality, by reason of the duties of his official position
was accountable for the public funds collected and received by him, with grave abuse of confidence did
then and there willfully, unlawfully and feloniously misappropriate, misapply, embezzle and take away
from the said funds the total amount of SEVENTY-TWO THOUSAND SEVEN HUNDRED EIGHTY-FOUR
PESOS and 57/100 (P72,784.57), which said fund was appropriated and converted by the said accused to
his own personal use and benefit to the damage and prejudice of the government in the
aforementioned amount.

CONTRARY TO LAW.v (Underscoring supplied)

On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a plea of not
guilty.v

Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for postponement. The
Sandiganbayan, however, proceeded to hear the case on June 5, 1990, as previously scheduled, due to the presence of
prosecution witness Arlene R. Mandin, who came all the way from Bohol.

On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness.
Arlene R. Mandin testified as narrated above.
 The defense presented evidence through petitioner Zenon R. Perez himself. He denied
the contents of his first Answerv to the administrative case filed against him by the audit team.
He claimed it was prepared without the assistance of counsel and that at the time of its
preparation and submission, he was not in peak mental and physical condition, having been
stricken with diabetes mellitus.v

He then revoked his Answer dated February 22, 1989 and filed his second Answer dated
March 2, 1989.v In the latter, he vehemently denied that he incurred a cash shortage
P72,784.57.

According to petitioner, the alleged shortage was in the possession and custody of his
accountable personnel at the time of the audit examination. Several amounts totalling
P64,784.00 were remitted to him on separate dates by his accountable officer, starting
January 16, 1989 to February 16, 1989. The same were turned over by him to the Office of the
Provincial Treasurer, leaving an unremitted sum of P8,000.00 as of February 16, 1989.v He
remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol, fully restoring
the cash shortage.

Petitioner further testified that on July 30, 1989, he submitted his Position Paperv
before the Office of the Ombudsman, Cebu City and maintained that the alleged cash shortage
was only due to oversight. Petitioner argued that the government did not suffer any damage
or prejudice since the alleged cash shortage was actually deposited with the Office of the
Provincial Treasurer as evidenced by official receipts.v
 Petitioner completed his testimony on September 20, 1990. He rested his case on
October 20, 1990.v

Sandiganbayan Disposition

On September 24, 2003, the Sandiganbayan rendered a judgment of conviction with a

fallo reading:

WHEREFORE, judgment is hereby rendered finding the accused ZENON R. PEREZ, GUILTY
beyond reasonable doubt of the crime of Malversation of Public Funds as defined in and penalized by
Article 217 of the Revised Penal Code and, there being one mitigating circumstance without any
aggravating circumstance to offset the same, is hereby sentenced to suffer an indeterminate penalty of
from TEN (10) YEARS and ONE (1) DAY of prision mayor as the minimum to FOURTEEN (14) YEARS and
EIGHT (8) MONTHS of reclusion temporal as the maximum and to suffer perpetual special
disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE equal to the total amount
of the funds malversed, which is Seventy-Two Thousand Seven Hundred Eighty-Four Pesos and Fifty-
Seven Centavos (P72, 784.57).

SO ORDERED.v (Emphasis in the original)

On January 13, 2004, petitioner filed a motion for reconsiderationv which the
prosecution opposed on January 28, 2004.v Petitioner repliedv to the opposition. On August 6,
2004, petitioners motion was denied with finality.
 On September 23, 2004, petitioner resorted to the instant appealv raising the following issues, to wit:

I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING

THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE
PROCESS.

II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE SENTENCE IMPOSED IS CRUEL
AND THEREFORE VIOLATES SECTION 19 OF ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.v
(Underscoring supplied)

Our Ruling

Before addressing petitioners twin assignment of errors, We first tackle the propriety of
petitioners conviction for malversation of public funds.

I. Petitioner was correctly convicted of malversation.

Malversation is defined and penalized under Article 217 of the Revised Penal Code. The
acts punished as malversation are: (1) appropriating public funds or property, (2) taking or
misappropriating the same, (3) consenting, or through abandonment or negligence, permitting
any other person to take such public funds or property, and (4) being otherwise guilty of the
misappropriation or malversation of such funds or property.v
 There are four elements that must concur in order that one may be found guilty of the
crime. They are:

(a) That the offender be a public officer;

(b) That he had the custody or control of funds or property by reason of the duties of his office;

(c) That those funds or property involved were public funds or property for which he is accountable;
and

(d) That he has appropriated, took or misappropriated or consented or, through abandonment or
negligence, permitted another person to take them.v

Evidently, the first three elements are present in the case at bar. At the time of the
commission of the crime charged, petitioner was a public officer, being then the acting
municipal treasurer of Tubigon, Bohol. By reason of his public office, he was accountable for
the public funds under his custody or control.

The question then is whether or not petitioner has appropriated, took or

misappropriated, or consented or through abandonment or negligence, permitted another
person to take such funds.

We rule in the affirmative.

 In malversation, all that is necessary to prove is that the defendant received in his
possession public funds; that he could not account for them and did not have them in his
possession; and that he could not give a reasonable excuse for its disappearance. An
accountable public officer may be convicted of malversation even if there is no direct evidence
of misappropriation and the only evidence is shortage in his accounts which he has not been
able to explain satisfactorily.v

Verily, an accountable public officer may be found guilty of malversation even if there is
no direct evidence of malversation because the law establishes a presumption that mere
failure of an accountable officer to produce public funds which have come into his hands on
demand by an officer duly authorized to examine his accounts is prima facie case of
conversion.v

Because of the prima facie presumption in Article 217, the burden of evidence is shifted
to the accused to adequately explain the location of the funds or property under his custody
or control in order to rebut the presumption that he has appropriated or misappropriated for
himself the missing funds. Failing to do so, the accused may be convicted under the said
provision.

However, the presumption is merely prima facie and a rebuttable one. The accountable
officer may overcome the presumption by proof to the contrary. If he adduces evidence
showing that, in fact, he has not put said funds or property to personal use, then that
presumption is at end and the prima facie case is destroyed.v
 In the case at bar, petitioner was not able to present any credible evidence to rebut the
presumption that he malversed the missing funds in his custody or control. What is extant in
the records is that the prosecution, through witness Arlene R. Mandin, was able to prove that
petitioner malversed the funds under his custody and control. As testified by Mandin:

Atty. Caballero:

Q: Was Mr. Zenon Perez actually and physically present during the time of your cash examination?

Witness:

A. Yes, Sir.

Q: From December 28, to January 5, 1989?

A: He was present on December 28, 1988 and January 4 and 5, 1989, Sir.

Q: Did he not make any verbal explanation as the reason why he was short of about P72,000.00,
after you conducted the cash count on January 5, 1989?

A: Yes, Sir, he did.

Q: What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother and the other
portion was spent for food of his family; and the rest for his medicine.v (Emphasis supplied)

Petitioner gave himself away with his first Answer filed at the Office of the Provincial
Treasurer of Bohol in the administrative case filed against him.
 In that Answer, petitioner narrated how he disposed of the missing funds under his
custody and control, to wit: (1) about P30,000.00 was used to pay the commercial loan of his
late brother; (2) he spent P10,000.00 for the treatment of his toxic goiter; and (3) about
P32,000.00 was spent for food and clothing of his family, and the education of his children. He
there stated:

1. That the circumstances surrounding the cash shortage in the total amount of P72,784.57
during the examination of the respondents cash accounts by the Commission on Audit on December 28-
29, 1988 and January 4-5, 1989 are as follows, to wit:

(a) That respondent paid the amount of about P30,000.00 to the

Philippine National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perez using respondents house and lot as collateral thereof. If the
interests would not be paid, the loan would be foreclosed to respondents great
prejudice and disadvantage considering that he and his family are residing in said house
used as collateral;

(b) That respondent spent the amount of P10,000.00 in connection with

the treatment of his toxic goiter;

(c) That the rest of the amount amounting to about P32,000.00 was spent
by him for his familys foods, clothings (sic), and education of his children because his
monthly salary is not enough for the needs of his family.v

By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin,
the fourth element of the crime of malversation was duly established. His conviction thus
stands in terra firma.
 True it is that petitioner filed another Answer on March 2, 1989 with the Office of the
Provincial Treasurer of Bohol, substantially changing the contents of his earlier answer of
February 22, 1989. His second Answer averred:

3. That the truth of the matter is that the alleged total cash shortage of P72,784.57 were
still in the possession and custody of his accountable personnel at the time of the examination held by
the auditor of the Commission on Audit;

4. That out of the alleged cash shortage of P72,784.57, almost all of said amount were
already remitted to him by his accountable personnel after January 5, 1989, and only the remaining
amount of P8,000.00 remains to be remitted to him by his accountable personnel.v

The sudden turnaround of petitioner fails to convince Us. To Our mind, petitioner only
changed his story to exonerate himself, after realizing that his first Answer put him in a hole,
so to speak.

It is contended that petitioners first Answer of February 22, 1989 should not have been
given probative weight because it was executed without the assistance of counsel.v

There is no law, jurisprudence or rule which mandates that an employee should be

assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in
saying that assistance of counsel is not indispensable in administrative proceedings.
 Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat
may tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya
ay iisa ang sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa
kasong administratibo.

The right to counsel, which cannot be waived unless the waiver is in writing and in the
presence of counsel, is a right afforded a suspect or accused during custodial investigation. It is
not an absolute right and may be invoked or rejected in a criminal proceeding and, with more
reason, in an administrative inquiry.v

Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang

waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa suspek o
nasasakdal sa isang custodial investigation. Ito ay hindi lubos na karapatan at maaring
hingin o tanggihan sa isang prosesong kriminal, at lalo na sa isang administratibong
pagsisiyasat.

While investigations conducted by an administrative body may at times be akin to a

criminal proceeding, the fact remains that under existing laws, a party in an administrative
inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of
respondents capacity to represent himself, and no duty rests on such body to furnish the person
being investigated with counsel.v

Thus, the right to counsel is not imperative in administrative investigations because such
inquiries are conducted merely to determine whether there are facts that merit disciplinary
measures against erring public officers and employees, with the purpose of maintaining the
dignity of government service.v

Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang

administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman kung may
sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o empleyado, para
mapanatili ang dignidad ng paglilingkod sa pamahalaan.

There is nothing in the Constitution that says that a party in a non-litigation proceeding is
entitled to be represented by counsel and that, without such representation, he shall not be
bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable.
The legal profession was not engrafted in the due process clause such that without the
participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen
is not that helpless that he cannot validly act at all except only with a lawyer at his side.v

More than that, petitioners first Answer may be taken against him, as he executed it in
the course of the administrative proceedings below. This is pursuant to Rule 130, Section 26 of
the Rules of Court which provides that the act, declaration or omission of a party as to a
relevant fact may be given against him. In People v. Lising,v the Court held:

Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant
to the rule that the act, declaration or omission of a party as to a relevant fact may be given against him.
This is based upon the presumption that no man would declare anything against himself, unless such
declarations were true. A mans act, conduct and declarations wherever made, provided they be
voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with
the truth and it is his fault if they are not.
 There is also no merit in the contention that petitioners sickness affected the
preparation of his first Answer. He presented no convincing evidence that his disease at the
time he formulated that answer diminished his capacity to formulate a true, clear and
coherent response to any query. In fact, its contents merely reiterated his verbal explanation
to the auditing team on January 5, 1989 on how he disposed of the missing funds.

II. There is no violation of the rights to a speedy

disposition of the case and to due process of law.

We now discuss the right to a speedy trial and disposition, the balancing test, due
process, and cruel and unusual punishment.

Petitioner asserts that his right to due process of law and to speedy disposition of his
case was violated because the decision of the Sandiganbayan was handed down after the
lapse of more than twelve years. The years that he had to wait for the outcome of his case
were allegedly spent in limbo, pain and agony.v

We are not persuaded.

Due process of law as applied to judicial proceedings has been interpreted to mean a
law which hears before it condemns, which proceeds on inquiry, and renders judgment only
after trial.v Petitioner cannot complain that his right to due process has been violated. He was
given all the chances in the world to present his case, and the Sandiganbayan rendered its
decision only after considering all the pieces of evidence presented before it.

Petitioners claim of violation of his right to a speedy disposition of his case must also
fail.

The 1987 Constitutionv guarantees the right of an accused to speedy trial. Both the
1973 Constitution in Section 16 of Article IV and the 1987 Constitution in Section 16 of Article
III, Bill of Rights, are also explicit in granting to the accused the right to speedy disposition of
his case.v

In Barker v. Wingo,v the United States Supreme Court was confronted for the first time
with two rigid approaches on speedy trial as ways of eliminating some of the uncertainty
which courts experience protecting the right.v

The first approach is the fixed-time period which holds the view that the Constitution
requires a criminal defendant to be offered a trial within a specified time period.v The second
approach is the demand-waiver rule which provides that a defendant waives any
consideration of his right to speedy trial for any period prior to which he has not demanded
trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of
the speedy trial right.v
 The fixed-time period was rejected because there is no constitutional basis for holding
that the speedy trial can be quantified into a specific number of days or months.v The
demand-waiver rule was likewise rejected because aside from the fact that it is inconsistent
with this Courts pronouncements on waiver of constitutional rights,v it is insensitive to a right
which we have deemed fundamental.v

The Court went on to adopt a middle ground: the balancing test, in which the conduct
of both the prosecution and defendant are weighed.v Mr. Justice Powell, ponente, explained
the concept, thus:

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We
can do little more than identify some of the factors which courts should assess in determining whether a particular
defendant has been deprived of his right. Though some might express them in different ways, we identify four
such factors: Length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to
the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke
such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too,
different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid
reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third
factor, the defendants responsibility to assert his right. Whether and how a defendant asserts his right is closely
related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is
not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant
is to complain. The defendants assertion of his speedy trial right, then, is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will
make it difficult for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of
the interests of defendants which the speedy trial right was designed to protect. This Court has identified three
such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If
witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are
 unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record
because what has been forgotten can rarely be shown.v (Emphasis supplied)

Philippine jurisprudence has, on several occasions, adopted the balancing test.

In 1991, in Gonzales v. Sandiganbayan,v this Court ruled:

It must be here emphasized that the right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when
without cause or justifiable motive a long period of time is allowed to elapse without the party having
his case tried. Equally applicable is the balancing test used to determine whether a defendant has been
denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct
of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason
for the delay, the defendants assertion or non-assertion of his right, and prejudice to the defendant
resulting from the delay, are considered. (Underscoring supplied)

Subsequently, in Dela Pea v. Sandiganbayan,v this Court again enumerated the factors
that should be considered and balanced, namely: (1) length of delay; (2) reasons for the delay;
(3) assertion or failure to assert such right by the accused; and (4) prejudice caused by the
delay.v

Once more, in Mendoza-Ong v. Sandiganbayan,v this Court reiterated that the right to
speedy disposition of cases, like the right to speedy trial, is violated only when the proceedings
are attended by vexatious, capricious and oppressive delays.v In the determination of whether
said right has been violated, particular regard must be taken of the facts and circumstances
peculiar to each case.v The conduct of both the prosecution and defendant, the length of the
delay, the reasons for such delay, the assertion or failure to assert such right by accused, and
the prejudice caused by the delay are the factors to consider and balance.v

Moreover, the determination of whether the delays are of said nature is relative and
cannot be based on a mere mathematical reckoning of time.v

Measured by the foregoing yardstick, We rule that petitioner was not deprived of
his right to a speedy disposition of his case.

More important than the absence of serious prejudice, petitioner himself did not
want a speedy disposition of his case.v Petitioner was duly represented by counsel de
parte in all stages of the proceedings before the Sandiganbayan. From the moment his
case was deemed submitted for decision up to the time he was found guilty by the
Sandiganbayan, however, petitioner has not filed a single motion or manifestation
which could be construed even remotely as an indication that he wanted his case to be
dispatched without delay.

Petitioner has clearly slept on his right. The matter could have taken a different
dimension if during all those twelve years, petitioner had shown signs of asserting his
right to a speedy disposition of his case or at least made some overt acts, like filing a
motion for early resolution, to show that he was not waiving that right.v

Currit tempus contra decides et sui juris contempores: Time runs against the
slothful and those who neglect their rights. Ang panahon ay hindi panig sa mga
tamad at pabaya sa kanilang karapatan. Vigilantis sed non dormientibus jura in re
subveniunt. The law aids the vigilant and not those who slumber in their rights. Ang
batas ay tumutulong sa mga mapagbantay at hindi sa mga humihimbing sa
kanilang karapatan.

Pending his conviction by the Sandiganbayan, petitioner may have truly lived in
suspicion and anxiety for over twelve years. However, any prejudice that may have
been caused to him in all those years was only minimal. The supposed gravity of
agony experienced by petitioner is more imagined than real.

This case is analogous to Guerrero v. Court of Appeals.v There, the Court ruled
that there was no violation of petitioners right to speedy trial and disposition of his case
inasmuch as he failed seasonably to assert his rights:

In the present case, there is no question that petitioner raised the violation against his own right
to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to
assume that he would have just continued to sleep on his right a situation amounting to laches had the
respondent judge not taken the initiative of determining the non-completion of the records and of
ordering the remedy precisely so he could dispose of the case. The matter could have taken a different
dimension if during all those ten years between 1979 when accused filed his memorandum and 1989
when the case was re-raffled, the accused showed signs of asserting his right which was granted him in
1987 when the new Constitution took effect, or at least made some overt act (like a motion for early
disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not
waiving it. As it is, his silence would have to be interpreted as a waiver of such right.

While this Court recognizes the right to speedy disposition quite distinctly from the right to a
speedy trial, and although this Court has always zealously espoused protection from oppressive and
vexatious delays not attributable to the party involved, at the same time, we hold that a partys
individual rights should not work against and preclude the peoples equally important right to public
justice. In the instant case, three people died as a result of the crash of the airplane that the accused
was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused
but the people as well. Since the accused has completely failed to assert his right seasonably and
inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the
absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain
(and the court to dispense) substantial justice in the premises.
III. The law relied upon in convicting petitioner is not
cruel and unusual. It does not violate Section 19,
Article III of the Bill of Rights.

What constitutes cruel and unusual punishment has not been exactly defined.v The Eighth Amendment of the
United States Constitution,v the source of Section 19, Article III of the Bill of Rightsv of our own Constitution, has yet to
be put to the test to finally determine what constitutes cruel and inhuman punishment.v

Cases that have been decided described, rather than defined, what is meant by cruel and unusual punishment.
This is explained by the pronouncement of the United States Supreme Court that [t]he clause of the Constitution, in the
opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may
acquire meaning as public opinion becomes enlightened by a humane justice.v

In Wilkerson v. Utah,v Mr. Justice Clifford of the United States Supreme Court opined that [d]ifficulty would
attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and all others in the
same line of unnecessary cruelty, are forbidden by that amendment to the constitution.v

In In Re: Kemmler,v Mr. Chief Justice Fuller of that same Court stated that [p]unishments are cruel when they
involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in
the constitution. It implies x x x something more inhuman and barbarous, something more than the mere
extinguishment of life.v

Again, in Weems v. U.S.,v Mr. Justice McKenna held for the Court that cadena temporal and its accessory
penalties has no fellow in American legislation. Let us remember that it has come to us from a government of a different
form and genus from ours. It is cruel in its excess of imprisonment and that which accompanies and follows
imprisonment. It is unusual in character. Its punishments come under the condemnation of the Bill of Rights, both on
account of their degree and kind. And they would have those bad attributes even if they were found in a Federal
enactment, and not taken from an alien source.
 In Echegaray v. Executive Secretary,v this Court in a per curiam Decision held that Republic Act No. 8177,v even
if it does not provide in particular the details involved in the execution by lethal injection, is not cruel, degrading or
inhuman, and is thus constitutional. Any infliction of pain in lethal injection is merely incidental in carrying out the
execution of the death penalty and does not fall within the constitutional proscription against cruel, degrading or
inhuman punishment.v

The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete but may
acquire meaning as public opinion becomes enlightened by humane justice and must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society.v

In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of
malversation of public funds that ha[ve] been replenished, remitted and/or returned to the government is cruel and
therefore unconstitutional, as government has not suffered any damage.v

The argument is specious on two grounds.

First. What is punished by the crime of malversation is the act of a 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 and misappropriate or shall consent, or through abandonment or
negligence shall permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or
property.v

Payment or reimbursement is not a defense for exoneration in malversation; it may only

be considered as a mitigating circumstance. This is because damage is not an element of
malversation.
 Second. There is strong presumption of constitutionality accorded to statutes.

It is established doctrine that a statute should be construed whenever possible in

harmony with, rather than in violation of, the Constitution.v The presumption is that the
legislature intended to enact a valid, sensible and just law and one which operates no further
than may be necessary to effectuate the specific purpose of the law.v It is presumed that the
legislature has acted within its constitutional powers. So, it is the generally accepted rule that
every statute, or regularly accepted act, is, or will be, or should be, presumed to be valid and
constitutional.v

He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the
Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or inhuman,
like the stance of petitioner, must fail.

IV. On the penalty

The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten (10) years

and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal, as maximum. In imposing the penalty, it found that petitioner was entitled
to the mitigating circumstance of payment which is akin to voluntary surrender.
 Article 217 penalizes malversation in the following tenor:

Article 217. Malversation of public funds or property. Presumption of malversation. Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take and misappropriate or shall consent, or through abandonment or
negligence shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or property.

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than 12,000 but is less than 22,000 pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its maximum period to
reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal uses. (Underscoring supplied)

The amount malversed totalled P72,784.57. The prescribed penalty is reclusion temporal
in its maximum period to reclusion perpetua, which has a range of seventeen (17) years, four
(4) months and one (1) day to forty (40) years.

However, the commission of the crime was attended by the mitigating circumstance
akin to voluntary surrender. As correctly observed by the Sandiganbayan, petitioner restituted
the full amount even before the prosecution could present its evidence. That is borne by the
records.

It bears stressing that the full restitution of the amount malversed will not in any way
exonerate an accused, as payment is not one of the elements of extinction of criminal liability.
Under the law, the refund of the sum misappropriated, even before the commencement of
the criminal prosecution, does not exempt the guilty person from liability for the crime.v At
most, then, payment of the amount malversed will only serve as a mitigating circumstancev
akin to voluntary surrender, as provided for in paragraph 7 of Article 13v in relation to
paragraph 10v of the same Article of the Revised Penal Code.

But the Court also holds that aside from voluntary surrender, petitioner is entitled to the
mitigating circumstance of no intention to commit so grave a wrong,v again in relation to
paragraph 10 of Article 13.v

The records bear out that petitioner misappropriated the missing funds under his
custody and control because he was impelled by the genuine love for his brother and his
family. Per his admission, petitioner used part of the funds to pay off a debt owed by his
brother. Another portion of the misappropriated funds went to his medications for his
debilitating diabetes.
 Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos (P8,000.00)
of the funds in less than one month and a half and said small balance in three (3) months from
receipt of demand of COA on January 5, 1999. Evidently, there was no intention to commit so
grave a wrong.

Of course, the end does not justify the means. To condone what petitioner has done
because of the nobility of his purpose or financial emergencies will become a potent excuse
for malefactors and open the floodgates for more corruption in the government, even from
small fry like him.

The bottom line is a guilty person deserves the penalty given the attendant
circumstances and commensurate with the gravity of the offense committed. Thus, a
reduction in the imposable penalty by one degree is in order. Article 64 of the Revised Penal
Code is explicit:

Art. 64. Rules for the application of penalties which contain three periods. In cases in which the
penalties prescribed by law contains three periods, whether it be a single divisible penalty or composed
of three difference penalties, each one of which forms a period in accordance with the provisions of
Articles 76 and 77, the courts shall observe for the application of the penalty, the following rules,
according to whether there are no mitigating or aggravating circumstances:

xxxx

5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances. (Underscoring supplied)
 Considering that there are two mitigating circumstances, the prescribed penalty is
reduced to prision mayor in its maximum period to reclusion temporal in its medium period, to
be imposed in any of its periods. The new penalty has a range of ten (10) years and one (1) day
to seventeen (17) years and four (4) months. Applying the Indeterminate Sentence Law,v the
maximum term could be ten (10) years and one (1) day of prision mayor maximum, while the
minimum term is again one degree lowerv and could be four (4) years, two (2) months and
one (1) day of prision correccional maximum.

In the 1910 case of U.S. v. Reyes,v the trial judge entered a judgment of conviction
against the accused and meted to him the penalty of three years imprisonment, to pay a fine
of P1,500.00, and in case of insolvency to suffer subsidiary imprisonment at the rate of one
day for every P2.50 that he failed to pay, which subsidiary imprisonment, however, should not
exceed one third of the principal penalty and to be perpetually disqualified for public office
and to pay the costs. This was well within the imposable penalty then under Section 1 of Act
No. 1740,v which is imprisonment for not less than two months nor more than ten years and,
in the discretion of the court, by a fine of not more than the amount of such funds and the
value of such property

On appeal to the Supreme Court, the accuseds conviction was affirmed but his sentence
was modified and reduced to six months. The court, per Mr. Justice Torres, reasoned thus:

For the foregoing reasons the several unfounded errors assigned to the judgment appealed
from have been fully refuted, since in conclusion it is fully shown that the accused unlawfully disposed
of a portion of the municipal funds, putting the same to his own use, and to that of other persons in
violation of Act. No. 1740, and consequently he has incurred the penalty therein established as principal
of the crime of misappropriation; and even though in imposing it, it is not necessary to adhere to the
rules of the Penal Code, the court in using its discretional powers as authorized by law, believes that the
circumstances present in the commission of crimes should be taken into consideration, and in the
 present case the amount misappropriated was refunded at the time the funds were counted.v
(Underscoring supplied)

We opt to exercise an analogous discretion

WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003 is

AFFIRMED with the MODIFICATION that petitioner is hereby sentenced to suffer the
indeterminate penalty of four (4) years, two (2) months and one (1) day of prision correccional,
as minimum term, to ten (10) years and one (1) day of prision mayor, as maximum term, with
perpetual special disqualification. He is likewise ORDERED to pay a fine of P72,784.57, the
amount equal to the funds malversed.

Costs against petitioner.

SO ORDERED.

G.R. No. 94408 February 14, 1991

EMILIANO CIMAFRANCA, JR., petitioner,

vs.
SANDIGANBAYAN (Second Division) and PEOPLE OF THE PHILIPPINES, respondents.

Caballero, Calub, Aumentado & Associates Law Office for petitioner.

The question addressed by this petition is whether or not an accountable public officer may be criminally liable for malversation of
public property when he fails to return or produce the same upon demand, although after the filing of the information and during the trial
he returned the property to the government.

The facts as found by the respondent Sandiganbayan in its questioned decision dated June 26, 1990 are as follows:

The following facts have been sufficiently established: Accused Emiliano Cimafranca, Jr. was the Provincial Fisheries
Inspector of the Province of Bohol from 1980 until his services were first terminated on May 2, 1986. He was
reappointed as Fishery Aide effective November 25, 1987 and again separated from the service on March 15, 1988.
(Record, pp. 52 & 54). As a Fisheries Inspector, he was issued on July 12, 1985, a revolver (Smith and Wesson, Cal.
.38, 4" barrel, U.S. make SN 748198), marked as Exhibit K, valued at P350.00. On September 30, 1985, he was also
issued a Briggs and Stratton engine, 10 HP with Serial Number 02356, valued at P8,475.00. (Exhibit G).
 On May 2, 1986, when his temporary appointment expired, accused was advised by the Provincial Governor of Bohol
to return his property accountabilities. On June 18, 1986, Eufronio M. Pizzaras, Officer-In-Charge of the Office of the
treasurer of Tagbilaran, Bohol, also wrote him a follow up letter to return the revolver and engine. Although he
received the letter, accused did not comply. (TSN., p. 12, July 20, 1989).

On July 25, 1986, Teresita M. Sanchez, Provincial Auditor of Bohol, issued Office Order No. 86-29 directing Atty.
Toribio S. Quiwag, Legal Officer III, and Mrs. Maria C. Longjas Auditor I, to conduct a property audit on ten
government officials and employees whose names were mentioned therein. Included in the list is the accused
Emiliano Cimafranca, Jr. (Exhibit A). Pursuant to the office order, Mrs. Longjas and Atty. Quiwag conducted a
property audit on July 26, 1986. They found out that accused, although already separated from the service on May 2,
1986, had not yet settled his property accountabilities, despite demands made upon him by the Officer-In-Charge of
the City Treasurer's Office. On July 28, 1986, Atty. Quiwag sent a demand letter to the Provincial Treasurer of Bohol,
for the production of the properties issued to the aforementioned government officials and employees. (Exhibit C).

For failure of accused to have duly forthcoming the public properties of which he was accountable upon demand by a
duly authorized officer, he was charged of Malversation of Public Property, defined and penalized under Article 217 of
the Revised Penal Code. 1

Upon arraignment, petitioner pleaded not guilty to the information after which the trial proceeded, and particularly on July 14, 1989, Mr.
Abraham Campos, in-charge of the Record Section of Tagbilaran City, received from the Provincial Treasurer, the revolver and engine
which are the subject matter of this prosecution which were returned by petitioner.

After the trial on the merits, the respondent court rendered a decision on June 26, 1990, convicting the petitioner of the offense charged
in this manner:

WHEREFORE, accused Emiliano Cimafranca, Jr., is hereby found GUILTY beyond reasonable doubt of the crime of
Malversation of Public Property defined and penalized under Article 217 of the Revised Penal Code, and appreciating
in his favor the mitigating circumstance of voluntary restitution or return of the properties malversed, analogous to
voluntary surrender, he is sentenced to an indeterminate penalty ranging from six (6) years, and one (1) day of
prision mayor, as minimum, to ten (10) years, and one (1) day of prision mayor, as maximum; to pay a fine of
P8,825.00, equivalent to the total value of the properties embezzled; to suffer perpetual special disqualification; to
indemnify the Philippine Government in the amount of P8,475.00, representing the value of the Briggs and Stratton
engine only, and to pay the costs.

Upon finality of this decision, the Deputy Clerk of Court assigned to the Second Division of this Court is ordered to
return the Smith & Wesson .38 Caliber Revolver, with Serial No. 748198, involved in this case, to the Provincial
Treasurer of Bohol or his duly authorized representative, after proper Identification and receipt.

SO ORDERED. 2

Hence, this petition for review on certiorari predicated on the following grounds:

I — THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF

MALVERSATION OF PUBLIC PROPERTY UNDER ARTICLE 217 OF THE REVISED PENAL CODE.

II — THE RESPONDENT SANDIGANBAYAN ERRED IN NOT HAVING GIVEN CREDENCE TO THE CREDIBILITY
OF THE ACCUSED.

III — THE RESPONDENT SANDIGANBAYAN ERRED IN NOT ABSOLVING THE ACCUSED. 3

The petition is devoid of merit.

The main thrust of the defense is that the public property allegedly malversed by petitioner was returned by him during the trial and this
entitles him to an acquittal. While he admitted having received the engine and revolver for his use as provincial fisheries inspector while
patrolling the high seas against illegal fishing, he testified that after he finished patrolling he placed the engine at the back of the
convent but it was stolen so he was not able to return the same upon demand. After a long search he finally found it at the side of the
market but it was no longer usable.

Similarly, he alleged that the revolver fell from his waist into the sea while patrolling the high seas. When he received a letter of
1âwphi 1

demand to return said property on May 2, 1987, he hired sea divers to look for the gun. He executed an affidavit of loss on July 6,
1987. 4
After two years of diligent search he found the gun still in good condition. It did not become rusty as it stayed under the seawater and
was not exposed to the air. He and his son reblued it.

Under Article 217 of the Revised Penal Code the offense of malversation is defined and penalized as follows:

ART. 217. Malversation of public funds or property. –– Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent,
or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two
hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-two thousand pesos.

If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property
to personal uses. (As amended by Rep. Act No. 1060, approved June 12, 1954.)

The elements of the offense of malversation are —

a) That the offender be a public officer;

b) That he had the custody or control of funds or property by reason of the duties of his office;

c) That those funds or property were public funds or property for which he was accountable;

d) And, that he appropriated, took, misappropriated or consented or, through abandonment or negligence,
permitted another person to take them.

Petitioner admits that the first three elements are present. He, however, contends that the fourth element had not been established as
in fact he returned the property during the trial.

The Court is not persuaded.

Under the last paragraph of Article 217 of the Revised Penal Code above reproduced, the failure of a public officer to have duly
forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to personal uses. The burden is on the accused to overcome this presumption.

In the present case the petitioner failed to overturn this prima facie evidence of his guilt. 1âwphi 1

Firstly, when his temporary appointment in the government expired on May 2, 1986, he was advised by the Provincial Governor of
Bohol to return his property accountabilities but he failed to do so. On June 18, 1986, Mr. Pizarras of the Office of the Treasurer of
Tagbilaran wrote a follow-up letter asking him to return the revolver and engine, which he received and yet, he did not comply with the
requirement or reply to the letter.

Secondly, on July 28, 1986, Atty. Quiwag of the Provincial Auditor's Office sent a demand letter to the Provincial Treasurer of Bohol to
produce said missing property, and the latter made demands on petitioner to return the property but to no avail. In none of these
5

instances did petitioner reveal the alleged loss of the revolver and theft of the engine.
Thirdly, the version of petitioner as to why he was not able to immediately return the property, as correctly observed by the respondent
court, is difficult to believe. He failed to report the alleged loss of government property to the proper authorities. While he claimed to
have reported the loss of the engine to the police, said matter was not reflected in the police blotter. He presented an affidavit of P/Cpl.
Crispin Tubayan confirming said reports but petitioner did not present Tubayan as a witness as the affidavit in itself is hearsay. And
6

although petitioner also testified that he reported the loss of the revolver to the Provincial Governor, this fact was not even reflected in
the affidavit of loss he executed. Moreover, he did not ask nor did he present the Governor to testify in order to confirm his statement.

Fourthly, it took him years to recover the engine and gun, and this delay makes his tale incredible more so as it is uncorroborated.

Since petitioner failed to overturn the prima facie evidence of guilt by his non-production of the government property upon previous
repeated demands, and as he produced it only much later, that is, after several years, the only logical conclusion is that he actually
misappropriated the property and/or otherwise allowed other persons to take and appropriate the same. Worst still, when the engine
was returned, it was already scrap and the revolver was rusty and had to be reblued. The crime of malversation had been
consummated when the property were belatedly returned.

This Court has made the consistent pronouncement that the return of the funds malversed is not a defense and will not be an
exempting circumstance nor a ground for extinguishing the criminal liability of the accused. At best it can be a mitigating circumstance.
7 8

The same principle should apply when the subject matter of the malversation is public property. However, when as in this case, it took
the petitioner several years before he returned the government property, such circumstance cannot be considered a special mitigating
circumstance analogous to voluntary surrender, as the trial court did credit to the petitioner. Said government property appear to be
under the control and possession of petitioner all the time. There was no reason why he could not return the same promptly if not
soonest to the government. The much delayed return of the property must be a desperate act and afterthought of petitioner when he
realized that all possible hope of exoneration was lost during the trial.

Under Article 217 of the Revised Penal Code the penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period is imposed if the amount involved is more than P6,000.00 but is less than P12,000.00. As there are no modifying circumstances
attending the commission of the offense and applying the Indeterminate Sentence Law, the penalty that should be imposed on
petitioner is imprisonment of six (6) years and one (1) day of prision mayor as minimum, as correctly imposed by respondent court, to
eleven (11) years and six (6) months of prision mayor as maximum.

The fine of P8,825.00 imposed is within the range prescribed by Article 217, which is the total value of the property malversed, since
the engine returned was no longer in its original good condition, but scrap.

WHEREFORE, with the above modification as to the penalty, the judgment subject of the petition is AFFIRMED in all other respects,
with costs against petitioner.

SO ORDERED.