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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

156643 June 27, 2006

doubt of the crime of Direct Bribery, and are sentenced to suffer the indeterminate penalty of four (4) years, nine (9) months and ten (10) days of prision correccional, as minimum, to seven (7) years and four (4) months of prision mayor, as maximum, and to pay a fine of three million pesos (P3,000,000.00). Accused Vladimir S. Hernandez and Victor D. Conanan shall also suffer the penalty of special temporary disqualification. Costs against the accused. "On ground of reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of the crime charged. The surety bond he posted for his provisional liberty is cancelled. The Hold Departure Order against him embodied in this Courts Order dated July 24, 2000 is recalled." 6 The first Resolution acquitted Conanan and denied reconsideration of the other accused. The second Resolution denied Petitioner Acejas Motion for New Trial. Hence, petitioners now seek recourse in this Court.7 The Facts The facts8 are narrated by the Sandiganbayan as follows: "At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of Immigration and Deportation (BID) Intelligence Agent Vladimir Hernandez, together with a reporter, went to the house of Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive, Grand Villa, Sto. Nio, Paraaque, Metro Manila. His purpose was to serve Mission Order No. 93-04-12 dated December 13, 1993, issued by BID Commissioner Zafiro Respicio against Takao Aoyagi, a Japanese national. Hernandez told Takao Aoyagi, through his wife, Bethel Grace, that there were complaints against him in Japan and that he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien. "To prove that he had done nothing wrong, Takao Aoyagi showed his passport to Hernandez who issued an undertaking (Exh. B) which Aoyagi s igned. The undertaking stated that Takao Aoyagi promised to appear in an investigation at the BID on December 20, 1993, and that as a guarantee for his appearance, he was entrusting his passport to Hernandez. Hernandez acknowledged receipt of the passport. "On December 18, 1993, Bethel Grace Aoyagi called accused Expedito Dick Perlas 9 and informed him about the taking of her husbands passport by Hernandez. Perl as told her he would refer their problem to his brother-in-law, Atty. Danton Lucenario of the Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It was at the Sheraton Hotel that Perlas introduced the Aoyagis to Atty. Lucenario. They discussed the problem and Atty. Lucenario told the Aoyagis not to appear before the BID on December 20, 1993. "As advised by Atty. Lucenario, Takao Aoyagi did not appear before the BID. Instead, Atty. Rufino M. Margate of the Lucenario Law Firm filed with the BID an En try of Appearance (Exh. 6 Acejas). Atty. Margate requested for copies of any complaint-affidavit against Takao Aoyagi and asked what the ground was for the confiscation of x x x Aoyagis passport. "Hernandez prepared a Progress Report (Exh. 5 Hernandez) which was submitted to Ponciano M. Ortiz, the Chief of Operations and Intelligence Division of the BID. Ortiz recommended that Takao Aoyagi, who was reportedly a Yakuza and a drug dependent, be placed under custodial investigation. "In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met accused Atty. Francisco Acejas III who was then accompanied by Perlas. Atty. Acejas informed them that it would be he who would handle their case. A Contract for Legal Services (Exh. D) dated December 22, 1993 was entered into by Takao Aoyagi and Atty. Acejas, who represented the Lucenario Law Firm. "In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied the Aoyagis to the Domestic Airport as the latter were going to Davao. It was here that Takao Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee, and the P15,000.00 is for filing/docket fee (Exh. O). The Aoyagis were able to leave only in the afternoon as the morning flight was postponed.

FRANCISCO SALVADOR B. ACEJAS III, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x--------------------------------x G.R. No. 156891 June 27, 2006

VLADIMIR S. HERNANDEZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PANGANIBAN, CJ: This Court defers to the Sandiganbayans evaluation of the factual issues. Not having heard any cogent reasons to justify an exception to this rule, the Court adopts the anti-graft courts findings. In any event, after meticulously reviewing the records, we find no ground to reverse the Sandiganbayan. The Case Before us are consolidated Petitions for Review assailing the March 8, 2002 Decision, and the January 33 and 14, 20034 Resolutions of the Sandiganbayan in Criminal Case No. 20194. Francisco SB. Acejas III and Vladimir S. Hernandez were found guilty beyond reasonable doubt of direct bribery penalized under Article 210 of the Revised Penal Code. Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas III and Jose P. Victoriano were charged on February 8, 1994, in an Information that reads thus: "That on or about January 12, 1994, or sometime prior thereto in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN, being then employed both as Immigration officers of the Bureau of Immigration and Deportation, Intramuros, Manila, hence are public officers, taking advantage of their official positions and committing the offense in relation to office, conspiring and confederating with Senior Police Officer 3 EXPEDITO S. PERLAS of the Western Police District Command, Manila, together with co-accused Atty. FRANCISCO SB. ACEJAS III, of the LUCENARIO, MARGATE, MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P. VICTORIANO, a private individual, did then and there, willfully, unlawfully and feloniously demand, ask, and/or extort One Million (P1,000,000.00) PESOS from the spouses BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and FILOMENO PELINGON, JR., in exchange for the return of the passport of said Japanese Takao Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez and out of said demand, the complainants Bethel Grace Pelingon, Takao Aoyagi and Filomeno Pelingon, Jr. produced, gave and delivered the sum of Twenty Five Thousand (P25,000.00) Pesos in marked money to the above-named accused at a designated place at the Coffee Shop, Ground Floor, Diamond Hotel, Ermita, Manila, causing damage to the said complainants in the aforesaid amount of P25,000.00, and to the prejudice of government service."5 After trial, all the accused -- except Victoriano -- were convicted. The challenged Decision disposed as follows: "WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor D. Conanan, Expedito S. Perlas and Francisco SB. Acejas III are hereby found GUILTY beyond reasonable
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"On December 24, 1993, while attending a family reunion, Bethel Grace Pelingon-Aoyagi informed her brother, Filomeno Jun Pelingon, Jr., about her husbands passport. "On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio in Davao and told the latter of Takao Aoyagis problem with the BID. Respicio gave Pelingon his calling card and told Pelingon to call him up in his office. That same day, Jun Pelingon and Mr. and Mrs. Aoyagi flew back to Manila. "On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir Hernandez, Vic Conanan and Akira Nemoto met at the Aristocrat Restaurant in Roxas Boulevard. "Another meeting was arranged at the Manila Nikko Hotel in Makati on January 8, 1994 with Jun Pelingon, Perlas, Atty. Acejas and Hernandez attending. "On January 11, 1994, on account of the alleged demand of P1 million for the return of Takao Aoyagis passport, Jun Pelingon called up Commissioner Respicio. The latter referred him to Atty. Angelica Somera, an NBI Agent detailed at the BID. It was Atty. Carlos Saunar, also of the NBI, and Atty. Somera who arranged the entrapment operation. "On January 12, 1994, Vladimir Hernandez returned the passport to Takao Aoyagi at the Coffee Shop of the Diamond Hotel. The NBI Team headed by Attorneys Saunar and Somera arrested Dick Perlas, Atty. Acejas and Jose Victoriano after the latter picked up the brown envelope containing marked money representing the amount being allegedly demanded. Only Perlas, Acejas and Victoriano were brought to the NBI Headquarters."10 Version of the Prosecution Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno "Jun" Basaca Pelingon, Jr., and Carlos Romero Saunar.11 The prosecution evidence showed that it was during a meeting on January 5, 1994, when P1 million as consideration for the passport was demanded. Conanan averred that Aoyagi was a drug trafficker and Yakuza member. The money was to be used to settle the alleged "problem" and to facilitate the processing of a permanent visa. When Pelingon negotiated to lower the amount demanded, Conanan stated that there were many of them in the Bureau of Immigration and Deportation (BID).12 During the second meeting held at Hotel Nikko, Pelingon was informed that the press and government enforcers were after Aoyagi. Hernandez asked for a partial payment of P300,000, but Pelingon said that the whole amount would be given at just one time to avoid another meeting.13 After talking to Commissioner Respicio on January 11, 1994,14 Pelingon called up Dick Perlas to schedule the exchange. Regarding the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG) adds the following facts: "1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat Restaurant. [Acejas] informed Pelingon that he would file a P1 million lawsuit against the BID agents who confiscated the passport of Takao Aoyagi. [Acejas] showed Pelingon several papers, which allegedly were in connection with the intended lawsuit. However, when Hernandez and Conanan arrived at the Aristocrat Restaurant, [Acejas] never mentioned to the BID agents the P1 million lawsuit. [Acejas] just hid the papers he earlier showed to Pelingon inside his [Acejas] bag. "1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay the amount of P1 million in exchange for the help he would extend to him (Takao) in securing a permanent visa in the Philippines. [Acejas], who was Aoyagis lawyer, did nothing. "1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at the Hotel Nikko. Thereat, Hernandez informed the group that certain government officials and

even the press were after Takao Aoyagi. Hernandez said that Takao Aoyagi can make a partial payment of P300,000.00. Pelingon however, assured the group that Takao Aoyagi would pay in full the amount of P1 million so as not to set another meeting date. [Acejas] kept quiet throughout the negotiations. xxx xxx xxx

"1.5.a. [Acejas] was present during the entrapment that took place at the Diamond Hotel. Hernandez handed the passport to [Acejas], who handed it then to Perlas and thereafter to Takao Aoyagi. After Takao Aoyagi went over his confiscated passport, Bethel Grace handed to Hernandez the envelope15 containing the supposed P1 million. Hernandez refused and motioned that [Acejas] be the one to receive it. [Acejas] willingly got the envelope and placed it beside him and Perlas. x x x before Hernandez handed out Aoyagis pass- port, he reminded the group of their earlier agreement of kaliwaan, i.e., that after the passport is released, the Aoyagis should give the P1 million."16 Version of the Defense Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and Ponciano M. Ortiz testified for the defense.17 To the Sandiganbayans narration, Hernandez adds: "6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and Deportation (BID), went to the house of Private Respondents Takao and Bethel Grace Aoyagi to enforce and serve a Mission Order issued and assigned to him by BID Commissioner Zafiro Respicio on December 13, 1993, for the arrest of Takao Aoyagi. "7. When Bethel Grace showed [Hernandez] her husbands passport, [Hernandez] found out that the latters [authority] to stay had already been duly extended. He invited private respondents to go with him to the BID office. They declined, but made a written undertaking to appear at the BID office for investigation on December 20, 1993. As security for said undertaking, Bethel Grace Aoyagi entrusted to [Hernandez] her husbands passport, receipt of which [Hernandez], in return, acknowledge[d] in the same instrument. "8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has been cleared and that he can pick up his passport at the BID office. In connection therewith, [Hernandez] was invited by Perlas to make the return at a lunchtime meeting to be held at the Diamond Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave the passport to Atty. Acejas, Aoyagis counsel, and within less than ten minutes, he left the coffee shop." 18 In his Petition, Acejas narrates some more occurrences as follows: "1. 18th December 1993 The law firm of Lucenario Margate Mogpo Tiongco & Acejas was engaged by the spouses Takao Aoyagi and Bethel Grace Pelingon Aoyagi. x x x. xxx xxx xxx

"3. 22nd December 1993 "a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about the facts regarding the confiscation by agents of the BID of the passport belonging to a Japanese client. x x x. "b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his brother in-law Mr. Expedito Perlas, who happened to be a policeman and a friend of Mr. Takao Aoyagi. Thus, [Acejas] met Mr. Perlas for the first time in the afternoon of this date. "c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the Diamond Hotel, where they were staying. x x x [Acejas] advised them that

the law firm decided that the clients can file an action for Replevin plus Damages for the recovery of the Japanese passport. "d) The CONTRACT FOR LEGAL SERVICES was signed between the client and the law firm, thru [Acejas] as partner thereof. x x x The amount of Fifty Thousand Pesos (Php.50,000.00) was agreed to be paid by way of Case Retainers/Acceptance Fees, which was supposed to be payable upon (the) signing (t)hereof, and the sum of Php.2,000.00 by way of appearance fee. However, the client proposed to pay half only of the acceptance fee (Php.25,000.00), plus the estimated judicial expenses for the filing or docket fees (Php.15,000.00). x x x It was then further agreed that the balance of Php.25,000.00 was supposed to be given upon the successful recovery of the Japanese passport. "e) The clients informed [Acejas] that they are supposed to leave for Dava o the following day on the 23rd because they will spend their Christmas in Davao City; but they promised that they will be back on the 26th, which is a Sunday, so that on the 27th, which is a Monday, the complaint against the BID officers will have to be filed in Court. xxx xxx xxx

"g) x x x Mr. Pelingon Jr. for the second time advised against the filing thereof saying that his Japanese brother-in-law would like to negotiate or in his own words magbibigay naman [i.e. will give money anyway]. "9. 8th January 1994 "a) Again, Mr. Perlas called the law office and informed x x x that the Japanese client is now in Manila. Petitioner attended the meeting they arranged in (Makati) and meet Dick Perlas, Vladimir Hernandez and Pelingon Jr. x x x. "b) x x x according to Pelingon Jr., the Japanese does not want to meet with anybody because anyway they are willing to pay or negotiate. "c) [Hernandez was also] present at the meeting and [Acejas] met him for the second time. x x x [Acejas] said that if [Hernandez] will not be able to return the passport on or before January 12, 1994, then the law firm will have no choice but to file the case against him x x x. Again, for the third time Mr. Pelingon warned against the filing of the case because he said that he would directly negotiate with the BID agents. "d) The Makati meeting ended up with the understanding that Mr. Hernandez will have to undertake the return [of] the Japanese passport on or before January 12, 1994. "10. 12th January 1994 "a) Mr. Perlas called up the law office informing that the Japanese client was already in Manila and was requesting for an appointment with the lawyers at lunchtime of January 12 at the Diamond Hotel where he was billeted. xxx xxx xxx

"6. 27th December 1993 (T)he law office received word from Mr. Perlas that the Japanese did not come back on the 26th (December), x x x so that the case cannot be filed on the 27th instead (it has) to wait for clients instruction. "7. 4th January 1994 In the late afternoon, the law firm received a telephone call from Mr. Perlas informing (it) that the Japanese is already in Manila and he was requesting for an appointment with any of the lawyer of the law firm on January 5, 1994. "8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno Pelingon Jr. including a certain Nimoto Akira. x x x. "b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for filing but, of course, the Japanese client and the wife should first read the complaint and sign if they want to pursue the filing of the complaint against the BID agents. "c) For the first time, Mr. Pelingon advised against the intended filing of the case. x x x He instead suggested that he wants to directly negotiate with the BID agents. "d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent who confiscated the Japanese passport. Mr. Perlas and Mr. Pelingon were able to contact the BID agent. "e) For the first time [Acejas] saw Mr. Hernandez, when the latter arrived and also accused Victor Conanan. In the course of the meeting, a confrontation ensued between [Acejas] and [Hernandez] concerning the legal basis for the confiscation of the passport. [Acejas] demanded for the return of the Japanese passport x x x. Mr. Hernandez said that if there are no further derogatory report concerning the Japanese client, then in a matter of week (from January 5 to 12), he will return the passport. "f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese passport will not be returned in one (1) weeks time, then (the law firm) will pursue the filing of the replevin case plus the damage suit against him including the other BID agents.

"c) x x x x x x x x x "At this meeting, the Japanese was inquiring on the status of the case and he was wondering why the Japanese passport is not yet recovered when according to him he has already paid for the attorney fees. And so, [Acejas] explained to him that the case has to be filed and they still have to sign the complaint, the Special Power of Attorney and the affidavit relative to the filing of replevin case. But the Japanese would not fully understand. So, Pelingon Jr. again advised against the filing of the case saying that since there is no derogatory record of Mr. Aoyagi at the BID office, then the BID agents should return the Japanese passport. xxx xxx xxx

"e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried t o contact Mr. Hernandez. Since, they were able to contact the latter, we waited until around 2:00 p.m.. When Mr. Hernandez came, he said that the Japanese client is cleared at the BID office and so, he can return the Japanese passport and he gave it to [Acejas]. x x x When [Acejas] received the Japanese passport, (he) checked the authenticity of the documents and finding that it was in good order, (he) attempted to give it to the Japanese client. "Very strangely when [Acejas] tried to hand-over the Japanese passport to the Japanese across the table, the Japanese was motioning and wanted to get the passport under the table. x x x [Acejas] found it strange. (He) x x x thought that it was a Japanese custom to receive things like that under the table. But nonetheless, [Acejas] did not give it under the table and instead passed it on to Mr. Dick Perlas who was seated at (his) right. And so, it was Mr. Dick Perlas who took the passport from [Acejas] and finally handed it over to Mr. Aoyagi. x x x. After th at, there was a

little chat between Mr. Hernandez and the client, and Mr. Hernandez did not stay for so long and left. "Still, thereafter, (w)hen the Japanese passport was received, Bethel Grace Aoyagi and [Acejas] were talking and she said since the Japanese passport had been recovered, they are now willing to pay the Php.25,000.00 balance of the acceptance fee. "Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr. Hernandez to receive it while Mr. Hernandez was still around standing. But Mr. Hernandez did not receive it. "Since, the payment is due to the law firm, [Acejas] received the brown envelope. xxx xxx xxx

"III. Whether or not respondent Sandiganbayan, 5th Division, ruled erroneously when it relied solely on the naked and uncorroborated testimonies of the late Filomeno Jun Pelingon, Jr. in order to declare the existence of a conspiracy to commit bribery, as well as the guilt of the accused. "IV. Whether or not [respondent] courts acquittal of co-accused Victor Conanan and its conviction of [Hernandez] for the offense as charged effectively belies the existence of a conspiracy. "V. Whether or not the respondent Sandiganbayan committed grave abuse of discretion amounting to lack of, or in excess of jurisdiction when it found [Hernandez] guilty beyond reasonable doubt of the crime of direct bribery."30 On the other hand, Petitioner Acejas simply enumerates the following points: "1. The Conspiracy Theory 2. The presence of lawyer-client relationship; duty to clients cause; lawful performance of duties 3. Instigation not entrapment 4. Credibility of witness and testimony 5. Affidavit of desistance; effect: creates serious doubts as to the liability of the accused 6. Elements of bad faith 7. Elements of the crime (direct bribery) 8. Non-presentation of complaining victim tantamount to suppression of evidence"31 In the main, petitioners are challenging the finding of guilt against them. The points they raised are therefore intertwined and will be discussed jointly. The Courts Ruling The Petitions have no merit. Main Issue: Finding of Guilt The crime of direct bribery exists when a public officer 1) agrees to perform an act that constitutes a crime in consideration of any offer, promise, gift or present; 2) accepts the gift in consideration of the execution of an act that does not constitute a crime; or 3) abstains from the performance of official duties. 32 Petitioners were convicted under the second kind of direct bribery, which contained the following elements: 1) the offender was a public officer, 2) who received the gifts or presents personally or through another, 3) in consideration of an act that did not constitute a crime, and 4) that act related to the exercise of official duties.33 Hernandez claims that the prosecution failed to show his involvement in the crime. Allegedly, he was merely implementing Mission Order No. 93-04-12, which required him to investigate Takao Aoyagi.34 The passport was supposed to have been voluntarily given to him as a guarantee to appear at the BID office, but he returned it upon the instruction of his superior. 35 The chain of circumstances, however, contradicts the contention of Hernandez. It was he who had taken the passport of Takao Aoyagi.36 On various dates,37 he met with Takao and Bethel Grace Aoyagi, and also Pelingon, regarding the return of the passport. Hernandez then asked for a down payment on the payoff,38 during which he directed Bethel Grace to deliver the money to Acejas.39

"Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who wa s signaling something as if there was a sense of urgency. [Acejas] immediately stood up and left hurriedly. When [Acejas] approached Mr. Victoriano, he said that the car which [Acejas] parked in front of the Diamond Hotel gate, somebody took the car. [Acejas] went out and checked and realized that it was valet parking so it was the parking attendant who took the car and transferred the car to the parking area. [Acejas] requested Mr. Victoriano to get (the) envelope and the coat, at the table. "g) When [Acejas] went out, [Acejas] already looked for the parking attendant to get the car. When the car arrived, [Acejas] just saw from the doors of the Diamond Hotel Mr. Jose Victoriano and Mr. Dick Perlas coming out already in handcuffs and collared by the NBI agents." They then were taken to the NBI, except the accused Vladimir Hernandez."19 Ruling of the Sandiganbayan The Sandiganbayan ruled that the elements of direct bribery,20 as well as conspiracy in the commission of the crime,21 had been proven. Hernandez and Conanan demanded money;22 Perlas negotiated and dealt with the complainants;23 and Acejas accepted the payoff and gave it to Perlas.24 Victoriano was acquitted on reasonable doubt. Although he had picked up the envelope containing the payoff, this act did not sufficiently show that he had conspired with the other accused.26 The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was the balance of the law firms legal fees.27 If he had indeed believed that the money was payable to him, he should have kept and retained it. The court then inferred that he had merely been pretending to protect his clients rights when he threatened to file a suit against Hernandez.28 The January 3, 2003 Resolution acquitted Conanan and denied the Motions for Reconsideration of Hernandez, Acejas and Perlas. According to the Sandiganbayan, Conanan was not shown to be present during the meetings on January 8 and 12, 1994. 29 His presence during one of those meetings, on January 5, 1994, did not conclusively show his participation as a co-conspirator. The January 14, 2003 Resolution denied Acejas Supplemental Motion, which prayed for a new trial. The Issues Petitioner Hernandez raises the following issues: "I. Whether or not respondent court erred in ruling that [Hernandez] was part of the conspiracy to extort money from private respondents, despite lack of clear and convincing evidence. "II. Whether or not the Honorable Sandiganbayan gravely abused its discretion when it overlooked the fact that the legal requisites of the crime are not completely present as to warrant [Hernandez] complicity in the crime charged.
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Bethel Grace Aoyagis testimony, which was confirmed by the other witnesses, proceeded as follows: "PROSECUTOR MONTEMAYOR: "Q: When Vlademir Hernandez arrived, what happened? "A: He got the passport from his pocket and passed it on to Atty. Acejas, sir. "Q: What happened after he gave the passport to Atty. Acejas? "A: [Acejas] gave the passport to Mr. Expedito Perlas, sir. "Q: After that, what happened? "A: Then, [Perlas] gave it to Mr. Aoyagi, sir. "Q: The passport? "A: Yes, sir. "Q: And when Mr. Aoyagi received the passport, what did you do or what did Mr. Aoyagi do? "A: He checked all the pages and he kept it, sir. xxxxxxxxx "Q: What did you do with that money after Mr. Aoyagi received the passport? "A: Because our agreement is that after giving the passport we would give the money so when Mr. Perlas handed to my husband the passport, I gave the money placed on my lap to my husband and he passed it to Mr. Hernandez who refused the same. "ATTY. ACEJAS: "Your Honor, please, may I just make a clarification that when the witness referred to the money it pertains to the brown envelope which allegedly contains the money x x x . "AJ ESCAREAL: "Noted. "PROSECUTOR MONTEMAYOR: "Q: Did Mr. Hernandez got hold or touched the envelope? "A: No, sir. "Q: When he [did] not want to receive the envelope, what did your husband do? "A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it to Atty. Acejas who received the same and later on passed it to Mr. Perlas. "Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything? "A: None, sir, he just motioned like this. "INTERPRETER: "Witness motioning by [waving] her two (2) hands, left and right. "PROSECUTOR MONTEMAYOR: "Q: And at the same time pointed to Atty. Acejas? "A: Yes, sir. "Q: And your husband gave the envelope to Atty. Acejas?

"A: Yes, sir. "Q: And Atty. Acejas, in turn, handed the said envelope to whom? "A: Expedito Perlas, sir. "Q: Did Expedito Perlas [receive] that envelope? "A: Yes, sir. "Q: After that, what happened? "A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir. "Q: And then, what happened? "A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vlademir Hernandez immediately left and then all of a sudden somebody came and picked up the envelope, sir."40 Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi or his representatives had to negotiate for the retrieval of the passport during the meetings held outside the BID. Ponciano Ortiz, chief of the Operation and Intelligence Division of the BID, testified that it was not a standard operating procedure to officially return withheld passports in such locations.41 It can readily be inferred that Hernandez had an ulterior motive for withholding the passport for some time despite the absence of any legal purpose. Also, Hernandez cannot claim innocence based on Conanans acquittal. 42 While the testimony of Pelingon was the only evidence linking Conanan to the conspiracy, 43 there was an abundance of evidence showing Hernandezs involvement. Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the prosecutions version that he was silent during the negotiations for the return of the passport. 44 According to him, he kept giving Hernandez an ultimatum to return the passport, with threats to file a court case. Acejas testified that he had wanted to file a case against Hernandez, but was prevented by Spouses Aoyagi. His supposed preparedness to file a case against Hernandez might have just been a charade and was in fact belied by Pelingons testimony regarding the January 5, 1994 meeting: "ATTY. VALMONTE: "Q: Who arrived first at Aristocrat Restaurant, you or Acejas? "A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir. xxxxxxxxx "Q: When the three (3) of you were talking that was the time that Atty. Acejas was showing you documents that he was going to file [a] P1 million damage suit against Hernandez? "A: Yes, sir. "Q: Now, is it not that when Hernandez and Cunanan arrived and you were talking with each other, Atty. Acejas also threatened, reiterated his threat to Hernandez that he would file [a] P1 million damage suit should Hernandez [fails] to return the passport? "A: When the group [was] already there, the P1 million [damage suit] was not [anymore] mentioned, sir."45 Even assuming that Acejas negotiated for the return of the passport on his clients behalf, he still failed to justify his actions during the entrapment operation. The witnesses all testified that he had received the purported payoff. On this point, we recount the testimony of Bethel Grace Aoyagi:

"Prosecutor Montemayor: xxxxxxxxx "Q: When he [did] not want to receive the envelope, what did your husband do? "A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty. Acejas so my husband handed it to Atty. Acejas who received the same and later on passed it to Mr. Perlas. "Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything? "A: None, sir, he just motioned like this. "Interpreter: "Witness motioning by [waving] her two (2) hands, left and right. "Prosecutor Montemayor: "Q: And at the same time pointed to Atty. Acejas? "A: Yes, sir. "Q: And your husband gave the envelope to Atty. Acejas? "A: Yes, sir. "Q: And Atty. Acejas, in turn, handed the said envelope to whom? "A: Expedito Perlas, sir. "x x x x x x x x x "Q: After that, what happened? "A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir. "Q: And then, what happened? "WITNESS: "A: After the money was placed where it was, we were surprised, I think, it happened in just seconds[.] Mr. Vladimir Hernandez immediately left and then all of a sudden somebody came and picked up the envelope, sir. "Prosecutor Montemayor: "Q: Do you know the identity of that somebody who picked up the envelope? xxxxxxxxx "A: Victoriano, sir."
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envelope was not for the balance of the acceptance fee because, if it were, why was it given to Hernandez. xxxxxxxxx "Acejas defense was further weakened by the fact that his testimony as to why he left immediately after the brown envelope was given to him was uncorroborated. He should have presented accused Victoriano to corroborate his testimony since it was the latter who allegedly called him and caused him to leave their table. This, he did not do. The ineluctable conclusion is that he was, indeed, in cahoots with his co-accused."47 Lawyers Duty Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with the complainants. He was supposedly only acting in their best interest 48 and had the right to be present when the passport was to be returned.49 True, as a lawyer, it was his duty to represent his clients in dealing with other people. His presence at Diamond Hotel for the scheduled return of the passport was justified. This fact, however, does not support his innocence Acejas, however, failed to act for or represent the interests of his clients. He knew of the payoff, but did nothing to assist or protect their rights, a fact that strongly indicated that he was to get a share. Thus, he received the money purporting to be the payoff, even if he was not involved in the entrapment operation. The facts revealed that he was a conspirator. The Court reminds lawyers to follow legal ethics 50 when confronted by public officers who extort money. Lawyers must decline and report the matter to the authorities. 51 If the extortion is directed at the client, they must advise the client not to perform any illegal act. Moreover, they must report it to the authorities, without having to violate the attorney-client privilege.52 Naturally, they must not participate in the illegal act.53 Acejas did not follow these guidelines. Worse, he conspired with the extortionists. Instigation Also futile is the contention of petitioners that Pelingon instigated the situation to frame them into accepting the payoff.54 Instigation is the employment of ways and means to lure persons into the commission of an offense in order to prosecute them. 55 As opposed to entrapment, criminal intent originates in the mind of the instigator.56 There was no instigation in the present case, because the chain of circumstances showed an extortion attempt. In other words, the criminal intent originated from petitioners, who had arranged for the payoff. During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate Justice Escareal clarifying question as follows: "AJ ESCAREAL: "[Q:] Did Mr. Hernandez say anything when he returned the passport to your husband? "A: He did not say anything except that he instructed [the] group to abide with the agreement that upon handing of the passport, the money would also be given immediately (magkaliwaan)."57 Alleged Discrepancies According to Acejas, Pelingons testimonies given in his Complaint -Affidavit, SupplementalAffidavit, inquest testimony, testimony in court, and two Affidavits of Desistance were contradictory.58 He cites these particular portions of Pelingons Affidavit:

Acejas failed to justify why he received the payoff money. It would be illogical to sustain his contention that the envelope represented the balance of his firms legal fees. That it was given to Hernandez immediately after the return of the passport leads to the inescapable conclusion that the money was a consideration for the return. Moreover, Acejas should have kept the amount if he believed it to be his. The Court agrees with the Sandiganbayans pronouncement on this point: "x x x. If he believed that the brown envelope contained the balance of the acceptance fee, how come he passed it to Perlas? His passing the brown envelope to Perlas only proves that the same did not contain the balance of the acceptance fee; otherwise, he should have kept and retained it. Moreover, the three prosecution witnesses testified that the brown envelope was being given to Hernandez who refused to accept the same. This further shows that the brown

"5. That having been enlightened of the case, and conscious that I might be prosecuting innocent men, I have decided on my own disposition, not to further testify against any of the accused in the Sandiganbayan or in any court or tribunal, regarding the same cause of action. "6. That this affidavit of desistance to further prosecute is voluntarily executed, and that no reward, promise, consideration, influence, force or threat was executed to secure this affidavit." 59 Pelingon testified that he had executed the Affidavit of Desistance because of a threat to his life.60 He did not prepare the Affidavit; neither was it explained to him. Allegedly, his true testimony was in the first Complaint-Affidavit that he had executed.61 By appearing and testifying during the trial, he effectively repudiated his Affidavit of Desistance. An affidavit of desistance must be ignored when pitted against positive evidence given on the witness stand.62 Acejas has failed to identify the other material points that were allegedly inconsistent. The Court therefore adopts the Sandiganbayans finding that these were minor details that were not indicative of the lack of credibility of the prosecution witnesses. 63 People v. Eligino64 is in point: "x x x. While witnesses may differ in their recollections of an incident, it does not necessarily follow from their disagreement that all of them should be disbelieved as liars and their testimony completely discarded as worthless. As long as the mass of testimony jibes on material points, the slight clashing statements neither dilute the witnesses credibility nor the veracity of their testimony. Thus, inconsistencies and contradictions referring to minor details do not, in any way, destroy the credibility of witnesses, for indeed, such inconsistencies are but natural and even enhance credibility as these discrepancies indicate that the responses are honest and unrehearsed."65 Suppression of Evidence Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money was supposedly demanded, should have been presented by the prosecution as a witness. 66 The discretion on whom to present as prosecution witnesses falls on the People. 67 The freedom to devise a strategy to convict the accused belongs to the prosecution. 68 Necessarily, its decision on which evidence, including which witnesses, to present cannot be dictated by the accused or even by the trial court.69 If petitioners believed that Takao Aoyagis testimony was important to their case, they should have presented him as their witness.70 Finally, Acejas claims that his Comment/Objection to the prosecutions Formal Offer of Evidence was not resolved by the Sandiganbayan.71 In that Comment/Objection, he had noted the lateness in the filing of the Formal Offer of Evidence. It may readily be assumed that the Sandiganbayan admitted the prosecutions Formal Offer of Evidence upon the promulgation of its Decision. In effect, Acejas Comment/Objection was deemed immaterial. It could not overrule the finding of guilt. Further, it showed no prayer that the Sandiganbayan needed to act upon.72 Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon this Court.73 We are convinced that these were clearly based on the evidence adduced in this case. In sum, we find that the prosecution proved the elements of direct bribery. First, there is no question that the offense was committed by a public officer. BID Agent Hernandez extorted money from the Aoyagi spouses for the return of the passport and the promise of assistance in procuring a visa. Petitioner Acejas was his co-conspirator. Second, the offenders received the money as payoff, which Acejas received for the group and then gave to Perlas. Third, the money was given in consideration of the return of the passport, an act that did not constitute a crime. Fourth, both the confiscation and the return of the passport were made in the exercise of official duties. For taking direct part in the execution of the crime, Hernandez and Acejas are liable as principals.74 The evidence shows that the

parties conspired to extort money from Spouses Aoyagi. A conspiracy exists even if all the parties did not commit the same act, if the participants performed specific acts that indicated unity of purpose in accomplishing a criminal design.75 The act of one is the act of all. WHEREFORE, the Petitions are DENIED, and the assailed Decision and Resolutions AFFIRMED. Costs against petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 175074 August 31, 2011

April 26, 1994, viz: PNB Check Nos. C-983182-Q for P42,033.32; C-983183-Q for P95,680.89; C-983184-Q for P58,940.33 (Exhs. "A", "B" and "C"). The [petitioner] and Amador Borre, Head Teacher III, signed the three (3) checks (TSN, Aug. 30, 2001, pp. 4-8). Upon the instruction of the [petitioner], Lazado endorsed the checks and handed them to the accused. It was the custom in the school for Lazado to endorse the checks representing the teachers salaries and for the accused to encash them at PNB, Virac Branch and deliver the cash to Lazado for distribution to the teachers (Id., pp. 12-17). The following day, April 27, 1994, the accused encashed the three (3) checks at PNB, Virac Branch but he never returned to the school to deliver the money to Lazado (Id., 4 pp. 8-9). Evidence for the Defense The [petitioner] admitted that he encashed the subject checks at PNB, Virac Branch in the morning of April 27, 1994 but instead of going back to the school, he proceeded to the airport and availed of the flight to Manila to seek medical attention for his chest pain. Two (2) days after, around 4:30 oclock in the morning of April 29, 1994, while he and his nephew were on the road waiting for a ride, three (3) armed men held them up and took his bag containing his personal effects and the proceeds of the subject checks. He reported the incident to the police authorities, but he failed to 5 recover the money (TSN, Nov. 12, 2002, pp. 11-25). On August 31, 2005, after finding that the prosecution has established all the 6 elements of the offense charged, the RTC rendered a Decision convicting petitioner of the crime of Malversation of Public Funds, the decretal portion of which reads: WHEREFORE, the Court finds the accused Jesus Torres y Uchi GUILTY beyond reasonable doubt of the crime of malversation of public funds as defined and penalized under Article 217 of the Revised Penal Code, and hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from 12 years and 1 day of reclusion temporal, as minimum, and to 18 years, 8 months and 1 day of reclusion temporal, as maximum; to suffer the penalty of perpetual special disqualification; and to pay the fine of P196,654.54 with subsidiary imprisonment in case of insolvency. SO ORDERED.
7 8

JESUS TORRES, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: This is a petition for review on certiorari seeking to reverse and set aside the 1 2 Resolution dated September 6, 2006 and Resolution dated October 17, 2006 of the Court of Appeals (CA) in CA-G.R. CR No. 29694. The factual and procedural antecedents are as follows: In an Information dated November 15, 1994, petitioner Jesus U. Torres was charged with the crime of Malversation of Public Funds before the Regional Trial Court (RTC), Branch 42, Virac, Catanduanes, the accusatory portion of which reads: That on or about the 27th day of April 1994, or sometime subsequent thereto, in the Municipality of Virac, Catanduanes, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Principal of Viga Rural Development High School, Viga, Catanduanes, and as such by reason of his office and duties is responsible and accountable for public funds entrusted to and received by him, to wit: PNB Checks (sic) Nos. C-983182-Q for P42,033.32; C983183-Q for P95,680.89; C-983184-Q for P58,940.33, all dated April 26, 1994 in the total amount of ONE HUNDRED NINETY-SIX THOUSAND SIX HUNDRED FIFTYFOUR PESOS and FIFTY-FOUR CENSTAVOS (P196,654.54), Philippine Currency, representing salaries, salary differentials, additional compensation allowance and Personal Emergency Relief Allowance from January to March 1994 of the employees of the said school, taking advantage of his position and committing the offense in relation to his office, encashed said checks with the Philippine National Bank, Virac, Catanduanes Branch and once in possession of the money, did then and there willfully, unlawfully and feloniously and with grave abuse of confidence, misapply, misappropriate, embezzle and convert to his personal use and benefit the aforementioned amount of money, to the damage and prejudice of the Government. Contrary to law. Upon his arraignment, petitioner pleaded not guilty to the crime charged. Consequently, trial on the merits ensued. Evidence for the Prosecution [Petitioner] Jesus Torres y Uchi was the principal of Viga Rural Development High School (VRDHS). On April 26, 1994, he directed Edmundo Lazado, the schools collection and disbursing officer, to prepare the checks representing the teachers and employees salaries, salary differentials, additional compensation allowance (ACA) and personal emergency relief allowance (PERA) for the months of January to March, 1994. Lazado prepared three (3) checks in the total amount of P196,654.54, all dated
3

On September 8, 2005, petitioner filed his Notice of Appeal, where it was indicated that he was seeking recourse and appealing the decision of the RTC before the Court of Appeals. On February 10, 2006, petitioner filed a Manifestation and Motion acknowledging that he filed the appeal before the wrong tribunal. Petitioner eventually prayed, among other things, that the case be referred to the Sandiganbayan for appropriate action. In its Comment filed on June 29, 2006, the Office of the Solicitor General prayed that the appeal be dismissed outright, since transmittal to the proper court, in cases of erroneous modes of appeal, are proscribed. On September 6, 2006, the CA issued a Resolution dismissing the appeal, the dispositive portion of which reads:
10 9

WHEREFORE, pursuant to the provisions of Section 2, Rule 50 of the Rules and Section 4 of SC Circular No. 2-90, the instant appeal hereby is DISMISSED OUTRIGHT for lack of jurisdiction. SO ORDERED.
11 12 13

Besides, even if we look into the merits of his arguments, the case is doomed to fail. Contrary to petitioners argument, We find that he is an accountable officer within the 20 contemplation of Article 217 of the Revised Penal Code, hence, is untenable. An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the 21 duties of his office. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a school principal of a public high school, such as petitioner, may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same.1avvphi1 Petitioner also posits that he could not be convicted under the allegations in the Information without violating his constitutional right to be informed of the accusations against him. He maintains that the Information clearly charged him with intentional malversation and not malversation through negligence, which was the actual nature of malversation for which he was convicted by the trial court. This too lacks merit. Malversation may be committed either through a positive act of misappropriation of 22 public funds or property, or passively through negligence. To sustain a charge of malversation, there must either be criminal intent or criminal negligence, and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable under Article 217 of the Revised 23 Penal Code. More in point, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even when the Information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately 24 proves the mode of commission of the offense. Explicitly stated x x x [E]ven 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 mode proved, the same offense of malversation is involved and conviction thereof is proper. 25 xxx WHEREFORE, premises considered, the petition is DENIED. The Resolutions dated September 6, 2006 and October 17, 2006 of the Court of Appeals in CA-G.R. CR No. 29694 are AFFIRMED. SO ORDERED.

Petitioner filed a Motion for Reconsideration, dated October 17, 2006. Hence, the petition raising the sole error:

but was denied in the Resolution

Whether the honorable court of appeals erred in dismissing the petitioners appeal 14 outright instead of certifying the case to the proper court. Petitioner maintains that he inadvertently filed the notice of appeal before the Court of Appeals instead of the Sandiganbayan. Petitioner implores that the Court exercise its sound discretion and prerogative to relax compliance to sound procedural rules and to decide the case on the merits, considering that from the beginning, he has been candid and straightforward about the fact that the case was wrongfully filed with the Court of Appeals instead of the Sandiganbayan. The petition is without merit. Paragraph 3, Section 4 (c) of Republic Act No. 8249 (RA 8249), jurisdiction of the Sandiganbayan, provides:
15

which defined the

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of the regional trial courts whether in the exercise of 16 their own original jurisdiction or of their appellate jurisdiction as herein provided. Hence, upon his conviction, petitioners remedy should have been an appeal to the Sandiganbayan. There is nothing in said paragraph which can conceivably justify the filing of petitioners appeal before the Court of Appeals instead of the Sandiganbayan. Clearly, the Court of Appeals is bereft of any jurisdiction to review the judgment 17 petitioner seeks to appeal. It must be emphasized, however, that the designation of the wrong court does not necessarily affect the validity of the notice of appeal. However, the designation of the proper court should be made within the 15-day period to appeal. Once made within the said period, the designation of the correct appellate court may be allowed even if the records of the case are forwarded to the Court of Appeals. Otherwise, Section 2, 18 Rule 50 of the Rules of Court would apply, the relevant portion of which states: Sec. 2. Dismissal of improper appeal to the Court of Appeals. x x x An appeal erroneously taken to the Court of Appeals shall not be transferred to the 19 appropriate court, but shall be dismissed outright. In the case at bar, petitioner sought correction of the error in filing the appeal way beyond the expiration of the period to appeal the decision. The RTC promulgated its Decision on August 31, 2005. Petitioner filed his Notice of Appeal on September 8, 2005. Petitioner tried to correct the error only on February 10, 2006 when he filed his Manifestation and Motion. Clearly, this is beyond the 15-day period to appeal from the decision of the trial court. Therefore, the CA did not commit any reversible error when it dismissed petitioners appeal for lack of jurisdiction.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. Nos. 186659-710 October 19, 2011

February 2, 1993 February 3, 1993 February 5, 1993 February 5, 1993 February 18, 1993 February 18, 1993 February 22, 1993 February 22, 1993 February 22, 1993 February 22, 1993 February 22, 1993 February 22, 1993 February 24, 1993 March 18, 1993 March 18, 1993

414494 414499 414500 461801 461803 461804 461876 461877 461878 461879 461880 461881 461888 461932 461933 461934 461935 461936

Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Zacaria Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao TOTAL

500,000.00 450,000.00 500,000.00 500,000.00 500,000.00 104,985.64 500,000.00 500,000.00 500,000.00 500,000.00 500,000.00 500,000.00 64,000.00 500,000.00 500,000.00 350,000.00 500,000.00 500,000.00 P11,118,570.64

ZACARIA A. CANDAO, ABAS A. CANDAO AND ISRAEL B. HARON, Petitioners, vs. PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, Respondents. DECISION VILLARAMA, JR., J.: Assailed in this petition for review on certiorari under Rule 45 is the Decision1 dated October 29, 2008 and Resolution2 dated February 20, 2009 of the Sandiganbayan (First Division) finding the petitioners guilty beyond reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended. The Facts On August 5, 1993, Chairman Pascasio S. Banaria of the Commission on Audit (COA) constituted a team of auditors from the central office to conduct an Expanded Special Audit of the Office of the Regional Governor, Autonomous Region for Muslim Mindanao (ORG-ARMM). State Auditors Heidi L. Mendoza (Team Leader) and Jaime Roxas (Member) were directed to conduct the said audit under the supervision of Jaime P. Naranjo (State Auditor V). From August 24 to September 1, 1993, the expanded audit was thus conducted on the financial transactions and operations of ORG-ARMM for the period July 1992 to March 1993. As stated in Special Audit Office (SAO) Report No. 93-25 submitted by the audit team, it was found that illegal withdrawals were made from the depository accounts of the agency through the issuance of checks payable to the order of petitioner Israel B. Haron (Disbursing Officer II) without the required disbursement vouchers. The following are the details of the government accounts and the fifty-two (52) checks3 issued and encashed without proper supporting documents: PNB Account No. 370-3208 DATE ISSUED CHECK NO. SIGNATORIES AMOUNT

March 19, 1993 March 22, 1993 December 29, 1992 December 29, 1992 December 29, 1992 January 26, 1993 January 26, 1993 January 26, 1993 February 2, 1993 414431 414432 414433 414487 414488 414489 414493 Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao 500,000.00 March 22, 1993 439,585.00 210,000.00

Account No. 844061 (Treasurer of the Philippines) 500,000.00 500,000.00 500,000.00 500,000.00 January 11, 1993 968740 Israel Haron & Abas Candao 400,000.00 DATE ISSUED January 11, 1993 January 11, 1993 CHECK NO. SIGNATORIES AMOUNT

968739

Israel Haron & Abas Candao

400,000.00

January 11, 1993 January 13, 1993 January 18, 1993 March 2, 1993 March 4, 1993 March 4, 1993 March 4, 1993 March 4, 1993 March 4, 1993 March 5, 1993 March 5, 1993 March 12, 1993 March 18, 1993 March 18, 1993 March 18, 1993 March 18, 1993 March 18, 1993 March 19, 1993 March 19, 1993 March 19, 1993 March 29, 1993 March 29, 1993

968741 968751 968804 974192 974208 974209 974210 974211 974212 974227 974228 974244 974324 974325 974326 974327 974328 974339 974340 974341 979533 979543

Israel Haron & Abas Candao Pandical Santiago & Abas Candao Israel Haron & Abas Candao Israel Haron & Zacaria Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao

400,000.00 120,000.00 380,000.00 250,000.00 500,000.00 500,000.00 500,000.00 500,000.00 30,000.00 500,000.00 500,000.00 100,000.00 500,000.00 500,000.00 500,000.00 500,000.00 500,000.00 200,000.00 25,000.00 172,000.00 500,000.00 500,000.00

March 29, 1993 March 29, 1993 March 30, 1993

979544 979545 979590

Israel Haron & Abas Candao Israel Haron & Abas Candao Israel Haron & Abas Candao TOTAL

500,000.00 300,000.00 150,000.00 P9,927,000.00 P21,045,570.64

GRAND TOTAL =

In a letter dated September 10, 1993, Chairman Banaria demanded from petitioner Haron to produce and restitute to the ARMM-Regional Treasurer immediately the full amount of P21,045,570.64 and submit his explanation within seventy-two (72) hours together with the official receipt issued by the ARMM Regional Treasurer in acknowledgment of such restitution. On April 17, 1998, the Office of the Special Prosecutor, Office of the Ombudsman-Mindanao, filed in the Sandiganbayan criminal cases for malversation of public funds against the following ORG-ARMM officials/employees: Zacaria A. Candao (Regional Governor), Israel B. Haron (Disbursing Officer II), Abas A. Candao (Executive Secretary) and Pandical M. Santiago (Cashier). They were charged with violation of Article 217 of the Revised Penal Code, as amended, under the following informations with identical allegations except for the varying date, number and amount of the check involved in each case: Criminal Case Nos. 24569-24574, 24576-24584, 24593, 24595-246204 (42 counts involving checks in the total amount of P17,190,585.00) That on or about 29 December 1992, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with [Abas] Candao, Executive Secretary of the same office, who is a high ranking officer, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 414431 dated 29 December 1992, payable to the order of accused Israel B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated. CONTRARY TO LAW. Criminal Case Nos. 24585- 24592 and 245945 (9 counts involving checks in the total amount of P3,854,985.64) That on or about 18 February 1993, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Zacaria Candao, Regional Governor of the same office, who is a high ranking officer, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 461803 dated 18 February 1993, payable to the order of accused Israel

B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated. CONTRARY TO LAW. Criminal Case No. 245756 That on or about 13 January 1993, in Cotabato City, Philippines, and within the jurisdiction of this Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer of the Office of the Regional Governor, and as such is responsible and accountable for the funds of the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with Pandical Santiago and [Abas] Candao, Cashier and Executive Secretary, respectively, of the same office, while in the performance of their respective official functions, taking advantage of their official positions, and committing the offense in relation to their respective functions, with gross abuse of confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of P120,000.00 from the depository account of the Office of the Regional Governor thru the issuance of Check No. 968751 dated 13 January 1993, payable to the order of accused Israel B. Haron, without the required disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the amount of P120,000.00, to the damage and prejudice of the government in the aforesaid sum as abovestated. CONTRARY TO LAW. At their arraignment, all accused pleaded not guilty to the charge of malversation. In the meantime, accused Santiago died and consequently the case against him in Criminal Case No. 24575 was dismissed. The prosecutions lone witness was Heidi L. Mendoza, 7 COA State Auditor IV. She testified that their expanded audit, conducted from August 24 to September 1, 1993, disclosed the illegal withdrawals of funds from the PNB and Treasury accounts of ORG-ARMM involving 52 checks issued without the required disbursement vouchers. Specifically, their attention was caught by the fact that the Report of Checks Issued by the Deputized Disbursing Officer (RCIDDO) showed that the subject 52 checks have no assigned voucher numbers. The audit team demanded for the original of said RCIDDO for the months of December 1992, February and March 1993, which were supposed to be prepared and submitted by the disbursing officer, but the ORG-ARMM did not submit the same. In a letter dated August 24, 1993, the COA likewise made a demand from the Regional Governor through the resident auditor for the production of the original disbursement vouchers and complete supporting documents of the subject checks. 8 In response, the Finance and Budget Management Services of ORG-ARMM informed the audit team that the vouchers were already submitted to COA Resident Auditor, Supervising State Auditor IV Rosalinda Gagwis, purportedly under transmittal letters dated March 4 and March 30, 1993. Mendoza then personally verified from Gagwis who denied having received the subject vouchers and issued a certification to that effect. In a letter dated September 10, 1993, Chairman Banaria finally demanded for the restitution of the funds illegally withdrawn through the issued 52 checks and to comply with such demand within 72 hours from receipt of said letter. As to the absence of her signature in the audit report, she explained that she was already on maternity leave when the interim report (SAO Report No. 93-25) was submitted. However, she, together with audit team member Jaime B. Roxas executed a Joint Affidavit dated May 17, 1996 regarding their conduct of the expanded audit and their findings and recommendation. Although Haron submitted copies of disbursement vouchers to the COA receiving clerk, this was made beyond the 72-hour deadline given to them.9 On cross-examination, witness Mendoza was asked if the audit team had informed the office or parties concerned that they are going to be audited (entry conference). She replied that this was a sensitive assignment, recalling that they were threatened after their identities were established during the earlier audit of the same office such that she had to be brought back to Manila. At that

time, the Regional Governor was accused Candao. Hence, during the expanded audit, the team was unable to proceed as in ordinary situations. While they did an entry conference during the previous main audit, they were unable to do so at the time of the expanded audit. Again for security reasons, the team also did not conduct an exit conference after field work; they would be risking their lives if they discuss there and then their findings. Due to threat to her life, it was her team supervisor (Naranjo) and member (Roxas) who personally retrieved the documents in Cotabato City. She admitted the belated submission of original vouchers (October 29, 1993) to the COA central office but these are without supporting documents. 10 For the accused, the first witness was Nick Luz Aduana who was the Director of Finance of ORG-ARMM from July 1991 until his resignation in March 1993. He testified that his functions then include the supervision and overseeing of the three divisions: Budget, Accounting and Management. When report of the audit team came out, he was surprised because they were not informed of the audit. He was familiar with the 52 checks because the disbursement vouchers passed through his office. He explained the procedure with respect to the processing of cash advances as follows: generally, there were cash advances made in ARMM which cover travels, salaries, etc. but particularly for "peace and order campaign," it emanates from the ORG when the Regional Governor issues an authority for cash advance, and then they process the voucher (Finance and Budget Management Services); once their division have performed their accounting functions relative to the vouchers, the same are forwarded to the Regional Governor for approval or in his absence to his Executive Secretary; after the approval of the voucher, it will be forwarded to the Cash Division for the issuance of check; the person who will liquidate the cash advance is usually the employee mentioned in the voucher; and after they have prepared all the liquidation papers, these are submitted to the Budget and Management Division before forwarding them to the COA Auditor. He maintained that the original disbursement vouchers have already been submitted to the COA Special Audit Office. Since 1991, they have never received any notice of disallowance of their disbursements, including those intended for "peace and order campaign." Being the first ARMM set of officials, they had sought the advice of their Auditor as to proper accounting procedures; they followed the advice of Auditor Gagwis who said that there should be authority to cash advance coming from the Regional Governor which should be given to the Disbursing Officer. He identified the vouchers presented by the defense as the ones processed by their division with the corresponding amounts reflected therein. Insofar as the expanded audit is concerned, they were not given the opportunity to defend the case as they were not given the so-called exit conference.11 On cross-examination, witness Aduana hinted on political reasons why an expanded audit was conducted when Regional Governor Pagdanganan assumed office despite the fact that an earlier audit was already made during the administration of Governor Candao. He claimed that he did not receive any copy of the demand letter dated August 24, 1993; he was no longer connected with ARMM at the time. He also maintained that the disbursement vouchers were processed by their office and entered into their books of account. However, when asked what happened to these books of account, Aduana said these are with the Office of the Regional Governor. He admitted that the only supporting document for the checks and vouchers were the authority to cash advance; the "peace and order campaign" disbursement is peculiar to ARMM and hence they did not know what supporting documents to attach. When queried about the particular activities covered by this "peace and order campaign" disbursement, Aduana admitted that he really does not know the breakdown of expenses or for what items in particular were the disbursed amounts spent. Their division merely processed the disbursement vouchers that were prepared by the ORG, and while his signature appears in said vouchers his role was limited to certifying the availability of funds.12 The next witness, Rosalinda G. Gagwis, former COA Resident Auditor of ORG-ARMM, testified that in 1991 she was the Chief of the Operation and Review Division (ORD), COA Region XII which at the time has jurisdiction over ORG-ARMM; she was Auditor-in-Charge of ORG-ARMM only up to March 8, 1993 when the separation of COA Region XII personnel and COA-ARMM was implemented. Among her duties as such Auditor-in-Charge was to conduct a post-audit of the financial transactions of ORG-ARMM. In the course of the expanded audit of ORG-ARMM, she was requested to issue the Certification dated August 27, 1993 stating that she has not received the January to March 1993 vouchers as stated in the letter of Haron. Subsequently, on

July 22, 1998 she executed a two-page Affidavit because she has been hearing that her previous Certification was misinterpreted to mean that the subject vouchers were "not existing." She then clarified that actually, ORG-ARMM tried to submit bundles of vouchers to her office but she refused to accept them because she was no longer Auditor-in-Charge of that office as there was already an order separating COA-Regional Office XII from the COA-ARMM. She confirmed that when ARMM was a newly created agency, its officers (Aduana, Brigida Fontanilla and Bartolome Corpus) sought her advice regarding accounting procedures. Prior to submission to her office for post-audit, the accountable officers like the Cashier and Disbursement Officer prepares and submits a Monthly Report of Disbursements to the Accounting Division which, within ten days from receipt and recording in the Books of Accounts, shall submit the same to the auditor for post-audit custody. Based on her experience, however, this deadline was not strictly observed as 25% to 50% of the national agencies are delayed in the submission of such reports. The usual reasons given were the geographical locations of the offices in Region XII and ARMM, lack of manpower due to budgetary constraints and lack of know-how of personnel regarding accounting and auditing procedures, especially if there is a change in administration. As far as she can recall, their office had not issued a notice of disallowance to ORG-ARMM although notices of suspension have been issued for minor deficiencies noted during post-audit; these notices of suspension were usually complied with by the agency. 13 On cross-examination, witness Gagwis said that upon seeing the bundles of vouchers being submitted to her office, she immediately refused to accept, and sort of "washed her hands" by telling her staff that they were no longer incharge of ORG-ARMM. She did not actually scan those documents and examine their contents. She also did not receive the Monthly Report of Disbursements from said office. As to the execution of the July 22, 1998 Affidavit, she insisted that she did it voluntarily five years later in order to clarify herself after hearing about the case filed in the Sandiganbayan and her name was being dragged because of the Certification she made in August 1993. As to the earlier Certification, she maintained that she did not receive the subject vouchers and she does not know where these documents are at present. 14 Another witness, Brigida C. Fontanilla, Chief Accountant, ORG-ARMM, testified that her duties and responsibilities include the processing, updating and recording of transactions of ORGARMM in the books of accounts while vouchers are recorded in the Journal of Analysis and Obligations (JAO). They also prepared financial reports. As to cash advances, she explained that the procedure starts with the preparation of the voucher at ORG which also issues the authority to withdraw cash advance which is attached to the disbursement voucher and supporting documents, afterwhich it is forwarded to the Finance and Budget Management Services for processing: there, it is first submitted to the Budget Division for the request for allotment of obligation, and next forwarded to the Accounting Division for the journal entry of obligation and recording in the books of account, and then the documents are forwarded to the Office of the Finance Director for his approval, and thereafter returned back to the ORG for final approval for the issuance of the check. Presently, their office is more systematic and organized than it was during the administration of Governor Candao. Sometime in 1994 during the investigation by the Office of the Ombudsman relative to the subject illegal withdrawals, she was summoned to produce the Cash Receipts Book and Cash Disbursement Book of the 1991 ARMM seed money for regional, provincial and district Impact Infrastructure Projects. However, she was not able to comply with the said directive because such books are not among those required by the COA for their office; what the COA directed them to maintain was the JAO, a book of original entry for allotments received and disbursements for the transactions of ORGARMM. She wrote a letter-reply to the Ombudsman Investigator and transmitted the original 1992 JAO which was never returned to their office.15 Explaining the contents of the JAO, witness Fontanilla said that the entries in the voucher are recorded therein: an obligation number is placed in the request of allotment (ROA) which also appears in the voucher. Before such recording in the JAO, the disbursement vouchers are presented to their office. Actually, she does not know whether the 1992 JAO still exists or with the Ombudsman Investigator because at the time, they were holding office temporarily at the office of ORG Auditor which unfortunately got burned sometime in 1996. 16 As for witness Bartolome M. Corpus, his deposition upon oral examination was taken on August 27, 2004 before Atty. Edipolo Sarabia, Clerk of Court, Regional Trial Court of Davao City. He

testified that in 1991 he was appointed Chief of the Management Division of the Finance and Budget Management Services (FBMS), ORG-ARMM. He was placed on floating status for three years by the new Chief of Staff of ORG-ARMM (Nasser Pangandaman) upon the election of a new Regional Governor, Lininding Pangandaman who defeated Governor Candao. As Finance Director, it was his responsibility to review all transactions of the ORG-ARMM and see to it that COA regulations are in place and supporting documents are complete. After reviewing documents, which include disbursement vouchers, his office submits the same to the COA Regional Officer or to the COA Resident Auditor. Being the internal control unit of ORG-ARMM, all transactions and supporting documents must pass through his office. As to the transactions covered by the subject 52 checks, he confirmed that these passed through his office, including the disbursement vouchers, afterwhich these were forwarded to the Accounting Office and then to the Cash Division for issuance of checks. He claimed that his subordinates tried to submit the disbursement vouchers to the Resident Auditor, as shown by the transmittal letters dated March 4 and March 30, 1993. However, Ms. Gagwis refused to accept the vouchers because she was no longer the Resident Auditor at the time. During the time of Governor Candao, he does not recall having received any notice of disallowance from the COA although there were times they received a notice of suspension which had been settled. During the time he was on floating status, he discovered that some vouchers including those original vouchers covered by the subject 52 checks were still in his filing cabinet. He then handed them over to Haron. In 1996, he was reinstated by Governor Nur Misuari.17 On cross-examination, witness Corpus said that they tried to submit the vouchers to Gagwis sometime in late March or early April 1993. He was not aware of the August 27, 1993 Certification issued by Gagwis. When asked about the stated purpose "peace and order campaign" in the cash advance vouchers, he confirmed that this was the practice at that time and it was only during liquidation that ORG will have the list of expenses; the supporting documents will come only after the issuance of the check.18 On re-direct examination, he maintained that there were previous similar vouchers for "peace and order campaign" which have not been disallowed but only suspended by the COA.19 Sandiganbayan Ruling By Decision dated October 29, 2008, the Sandiganbayan found petitioner Haron guilty beyond reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as amended, committed in conspiracy with petitioners Zacaria A. Candao and Abas A. Candao who were likewise sentenced to imprisonment and ordered to pay a fine equivalent to the amount of the check in each case, as follows: Criminal Case Nos. 24569-24584, 24593, 24595-24620 Israel B. Haron and Abas A. Candao - convicted of 43 counts of Malversation of Public Funds and each was sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum, and ordered to pay a fine in each case equivalent to the particular check involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special disqualification to hold public office and other accessory penalties provided by law. In the service of their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided in Art. 70 of the Revised Penal Code, as amended. Criminal Case Nos. 24585-24592 & 24594 Israel B. Haron and Zacaria A. Candao convicted of 9 counts of Malversation of Public Funds and each was sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of prision mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum, and ordered to pay a fine in each case equivalent to the particular check involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special disqualification to hold public office and other accessory penalties provided by law. In the service of their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided in Art. 70 of the Revised Penal Code, as amended. 20

The Sandiganbayan found no merit in petitioners claim that the subject checks were covered by existing disbursement vouchers which were belatedly submitted and received by the COA Central Office on October 29, 1993. It said that had those vouchers really existed at the time of the 52 withdrawals petitioners made from December 29, 1992 to March 30, 1993, petitioner Haron could have readily produced them when required to do so by the special audit team on August 24, 1993. Said court likewise did not give credence to the testimony of Corpus in view of the August 27, 1993 Certification issued by then COA Auditor Gagwis that she has not received the vouchers mentioned in the transmittal letters. Gagwis explanation, on the other hand, contradicted the testimony of Corpus that when he returned to his office sometime in May 1993, he found the original vouchers together with the transmittal letters still there in his filing cabinet and have not been submitted to the COA Resident Auditor. The Sandiganbayan noted that petitioners presented no proof that the cash advances intended for "peace and order campaign" were spent for public purposes, as in fact the alleged disbursement vouchers did not indicate any detail as to the nature of the expense/s such as purchase of equipment, services, meals, travel, etc. and there were no supporting documents such as the Request for Issuance of Voucher, Purchase Request and Inspection Report of the items supposedly purchased. More importantly, the vouchers were not accomplished in accordance with existing COA circulars because they are unnumbered and undated. Hence, the belatedly submitted vouchers are of doubtful veracity or origin, nay, a fabricated evidence or, as pointed out by the prosecution, "self-serving or an afterthought, belatedly prepared to give the illegal disbursements amounting to the aggregate amount of more than P21M, a semblance of regularity."21 As to the JAO and Certification dated August 18, 1998 issued by Chief Accountant Fontanilla, the Sandiganbayan found there is nothing therein to indicate the particular disbursement voucher that corresponds to each of the subject 52 checks which were neither reflected in the JAO. With respect to petitioners assertion that the audit conducted by the COA special audit team was incomplete and tainted as it did not follow procedures because the person audited were not notified thereof, the Sandiganbayan found these allegations unsubstantiated as in fact at the start of the audit on August 24, 1993, the audit team thru their team leader State Auditor Naranjo, informed the management of ORG-ARMM thru the COA Resident Auditor of the expanded special audit to be conducted as they even requested for the original copies of the disbursement vouchers together with their complete supporting documents covering the 52 checks. But despite said letter, the ORG-ARMM failed to heed the audit teams request. For the failure of petitioner Haron to account for the funds involved in the illegal withdrawals when asked to do so, the presumption arose that he misappropriated the same, which presumption was not overcome by defense evidence. On the respective liabilities of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan held that by their act of co-signing the subject checks, petitioner Haron was able to consummate the illegal withdrawals without the required disbursement vouchers of the amounts covered by the 43 checks (for Abas) and 9 checks (for Zacaria). Thus, by their collective acts, said court concluded that petitioners conspired to effect the illegal withdrawals of public funds which, when required by the COA to be properly accounted for, petitioners failed to do so. In its Resolution dated February 20, 2009, the Sandiganbayan denied t he prosecutions motion to cancel bail bonds and petitioners motion for reconsideration. The Petition Petitioners raised the following grounds for their acquittal: 1. THE SANDIGANBAYAN...COMMITTED A REVERSIBLE ERROR IN CONVICTING THE ACCUSED PETITIONERS FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS DESPITE PROOF POSITIVE THAT, CONTRARY TO WHAT THE INFORMATIONS CHARGED, THERE WERE DISBURSEMENT VOUCHERS EXCEPT THAT THE COA REFUSED TO ACCEPT MUCH LESS EXAMINE THE SAME. PETITIONERS WERE THUS DENIED DUE

PROCESS OF LAW WHEN THEY WERE CONVICTED FOR OFFENSES NOT COVERED BY THE INFORMATIONS AGAINST THEM. 2. .THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN NOT APPLYING THE "EQUIPOISE RULE" WHICH IF APPLIED WOULD HAVE RESULTED IN THE ACQUITTAL OF THE ACCUSED-PETITIONERS. 3. THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN CONVICTING ACCUSED PETITIONERS ZACARIA A. CANDAO AND ABAS A. CANDAO DESPITE THE FACT THAT THE CHARGE OF CONSPIRACY WHICH IS THEIR ONLY LINK TO THE OFFENSES HEREIN HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.22 Our Ruling The petition has no merit. Article 217 of the Revised Penal Code, as amended, provides: Art. 217. Malversation of public funds or property Presumption of malversation. - Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall 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 fund or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (Emphasis supplied.) The following elements are essential for conviction in malversation cases: 1. That the offender is a public officer; 2. That he had custody or control of funds or property by reason of the duties of his office; 3. That those funds or property were public funds or property for which he was accountable; and 4. That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.23

All the foregoing elements were satisfactorily established by the prosecution in this case. Petitioners have not rebutted the legal presumption that with the Disbursing Officers (Haron) failure to account for the illegally withdrawn amounts covered by the subject checks when demanded by the COA, they misappropriated and used the said funds for their personal benefit. Petitioners however assert that their convictions were based solely on the Sandiganbayans conclusion that the vouchers submitted by the defense were illegal or irregular, whereas the informations simply alleged their absence or non-existence. They contend that said court could not have validly assessed the disbursement vouchers as to their legality because that duty pertains to the COA which refused and failed to examine the same. Had the court allowed the COA to evaluate and make a ruling on the validity of the vouchers, the result would have been different and most probably they would have been acquitted of the crime charged. We are not persuaded by petitioners asseveration. The Sandiganbayan categorically ruled that the disbursement vouchers were inexistent at the time of the issuance of the subject checks and expanded special audit based on its findings that: (1) petitioner Haron could not produce the vouchers upon demand by the COA in August 1993; (2) Resident Auditor Gagwis certified at about the same time that to date she has not received the vouchers mentioned in the supposed transmittal letters of March 4 and March 30, 1993; (3) the entries in the duly certified Report of Checks Issued by Deputized Disbursing Officer (RCIDDO) of the late Pandical M. Santiago, Cashier of ORG-ARMM, showed that for the months of January, February and March 1993, there were indeed entries of checks issued with Haron as payee but no disbursement voucher numbers as these were either lacking, detached or missing, and which were verified by the audit team as corresponding to the subject 52 checks issued and signed by petitioners and encashed by petitioner Haron who received the money withdrawn from the government depositary accounts; (4) FBMS Chief Corpus testified that he discovered the supposed vouchers still there at his office filing cabinet in May 1993 when these supposedly have already been submitted to the COA Resident Auditor as reflected in the March 4 and March 30, 1993 transmittal letters; and (5) the supposed original disbursement vouchers belatedly submitted to the COA central office last week of October 1993, were undated and unnumbered with no supporting documents as required by COA Circular No. 78-79 (April 5, 1978). Contrary to petitioners claim, the special audit team could not have examined the vouchers presented by the defense (Exhibits "1" to "1-A-43") because the only indication of its actual receipt by the COA as admitted by the prosecution, was on October 23, 1993 long after the expanded audit was completed and beyond the 72-hour deadline specified in the September 10, 1993 demand letter addressed to Haron for the restitution of the total amount of illegal withdrawals. In addition, such disbursement vouchers have no supporting documents as required by COA Circular No. 92-389 dated November 3, 1992. On the other hand, the Certification dated August 18, 1998 issued by ARMM Chief Accountant Fontanilla stating that the vouchers were regular because these were properly recorded in the JAO, was not given credence by the Sandiganbayan. Upon scrutiny of the JAO covering the period January to March 1993, said court found that it failed to indicate the particular disbursement voucher that corresponds to each of the 52 checks, aside from the fact that it was prepared by the ARMM Chief Accountant who is under the control and supervision of the ORG. Notably, the JAO is used to summarize obligations incurred and to monitor the balance of unobligated allotments, which is prepared by function, and project for each fund and allotment class. 24 The JAO is thus separate and distinct from the Report of Checks Issued (RCI) which is prepared by the Disbursing Officer to report checks issued for payment of expenditures and/or prior accounts payable. What is clear is that the disbursement of funds covered by the 52 checks issued by the petitioners are subject to the rule that disbursement voucher "shall be used by all government entities for all money claims" and that the "voucher number shall be indicated on the voucher and on every supporting document."25 Inasmuch as the JAO for the months of January, February and March 1993 do not at all reflect or indicate the number of each of the disbursement vouchers supposedly attached to the 52 checks, it cannot serve as evidence of the recording of the original vouchers, much less the existence of those disbursement vouchers at the time of the issuance of the 52 checks and the conduct of the expanded audit.

Petitioners further raise issue on the regularity, completeness and objectivity of the expanded audit conducted by the COA. However, records showed that the ORG-ARMM were duly notified of the expanded audit at its commencement and was even requested thru the COA Resident Auditor to submit the needed disbursement vouchers. It must be noted that at an earlier date, a main audit had already been conducted for the financial transactions of ORG-ARMM during which State Auditor Mendoza experienced threats against her own security that she had to be immediately recalled from her assignment. Thus, by the time the expanded audit was conducted in August 1993 upon the directive of the COA Chairman, petitioners, especially Haron, should have seen to it that the records of disbursements and financial transactions including the period January to March 1993, were in order and available for further audit examination. In any case, even if there was no so-called entry conference held, there is absolutely no showing that petitioners were denied due process in the conduct of the expanded audit as they simply refused or failed to heed COAs request for the production of disbursement vouchers and likewise ignored the formal demand made by COA Chairman Banaria for the restitution of the illegally withdrawn public funds, submitting their compliance only after the special audit team had submitted their report. In fine, the Sandiganbayan committed no reversible error in holding that the testimonial and documentary evidence presented by the petitioners failed to overcome the prima facie evidence of misappropriation arising from Harons failure to give a satisfactory explanation for the illegal withdrawals from the ARMM funds under his custody and control. Petitioners likewise did not accomplish the proper liquidation of the entire amount withdrawn, during the expanded audit or any time thereafter. There is therefore no merit in petitioners argument that the Sandiganbayan erred in not applying the equipoise rule. Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction.26 Such is not the situation in this case because the prosecution was able to prove by adequate evidence that Disbursing Officer Haron failed to account for funds under his custody and control upon demand, specifically for the P21,045,570.64 illegally withdrawn from the said funds. In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary in malversation cases. 27 As to the liability of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan correctly ruled that they acted in conspiracy with petitioner Haron to effect the illegal withdrawals and misappropriation of ORG-ARMM funds. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred from the conduct of the accused before, during and after the commission of the crime, which are indicative of a joint purpose, concerted action and concurrence of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal design of another, indicated by the performance of an overt act leading to the crime committed. It may be deduced from the mode and manner in which the offense was perpetrated.28 In this case, petitioners Zacaria A. Candao and Abas A. Candao were co-signatories in the subject checks issued without the required disbursement vouchers. Their signatures in the checks, as authorized officials for the purpose, made possible the illegal withdrawals and embezzlement of public funds in the staggering aggregate amount of P21,045,570.64.1avvphil Petitioners Zacaria A. Candao and Abas A. Candao assail their conviction as co-conspirators in the crime of malversation contending that their only participation was in the ministerial act of signing the checks. The checks having passed through processing by finance and accounting

personnel of ORG-ARMM, petitioners said they had to rely on the presumption of regularity in the performance of their subordinates acts. Furthermore, they assert that since conspiracy requires knowledge of the purpose for which the crime was committed, they could not have been conspirators in the design to defraud the government. We disagree with such postulation. As the Regional Governor of ARMM, petitioner Zacaria A. Candao cannot exonerate himself from liability for the illegally withdrawn funds of ORG-ARMM. Under Section 102 (1) of the Government Auditing Code of the Philippines, he is responsible for all government funds pertaining to the agency he heads: Section 102. Primary and secondary responsibility. (1) The head of any agency of the government is immediately and primarily responsible for all government funds and property pertaining to his agency. x x x x (Emphasis supplied.) Petitioners Zacaria A. Candao and his Executive Secretary Abas A. Candao are both accountable public officers within the meaning of Article 217 of the Revised Penal Code, as amended. No checks can be prepared and no payment can be effected without their signatures on a disbursement voucher and the corresponding check. In other words, any disbursement and release of public funds require their approval,29 as in fact checks issued and signed by petitioner Haron had to be countersigned by them. Their indispensable participation in the issuance of the subject checks to effect illegal withdrawals of ARMM funds was therefore duly established by the prosecution and the Sandiganbayan did not err in ruling that they acted in conspiracy with petitioner Haron in embezzling and misappropriating such funds. Moreover, as such accountable officers, petitioners Zacaria A. Candao and Abas A. Candao were charged with the duty of diligently supervising their subordinates to prevent loss of government funds or property, and are thus liable for any unlawful application of government funds resulting from negligence, as provided in Sections 104 and 105 of the Government Auditing Code of the Philippines, which read: Sec. 104. Records and reports required by primarily responsible officers. The head of any agency or instrumentality of the national government or any government-owned or controlled corporation and any other self-governing board or commission of the government shall exercise the diligence of a good father of a family in supervising accountable officers under his control to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and solidarily liable with the person primarily accountable therefor. x x x x Sec. 105. Measure of liability of accountable officers. x x x (2) Every officer accountable for government funds shall be liable for all losses resulting from the unlawful deposit, use, or application thereof and for all losses attributable to negligence in the keeping of the funds. The fact that ARMM was still a recently established autonomous government unit at the time does not mitigate or exempt petitioners from criminal liability for any misuse or embezzlement of public funds allocated for their operations and projects. The Organic Act for ARMM (R.A. No. 6734) mandates that the financial accounts of the expenditures and revenues of the ARMM are subject to audit by the COA.30 Presently, under the Amended Organic Act (R.A. No. 9054), the ARMM remained subject to national laws and policies relating to, among others, fiscal matters and general auditing.31 Here, the prosecution successfully demonstrated that the illegal withdrawals were deliberately effected through the issuance of checks without the required disbursement vouchers and supporting documents. And even if petitioners Zacaria A. Candao and Abas A. Candao invoke lack of knowledge in the criminal design of their subordinate, Disbursing Officer Haron, they are still liable as co-principals in the crime of malversation assuming such misappropriation of public funds was not intentional, as alleged in the informations, but due to their negligence in the performance of their duties. As this Court ratiocinated in Cabello v. Sandiganbayan32 :

Besides, even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. A possible exception would be when the mode of commission alleged in the particulars of the indictment is so far removed from the ultimate categorization of the crime that it may be said due process was denied by deluding the accused into an erroneous comprehension of the charge against him. That no such prejudice was occasioned on petitioner nor was he beleaguered in his defense is apparent from the records of this case. 33 (Emphasis supplied.) Under Article 217, paragraph 4 of the Revised Penal Code, as amended, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed if the amount involved exceeds P22,000.00, in addition to fine equal to the funds malversed. Considering that neither aggravating nor mitigating circumstance attended the crime charged, the maximum imposable penalty shall be within the range of the medium period of reclusion temporal maximum to reclusion perpetua, or eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the minimum penalty, which is one degree lower from the maximum imposable penalty, shall be within the range of prision mayor maximum to reclusion temporal medium, or ten (10) years and one (1) day to seventeen (17) years and four (4) months.34 The penalty imposed by the Sandiganbayan on petitioners needs therefore to be modified insofar as the maximum penalty is concerned and is hereby reduced to seventeen (17) years and four (4) months of reclusion temporal medium, for each count. WHEREFORE, the petition for review on certiorari is DENIED for lack of merit. The Decision dated October 29, 2008 in Criminal Case Nos. 24569 to 24574, 24575, 24576 to 24584, 24585 to 24592, 24593, 24594, 24595 to 24620 finding petitioners guilty beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217, paragraph 4 of the Revised Penal Code, as amended, and the Resolution dated February 20, 2009 of the Sandiganbayan (First Division), denying petitioners motion for reconsideration are AFFIRMED with MODIFICATIONS in that petitioners are instead accordingly sentenced to suffer an indeterminate prison term of ten (10) years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years and four (4) months of reclusion temporal medium, as maximum, in each of the above-numbered criminal cases. In addition to the payment of the fine ordered by the Sandiganbayan, and by way of restitution, the petitioners are likewise ordered to pay, jointly and severally, the Republic of the Philippines through the ARMM-Regional Treasurer, the total amount of P21,045,570.64 malversed funds as finally determined by the COA. In the service of their respective sentences, the petitioners shall be entitled to the benefit of the three-fold rule as provided in Article 70 of the Revised Penal Code, as amended. With costs against the petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. Nos. 147026-27 September 11, 2009

liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 671313 for failure to file her Statement of Assets and Liabilities. The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019,14 as amended, and recommended the filing of the corresponding information.15 It, however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713. In an Information dated February 18, 2000, petitioner was charged with violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit: That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the City of Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforenamed accused, a public officer, being then a member of the governing Board of the National Book Development Board (NBDB), while in the performance of her official and administrative functions, and acting with evident bad faith or gross inexcusable negligence, did then and there willfully, unlawfully and criminally, without any justifiable cause, and despite due demand by the Resident Auditor and the Executive Director of NBDB, fail and refuse to return and/or liquidate her cash advances intended for official travel abroad which did not materialize, in the total amount of P139,199.00 as of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA Circular No. 97002 thereby causing damage and undue injury to the Government. CONTRARY TO LAW.16 The case was docketed as Criminal Case No. 25867 and raffled to the First Division.

CAROLINA R. JAVIER, Petitioner, vs. THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION DEL CASTILLO, J.: Before the Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled " People of the Philippines, Plaintiff versus Carolina R. Javier, Accused, " seeking to nullify respondent Sandiganbayan's: (1) Order2 dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to Quash Information; (2) Resolution3 dated January 17, 2001 in Criminal Case No. 25898, which denied her Motion for Reconsideration and Motion to Quash Information; and (3) Order 4 dated February 12, 2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous as the issues are fairly simple and straightforward. The factual antecedents follow. On June 7, 1995, Republic Act (R.A.) No. 8047, or otherwise known as the "Book Publishing Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the book publishing industry, through the active participation of the private sector, to ensure an adequate supply of affordable, quality-produced books for the domestic and export market. To achieve this purpose, the law provided for the creation of the National Book Development Board (NBDB or the Governing Board, for brevity), which shall be under the administration and supervision of the Office of the President. The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the Philippines, five (5) of whom shall come from the government, while the remaining six (6) shall be chosen from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector. On February 26, 1996, petitioner was appointed to the Governing Board as a private sector representative for a term of one (1) year.6 During that time, she was also the President of the Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to the same position and for the same period of one (1) year.7 Part of her functions as a member of the Governing Board is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on October 8-12, 1997.8 Based on her itinerary of travel,9 she was paid P139,199.0010 as her travelling expenses. Unfortunately, petitioner was not able to attend the scheduled international book fair. On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash advance considering that her trip was canceled. 11 Petitioner, however, failed to do so. On July 6, 1998, she was issued a Summary of Disallowances 12 from which the balance for settlement amounted to P220,349.00. Despite said notice, no action was forthcoming from the petitioner. On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation of the foreign trip, petitioner failed to
5

Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not liquidating the cash advance granted to her in connection with her supposed trip to Spain. During the conduct of the preliminary investigation, petitioner was required to submit her counter-affidavit but she failed to do so. The Ombudsman found probable cause to indict petitioner for the crime charged and recommended the filing of the corresponding information against her. 17 Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled to the Third Division, the accusatory portion of which reads: That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board and as such, is accountable for the public funds she received as cash advance in connection with her trip to Spain from October 812, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.18 During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to the First Division the money subject of the criminal cases, which amount was deposited in a special trust account during the pendency of the criminal cases. Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner filed with the same Division a Motion for Consolidation19 of Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit Amended Information20 in Criminal Case No. 25898, which was granted. Accordingly, the Amended Information dated June 28, 2000 reads as follows:

That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board equated to Board Member II with a salary grade 28 and as such, is accountable for the public funds she received as case advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.21 In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. 22 On October 10, 2000, petitioner filed a Motion to Quash Information,23 averring that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the information did not allege that she is a public official who is classified as Grade "27" or higher. Neither did the information charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the Governing Board only as a private sector representative under R.A. No. 8047, hence, she may not be charged under R.A. No. 3019 before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she does not perform public functions and is without any administrative or political power to speak of that she is serving the private book publishing industry by advancing their interest as participant in the government's book development policy. In an Order24 dated November 14, 2000, the First Division25 denied the motion to quash with the following disquisition: The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be the case, is not the sole qualification for being in the government service or a public official. The National Book Development Board is a statutory government agency and the persons who participated therein even if they are from the private sector, are public officers to the extent that they are performing their duty therein as such. Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her capacity as Director of the National Book Development Board for purposes of official travel. While indeed under ordinary circumstances a member of the board remains a private individual, still when that individual is performing her functions as a member of the board or when that person receives benefits or when the person is supposed to travel abroad and is given government money to effect that travel, to that extent the private sector representative is a public official performing public functions; if only for that reason, and not even considering situation of her being in possession of public funds even as a private individual for which she would also covered by provisions of the Revised Penal Code, she is properly charged before this Court. On November 15, 2000, the First Division accepted the consolidation of the criminal cases against petitioner and scheduled her arraignment on November 17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared to accept the propriety of the accusation since it refers to the same subject matter as that covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On November 22, 2000, petitioner filed a Motion to Quash the Information26 in Criminal Case No. 25898, by invoking her right against double jeopardy. However, her motion was denied in open court. She then filed a motion for reconsideration. On January 17, 2001, the Sandiganbayan issued a Resolution27 denying petitioners motion with the following disquisition:

The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; xxxx The offense is office-related because the money for her travel abroad was given to her because of her Directorship in the National Book Development Board. Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which reads: Art. 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached , seized or deposited by public authority, even if such property belongs to a private individual. Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of which precludes prosecution of the other. Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft Law and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy. A motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. 28 Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action.29 The above general rule, however admits of several exceptions, one of which is when the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate.30 To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan.

The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. The Governing Board was vested with powers and functions, to wit: a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act; b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting book development, production and distribution as well as an incentive scheme for individual authors and writers; c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and promptly royalties due them for reproduction of their works in any form and number and for whatever purpose; d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and information of book production; e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison will all the segments of the book publishing industry; f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan; g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved; h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental budgets submitted to it by the Executive director; i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives; j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the accomplishment of its purposes and objectives; k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to accomplish its development plans on book publishing; l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the board; m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and amend, repeal, and modify such rules and regulations whenever necessary; n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive Officer of the Board; o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular meeting shall be held monthly; p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others; and q) exercise such other powers and perform such other duties as may be required by the law.31

A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.32 Notwithstanding that petitioner came from the private sector to sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry. Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government.33 Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. 34 Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain. In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan. Presently,35 the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: xxxx (2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "Grade '27'" and higher under the Compensation and Position Classification Act of 1989. xxxx Notably, the Director of Organization, Position Classification and Compensation Bureau, of the Department of Budget and management provided the following information regarding the compensation and position classification and/or rank equivalence of the member of the Governing Board of the NBDB, thus: Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) members represent the private sector. The said five members of the Board do not receive any salary and as such their position are not classified and are not assigned any salary grade. For purposes however of determining the rank equivalence of said positions, notwithstanding that they do not have any salary grade assignment, the same may be equated to Board Member II, SG-28.36 Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified as SG-28, included in the phrase "all other national and local officials classified as Grade 27' and higher under the Compensation and Position Classification Act of 1989." Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by petitioner. She argued that her right against double jeopardy was violated when the Sandiganbayan denied her motion to quash the two informations filed against her.1avvphi1 We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded to the charge.37 In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her. It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.38 The third and fourth requisites are not present in the case at bar. In view of the foregoing, We hold that the present petition does not fall under the exceptions wherein the remedy of certiorari may be resorted to after the denial of one's motion to quash the

information. And even assuming that petitioner may avail of such remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion amounting to lack of or in excess of jurisdiction. WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the Sandiganbayan are AFFIRMED. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 161877 March 23, 2006

3. That Conrado L. Tiu , addressed to the accused, a motion for reconsideration of said Order directing the issuance of Writ of Execution; 4. That likewise, Conrado L. Tiu filed an opposition to Abraham Mose's motion for issuance of Writ of Execution in the above-entitled case; 5. That without resolving the Motion for Reconsideration , and despite the pendency of the same accused issued a Writ of Execution dated March 11, 1993, as well as an Alias Writ of Execution dated June 15, 1993 in said case. During trial, the prosecution adduced in evidence the testimony of its sole witness in the person of private complainant Conrado L. Tiu, owner of Plaza Hotel/Apartments, and the documents he identified and marked in the course of the proceedings. For its part, the defense, following the denial of its Demurrer to Evidence,6 called to the witness box petitioner himself and one Norma G. Reyes. As summarized in the decision under review, the parties respe ctive versions of the relevant incidents follow: Facts as established by the prosecution On July 10, 1981, a Decision was rendered by Labor Arbiter Andres Palumbarit of the Ministry of Labor and Employment of Region 3, Arbitration Branch in RO3-AB Case No. 198-79 entitled Abraham M. Mose vs. Plaza Hotel/Apartments, owned by Conrado L. Tiu. In said Decision, Conrado L. Tiu was ordered to pay his former employee, Abraham Mose, backwages and other benefits from the time he was illegally dismissed up to the time of his reinstatement, without however indicating any particular amount. Pursuant to the above Labor Decision, NLRC Corporate Auditing Examiner Maria Lourdes L. Flores issued a Report of Examiner rendering the computation of Abraham Moses backwages and benefits for a period of three (3) years from July 1979 for a total amount of P16,360.50. . On September 2, 1981, the Plaza Hotel/Apartments filed a Memorandum of Appeal with the MOLE Region 3, seeking for the reversal/reconsideration of the above sta ted Labor Decision. This appeal was, however, dismissed per Resolution dated August 4, 1982. Plaza Hotel/Apartments raised their appeal to the Honorable Supreme Court which was docketed as G.R. No. 77105. While the appeal was still pending before the Court, another Report of Examiner was rendered by Examiner Philip A. Manansala increasing the award from P16,360.50 to P63,537.76 which now covered backwages and benefits from July 1979 to May 1987. This sudden increase of judgment award prompted Plaza Hotel/ Apartments to file an objection to the Report of Examiner Philip Manansala, citing among others: a) Supreme Court rulings that the maximum backwages to be paid should only cover three (3) years from dismissal; . On March 15, 1989, the Supreme Court denied the appeal filed by Plaza Hotel/Apartments and with finality on August 3, 1989. On March 13, 1990, the NLRC Region 3 through Norma G. Reyes, made a recomputation of the judgment award in favor of Abraham Mose in accordance with the Supreme Court ruling covering a period of only three (3) years from the date of dismissal. This recomputed award amounted to P19,908.46 . After the above incidents, [the] accused took over the above Labor Case RO3-AB-Case No. 198-79, . On October 21, 1992, [he] issued an Order of even date, which increased the judgment award from P19,908.46 to a skyrocketing P178,462.56 adopting

ARIEL C. SANTOS, Petitioner, vs. PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents. DECISION GARCIA, J.: In this petition for review on certiorari, petitioner Ariel C. Santos assails and seeks the reversal of the July 31, 2003 decision1 of the Sandiganbayan (Third Division) in Criminal Case No. 21770, as reiterated in its January 28, 2004 resolution, 2 denying petitioner's motion for reconsideration. The facts: In an Information3 filed with the Sandiganbayan, thereat docketed as Criminal Case No. 21770 and raffled to its Third Division, herein petitioner Ariel Santos y Cadiente, then the Labor Arbiter of the National Labor Relations Commission (NLRC), Regional Arbitration Branch No. III, San Fernando, Pampanga, was charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed as follows: That on March 11, 1993 and June 15, 1993 r espectively, in San Fernando, Pampanga, , the above-named accused, , being then the Labor Arbiter of the [NLRC], Regional Arbitration Branch No. III, San Fernando, Pampanga, while in the performance of his quasi-judicial functions, taking advantage of his position and committing the offense in relation to his office, did then and there willfully, unlawfully, criminally and through evident bad faith and manifest partiality towards Abraham Mose, complainant in NLRC-RAB Case No. RO3-198-79 captioned Abraham Mose vs. Plaza Hotel/Apartments, cause undue injury to Conrado L. Tiu, the owner of the Plaza Hotel/Apartments, in the following manner: accused despite the pendency of the motion for reconsideration of his Order dated October 21, 1992 directing the issuance of a writ of execution and the opposition to the motion for execution as well as the motion to quash writ of execution, issued first a writ of execution dated March 11, 1993 followed by an alias writ of execution dated June 15, 1993, without acting on the said motions and opposition anymore, and as a consequence thereof, undue injury was caused to Conrado L. Tiu while giving unwarranted benefit and advantage to Abraham Mose. CONTRARY TO LAW. [Words in bracket added.] Arraigned on April 22, 1996,4 petitioner, as accused below, entered a plea of "Not Guilty." In the ensuing pre-trial conference, petitioner made the following admissions of fact duly embodied in the courts second pre-trial order5 dated April 13, 1999: 1. That at the time material to the case as alleged in the information, accused Ariel Santos was the Labor Arbiter of the NLRC-Branch III, San Fernando, Pampanga; 2. That the accused issued an Order dated October 21, 1992, directing the issuance of Writ of Execution against Conrado L. Tiu in NLRC-RAB Case No. RO3-198-79 .;

and citing therein as basis a Report of Fiscal Examiner dated September 24, 1991, which was not even furnished to Plaza Hotel/Restaurants, Conrado L. Tiu or his counsel. This computation was contrary to the prevailing jurisprudence in Lepanto Consolidated Mining Co. vs. Encarnacion, where the monetary awards for illegally dismissed employees should only cover a three (3) year-period from the time of dismissal. The October 21, 1992 Order of [the] accused included the order for the issuance of Writ of Execution. Plaza Hotel/Apartments filed a Motion for Reconsideration dated November 5, 1992 seeking the reconsideration of the above Order of accu sed . Cited as grounds for reconsideration, inter alia, are: a) the order assailed [is] contrary to the prevailing jurisprudence laid in Lepanto Consolidated Mining ; b) Conrado L. Tiu cannot possibly reinstate Abraham Mose to his former position as waiter in the Plaza Hotel because it has already closed business as early as January 21, 1987 . During the pendency of the Plaza Hotels Motion for Reconsideration, Abraham Mose through counsel filed an Ex-Parte Motion for Execution of the Order dated October 21, 1992. This was opposed by Plaza Hotel/Apartments . Without however acting on the Plaza Hotel/Apartments Motion for Reconsideration dated November 5, 1992 and the Opposition to Motion for Execution dated February 6, 1993, [the] accused issued a Writ of Execution dated March 11, 1993 to implement his Order of October 21, 1992 to collect the amount of P178,462.56 . Reacting to this action of [the] accused , Plaza Hotel/Apartments filed on May 25, 1993 a Motion to Quash Writ of Execution and to Resolve Motion for Reconsideration. [The] accused however ignored all the abovesaid Motions and pleadings filed by Plaza Hotel/Apartments. Conrado L. Tiu, was then compelled to file a Petition for Injunction before the Department of Labor and Employment with a prayer for [a] Temporary Restraining Order [TRO]. The NLRC in its Resolution of June 9, 1993 issued the (TRO) enjoining the accused from enforcing his Writ of Execution dated March 11, 1993. In order to implement the TRO, the NLRC imposed as a condition the posting by Conrado L. Tiu of a cash or surety bond equivalent to the judgment award of P178,462.56 [which Tiu complied] as shown by his payment of premium amounting to P11,885.50. Despite the [TRO], [the] accused issued an "Alias Writ of Execution" dated June 15, 1993 reiterating the enforcement of his previous Writ of Execution. However, this was not enforced due to the [TRO] presented by Conrado L. Tiu to the NLRC Sheriffs . On February 8, 1994, the NLRC, issued a decision to limit the comp utation of judgment award in favor of Abraham Mose to only three (3) years from July 4, 1979 to July 4, 1982 without qualification or deduction according to the prevailing jurisprudence laid down by the Supreme Court.7 (Words in bracket added). Facts as established by the defense Accused Ariel Santos admitted that he had issued a Writ of Execution on the Decision dated July 10, 1981 of the Labor Arbiter Andres Pa lumbarit . The award, however, was increased from P19,908.46 to P178,462.56 . The said writ of execution was issued on March 11, 1993. A Motion for Reconsideration dated February 6, 1993 was subsequently filed by the Plaza Hotel/Apartments on the Order dated October 21, 1992, but [the] accused deemed not to resolve the same because he felt there is no necessity to resolve it, since the decision of Labor Arbiter Palumbarit has become final and executory, hence, ministerial for his part to implement and enforce the same. On February 28, 1994, a Decision of the NLRC was issued stating that the backwages should be limited only to three (3) years in consonance with the ruling in the Lepanto Mining Company case. He further testified that, he did not know anymore nor aware what

happened to the case since, as of August, 1993, he was assigned at the NLRC NCR, and much as he wanted to rectify the error, he can no longer do so . Prior to the issuance of the abovesaid decision, a [TRO]was issued by the DOLENLRC for the enjoinment of the implementation of the writ of execution dated March 11, 1993, however, [the] accused issued an alias writ of execution. The Sheriff assigned did not implement the said writs. Norma Reyes initially made a computation for the back wages of Abraham Mose in the amount P19,908.46 . However, she made a recomputation based on the Order of [the accused] dated October 21, 1992 and increased the P19,908.46 back wages to P178,462.56 . She was not informed by [the] accused that it is physi cally impossible for Mose to be reinstated .8 (Words in bracket added) In the same decision, the Sandiganbayan (Third Division) adjudged petitioner guilty as charged and, accordingly, sentenced him, thus: WHEREFORE, the Court finds accused ARIEL SANTOS y CADIENTE GUILTY beyond reasonable doubt of violation of Section 3 (e) of Republic Act No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices Act", and sentences said accused to EIGHT (8) YEARS and ONE (1) DAY, as minimum, to TEN (10) YEARS, as maximum, and perpetual disqualification from holding public office. Ariel Santos is also ordered to pay Plaza Hotel/Apartments, through Conrado L. Tiu, the following sums as his civil liability: 1. P68,000 for the attorney's fees paid by Conrado L. Tiu because of filing of this case; and 2. P11,800 for the supersedeas bond paid by Conrado L. Tiu in connection with the restraining order issued by the DOLE-NLRC. SO ORDERED.9 His motion for reconsideration having been denied by the same court in its equally assailed Resolution of January 28, 2004, 10 petitioner is now with this Court via the present recourse imputing on the respondent court the following errors: I. IN HOLDING THAT PETITIONER WAS GUILTY OF MANIFEST PARTIALITY IN ISSUING THE WRITS OF EXECUTION SUBJECT OF THE INFORMATION. ll. IN HOLDING THAT THE PRIVATE COMPLAINANT SUFFERED UNDUE INJURY SINCE, AS SHOWN ABOVE, THE JUDGMENT FOR WHICH HE WAS HELD LIABLE TO PAY BACKWAGES, WHETHER FOR THAT LIMITED PERIOD OF THREE (3) YEARS OR CONTINUING BACKWAGES UNTIL ACTUAL REINSTATEMENT HAS NEVER BEEN SATISFIED. The petition is not impressed with merit. Section 3(e) of R.A. No. 3019, as amended, under which petitioner was indicted and convicted, reads: SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross

inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In Jacinto vs. Sandiganbayan,11 the Court en banc enumerated the essential elements of the crime punishable under the aforequoted statutory provision, to wit: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. As may be noted, what contextually is punishable is the act of causing any undue injury to any party, or the giving to any private party of unwarranted benefits, advantage or preference in the discharge of the public officers functions. In Uy vs. Sandiganbayan, 12 and again in Santiago vs. Garchitorena, 13 the Court has made it abundantly clear that the use of the disjunctive word "or" connotes that either act of (a) "causing any undue injury to any party, including the Government"; and (b) "giving any private party any unwarranted benefits, advantage or preference," qualifies as a violation of Section 3(e) of R.A. No. 3019, as amended. This is not to say, however, that each mode constitutes a distinct offense but that an accused may be proceeded against under either or both modes. Anent the first error, petitioner submits that the Sandiganbayan overlooked the fact that, when he issued, on June 15, 1993, the Alias Writ of Execution, reiterating the enforcement of the previous Writ of Execution dated March 11, 1993, he had no knowledge of the issuance on June 9, 1993 by the NLRC of a temporary restraining order (TRO). Prescinding therefrom, petitioner would now insist that, having been apprised of the TRO only on June 29, 1993, the day the NLRC's Central Docket Section released the same, he could not be criminally liable for acting with manifest partiality in issuing the alias writ of execution on June 15, 1993. The Court is not persuaded. Petitioners posture of not having known at some material point in time the issuance of the TRO in question strikes the Court as mere afterthought. If it were really true that he had no knowledge of the TRO issuance before he issued the June 15, 1993 alias writ of execution, he should have at least stated so in his defense before the court below or marked, as evidence, the TRO evidencing that it was released from the NLRC's docket section only on June 29, 1993. The materiality and significant weight of this defense could not have eluded petitioner, himself a lawyer, and his counsel, if indeed he had no knowledge that a TRO had already been issued. Not lost on the Court is the fact that petitioner did not even raise said issue in his Demurrer to Evidence before the respondent court, as well as in his motion for reconsideration of its decision. The settled rule is that no question will be entertained on appeal unless it had been raised in the court below. Points of law, theories, issues and arguments not adequately brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court as they cannot be raised for the first time on appeal. Springing surprises on the opposing party is offensive to the sporting idea of fair play, justice and due process; hence the proscription against raising a new issue for the first time on appeal.14 In any case, the Court agrees with the findings and disquisitions of the Sandiganbayan that petitioner exhibited manifest partiality towards Abraham Mose in issuing the two Writs of Execution:

As a Labor Arbiter, and a lawyer at that, it is incumbent upon him to exercise prudence and probity in the exercise of his functions. He knew that there was a pending Motion for Reconsideration filed by Plaza Hotel/Apartments contesting his order dated October 21, 1992 ordering, in haste, the issuance of the writ of execution and regarding the hulking increase of the amount of backwages to be paid to Abraham Mose from P19,908.46 to P178,462.56, and despite the pendency of the said Motion, he issued the corresponding writ of execution. His reason that there is no longer a necessity to resolve the motion for reconsideration because the Decision of Labor Arbiter Palumbarit has become final and executory is untenable and a very negligible statement. The issue raised in the motion for reconsideration is not the Decision of Labor Arbiter Palumbarit, but accused's Order dated October 21, 1992, and thus, incumbent upon him to resolve first the pending motion for reconsideration before pursuing with the implementation of the said Order and instead of issuing the writ of execution. Furthermore, accused again issued an alias writ of execution, this time, despite issuance of a temporary restraining order by the DOLE-NLRC. By these acts of accused Ariel Santos, it is clearly evident that he had exercised manifest partiality or bias on Abraham Mose in impetuously issuing the two writs of execution, thus, causing damage and injury, which are not merely negligible to Plaza Hotel/Apartments.15 Petitioner also maintains that Plaza Hotel did not suffer damage or injury consequent to his having issued the two writs of execution, arguing that neither was ever enforced. Pressing the point, he also states that what Plaza Hotel paid by way of attorney's fees and premium for the supersedeas bond it posted to enjoin the enforcement of the alias writ of execution is not the damage or injury contemplated under Section 3(e) of R.A. No. 3019. The contention is untenable. The term "undue injury" in the context of Section 3 (e) of the Anti-Graft and Corrupt Practices Act punishing the act of "causing undue injury to any party," has a meaning akin to that civil law concept of "actual damage." The Court said so in Llorente vs. Sandiganbayan,16 thus: In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property [; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law. In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows: "Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages." Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendants act. Actual pecuniary compensation is awarded as a general rule, . Actual damag es are primarily intended to simply make good or replace the loss caused by the wrong. Petitioner admitted issuing the two writs of execution without first resolving Plaza Hotel's motion for reconsideration of his October 21, 1992 Order. He argued, however, that it was his ministerial duty to issue the writs aforementioned, the finality of the decision sought to be enforced, i.e., the decision of Labor Arbiter Palumbarit, having set in upon the dismissal, with finality, by this Court of Plaza Hotels petiti on for certiorari in G.R. No. 77105 assailing said decision.

Petitioner is obviously trying to mislead. As may be recalled, petitioner took over Labor Case RO3-AB Case No. 198-79 after this Court, in G.R. No. 77105, dismissed with finality Plaza Hotel/Apartments appeal from the decision of Labor Arbiter Andres Palumbarit which, to stress, decreed payment to Mose of backwages from the date of his illegal dismissal to his reinstatement, without, however, indicating a specific amount. In the span between the issuance of the Palumbarit decision and this Courts final dismissal action aforementioned, two NLRC auditing examiners came out with (2) different computations of the judgment award. Thereafter, but before accused issued, on October 21, 1992, an order fixing the judgment award at P178,462.56 and directing the issuance of the covering writ of execution, examiner Norma Reyes, following jurisprudence, made a recomputation and came up with the figure P19,908.46 to cover the threshold three years backwages. The increase of the award for Mose from P19,908.46 to P178,462.56 appeared contrary to prevailing jurisprudence that such award should cover only a 3-year period from the time of the employee's dismissal.17 The perceived illegality of the said Order of October 21, 1992 is what impelled Plaza Hotel to move for a reconsideration, raising inter alia the following issues for petitioner to consider in assessing the former's liability: (a) the ruling in Lepanto Consolidated Mining vs. Encarnacion18 on the amount recoverable in illegal dismissal cases is still the prevailing doctrine; (b) as early as July 1990, the employer already expressed willingness to pay Mose the sum of P19,908.46; and (c) Plaza Hotel was not furnished of the new computation assessing it the amount of P178,462.56. From the foregoing narration of events, i t is fairly clear that Plaza Hotels motion for reconsideration immediately referred to above was directed against petitioners order of October 21, 1992 directing the issuance of a writ of execution for the amount stated therein. Be this as it may, petitioners pose respecting his ministerial duty to order the execution of a final and executory decision of Andres Palumbarit is as simplistic as it is misleading. As it were, petitioner failed to resolve said motion for reconsideration and instead issued on March 11, 1993 a writ of execution. Worse still, he proceeded to issue an alias writ of execution despite the issuance by the NLRC Proper of a TRO enjoining the implementation of the underlying writ. Under the circumstances, Plaza Hotel was within its right to secure the services of counsel - for a fee of P68,500.00 - and, to apply for injunctive relief and then pay P11,800.00 for the supersedeas bond to stay the implementation of the writ of execution in question. In net effect, Plaza Hotel incurred damages rendered necessary by the illegal or improper acts of petitioner. All told, the Court rules and so holds, as did the respondent Sandiganbayan, that the elements of the offense charged had been duly established beyond reasonable doubt. Petitioner, being a labor arbiter of the NLRC, discharges quasi-judicial functions. His act of issuing the two writs of execution without first resolving the pending motion for reconsideration of his October 21, 1992 Order, and despite the existence of a TRO was clearly tainted with or attended by evident partiality causing undue injury to private complainant Conrado L. Tiu. The penalty for violation of Section 3(e) of R.A. No. 3019 is imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and other accessory penalties. Under the Indeterminate Sentence Law, if the offense is punished by special law, as here, the court shall impose on the accused an indeterminate penalty the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum prescribed by the same. Hence, the respondent court correctly imposed on petitioner an indeterminate prison term of eight (8) years and one (1) day, as minimum, to ten (10) years, as maximum, with perpetual disqualification from public office.

WHEREFORE, finding no reversible error on the decision under review, the same is hereby AFFIRMED in toto and this petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 167048 April 7, 2006

the deteriorating vessel was dry-docked for extensive repairs, and thereafter was no longer utilized for test fishing activities.4 Thus, in a Comment Slip5 dated April 18, 1984, Arsenio S. De Jesus, Chief of the Technological Services Division, informed BFAR Director Felix R. Gonzales that it was time to "condemn the vessel due to old age (27 years)." On July 18, 1984, the vessel sustained leaks on her forward hull while docked at Pier 4, Fishing Port, Navotas, Metro Manila, flooding the engine room, fish holder and gear locker rooms. The BFAR engaged the services of V/L Shipyard Corporation (Corporation) to tow the vessel from the Navotas pier. The Corporation billed the BFAR for berthing fees at P110.90 a day from September 11, 1984 to December 31, 1984 in the total amount of P12,420.00,6 and for security services, tonnage, electrical power for water supply, gasoline and other vessel services in the amount of P21,037.00, or the total amount of P33,457.80 via Bill No. 1529 7 dated January 3, 1985. Gonzales approved the claim and Caugma certified the availability of funds for the disbursement via Disbursement Voucher8 dated January 28, 1985, subject to release of funds from the Ministry of Budget and Management. In a Memorandum9 dated July 20, 1984, Officer-in-Charge Eriberto A. Macatangay of the Fishing Boat Operations Section recommended to the Bureau Director that the vessel should be disposed of considering that it could no longer serve its purpose due to "old age and deteriorating superstructure." In a Memorandum 10 dated November 13, 1984, the captain of the vessel also recommended that the vessel be disposed/condemned to save funds which would have to be spent for repair and berthing fees. An Inventory and Inspection Report of Unserviceable Property11 was prepared, declaring that the vessel was obsolete, "junk or scrap," and that to maintain it was no longer economical. The report was signed by the Bureau Director, a COA representative and Arsenio S. De Jesus, Chief, Technological Services Division. The report was transmitted to the Director of the Supply Coordination Office of the General Services Administration (GSA) for appropriate action.12 In a Memorandum13 dated April 29, 1985 signed by De Jesus, COA representative Jaoquin C. Lim and Supply Coordination Office representative Meynardo L. Garalde, Jr. it was reported to the GSA that the fishing vessel was obsolete, unserviceable and beyond economical repair, and that spare parts were no longer available. The appraised value of the vessel was declared at P86,917.60. It was recommended that the vessel be sold through public bidding for not lower than P86,000.00; that in addition, the awardee/buyer shall pay all the charges in connection with the sale of the property; and that the vessel be disposed immediately to avoid further depreciation in value, "considering that it [was] berthed/docked in a private firm." Meanwhile, on November 8, 1985, the Corporation billed the BFAR for berthing fees at P110.90 a day from January 1, 1985 to October 31, 1985 totaling P33,457.80; and for security services, electrical power, shifting of vessel with the use of a tugboat, fresh water supply and gasoline, and other services amounting to P25,940.00. The total charges amounted to P69,653.60. 14 On November 11, 1985, the Disposal Committee submitted its Report 15 on the appraisal of the vessel, recommending that it be sold at public auction at the appraised value of P86,917.60, including the charges of the sale. The Committee also prepared the Procedural Guidelines 16 to be followed relative to the sale. These were transmitted to Bureau Director Gonzales on November 11, 1985.17 On November 12, 1985, Gonzales issued an Invitation to Bid18 which also contained the conditions of the sale of the vessel. He revised the proposed procedural guidelines of the Committee (Condition No. 8 of the Invitation to Bid) to provide that the "bidder agrees to pay, in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law."19 Prospective bidders were required to submit their sealed bids not later than 10:00 a.m. on November 21, 1985, at which time the bids would be opened publicly as required by Presidential Decree (P.D.) No. 1445. The bid offer was also required to be accompanied by cash or managers check in an amount equivalent to 10% percent of the offer to guarantee the bid, and compliance with the terms and

MARIETTA T. CAUGMA, AMIANA ABELLA and ROSAURO MARTINEZ, Petitioners, vs. THE PEOPLE OF THE PHILIPPINES and the SANDIGANBAYAN, Respondents. DECISION CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision 1 of the Sandiganbayan in Criminal Case No. 17001 convicting the four accused therein of violating Section 3(e) of Republic Act No. 3019, as well as its Resolution2 denying the motion for reconsideration thereof. Under Executive Order (E.O.) No. 888 dated March 18, 1983, ministers and heads of government agencies were authorized to dispose of their unserviceable equipment and disposable property through the creation of a Disposal Committee (Committee) composed of a representative of the owning ministry or agency as chairperson, and, as members, representatives of the Bureau of Supply Coordination and the Commission on Audit (COA). The committee had the following functions: (1) Inspect or authorize the field officer to inspect the unserviceable equipment and property to verify justification for disposal; (2) Set the final appraised value of all disposable property considering obsolescence, market demand, physical condition and result of previous biddings for similar property; (3) Recommend to the Minister or Head of Ministry/Agency for approval the manner of disposal taking into consideration the pertinent provisions of the Revised Administrative Code and the National Auditing Code; (4) Conduct public biddings for the sale or disposable property on an "AS IS," "WHERE IS" basis and to recommend the corresponding award; (5) The representatives of the Commission on Audit and the Bureau of Supply Coordination together with the COA Technical Staff specifically assigned to the Disposal Committee, shall be clothed with full authority to make final decisions in behalf of their respective offices in the various committee deliberations; (6) In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned.3 E.O. No. 888 also provided that the unserviceable equipment may be disposed of by sale through public bidding and that their appraised value (as determined by the Committee) shall be the minimum selling price. Should the sale through public bidding be unsuccessful, the Committee was authorized to dispose of the property in any manner deemed advantageous to the government, including through barter or negotiated sale at no less than the Committees appraised value. Pursuant to E.O. No. 888, the Bureau of Fisheries and Aquatic Resources (BFAR) created its own committee under Office Order No. 65 dated May 8, 1983. Among the committee members were Marietta T. Caugma, Chief of the Finance Division as chairperson; Amiana M. Abella, vicechairperson; Rosauro M. Martinez, BFAR Representative as member; Villa J. Bernaldo, COA Auditor/Representative as member; and Meynardo Geralde, Jr., Supply Coordination Office representative, as member. Way back in December 1959, the BFAR had acquired eight vessels from Japan under the RPJapan Reparation Commission Agreement, among them the "M/V Malasugui." In 1974 to 1980,

conditions of the sale, and later converted as downpayment in case of a winning bidder. Bids which did not meet the full consideration or requirements of the BFAR would be considered defective, and only those deemed advantageous to the government would be accepted. The sale of the vessel would be awarded to the highest bidder who would pay the bid price within 10 days from notice of the award. The invitation to bid was published in the Times Journal for three consecutive days from November 14 to 15, 1985.20 The publisher billed the BFAR P2,400.00 as publication fee on November 16, 1985.21 lawphil.net The public bidding was held on November 21, 1985.22 There were four bidders but only two participated: Dr. Enrique Peras, Jr. for the All Point Trading and General Services Corporation, and Eddie S. Galler, Jr., General Manager of the Corporation. Galler, Jr. submitted the bid, as well as copies of Invoice Nos. 1529 and 1589 showing that the Corporation had billed the Bureau the total amount of P103,111.40 for various services rendered on the vessel. Dr. Peras, Jr. inquired what were included as "berthing fees" under Condition No. 8 in the invitation to bid, and Caugma replied that the fees included those due after the publication of the invitation to bid up to the final award of the sale of the vessel. 23 Galler, Jr. asked if the P103,111.40 under Bill Nos. 1529 and 1589 issued by the Corporation would be included in the bid price, and Caugma replied that the Committee would study the matter. 24 At that time, the Committee had no knowledge of the berthing fees and other charges incurred from November 1, 1985 up to the final award.25 The Committee, however, agreed that the bid for the vessel should be stated separately from berthing and publication fees which should be broken down. 26 Galler, Jr. withdrew the bid of the Corporation. The Committee resolved to reset the opening of the bids at 10:00 a.m. of November 28, 1985. Upon the suggestion of Bernaldo, the notice of public bidding was posted in public places.27 On November 28, 1985, the Committee met for the re-scheduled public bidding. Bernaldo was substituted by Marlene Nacua of the COA. There were five registered bidders but only two appeared. The Corporation submitted its sealed bid P13,890.00 or 10% of its bid price as required by the invitation to bid. The other registered bidders left without submitting any bid. Caugma asked the committee members if the lone bid of the Corporation could already be opened and they all agreed. Nacua did not interpose any objection because she believed in good faith that it was in accordance with COA rules and regulations. Caugma opened the bid and receipted the P13,890.00 representing 10% of the bid price of P138,900.00, broken down as follows: a) PUBLICATION FEE b) BERTHING FEE c) BFAR Total P 2,400.00 103,111.40 33,388.60 P138,900.0028

amount was available for thepurpose, but payment was held in abeyance pending the release of the final award to be made by the Ministry of Budget and Management. On December 23, 1985, Gonzales transmitted a letter31 to the Minister of Agriculture and Food requesting for authority to award the sale of the "M/V Malasugui" to the Corporation. He stated that of the five registered bidders, only the Corporation had submitted its bid of P138,900.00, which included the cost of publication, berthing fees, and the appraised value of the vessel. He appended to the letter the lone Minutes of the Public Bidding held on November 28, 1985 as well as the submitted bid. The Assistant Minister, Aurora B. Marcos, referred the matter to the Resident Auditor for study and recommendation.32 Then Ministry Auditor Reynaldo Ventura informed the Minister that he had no objection to award to the Corporation the sale of the fishing vessel, considering that the bid it submitted was higher than the appraised value.33 He required, however, that the proposed sale be given wide publication, and that the proceeds of the sale be accounted for as income and be remitted to the National Treasury. In light of this favorable report, the Minister of Agriculture and Food, through Assistant Minister Marcos, authorized the Bureau Director to award and sell the vessel to the Corporation for P138,900.00, pursuant to Section 79 of P.D. No. 1445, and Section 3, paragraph 3 of E.O. No. 888.34 Meanwhile, on January 6, 1986, the BFAR remitted to the Corporation the amount of P69,653.60 in payment of Bill No. 1589. Galler, Jr. issued Receipt No. 256 for the said amount. 35 lawphil.net On February 10, 1986, the BFAR, through Gonzales, awarded the sale of the "M/V Malasugui" to the Corporation and requested it to remit the amount of P138,900.00 in payment thereof. 36 The BFAR delivered juridical possession of the vessel to the Corporation on February 27, 1986.37 On February 28, 1986, the Corporation remitted P138,900.00 as full payment of the vessel for which it was issued Official Receipt No. 2861007. 38 The amount was deposited in the National Treasury on March 5, 1986.39 Thereafter, the BFAR released to the Corporation its bid bond of P13,890.00. On April 25, 1986, Caugma approved the change of entry in the book of accounts of the BFAR and credited P138,900.00 to it.40 However, on May 5, 1986, Antonio B. Baltazar, a former BFAR Chief Technologist who was separated from government service on September 19, 1975, filed a Complaint-Affidavit41 with the Ombudsman against Director Felix Gonzales for negligence under Article 365 of the Revised Penal Code on July 17, 1984 for the leaks of the vessel while berthed at Navotas, Metro Manila. Baltazar claimed, among others, that Gonzales had failed to file an insurance claim on the vessel from the Government Service Insurance System. The matter was referred to the COA. Meanwhile, on May 12, 1986, the National Treasurer remitted P33,457.80 to the Corporation 42 as full payment for berthing fees and other services per Invoice No. 1529 and Disbursement Voucher dated January 28, 1985.43 On June 5, 1986, the Regional Director of the COA directed Villa Bernaldo (then BFAR Auditor) to conduct a discreet inquiry regarding Baltazars complaint. 44 Bernaldo submitted her report on June 18, 1986, where she declared that the Corporation submitted its P138,900.00 bid, broken down as follows: publication fee, P2,400.00; berthing fee, P103,111.40; charges on the BFAR, P33,388.60; or a total of P138,900.00.45 According to Bernaldo, the berthing fee represented the amount BFAR billed the Corporation for dry-docking costs, and that this expense was included as one of the findings in the 1985 Annual Audit Report of the BFAR because it was incurred mainly due to the delay in the disposal of the "M/V Malasugui." She concluded that the appraised value of P86,917.60 was therefore, not met, but the fees incurred in connection with the disposal were included in the bid offer of P138,900.00 and was accepted by the Bureau. She admitted, however, that the amount of P138,900.00 had been fully accounted for, receipted under O.R. No. 2861007 dated March 4, 1986 and deposited as income in the National Treasury on March 5, 1986.46 Baltazar thereafter filed a Manifestation47 with the Ombudsman requesting the inclusion of Caugma, Abella, Bernaldo, and Martinez as respondents.

Believing that the bid price for the vessel was P138,900.00 and that this amount surpassed the appraised value of P86,917.60, the Committee members resolved to recommend to the Bureau Director that the sale of the vessel be awarded to the Corporation for final approval. The Committee transmitted its recommendation to the Bureau Director, including the minutes of the meeting. Upon the suggestion of Amiana Abella, the Committee sent a letter to the corporation confirming that its bill for costs and berthing fees would be the last it would receive.29 Meanwhile, Gonzales approved Disbursement Voucher No. 101-85-12-19-904230 dated December 5, 1985 amounting to P69,653.60 in favor the Corporation. Caugma certified that the

The Ombusman required the Committee members to submit their counter-affidavits. In their Joint Counter-Affidavit and Rejoinder Affidavit,48 they declared inter alia that the bidding and sale of the vessel was made in accordance with law, as well as accounting and auditing rules and regulations. After the requisite preliminary investigation, Special Prosecution Officer Robert E. Kallos issued a Resolution49 dated July 24, 1992, recommending that the charges against Gonzales and Bernaldo be dropped; Gonzales acted in good faith, while Bernaldo was not present when the actual bidding was conducted. Thereafter, the Ombudsman filed an Information charging Eddie S. Galler, Jr., Marietta Caugma, Amiana Abella and Rosauro Martinez of violating Section 3(e) of Republic Act No. 3019. The accusatory portion of the information reads: That in or about and during the period from November 21, 1985 to November 28, 1985 and/or prior or subsequent thereto in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Marietta T. Caugma, Amiana Abella and Rosauro Martinez, all public officers being then the Chairman, Vice-Chairman and member respectively, of the Disposal Committee of the Bureau of Fisheries and Aquatic Resources (BFAR), while in the discharge/exercise of their official administrative functions conspiring and confederating with accused EDUARDO S. GALLER, JR., a private individual and representative of V.L. Shipyard of Navotas, did then and there willfully and unlawfully through evident bad faith cause undue injury to the BFAR/Government by then and there proceeding with a public bidding for the disposal of BFAR fishing vessel M/V Malasugui held on November 28, 1985 when only EDDIE S. GALLER, JR. was present and submitted his bid and thereafter accused public officers acted favorably on the itemized bid offer of EDDIE S. GALLER, JR. in spite of their knowledge that said bid offer is in violation of condition no. 8 of the Invitation to Bid and that the BFAR/Government will only get the amount of THIRTY THREE THOUSAND THREE HUNDRED EIGHTY EIGHT PESOS AND SIXTY CENTAVOS (P33,388.60), Philippines (sic) Currency, which is very much below the Appraised value of M/V Malasugui in the amount of P86,917.60, thereby causing damage or injury to the BFAR/Government in the sum of P53,529.00. CONTRARY TO LAW.50 On reinvestigation, the Ombudsman denied the recommendation of Special Prosecutor Reynaldo A. Alhambra to withdraw the Information for being unsupported by evidence. 51 To prove the guilt of all the accused, the prosecution relied on the testimony of the BFAR Resident Auditors Bernaldo and Nacua. Bernaldo declared that she was present during the initial public bidding on November 21, 1985. However, during the public bidding on November 28, 1985, the COA was represented by Nacua. She claimed that the second bidding should not have proceeded because the lone bidder offered to purchase the vessel for only P33,388.60 instead of its appraised value as required by Section 6, paragraph 1 of E.O. No. 888. 52 She further declared that to comply with E.O. No. 888, the minimum acceptable selling price was P190,000.00 broken down as follows: P2,400.00 for publication fee; berthing fee of P103,111.40; and P86,917.60 for the appraised value of the vessel. 53 Considering that this bid price was not reached after the second bid, the Committee should have declared a failure of bid, hence, per COA regulations, the vessel should have been sold through negotiation for a price to be fixed by the Commission.54 In response to the clarificatory question of the Presiding Justice, Bernaldo declared that the transactions relative to the sale of the vessel were in order. 55 She also affirmed the contents of petitioners Joint Affidavit and Rejoinder Joint Affidavit. Nacua, for her part, declared that the public auction/bidding was done in accordance with pertinent laws and COA rules and regulations. Caugma adduced testimonial and documentary evidence that as early as January 3, 1985, the Corporation had billed the BFAR for services rendered on the vessel after the July 18, 1984 incident, per Invoice No. 1529 for the amount of P33,457.80. The BFAR prepared and issued a Disbursement Voucher on January 28, 1985.56 The funding of the disbursement was released by the Ministry (now Department) of Budget and Management only on March 4, 1986 under CDC B0141-86-1-022. The Treasurer of the Philippines paid the amount to the Corporation on May 12, 1986, per PNB Check No. SN-5-7994745-4 for P33,457.00.57 She clarified that the P69,653.60

paid to the Corporation per Invoice Receipt No. 1589 dated November 8, 1985 was for mooring and berthing services, as well as part of the security services at the water front, electric supply, tug services from January 1, 1985 up to October 31, 1985, and other services provided to the vessel from January 1, 1985 to September 15, 1985. The payment of these bills to the Corporation was approved by no less than Villa Bernaldo, BFAR resident auditor.58 The two obligations of the BFAR totaling P103,111.40 were separate and valid obligations of BFAR which should not have been deducted from the proceeds of the sale to the winning bidder. 59 Caugma further declared that on November 21, 1985, she explained to Galler, Jr. and Dr. Peras that the berthing fees referred to in the Invitation to Bid were those due from the publication of the Invitation to Bid up to the final award. The berthing fees from January 1, 1984 to October 31, 1985 were not for the account of the bidder. When she asked Galler, Jr. if the Corporation was waiving the publication fees and berthing fees from the time the invitation to bid was published up to the final award, Galler, Jr. agreed. Galler, Jr. adopted the evidence of Caugma. He testified that he was the Marketing Manager of the Corporation, and that he had not met the Committee members before the public bidding on November 21, 1985.60 At that time, the purchase price of the vessel had not yet been fixed.61 He presented the two bills of the Corporation one for services, and another for berthing fees up to October 31, 1985 totaling P103,111.40. At the time, the Corporation had not yet presented its bill for berthing fees and various services from November 13, 1985 to November 21, 1985. His impression was that since the vessel was being sold on an "as is where is" basis, the other charges were not part of the bid and had to be separately paid. As far as he knew, the only interest of the BFAR was to recover the value of the vessel. 62 He waived the berthing fees due from the publication of the Invitation to Bid until the final award. 63 On November 28, 1985, he submitted the sealed bid of the Corporation which he signed upon the request of the Corporations president.64 The net bid price of the Corporation for the vessel was P138,900.00,65 but he could not recall whether this bid had been broken down because it was prepared by one of the staff, which he signed before submission to the Committee. The amount of P103,111.40 in his bid included the berthing fees of P46,000.00 and for miscellaneous services for the vessel. 66 He felt that the P103,111.40, the amount the BFAR owed the Corporation for services rendered on the vessel, was a reasonable price, but the Corporation still submitted its bid to purchase it for P138,900.00 because it could repair the vessel at the least price. 67 On July 29, 2004, the Sandiganbayan rendered judgment68 convicting the four (4) accused of the crime charged. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered finding accused Marietta T. Caugma, Amiana Abella, Rosauro Martinez and Eduardo S. Galler, Jr., GUILTY beyond reasonable doubt for violation of Sec. 3(e) of R.A. 3019 and are hereby sentenced to each suffer the indeterminate penalty of imprisonment from six (6) years and one (1) month as minimum to fifteen (15) years as maximum and to each suffer the penalty of perpetual disqualification from public office. SO ORDERED.69 The Sandiganbayan ruled that, under Condition No. 8 of the invitation to bid, only those bidders who had agreed to pay no less than the appraised value of the vessel, P86,917.60, excluding taxes, duties and other costs (such as berthing fees, publication of the bid and levies which may be imposed by law), should have been considered by the Committee. Caugma was aware of this condition in the invitation to bid, as evidenced by the minutes of the bidding held on November 21, 1985. She even explained the conditions of the sale to the bidders then present. The Sandiganbayan further declared that Caugma had knowledge of the fact that the berthing fee was P103,111.40 since it was clearly indicated in the invitation to bid. Thus, in evident bad faith, the accused conspired together and awarded the vessel to the Corporation for P138,900.00, of which only P33,388.60 would be remitted to the BFAR. It also held that Committee members Abella and Martinez took active part in the public bidding and, as evidenced by the Minutes of the Meeting, favored the Corporation. The Sandiganbayan concluded that the prosecution proved beyond reasonable doubt that the Disposal Committee gave unwarranted advantage and preference to Galler, Jr., causing injury to the government to the extent of P53,529.00; after deducting the publication fee of P2,400.00 and

the berthing fee of P103,111.40, the government realized only the net amount of P33,388.60, short by P53,529.00 of the appraisal value of the vessel, P86,917.60. Petitioners moved for the reconsideration of the decision, which the graft court denied on January 26, 2005.70 Hence, petitioners filed the instant petition seeking the reversal of the Sandiganbayans ruling on the following claims: (1) they were denied their right to equal protection of the law; and (2) the prosecution failed to prove that they acted in evident bad faith in awarding the sale of the vessel to the Corporation and that the BFAR suffered damage/injury in the amount of P53,529.00. Petitioners aver that the Committee complied with the requirements of E.O. No. 888 and of Fisheries Order No. 65, Series of 1983 relative to the sale of the fishing vessel. They maintain that their recommendation to accept the subject bid was in order, as even the BFAR Director concurred therein and transmitted a letter-request to the Minister of Agriculture and Food for authority to award the sale to the lone bidder; in turn, the Ministry Auditor interposed no objection as the said bid was higher than the vessels appraised value. Petitioners point o ut that no less than the Assistant Minister concurred with the Resident Auditor to the Committees recommendation. Petitioners likewise posit that the conditions set forth in the invitation to bid were complied with. They maintain that the Committees determination of the award is merely recommendatory and is not in itself a contract. Thus, the BFAR Director and the Assistant Minister should be charged and prosecuted for violation of Section 3(e) of Rep. Act No. 3019 considering that under E.O. No. 888, the Ministry of Agriculture and Food has the sole authority to dispose of the vessel. They point out that ultimately, it was the Ministry that sold the vessel to the Corporation. Since the BFAR Director and the Minister were not prosecuted, they (petitioners) should not have been charged and prosecuted for the sale of the vessel to the Corporation, otherwise their right to the equal protection of the law would be violated. Petitioners further aver that the prosecution failed to prove that they acted in evident bad faith and that the government sustained undue injury. They insist that the bid price of the fishing vessel was P138,900.00, not merely P33,388.60. Petitioners aver that this can be gleaned from the testimony of Bernaldo and Galler, Jr. The costs referred to in Condition No. 8 of the Condition of Sale pertained to all charges in connection with the sale of the vessel and were to be paid by the bidder, not as part of but in addition to the bid price of P138,900.00. The fact that BFAR owed to the Corporation has no relevance to the public bidding, as the obligation of BFAR in the amount of P103,111.40 is separate and distinct from the Corporations bid of P138,900.00. Petitioners point out that the amount of P138,900.00 was paid to the national treasury. Even assuming that the government sustained a loss of P53,529.00, they should not be the ones held liable therefor. The Office of the Special Prosecutor (OSP), for its part, avers that petitioners contention that their role in the public bidding was recommendatory in nature is baseless; such argument was proffered in order to evade responsibility for the unjust and disadvantageous sale which prejudiced the interest of the government. The subsequent issuance by the BFAR Director of the certificate of award to the winning bidder is only a formality. What consummates the sale is the Committees declaration of the winning bidder. When a qualified bidder is declared as such, it follows that such winning bidder will be awarded the contract or certificate of award; otherwise, taking part in the said bidding would be a meaningless exercise. The OSP maintains that when the subject fishing vessel was advertised for sale, the act of selling the property had begun as there was already an offer. After complying with the requirements on publication and invitation to bid, the Committee proceeded with the sale and the Corporation was declared the winning bidder. The contract was perfected at that moment, as there was already a meeting of the minds between the seller and the buyer. The Bureau Directors subsequent issuance of the Certificate of Award did not affect the contract which had already been perfected and consummated in the first place through the Committees actuations. Besides, the OSP asserts, the corresponding certificate of award would not have been issued had not the Committee declared the Corporation as the winning bidder. Thus, it was the

Committee that conducted the sale and subsequently disposed of the fishing vessel in favor of said Corporation. According to the OSP, "what is certain is that the public bidding was in fact a feigned, orchestrated and bogus one designed to prejudice the government, and this was known to petitioners before the bidding started." It argued further argued that: The appraised value of M/V Malasugui was P86,917.60 as reported to by the Disposal Committee. V/L Shipyard Corporation offered a bid in the amount of P133,900.00 (sic). In its application, V/L Shipyard broke down the items to constitute the amount of P133,900.00 (sic) as follows: Publication fee P 2,400.00 Berthing fee 103,111.40 BFAR 33,388.60 When the Disposal Committee published its Invitation to Bid, it was specific in one of its condition that "(t)he bidder agrees to pay in addition to the award, price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law." It was a matter of fact that BFAR owed V/L Shipyard Corporation an amount of P103,111.40, as berthing fee, for [dry-docking] M/V Malasugui at its property. After deducting the said amount together with P2,400.00 for the cost of the publication of the bid from the bid proposal in the amount of P138,900.00, the amount of P33,388.60 was arrived at. And this amount of P33,388.60 will go to BFAR as itemized by V/L Shipyard ahead when it posted its bid for M/V Malasugui. To reiterate, the bid proposal of V/L Shipyard was included in the Invitation to Bid of BFAR. Clearly, the government lost an amount of P53,529.00. x x x xxxx In reality what was paid by V/L Shipyard Corporation for M/V Malasugui to BFAR was only P33,388.60, short of P53,529.00 from the appraised value of P86,917.60. The damage cost to the government was not merely negligible but more than substantial. From the foregoing, all the elements of Section 3 (e) of Republic Act No. 3019 were present, and thus, the conviction of all the petitioners, together with Eddie Galler, Jr. is correct. 71 In their Reply, petitioners reiterate that their determination as Committee members was merely recommendatory and subject to the final approval of the Minister of Agriculture and Food as provided in Section 6 of E.O. No. 888. The petition is meritorious. Under the Constitution, accusation is not synonymous with guilt. In a criminal case, the accused is presumed innocent. It is incumbent upon the prosecution to prove the guilt of the accused for the crime charged beyond reasonable doubt. His freedom is forfeited only if the requisite quantum of proof necessary for conviction exists. The accused is even obliged to offer evidence in his behalf. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to become a summary judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged in that not only did he perpetrate the act but that it amounted to a crime. It is required that every circumstance favoring his innocence be duly taken into account.72 Thus, the burden of proof never shifts to the accused. Section 3(e) of Rep. Act No. 3019 provides: (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The essential elements of violation of the provision are as follows: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.73 It must be stressed that mere bad faith is not enough for one to be liable under the law, since the act of bad faith must in the first place be evident. 74 Elaborating on the meaning of evident bad faith, this Court held in Marcelo v. Sandiganbayan:75 Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes. (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. Undue injury has been interpreted as synonymous to actual damages which is akin to that in civil law.76 The prosecution is burdened to prove the factual basis and amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party.77 Courts cannot simply rely on speculations, conjectures or guesswork in determining the fact and the amount of damages. 78 Conspiracy or collusion by and among public officers, inter se, and via private individuals to commit the crime under Section 3(e) of Rep. Act No. 3019 must likewise be proven by the prosecution beyond reasonable doubt. This was the ruling of the Court in Desierto v. Ocampo: 79 Collusion implies a secret understanding whereby one party plays into anothers hands for fraudulent purposes. It may take place between and every contractor resulting in no competition, in which case, the government may declare a failure of bidding. Collusion may also ensue between contractors and the chairman and members of the PBAC to simulate or rig the bidding process, thus insuring the award to a favored bidder, to the prejudice of the government agency and public service. For such acts of the chairman and the members of the PBAC, they may be held administratively liable for conduct grossly prejudicial to the best interest of the government service. Collusion by and among the members of the PBAC and/or contractors submitting their bids may be determined from their collective acts or omissions before, during and after the bidding process. The complainants are burdened to prove such collusion by clear and convincing evidence because if so proved, the responsible officials may be dismissed from the government service or meted severe administrative sanctions for dishonesty and conduct prejudicial to the government service. To prove the guilt of petitioners for the crime charged, the prosecution presented COA Auditors Nacua and Bernaldo, and the report prepared by the latter dated June 18, 1986. However, contrary to petitioners stance, the collective testimonies of the witnesses tend to exculpate petitioners. In her Report, Bernaldo declared that the Corporations bid for the vessel was only P33,388.60, P53,529.00 short of the threshold minimum price of P86,917.60, as provided in Condition No. 8 of the Invitation to Bid: 8. That the bidder agrees to pay in addition to the award price, taxes, duties and other costs such as berthing fees, cost of publication of the bid, etc. and levies which may be imposed by law.80

Bernaldo testified that the Corporations bid indicated the amount of P103,111.40, its claim for berthing fees and for various services rendered for the vessel from September 11, 1984 to October 31, 1985 under Bill Nos. 1529 and 1589, and that such expenses should be deducted from its bid of P138,900.00. She maintained that a qualified bidder should have submitted a bid not lower than P192,529.60. Bernaldo concluded that the Corporation submitted a bid of only P33,388.00, P53,529.00 short of a threshold minimum bid for the vessel; hence, the government lost P53,529.00 in the sale of the vessel. However, in the Joint Affidavit 81 submitted to the Ombudsman, petitioners, including Bernaldo, categorically declared that the bid price of the Corporation was P138,900.00, and that such bid was higher than the appraised value of the vessel amounting to P86,917.60. Bernaldo declared that the P138,900.00 was fully accounted for under O.R. No. 2861007 dated March 4, 1986, and deposited as income in the national treasury on March 5, 1986. Petitioners and Bernaldo maintained that the sale of the vessel was made in accordance with accounting and auditing rules and regulations of the government. Bernaldo was as adamant as petitioners when they declared in their Rejoinder Joint Affidavit 82 submitted to the Ombudsman that the disposition of the vessel was made strictly in accordance with the law, rules and regulations of the government on the disposition of government property: 6. That the obligations under Bill No. 1529 in the amount of P33,457.00 dated January 3, 1985 for services rendered in 1984 by the [V/L] Shipyard Corporation, was noted and approved for payment by the Bureau Resident Auditor and requested for the revalidation by the Bureau with the Department of Budget and Management and a corresponding funding was released by the said Department of Budget and Management under CDC No. B-0141-86-1-022 dated March 4, 1986. The obligation under Bill No. 1589 dated November 8, 1985 in the amount of P69,653.60 were services rendered by the [V/L] Shipyard Corporation in the form of mooring on berthing fee, including share on security services at water front, supply of electrical power and four units light bulbs during night time, from January 1, 1985 up to October 31, 1985; tug service; supplied vessels crew with freshwater requirements on board from January 1, 1985 up to October 31, 1985 and provided vessel with one (1) set gasoline driven 3" diameter centrifugal water pump, and supplied gasoline, oil operator and mechanics from January 1, 1985 to September 15, 1985. That the said obligation under Obligation No. 409-102-12-412-85 was approved and concurred by the Bureau Auditor of the Commission on Audit. Thus, the two obligations (Bill Nos. 1529 and 1589 in the total amount of P103,111.40 of the Bureau with the [V/L] Shipyard Corporation were for services rendered and therefore, separate and distinct valid obligations of the Bureau to the Corporation. The two obligations were preaudited by the Bureau Auditor before payments were made by the Bureau. The payment of P103,111.40, therefore, for the berthing fees and other services rendered by [V/L] Shipyard Corporation was made in accordance with accounting and auditing rules and regulations and therefore should not be added nor deducted from the proceeds of the sale of the vessel. Xerox copies of the Requests for Obligation of Allotment for [V/L] Shipyard Corporation in the amount of P33,457.00 and P69, 653.50, for various services rendered for RPS Malasugui in 1984 and 1985 as noted and approved by the Bureau Auditor of the Commission on Audit before payment can be made by the Bureau as Annexes 8 and 9[,] respectively. Xerox copies of the two vouchers for P33,457.00 and P69,653.60 with all supporting documents including the description of the services rendered by [V/L] Shipyard Corporation approved by Director Juanito B. Malig and Mr. Felix R. Gonzales, former Director of the Bureau, respectively, as Annexes 10 and 11. 83 When queried by the Sandiganbayan Presiding Justice, Bernaldo categorically declared that there was nothing wrong with the transaction relative to the award and sale of the vessel to the Corporation: PJ GARCHITORENA Questions from the Court. Q Madam witness, as far as you are concerned what was wrong with the transaction or was there anything wrong with the transaction? WITNESS

A I do not see anything wrong because the amount was more than the appraised value. Q So, as far as you are concerned the transaction was in order? A Yes, sir.84 When asked whether her and petitioners Joint Affidavit and Rejoinder Affidavit were correct even in the light of the June 18, 1986 Report, Bernaldo answered in the affirmative: Q Madam witness, when you executed this Joint Affidavit as well as the Rejoinder which have been marked as Exhibits 26 and 27[,] respectively[,] sometime in 1987, this superceded your previous Report, do you agree with me? PROS. TABANGUIL That will call for the conclusion of the witness, your Honor. PJ GARCHITORENA Sustained. If there is a contradiction then there is contradiction. Whether it supercedes or not is something you will have to find out, unless you will ask her why she excluded one and then the other. ATTY. BLANES Q Now, when you executed Exhibit 26, Madam witness, you have taken into account your indorsement dated June 18, 1986 A Yes, sir. Q And your Joint Affidavit and your Rejoinder explained correctly what actually happened with respect to the sale of M/V Malasugui? PROS. TABANGUIL Vague, your Honor. PJ GARCHITORENA May answer. WITNESS They were both correct.85 It bears stressing that the Rejoinder Affidavit86 executed by petitioners and Bernaldo were adduced in evidence by no less than the prosecution itself. Bernaldo even sought the dismissal of the criminal complaint filed by the Ombudsman against her for violation of Section 3(e) of Rep. Act No. 3019 based on the Joint Affidavit and Rejoinder Affidavit. Not to be outdone was COA auditor Marlene Nacua who declared on cross-examination that not only was the bidding process made on November 28, 1985 in order, but also that the bid of the Corporation was in accordance with COA regulations: ATTY. PADERNAL Q At the time of the bid you know that procedure well. A Yes, sir. Q And knowing that procedure[,] you did not interpose any objection to the decision of the committee to open the bid, the lone bid of [V/L] Shipyard, is that correct. A Yes, sir.

Q And am I correct to say also that as representative of the Commission on Audit during the bid although you act as a witness, you have to guide the committee as to the regulations of the Commission on Audit, is that correct, Mrs. Witness. A Yes, sir. Q And when the bid was opened to [V/L] Shipyard it was then your belief and perception at the time that the committee had followed all the regulations of the Commission on Audit. A Yes, sir.87 xxxx Q That is why when the committee decided to open and award the bid to [V/L] Shipyard and submitted a payment of One Hundred Thirty Eight Thousand Nine Hundred Pesos (P138,900.00) you did not interpose any objection or guided the committee as to whether or not the bid was wrong or in accordance with the COA rules and regulations because you believe then that the bid and the opening of the bid was in accordance with the COA regulations, is that correct. A Yes, sir.88 By her testimony, Nacua thereby implied that the petitioners acted in good faith when the Committee conducted the bid process and made its recommendation to the Ministry of Agriculture and Food. The BFAR Director found no infirmity in the bid process, as shown in the minutes of the meeting on November 18, 1985 and the Committees recommendation. Moreover, no less than BFAR Director Gonzales concurred with the Committees recommendation and requested the Minister of Agriculture and Food for authority to award the sale of the vessel to the Corporation for P138,900.00 which included the P103,111.40 for services and berthing fees and P2,400.00 as publication fee. The Resident Auditor of the Ministry studied the matter very carefully and found no factual and legal basis for any objection to the recommendation. The Assistant Minister of Agriculture and Food also found the Committees recommendation in accordance with law and COA rules and regulations, and directed the BFAR to award the vessel to the Corporation for P138,900.00. The Bureau Director complied with the directive. The ranking officials of the Ministry found no infirmity in the bid process and the Committees recommendation, evidence of which was adduced by no less than the prosecution itself. We agree with petitioners contention that the recommendation of the Committee to the Ministry to approve the award of the sale was not in itself a contract of sale in favor of the Corporation. The sale of the vessel was perfected only upon notice to said Corporation that the sale of the vessel had been awarded to it. Article 1318 of the New Civil Code provides that there is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. An offer is the manifestation of willingness to enter into a bargain in such a way as to justify the other process in understanding that an assessment will conclude the agreement. An offer ripens into a contract when it is accepted. The offer must be certain and the acceptance absolute.89 Thus, a bid at an auction constitutes an offer to buy. Where, as in this case, the seller reserved the right to refuse to accept any bid made, a binding

sale is not perfected until the seller accepts the bid. The seller may exercise his right to reject any bid even after the auctioneer has accepted a bid.90 The mere determination of a public official bound to accept the offer or a proposal of a bidder does not constitute a contract. 91 Anent petitioners contention that the Committee had no authority to dispose of the vessel to the Corporation through the sale at public auction, Section 1 of E.O. No. 888 provides that the Ministers or Heads of ministries of the government shall have the full and sole authority and responsibility to dispose of all unserviceable equipment and property: Section 1. Authority to Dispose The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Ministers or Heads of Ministries/Agencies of the Government shall have the full and sole authority and responsibility to dispose of, all unserviceable equipment and property of their respective Ministries/Agencies. (emphasis supplied) In cases of agencies attached to the Ministry of Agriculture and Food such as the BFAR, the Committee merely determines the awardee and makes a recommendation to the Minister concerned. In fine, the recommendation of the Committee is subject to such final approval: 6. In the case of agencies attached to certain Ministries, recommendations of the Disposal Committee is subject to the final approval of the Minister concerned (emphasis supplied). The awardee is not obliged to make payment for the property bid until after notice to the awardee. It is only when the awardee receives the notice of award that a contract of sale is perfected between the bidder and the seller. In this case, the Corporation was notified of the award only after February 28, 1986. It was only upon its receipt of the notice of award that a contract of sale had been perfected between the government, as seller, and the Corporation as buyer. The Committee had no involvement in the sale of the vessel to the Corporation apart from its recommendation on the November 28, 1986 bidding, and yet, the Ombudsman indicted only petitioners, excluding the BFAR Director, Resident Auditor and Assistant Minister of Agriculture and Food. We agree with petitioners contention that the crime of violation of Section 3(e) of Rep. Act No. 3019 was not committed when the Committee conducted the bidding on November 28, 1985 and resolved to recommend to the Minister, through the BFAR Director, to award the sale of the vessel to the Corporation; neither was it committed when the award was made by the BFAR Director to the Corporation. This is so because there was as yet no evidence that the government sustained a loss of P53,529.60. The crime would have been committed if the Corporation had remitted to the National Treasurer the P138,900.00, and the P103,111.40 was applied by way of set-off against Bureaus account to said Corporation for Bill Nos. 1529 and 1589. The prosecution failed to prove beyond reasonable doubt that the government lost P53,529.00 in the sale of the vessel. The only evidence presented is the Corporations bid and the Report of Villa Bernaldo on June 18, 1986. The Prosecution offered no competent and sufficient evidence to prove the actual damages caused to the government. On the other hand, the BFAR Director declared that the vessel was sold to the Corporation for P138,900.00, which accepted and remitted the amount to the national treasury, as full payment of the vessel. The government receipted the amount "as proceeds of the sale" of the vessel.92 To reiterate, there is no evidence on record that, after the Corporation had remitted the P138,900.00 on February 28, 1986, P103,111.40 thereof was applied to the Bureaus account under Bill Nos. 1529 and 1589 by way of set off. In fact, on January 6, 1986, before the sale of the vessel was awarded to the Corporation, the government had already remitted the P69,653.60 to it in payment of Bill No. 1589. The government did not even apply a portion of the P138,900.00 as payment of its account of P33,388.60 under Bill No. 1529, and instead paid the amount to the Corporation on May 12, 1986. Thus, the full amount of the bid price, P138,900.00, which the Corporation remitted to the national treasury was intact as Bernaldo stated in her June 18, 1986 Report; yet, petitioners were prosecuted and convicted of violation of Section 3(e) of Rep. Act No. 3019. In fine then, the Court holds that the travesty which had been committed must be undone.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Sandiganbayan is REVERSED and SET ASIDE. Petitioners Marietta T. Caugma, Amiana Abella and Rosauro Martinez are ACQUITTED of the crime charged. The bail bonds posted for petitioners provisional liberty are CANCELLED. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 160211 August 28, 2006 VENANCIO R. NAVA, Petitioner, vs. The Honorable Justices RODOLFO G. PALATTAO, GREGORY S. ONG, and MA. CRISTINA G. CORTEZ-ESTRADA as Members of the Sandiganbayans Fourth Division, and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION PANGANIBAN, CJ: A meticulous review of the records and the evidence establishes the guilt of the accused beyond reasonable doubt. Clearly, the prosecution was able to prove all the elements of the crime charged. Hence, the conviction of petitioner is inevitable. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing the June 2, 2003 Decision 2 and September 29, 2003 Resolution of the Sandiganbayan in Criminal Case No. 23627. The dispositive portion of the challenged Decision reads: "WHEREFORE, premises considered, judgment is hereby rendered convicting accused VENANCIO NAVA Y RODRIGUEZ of the crime of violation of the Anti-Graft and Corrupt Practices Act particularly Section 3(g) thereof, or entering on behalf of government in any contract or transaction manifestly and grossly disadvantageous to the same whether or not the pubic officer profited or will profit thereby. In the absence of any aggravating or mitigating circumstances, applying the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of imprisonment of six (6) years, and one (1) day as minimum to twelve (12) years and one (1) day as maximum and to suffer perpetual disqualification from public office. Accused Nava is further ordered to pay the government the amount of P380,013.60 which it suffered by way of damages because of the unlawful act or omission committed by the herein accused Venancio Nava. "From the narration of facts, there hardly appears any circumstance that would suggest the existence of conspiracy among the other accused in the commission of the crime. "Thus in the absence of conspiracy in the commission of the crime complained of and as the herein other accused only acted upon the orders of accused Venancio Nava, in the absence of any criminal intent on their part to violate the law, the acts of the remaining accused are not considered corrupt practices committed in the performance of their duties as public officers and consequently, accused AJATIL JAIRAL Y PONGCA, ROSALINDA MERKA Y GUANZON & JOSEPH VENTURA Y ABAD are hereby considered innocent of the crime charged and are hereby acquitted." 3 The assailed Resolution dated September 29, 2003, denied reconsideration. The Facts The Sandiganbayan narrated the facts of this case as follows: "The complaint involving the herein accused was initiated by the COA, Region XI, Davao City, which resulted from an audit conducted by a team which was created by the COA Regional Office per COA Regional Assignment Order No. 91-74 dated January 8, 1991. The objective of the team [was] to conduct an audit of the 9.36 million allotment which was released in 1990 by the DECS, Region XI to its Division Offices.
1

"In the Audit Report, the amount of P603,265.00 was shown to have been released to the DECS Division of Davao del Sur for distribution to the newly nationalized high schools located within the region. Through the initiative of accused Venancio Nava, a meeting was called among his seven (7) schools division superintendents whom he persuaded to use the money or allotment for the purchase of Science Laboratory Tools and Devices (SLTD). In other words, instead of referring the allotment to the one hundred fifty-five (155) heads of the nationalized high schools for the improvement of their facilities, accused Nava succeeded in persuading his seven (7) schools division superintendents to use the allotment for the purchase of science education facilities for the calendar year 1990. "In the purchase of the school materials, the law provides that the same shall be done through a public bidding pursuant to Circular No. 85-55, series of 1985. But in the instant case, evidence shows that accused Nava persuaded his seven (7) schools division superintendents to ignore the circular as allegedly time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund. "In the hurried purchase of SLTDs, the provision on the conduct of a public bidding was not followed. Instead the purchase was done through negotiation. Evidence shows that the items were purchased from Jovens Trading, a business establishment with principal address at Tayug, Pangasinan; D[I]mplacable Enterprise with principal business address at 115 W est Capitol Drive, Pasig, Metro Manila and from Evelyn Miranda of 1242 Oroqueta Street, Sta. Cruz, Manila. As disclosed by the audit report, the prices of the [SLTDs] as purchased from the abovenamed sellers exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The report concluded that the government lost P380,013.60. That the injury to the government as quantified was the result of the non-observance by the accused of the COA rules on public bidding and DECS Order No. 100 suspending the purchases of [SLTDs]." 4 The Commission on Audit (COA) Report recommended the filing of criminal and administrative charges against the persons liable, including petitioner, before the Office of the OmbudsmanMindanao. Petitioner was subsequently charged in an Information follows:
5

filed on April 8, 1997, worded as

"That on or about the period between November to December 1990, and for sometime prior or subsequent thereto, in Digos, Davao Del Sur and/or Davao City, Philippines and within the jurisdiction of this Honorable Court, the accused Venancio R. Nava (DECS-Region XI Director) and Ajatil Jairal (Division Superintendent, DECS, Davao del Sur), both high[-]ranking officials and Rosalinda Merka, and Teodora Indin (Administrative Officer and Assistant Division Superintendent, respectively of DECS-Division of Davao Del Sur), all low ranking officials, while in the discharge of their respective official functions, committing the offense in relation to their office and with grave abuse [of] authority, conniving and confederating with one another, did then and there willfully, unlawfully and feloniously enter, on behalf of the government, into transactions with DImplacable Enterprise and Jovens Trading, respectively, represented by accused Antonio S. Tan and Evelyn Miranda and Joseph Ventura for the purchase of Science Laboratory Tools and Devices (SLTD) intended for use by the public high schools in the area amounting to [P603,265.00], Philippine currency, without the requisite public bidding and in violation of DECS Order No. 100, Series of 1990, which transaction involved an overprice in the amount of P380,013.60 and thus, is manifestly and grossly disadvantageous to the government." 6 Special Prosecution Officer II Evelyn T. Lucero-Agcaoili recommended the dismissal of the foregoing Information on the ground, among others, that there was no probable cause. She argued that only estimates were made to show the discrepancy of prices instead of a comparative listing on an item to item basis. 7 The recommendation was disapproved, however, by then Ombudsman Aniano A. Desierto. Ruling of the Sandiganbayan After due trial, only petitioner was convicted, while all the other accused were acquitted.
8

Petitioner was found guilty of violating Section 3(g) of the Anti-Graft and Corrupt Practices Act, or entering on behalf of the government any contract or transaction manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or would profit thereby. The Sandiganbayan (SBN) said that, in the purchase of the Science Laboratory Tools and Devices (SLTDs), petitioner had not conducted a public bidding in accordance with COA Circular No. 85-55A. As a result, the prices of the SLTDs, as purchased, exceeded the prevailing market price from 56 percent to 1,175 percent, based on the mathematical computations of the COA team. 9 In his defense, petitioner had argued that the said COA Circular was merely directory, not mandatory. Further, the purchases in question had been done in the interest of public service. 10 The Sandiganbayan did not give credence to the foregoing defenses raised by petitioner. On the contrary, it found the evidence adduced by petitioners co-accused, Superintendent Ajatil Jairal, to be "enlightening," manifesting an intricate web of deceit spun by petitioner and involving all the other superintendents in the process. 11 The graft court did not accept the claim of petitioner that he signed the checks only after the other signatories had already signed them. The evidence showed that blank Philippine National Bank (PNB) checks had been received by Nila E. Chavez, a clerk in the regional office, for petitioners signature. The Sandiganbayan opined that the evidence amply supported Jairals testimony that the questioned transactions had emanated from the regional office, as in fact, all the documents pertinent to the transaction had already been prepared and signed by petitioner when the meeting with the superintendents was called sometime in August 1990. 12 In that meeting, the superintendents were given prepared documents like the Purchase Orders and vouchers, together with the justification. 13 This circumstance prompted Jairal to conduct his own canvass. The Sandiganbayan held that this act was suggestive of the good faith of Jairal, thereby negating any claim of conspiracy with the other co-accused and, in particular, petitioner. In its assailed Resolution, the SBN denied petitioners Motion for Reconsideration. It held that the series of acts culminating in the questioned transactions constituted violations of Department of Education, Culture and Sports (DECS) Order No. 100; and COA Circular No. 85-55A. Those acts, ruled the SBN, sufficiently established that the contract or transaction entered into was manifestly or grossly disadvantageous to the government. Hence, this Petition. 14 The Issues Petitioner raises the following issues for our consideration: "I. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings of the Special Audit Team that irregularly conducted the audit beyond the authorized period and which team falsified the Special Audit Report. "II. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the special audit report where the Special Audit Team egregiously failed to comply with the minimum standards set by the Supreme Court and adopted by the Commission on Audit in violation of petitioners right to due process, and which report suppressed evidence favorable to the petitioner. "III. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in upholding the findings in the Special Audit Report considering that none of the allegedly overpriced items were canvassed or purchased by the Special Audit Team such that there is no competent evidence from which to determine that there was an overprice and that the transaction was manifestly and grossly disadvantageous to the government.

"IV. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that there was an overprice where none of the prices of the questioned items exceeded the amount set by the Department of Budget and Management. "V. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings in the decision in Administrative Case No. XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase and that there was no overpricing. "VI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in selectively considering the findings of XI-91-088 and failing to consider the findings thereon that petitioner was justified in undertaking a negotiated purchase, there was no overpricing, and that the purchases did not violate DECS Order No. 100. "VII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in failing to absolve the petitioner where conspiracy was not proven and the suppliers who benefited from the alleged overpricing were acquitted. "VIII. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in admitting in evidence and giving probative value to Exhibit 8 the existence and contents of which are fictitious. "IX. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in giving credence to the self-serving and perjurious testimony of coaccused Ajatil Jairal that the questioned transactions emanated from the regional office [in spite] of the documentary evidence and the testimony of the accused supplier which prove that the transaction emanated from the division office of Digos headed by co-accused Ajatil Jairal. "X. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in finding that the petitioner entered into a transaction that was manifestly and grossly disadvantageous to the government where the evidence clearly established that the questioned transactions were entered into by the division office of Digos through co-accused Ajatil Jairal. "XI. Whether the public respondent committed grave abuse of discretion amounting to a lack of or excess of jurisdiction in convicting the petitioner in the absence of proof beyond reasonable doubt." 15 All these issues basically refer to the question of whether the Sandiganbayan committed reversible errors (not grave abuse of discretion) in finding petitioner guilty beyond reasonable doubt of violation of Section 3(g), Republic Act No. 3019. The Courts Ruling The Petition has no merit. Procedural Issue: Propriety of Certiorari At the outset, it must be stressed that to contes t the Sandiganbayans Decision and Resolution on June 2, 2003 and September 29, 2003, respectively, petitioner should have filed a petition for review on certiorari under Rule 45, not the present Petition for Certiorari under Rule 65. Section 7 of Presidential Decree No. 1606, 16 as amended by Republic Act No. 8249, 17 provides that "[d]ecisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court." Section 1 of Rule 45 of the Rules of Court likewise provides that "[a] party desiring to appeal by certiorari from a judgment or final order or resolution of the x x x Sandiganbayan x x x whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."

Basic is the principle that when Rule 45 is available, recourse under Rule 65 cannot be allowed either as an add-on or as a substitute for appeal. 18 The special civil action for certiorari is not and cannot be a substitute for an appeal, when the latter remedy is available. 19 This Court has consistently ruled that a petition for certiorari under Rule 65 lies only when there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. 20 A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency or as in this case, the Sandiganbayan. 21 Since the assailed Decision and Resolution were dispositions on the merits, and the Sandiganbayan had no remaining issue to resolve, an appeal would have been the plain, speedy and adequate remedy for petitioner. To be sure, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 22 For this procedural lapse, the Petition should have been dismissed outright. Nonetheless, inasmuch as it was filed within the 15-day period provided under Rule 45, the Court treated it as a petition for review (not certiorari) under Rule 45 in order to accord substantial justice to the parties. Thus, it was given due course and the Court required the parties to file their Memoranda. Main Issue: Sufficiency of Evidence Petitioner argues that the Sandiganbayan erred in convicting him, because the pieces of evidence to support the charges were not convincing. Specifically, he submits the following detailed argumentation: "1. the Special Audit Report was fraudulent, incomplete, irregular, inaccurate, illicit and suppressed evidence in favor of the Petitioner; "2. there was no competent evidence to determine the overprice as none of the samples secured by the audit team from the Division of Davao del Sur were canvassed or purchased by the audit team; "3. the allegedly overpriced items did not exceed the amount set by the Department of Budget and Management; "4. the decision in an administrative investigation were selectively lifted out of context; "5. the administrative findings that Petitioner was justified in undertaking a negotiated purchase, that there was no overpricing, and that the purchases did not violate DECS Order No. 100 were disregarded; "6. Exhibit 8, the contents of which are fictitious, was admitted in evidence and given probative value; "7. The suppliers who benefited from the transactions were acquitted, along with the other accused who directly participated in the questioned transactions; and "8. The self-serving and perjury-ridden statements of co-accused Jairal were given credence despite documentary and testimonial evidence to the contrary." 23 Petitioner further avers that the findings of fact in the Decision dated October 21, 1996 in DECS Administrative Case No. XI-91-088 24 denied any overpricing and justified the negotiated purchases in lieu of a public bidding. 25 Since there was no overpricing and since he was justified in undertaking the negotiated purchase, petitioner submits that he cannot be convicted of violating Section 3(g) of Republic Act No. 3019. Validity of Audit The principal evidence presented during trial was the COA Special Audit Report (COA Report). The COA is the agency specifically given the power, authority and duty to examine, audit and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of fund

and property owned by or pertaining to the government. 26 It has the exclusive authority to define the scope of its audit and examination and to establish the required techniques and methods. 27 Thus, COAs findings are accorded not only respect but also finality, when they are not tainted with grave abuse of discretion. 28 Only upon a clear showing of grave abuse of discretion may the courts set aside decisions of government agencies entrusted with the regulation of activities coming under their special technical knowledge and training. 29 In this case, the SBN correctly accorded credence to the COA Report. As will be shown later, the Report can withstand legal scrutiny. Initially, petitioner faults the audit team for conducting the investigation beyond the twenty-one day period stated in the COA Regional Office Assignment Order No. 91-174 dated January 8, 1991. But this delay by itself did not destroy the credibility of the Report. Neither was it sufficient to constitute fraud or indicate bad faith on the part of the audit team. Indeed, in the conduct of an audit, the length of time the actual examination occurs is dependent upon the documents involved. If the documents are voluminous, then it necessarily follows that more time would be needed. 30 What is important is that the findings of the audit should be sufficiently supported by evidence. Petitioner also imputes fraud to the audit team for making "it appear that the items released by the Division Office of Davao Del Sur on 21 February 1991 were compared with and became the basis for the purchase of exactly the same items on 20 February 1991." 31 The discrepancy regarding the date when the samples were taken and the date of the purchase of the same items for comparison was not very material. The discrepancy per se did not constitute fraud in the absence of ill motive. We agree with respondents in their claim of clerical inadvertence. We accept their explanation that the wrong date was written by the supplier concerned when the items were bought for comparison. Anyway, the logical sequence of events was clearly indicated in the COA Report: "1.5.1. Obtained samples of each laboratory tools and devices purchased by the Division of Davao del Sur, Memorandum Receipts covering all the samples were issued by the agency to the audit team and are marked as Exhibits 1.2 and 3 of this Report." "1.5.2. Bought and presented these samples to reputable business establishments in Davao City like Mercury Drug Store, Berovan Marketing Incorporated and [A]llied Medical Equipment and Supply Corporation (AMESCO) where these items are also available, for price verification. "1.5.3. Available items which were exactly the same as the samples presented were purchased from AMESCO and Berovan Marketing Incorporated, the business establishments which quoted the lowest prices. Official receipts were issued by the AMESCO and Berovan Marketing Incorporated which are hereto marked as Exhibits 4,5,6 and 7 respectively." 32 The COA team then tabulated the results as follows: Recanvassed Item Flask Brush made of Nylon Test Tube Glass Pyrex (18x50 mm) Purchased Unit Cost P112.20 22.36
33

% of Price + 10% OverAllow. Difference pricing P8.80 14.30 159.50 38.50 P103.40 8.06 553.50 125.00 1,175% 56% 347% 325%

Total Quantity Amount of Purchased Overpricing 400 350 324 144 P41,360.00 2,821.00 179,334.00 18,000.00

Graduated Cylinder Pyrex (100ml) 713.00 Glass Spirit Burner (alcohol lamp) 163.50

Spring Balance (12.5kg)Germany Iron Wire Gauge Bunsen Burner

551.00 16.20 701.00

93.50 9.90 90.75

457.50 6.30 610.25

489% 64% 672%

102 47 150

46,665.00 296.10 91,537.50

COA-Technical Services Office (TSO), based on unit costs furnished by the Price Monitoring Division of the COA-TSO. The COA even refused to show the canvass sheets to the petitioners, explaining that the source document was confidential. In the present case, the audit team examined several documents before they arrived at their conclusion that the subject transactions were grossly disadvantageous to the government. These documents were included in the Formal Offer of Evidence submitted to the Sandiganbayan. 39 Petitioner was likewise presented an opportunity to controvert the findings of the audit team during the exit conference held at the end of the audit, but he failed to do so. 40 Further, the fact that only three canvass sheets/price quotations were presented by the audit team does not bolster petitioners claim that his right to due process was violated. To be sure, there is no rule stating that all price canvass sheets must be presented. It is enough that those that are made the basis of comparison be submitted for scrutiny to the parties being audited. Indubitably, these documents were properly submitted and testified to by the principal prosecution witness, Laura Soriano. Moreover, petitioner had ample opportunity to controvert them. Public Bidding Petitioner oscillates between denying that he was responsible for the procurement of the questioned SLTDs, on the one hand; and, on the other, stating that the negotiated purchase was justifiable under the circumstances. On his disavowal of responsibility for the questioned procurement, he claims that the transactions emanated from the Division Office of Digos headed by Jairal. 41 However, in the administrative case 42 filed against petitioner before the DECS, it was established that he "gave the go signal" 43 that prompted the division superintendents to procure the SLTDs through negotiated purchase. This fact is not disputed by petitioner, who quotes the same DECS Decision in stating that his "acts were justifiable under the circumstances then obtaining at that time and for reasons of efficient and prompt distribution of the SLTDs to the high schools." 44 In justifying the negotiated purchase without public bidding, petitioner claims that "any delay in the enrichment of the minds of the public high school students of Davao del Sur is detrimental and antithetical to public service." 45 Although this reasoning is quite laudable, there was nothing presented to substantiate it. Executive Order No. 301 states the general rule that no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities may be renewed or entered into without public bidding. The rule however, is not without exceptions. Specifically, negotiated contracts may be entered into under any of the following circumstances: "a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; "b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; "c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; "d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications; "e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; "f. Whenever the purchase is made from an agency of the government."
46

Total P380,013.60 What is glaring is the discrepancy in prices. The tabulated figures are supported by Exhibits "E1," "E-2," "E-3," and "E-4," the Official Receipts evidencing the equipment purchased by the audit team for purposes of comparison with those procured by petitioner. 34 The authenticity of these Exhibits is not disputed by petitioner. As the SBN stated in its Decision, the fact of overpricing -- as reflected in the aforementioned exhibits -- was testified to or identified by Laura S. Soriano, team leader of the audit team. 35 It is hornbook doctrine that the findings of the trial court are accorded great weight, since it was able to observe the demeanor of witnesses firsthand and up close. 36 In the absence of contrary evidence, these findings are conclusive on this Court. It was therefore incumbent on petitioner to prove that the audit team or any of its members thereof was so motivated by ill feelings against him that it came up with a fraudulent report. Since he was not able to show any evidence to this end, his contention as to the irregularity of the audit due to the discrepancy of the dates involved must necessarily fail. An audit is conducted to determine whether the amounts allotted for certain expenditures were spent wisely, in keeping with official guidelines and regulations. It is not a witch hunt to terrorize accountable public officials. The presumption is always that official duty has been regularly performed 37 -- both on the part of those involved with the expense allotment being audited and on the part of the audit team -- unless there is evidence to the contrary. Due Process Petitioner likewise invokes Arriola v. Commission on Audit 38 to support his claim that his right to due process was violated. In that case, this Court ruled that the disallowance made by the COA was not sufficiently supported by evidence, as it was based on undocumented claims. Moreover, in Arriola, the documents that were used as basis of the COA Decision were not shown to petitioners, despite their repeated demands to see them. They were denied access to the actual canvass sheets or price quotations from accredited suppliers. As the present petitioner pointed out in his Memorandum, the foregoing jurisprudence became the basis for the COA to issue Memorandum Order No. 97-012 dated March 31, 1997, which states: "3.2 To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in pa. 2.1 above have to be supported with canvass sheet and/or price quotations indicating: a) the identities of the suppliers or sellers; b) the availability of stock sufficient in quantity to meet the requirements of the procuring agency; c) the specifications of the items which should match those involved in the finding of overpricing; d) the purchase/contract terms and conditions which should be the same as those of the questioned transaction" Petitioners reliance on Arriola is misplaced. First, that Decision, more so, the COA Memorandum Order that was issued pursuant to the former, was promulgated after the period when the audit in the present case was conducted. Neither Arriola nor the COA Memorandum Order can be given any retroactive effect. Second and more important, the circumstances in Arriola are different from those in the present case. In the earlier case, the COA merely referred to a cost comparison made by the engineer of

National Center for Mental Health v. Commission on Audit 47 upheld the validity of the negotiated contracts for the renovation and the improvement of the National Center for Mental Health. In that case, petitioners were able to show that the long overdue need to renovate the Center "made it compelling to fast track what had been felt to be essential in providing due and proper treatment and care for the centers patients." 48 This justification was likewise accepted in Baylon v. Ombudsman 49 in which we recognized that the purchases were made in response to an emergency brought about by the shortage in the blood supply available to the public. The shortage was a matter recognized and addressed by then Secretary of Health Juan M. Flavier, who attested that "he directed the NKTI [National Kidney and Transplant Institute] to do something about the situation and immediately fast-track the implementation of the Voluntary Blood Donation Program of the government in order to prevent further deaths owing to the lack of blood." 50 Unfortunately for petitioner, there was no showing of any immediate and compelling justification for dispensing with the requirement of public bidding. We cannot accept his unsubstantiated reasoning that a public bidding would unnecessarily delay the purchase of the SLTDs. Not only would he have to prove that indeed there would be a delay but, more important, he would have to show how a public bidding would be detrimental and antithetical to public service. As the COA Report aptly states, the law on public bidding is not an empty formality. It aims to secure the lowest possible price and obtain the best bargain for the government. It is based on the principle that under ordinary circumstances, fair competition in the market tends to lower prices and eliminate favoritism. 51 In this case, the DECS Division Office of Davao del Sur failed to conduct public bidding on the subject transactions. The procurement of laboratory tools and devices was consummated with only the following documents to compensate for the absence of a public bidding: "1.13.a Price lists furnished by the Supply Coordination Office 1.13.b. Price lists furnished by the Procurement Services of the Department of Budget and Management 1.13.c. Price lists of Esteem Enterprises" 52 The COA Report states that the Division Office merely relied on the above documents as basis for concluding that the prices offered by DImplacable Enterprises and Jovens Trading were reasonable. But as found by the COA, reliance on the foregoing supporting documents was completely without merit on the following grounds: "a. The Supply Coordination Office was already dissolved or abolished at the time when the transactions were consummated, thus, it is illogical for the management to consider the price lists furnished by the Supply Coordination Office. "b. The indorsement letter made by the Procurement Services of the Department of Budget and Management containing the price lists specifically mentions Griffin and George brands, made in England. However, the management did not procure these brands of [SLTDs]. "c. The price lists furnished by the Esteem Enterprises does not deserve the scantest consideration, since there is no law or regulation specifically mentioning that the price lists of the Esteem Enterprises will be used as basis for buying [SLTDs]." 53 Granting arguendo that petitioner did not have a hand in the procurement and that the transactions emanated from the Division Office of Davao del Sur, we still find him liable as the final approving authority. In fact, Exhibit "B-2" -- Purchase Order No. 90-024, amounting to P231,012 and dated December 17, 1990 -- was recommended by Jairal and approved by petitioner. 54 This exhibit was part of the evidence adduced in the Sandiganbayan to prove that the purchase of the SLTDs was consummated and duly paid by the DECS without any proof of public bidding. Although this Court has previously ruled 55 that all heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies

or enter into negotiations, it is not unreasonable to expect petitioner to exercise the necessary diligence in making sure at the very least, that the proper formalities in the questioned transaction were observed -- that a public bidding was conducted. This step does not entail delving into intricate details of product quality, complete delivery or fair and accurate pricing. Unlike other minute requirements in government procurement, compliance or non-compliance with the rules on public bidding is readily apparent; and the approving authority can easily call the attention of the subordinates concerned. To rule otherwise would be to render meaningless the accountability of high-ranking public officials and to reduce their approving authority to nothing more than a mere rubber stamp. The process of approval is not a ministerial duty of approving authorities to sign every document that comes across their desks, and then point to their subordinates as the parties responsible if something goes awry. Suspension of Purchases Obviously working against petitioner is DECS Order No. 100 dated September 3, 1990 which states thus: "In view of the Governments call for economy measures coupled with the deficiency in allotments intended for the payment of salary standardization, retirement benefits, bonus and other priority items, the procurement of reference and supplementary materials, tools and devices equipment, furniture, including land acquisition and land improvement shall be suspended for CY 1990. However, the following items shall be exempted from the said suspension: a) textbooks published by the Instructional Materials Corporation and its commercial edition; b) elementary school desks and tablet arm chairs[.]" As the COA Report succinctly states, the Administrative Order is explicit in its provisions that tools and devices were among the items whose procurement was suspended by the DECS for the year 1990. Petitioner claims that in the administrative case against him, there was no mention of a violation of DECS Order No. 100. 56 He alleges that the purchases of SLTDs by the division superintendents were entered into and perfected on July 1, 1990; that is, more than two (2) months before the issuance of DECS Order No. 100. He also alleged that the Sub-Allotment Advice (SAA) to the DECS Regional Office No. XI in the amount of P9.36M -- out of which P603,265.00 was used for the procurement of the questioned SLTDs -- had been released by the DECS Central Office in August 1990, a month before the issuance of DECS Order No. 100. The Court notes that these arguments are mere assertions bereft of any proof. There was no evidence presented to prove that the SAA was issued prior to the effectivity of DECS Order No. 100. On the other hand, the COA Report states that the DECS Division of Davao del Sur received the following Letters of Advice of Allotments (LAA): 57 "LAA NO. AMOUNT DATE OF LAA DO CO471-774-90 P141,956.00 October 24, 1990 DO-CO471-797-90 P161,309.00 November 16, 1990 DO-CO471-1007-90 P300,000.00 December 14, 1990" The foregoing LAAs were attached as annexes trial in the Sandiganbayan. 59
58

to the COA Report and were presented during

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

supplementary readers, and so on, but allegedly silent on the purchase of laboratory supplies and materials. 61 Finally, the SLTDs were purchased within the covered period of DECS Order No. 100, as evidenced by the following relevant documents adduced by the COA audit team, among others: 1) Disbursement Voucher dated November 27, 1990 for the payment of various laboratory supplies and materials by DECS, Davao del Sur in the amount of P303,29.40 62 2) Official Receipt No. 455 dated January 7, 1991 amounting to P68,424.00 issued by Jovens Trading 63 3) Report of Inspection dated November 26, 1990 signed by Jacinta Villareal and Felicisimo Canoy 64 4) Sales Invoice No. 044 dated November 26, 1990 issued by Jovens Trading in favor of DECS amounting to P303,259.40 65 5) Certificate of Acceptance dated November 27, 1990 signed by Felicismo Canoy 66 6) Purchase Order No. 90-021 in favor of Jovens Trading dated November 26, 1990 recommended for approval by Ajatil Jairal 67 7) Official Receipt No. 92356 dated January 7, 1991 issued by DImplacable Enterprises amounting to P231,012.00 68 8) Purchase Order No. 90-024 dated December 17, 1990 recommended for approval by Ajatil Jairal and approved Director Venancio Nava amounting to P231,012.00." 69 The confluence of the foregoing circumstances indubitably establishes that petitioner indeed wantonly disregarded regulations. Additionally, DECS Order No. 100 negates his claim that the negotiated transaction -- done instead of a public bidding -- was justified. If that Order suspended the acquisition of tools and devices, then there was all the more reason for making purchases by public bidding. Since the buying of tools and devices was specifically suspended, petitioner cannot argue that the purchases were done in the interest of public service. Proof of Guilt To sustain a conviction under Section 3(g) of Republic Act No. 3019, it must be clearly proven that 1) the accused is a public officer; 2) the public officer entered into a contract or transaction on behalf of the government; and 3) the contract or transaction was grossly and manifestly disadvantageous to the government. 70 From the foregoing, it is clear that the Sandiganbayan did not err in ruling that the evidence presented warranted a verdict of conviction. Petitioner is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss. The discrepancy between the prices of the SLTDs purchased by the DECS and the samples purchased by the COA audit team clearly established such undue injury. Indeed, the discrepancy was grossly and manifestly disadvantageous to the government. We must emphasize however, that the lack of a public bidding and the violation of an administrative order do not by themselves satisfy the third element of Republic Act No. 3019, Section 3(g); namely, that the contract or transaction entered into was manifestly and grossly disadvantageous to the government, as seems to be stated in the Resolution of the Sandiganbayan denying the Motion for Reconsideration. 71 Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government. 72 If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone. Indeed, all the elements of a violation of Section 3(g) of Republic Act No. 3019 should be established to prove the culpability

of the accused. In this case, there is a clear showing that all the elements of the offense are present. Thus, there can be no other conclusion other than conviction. We note, however, that petitioner was sentenced to suffer the penalty of six (6) years and one (1) day as minimum to twelve (12) years and one (1) day as maximum. Under Section 9 of Republic Act 3019, petitioner should be punished with imprisonment of not less than six (6) years and one (1) month nor more than fifteen years. Thus, we adjust the minimum penalty imposed on petitioner in accordance with the law. WHEREFORE, the Petition is DENIED. The assailed Decision and Resolution are AFFIRMED, with the MODIFICATION that the minimum sentence imposed shall be six (6) years and one (1) month, not six (6) years and one (1) day. Costs against petitioner. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. Nos. 181999 & 182001-04 September 2, 2009

2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27946 states: That on June 30, 1997 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 23,334 pieces of "walis ting-ting" at P15.00 per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00), thus causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27952 states: That [in] September 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces of "walis ting-ting" at P15.00 per piece as per Disbursement Voucher No. 101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00 per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00), thus causing damage and prejudice to the government in the aforesaid sum.

OFELIA C. CAUNAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. Nos. 182020-24 JOEY P. MARQUEZ, Petitioner, vs. THE SANDIGANBAYAN-FOURTH DIVISION and PEOPLE OF THE PHILIPPINES, Respondents. DECISION NACHURA, J.: At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court which assail the Decision1 dated August 30, 2007 and Resolution2 dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia C. Caunan (Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.) No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act. Marquez and Caunan, along with four (4) other local government officials of Paraaque City3 and private individual Antonio Razo (Razo), were charged under five (5) Informations, to wit: The Information in Criminal Case No. 27944 states: That on January 11, 1996 or thereabout, in Paraaque City, Philippines, and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with the members of the aforesaid Committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with the accused private individual ANTONIO RAZO, the owner and proprietor of ZARO Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with said ZARO Trading, for the purchase of 5,998 pieces of "walis ting-ting" at P25 per piece as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00), without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on Procurement and Public Bidding, and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13,

The Information in Criminal Case No. 27953 states: That during the period from February 11, 1997 to February 20, 1997, or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advance of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the purchase of 10,100 pieces of "walis ting-ting" on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows: Date of Transaction February 20, 1997 February 12, 1997 February 11, 1997 Voucher No. 101-97-04-1755 101-97-04-1756 101-97-04-1759 Amount P 3,000.00 P100,000.00 P149,500.00 Quantity 120 pcs. 4,000 pcs. 5,980 pcs.

purchase of 8,000 pieces of "walis ting-ting" on several occasions at P25.00 per piece without complying with the Commission on Audit (COA) Rules and Regulations and other requirements on procurement and Public Bidding and which purchases are hereunder enumerated as follows: Date of Transaction Voucher Number Amount Quantity

October 15, 1996 October 18, 1996

101-96-11-7604 101-96-11-7605

P 100,000.00 P 100,000.00

4,000 pcs. 4,000 pcs.

in the total amount of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were clearly grossly overpriced as the actual cost per piece of the "walis tingting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00), thus, causing damage and prejudice to the government in the aforesaid sum. 4 The five (5) Informations were filed based on the findings of the Commission on Audit (COA) Special Audit Team that there was overpricing in certain purchase transactions of Paraaque City. In March 1999, a Special Audit Team composed of Fatima Bermudez (Bermudez), Carolina Supsup, Gerry Estrada, and Yolando Atienza, by virtue of Local Government Audit Office Assignment Order No. 99-002, audited selected transactions of Paraaque City for the calendar years 1996 to 1998, including the walis tingting purchases. In connection with the walis tingting purchases audit, the audit team gathered the following evidence: 1. Documents furnished by the Office of the City Mayor of Paraaque City upon request of the audit team; 2. Sample walis tingting with handle likewise submitted by the Office of the City Mayor of Paraaque City; 3. Samples of walis tingting without handle actually utilized by the street sweepers upon ocular inspection of the audit team; 4. Survey forms accomplished by the street sweepers containing questions on the walis tingting; 5. Evaluation by the Technical Services Department 5 of the reasonableness of the walis tingting procurement compared to current prices thereof; 6. A separate canvass by the audit team on the prices of the walis tingting, including purchases thereof at various merchandising stores; 6 and 7. Documents on the conduct and process of procurement of walis tingting by the neighboring city of Las Pias. Parenthetically, to ascertain the prevailing price of walis tingting for the years 1996 to 1998, the audit team made a canvass of the purchase prices of the different merchandise dealers of Paraaque City. All, however, were reluctant to provide the team with signed quotations of purchase prices for walis tingting. In addition, the audit team attempted to purchase walis tingting from the named suppliers of Paraaque City. Curiously, when the audit team went to the listed addresses of the suppliers, these were occupied by other

in the total amount of TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which transactions were clearly overpriced as the actual cost per piece of the "walis ting-ting" was only P11.00 as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00 per piece or a total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the government in the aforesaid sum. The Information in Criminal Case No. 27954 states: That during the period from October 15, 1996 to October 18, 1996 or thereabout, in Paraaque City, Philippines and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public official, being the City Mayor of Paraaque City and Chairman, Committee on Awards, together with members of the aforesaid committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as such and committing the offense in relation to their official duties and taking advantage of their official positions, conspiring, confederating and mutually helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a business entity registered with the Bureau of Domestic Trade and Industry, with evident bad faith and manifest partiality (or at the very least, with gross inexcusable negligence), did then and there willfully, unlawfully and criminally enter into manifestly and grossly disadvantageous transactions, through personal canvass, with ZAR[O] Trading for the

business establishments. Thereafter, the audit team located, and purchased from, a lone supplier that sold walis tingting. As previously adverted to, the audit team made a report which contained the following findings: 1. The purchase of walis tingting was undertaken without public bidding; 2. The purchase of walis tingting was divided into several purchase orders and requests to evade the requirement of public bidding and instead avail of personal canvass as a mode of procurement; 3. The purchase of walis tingting through personal canvass was attended with irregularities; and 4. There was glaring overpricing in the purchase transactions. Consequently, the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006101 (96), 01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering the overpriced amount of P1,302,878.00 for the purchases of 142,612 walis tingting, with or without handle, by Paraaque City in the years 1996-1998.7 Objecting to the disallowances, petitioners Marquez and Caunan, along with the other concerned local government officials of Paraaque City, filed a request for reconsideration with the audit team which the latter subsequently denied in a letter to petitioner Marquez. Aggrieved, petitioners and the other accused appealed to the COA which eventually denied the appeal. Surprisingly, on motion for reconsideration, the COA excluded petitioner Marquez from liability for the disallowances based on our rulings in Arias v. Sandiganbayan8 and Magsuci v. Sandiganbayan.9 On the other litigation front, the criminal aspect subject of this appeal, the Ombudsman found probable cause to indict petitioners and the other local government officials of Paraaque City for violation of Section 3(g) of R.A. No. 3019. Consequently, the five (5) Informations against petitioners, et al. were filed before the Sandiganbayan. After trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan acquitted them for lack of sufficient evidence to hold them guilty beyond reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows: 1. The prosecution evidence, specifically the testimony of Bermudez and the Special Audit Teams report, did not constitute hearsay evidence, considering that all the prosecution witnesses testified on matters within their personal knowledge; 2. The defense failed to question, and timely object to, the admissibility of documentary evidence, such as the Las Pias City documents and the Department of Budget and Management (DBM) price listing downloaded from the Internet, which were certified true copies and not the originals of the respective documents; 3. The Bids and Awards Committee was not properly constituted; the accused did not abide by the prohibition against splitting of orders; and Paraaque City had not been afforded the best possible advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding;

4. The contracts for procurement of walis tingting in Paraaque City for the years 1996-1998 were awarded to pre-selected suppliers; and 5. On the whole, the transactions undertaken were manifestly and grossly disadvantageous to the government. Expectedly, the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of the Sandiganbayan decision. Caunan and Tanael, represented by the same counsel, collectively filed a Motion for Reconsideration (with Written Notice of Death of Accused Silvestre S. de Leon). Marquez filed several motions, 10 including a separate Motion for Reconsideration. All the motions filed by Marquez, as well as Caunans motion, were denied by the Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason to reconsider her conviction. Hence, these separate appeals by petitioners Marquez and Caunan. Petitioner Caunan posits the following issues: 1. [WHETHER] THE PROSECUTIONS PROOF OF OVERPRICING [IS] HEARSAY. 2. [WHETHER THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND PATENTLY HEARSAY. 3. [WHETHER THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE HEARSAY RULE[.] UNDER THIS EXCEPTION, "PUBLIC DOCUMENTS CONSISTING OF ENTRIES IN PUBLIC RECORDS, ETC.," x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED THEREIN. 4. CONSEQUENTLY, [WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].11 For his part, petitioner Marquez raises the following: 1. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND OTHER EXISTING REGULATIONS[;] 2. WHETHER [MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;] 3. WHETHER THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS, 2) CITY ACCOUNTANT MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZS] GUILT BY THE SANDIGANBAYAN FOURTH DIVISION[;] 4. WHETHER [MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;] 5. WHETHER THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN

BEHALF OF PARAAQUE CITY WERE MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;] 6. WHETHER THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;] 7. WHETHER THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) OF THE SANDIGANBAYAN FOURTH DIVISION REFUSED TO INHIBIT DESPITE SERIOUS CONFLICT OF INTEREST[;] 8. WHETHER [MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;] 9. WHETHER THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF BROOMSTICKS (WALIS TINGTING) BY WAY OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and] 10. WHETHER [MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG) REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.12 In a Resolution dated February 23, 2009, we directed the consolidation of these cases. Thus, we impale petitioners issues for our resolution: 1. First and foremost, whether the Sandiganbayan erred in finding petitioners guilty of violation of Section 3(g) of R.A. No. 3019. 2. Whether the testimony of Bermudez and the report of the Special Audit Team constitute hearsay and are, therefore, inadmissible in evidence against petitioners. 3. Whether petitioner Marquez should be excluded from liability based on our rulings in Arias v. Sandiganbayan13 and Magsuci v. Sandiganbayan.14 Both petitioners insist that the fact of overpricing, upon which the charge against them of graft and corruption is based, had not been established by the quantum of evidence required in criminal cases, i.e., proof beyond reasonable doubt. 15 Petitioners maintain that the evidence of overpricing, consisting of the report of the Special Audit Team and the testimony thereon of Bermudez, constitutes hearsay and, as such, is inadmissible against them. In addition, petitioner Marquez points out that the finding of overpricing was not shown to a reliable degree of certainty as required by COA Memorandum No. 97-012 dated March 31, 1997.16 In all, petitioners asseverate that, as the overpricing was not sufficiently established, necessarily, the last criminal element of Section 3(g) of R.A. No. 3019 a contract or transaction grossly and manifestly disadvantageous to the government was not proven.lavvphil Section 3(g) of R.A. No. 3019 provides: Section 3. Corrupt practices of public officers In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxxx (g) Entering on behalf of the Government, into any contract or transaction, manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. For a charge under Section 3(g) to prosper, the following elements must be present: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. 17 The presence of the first two elements of the crime is not disputed. Hence, the threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly injurious or disadvantageous to the government. We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions. In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt. 18 The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence.19 The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accuseds guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. 20 Otherwise, where there is reasonable doubt, the accused must be acquitted. In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COAs finding of overpricing which was, in turn, based on the special au dit teams report. The audit teams conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Pias City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Paraaque Citys walis tingting transactions. Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Paraaque City. In fact, even the walis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Paraaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019. On the issue of hearsay, the Sandiganbayan hastily shot down petitioners arguments thereon, in this wise:

We find no application of the hearsay rule here. In fact, all the witnesses in this case testified on matters within their personal knowledge. The prosecutions principal witness, Ms. Bermudez, was a State Auditor and the Assistant Division Chief of the Local Government Audit Office who was tasked to head a special audit team to audit selected transactions of Paraaque City. The report which she identified and testified on [was] made by [the] Special Audit Team she herself headed. The disbursement vouchers, purchase orders, purchase requests and other documents constituting the supporting papers of the teams report were public documents requested from the City Auditor of Paraaque and from the accused Mayor Marquez. Such documents were submitted to the Special Audit Team for the specific purpose of reviewing them. The documents were not executed by Ms. Bermudez or by any member of the Special Audit Team for the obvious reason that, as auditors, they are only reviewing acts of others. The Special Aud it Teams official task was to review the documents of the walis tingting transactions. In the process of [the] review, they found many irregularities in the documentations violations of the Local Government Code and pertinent COA rules and regulations. They found that the transactions were grossly overpriced. The findings of the team were consolidated in a report. The same report was the basis of Ms. Bermudezs testimony. x x x. 21 The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Paraaque City, and the price of walis tingting purchases in Las Pias City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners. As pointed out by petitioner Caunan, not all of the contents of the audit teams report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be the market price of walis tingting in Las Pias City which was used as proof of overpricing in Paraaque City. The prosecution should have presented evidence of the actual price of the particular walis tingting purchased by petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government. We are not unmindful of the fact that petitioners failed to conduct the requisite public bidding for the questioned procurements. However, the lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan, 22 the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. However, this does not satisfy the third element of the offense charged, because the law requires that the disadvantage must be manifest and gross. After all, penal laws are strictly construed against the government. With the foregoing disquisition, we find no necessity to rule on the applicability of our rulings in Arias and Magsuci to petitioner Marquez. Nonetheless, we wish to reiterate herein the doctrines laid down in those cases. We call specific attention to the sweeping conclusion made by the Sandiganbayan that a conspiracy existed among petitioners and the other accused, most of whom were acquitted, particularly private individual Razo, the proprietor of Zaro Trading. Our ruling in Magsuci, citing our holding in Arias, should be instructive, viz.: The Sandiganbayan predicated its conviction of [Magsuci] on its finding of conspiracy among Magsuci, Ancla and now deceased Enriquez.

There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and decide to commit it." Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence therefore must reasonably be strong enough to show a community of criminal design. xxxx Fairly evident, however, is the fact that the actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts. In Arias v. Sandiganbayan, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded: "We would be setting a bad precedent if a head of office plagued by all too common problemsdishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetenceis suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. "x x x x "x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling." 23 WHEREFORE, premises considered, the Decision dated August 30, 2007 and Resolution dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE. Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are ACQUITTED of the charges against them. Costs de oficio. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 175457 July 6, 2011

of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government. CONTRARY TO LAW. BAIL BOND RECOMMENDED: P30,000.00 each.13 On arraignment, petitioners pleaded not guilty and posted bail. At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalims transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalims sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held. Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial 14 but the same was denied. At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. AdalimWhite and Mayor Francisco C. Adalim. Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalims lawyers that he directed the transfer of Adalims detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents. 15 For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayors safety.16 Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for almost three months before he posted bail after the charge against him was downgraded to homicide.17 Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalims arrest and arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the latters capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governors order to relinquish custody of Adalim. 18 Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits.19 On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision20 finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other

RUPERTO A. AMBIL, JR., Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175482 ALEXANDRINO R. APELADO, SR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION VILLARAMA, JR., J.: Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr.1 and petitioner Alexandrino R. Apelado Sr.2 assailing the Decision3 promulgated on September 16, 2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter5 of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report 6 dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e)7 of Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.8 Nonetheless, in an Information9 dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum10 dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 15611 of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information12 reads: That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.s custody, by allowing said Mayor Adalim to stay at accused Ambils residence for a p eriod

detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.21 The Sandiganbayan brushed aside petitioners defense that Adalims transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalims life but relied simply on the advice of Adalims lawyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn over Adalim despite advice from Assistant S ecretary Jesus Ingeniero of the Department of Interior and Local Government. Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months. Hence, the present petitions. Petitioner Ambil, Jr. advances the following issues for our consideration: I WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONERS CASE BEFORE THE SANDIGANBAYAN. II WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED. III WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e). IV WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER. V WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE. VI WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.22 For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan: I

THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL. II IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE. III THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM "UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.23 The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5)24 of the RPC. Meanwhile, petitioner Apelado, Sr.s assignment of errors can be co ndensed into two: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)25 of the RPC. Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a "Provincial Jailer" under the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty. Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability. For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance. After a careful review of this case, the Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which provides: Section. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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. In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. 26 As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606, 27 as amended by R.A. No. 8249.28 The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows: SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads[;] xxxx In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended. xxxx Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification 29 from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade 27 or higher shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a co-principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them the Sandiganbayan. The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. In Sison v. People, we defined "partiality," "bad faith" and "gross negligence" as follows:
30

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud." "Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property." x x x31 In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s house. There is no merit to petitioner Ambil, Jr.s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the "Provincial Jailer" of Eastern Samar. Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction: SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police. The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as "The Department of the Interior and Local Government Act of 1990," and the rules and regulations issued pursuant thereto. In particular, Section 61, Chapter 5 of R.A. No. 697532 on the Bureau of Jail Management and Penology provides: Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act. The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.33 An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.34 On the other hand, the power of supervision means "overseeing or the authority of an officer to see to it that the subordinate officers perform their duties." 35 If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.36 The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them.37 Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides: SEC. 1731. Provincial governor as keeper of jail.The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the

care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person. (Emphasis supplied.) This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the "provincial jailer," or even slightly suggest that he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governors duty as a jail keeper is confined to the administration of the jail and the procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it 38 by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it. Besides, the only reference to a transfer of prisoners in said article is found in Section 1737 39 under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides: SEC. 3. No release or transfer except on court order or bail.-No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication40 dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote: 06 October 1996 GOVERNOR RUPERTO AMBIL Provincial Capitol Borongan, Eastern Samar Dear Sir: This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco "Aising" Adalim of Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963. If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail. Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention. In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications. Please be guided accordingly.

Very truly yours, (SGD.) JESUS I. INGENIERO Assistant Secretary Still, petitioner Ambil, Jr. insisted on his supposed authority as a "provincial jailer." Said petitioners usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate, 41 betray his unmistakable bias and the evident bad faith that attended his actions. Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions. In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the "provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses, permits or other concessions" and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer. However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan42 where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public officer is "charged with the grant of licenses or permits or other concessions." Following is an excerpt of what we said in Mejorada, Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.43 (Italics supplied.) In the more recent case of Cruz v. Sandiganbayan,44 we affirmed that a prosecution for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions. 45 Meanwhile, regarding petitioner Ambil, Jr.s second contention, Sectio n 2(b) of R.A. No. 3019 defines a "public officer" to include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners case beyond the ambit of said law? We believe not. In drafting the Anti-Graft Law, the lawmakers opted to use "private party" rather than "private person" to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term "party" is a technical word having a precise meaning in legal parlance46 as distinguished from "person" which, in general usage, refers to a human being. 47 Thus, a private person simply pertains to one who is not a public officer. While a private party is more

comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest. In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at petitioner Ambil, Jr.s residence, they accorded such privilege to Ad alim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another in the exercise of his official, administrative or judicial functions.48 The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.49 Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayors life would be put in danger inside the provincial jail. As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalims safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatans gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and compelling reason to warrant Adalims detention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s house. More importantly, even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer. The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners. Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. 50 Both requisites are lacking in petitioner Ambil, Jr.s case. As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not proceed from the due performance of his duty or lawful exercise of his office. In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful. 51 Only the first requisite is present in this case. While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado,

Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)52 of the RPC. An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments.53 Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful cooperation in executing petitioner Ambil, Jr.s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators. As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.1avvphi1 Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty. WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. With costs against the petitioners. SO ORDERED.