Melbarose R. Sasot and Allandale R. Sasot, petitioners, vs.

People of the Philippines, The Honorable court of of appeals, and Rebecca G. Salvador, Presiding Judge, RTC, ranch !, Manila, respondents. The case sub"ect of the present special civil action for certiorari is a cri#inal prosecution against petitioners for unfair co#petition under Article !$% of the Revised Penal Code, filed before the Regional Trial Court &RTC' of Manila & ranch !', and doc(eted as Cri#inal Case )o. %$*!++!,-..!/ So#e ti#e in Ma0 !%%-, the )ational ureau of 1nvestigation &) 1' conducted an investigation pursuant to a co#plaint b0 the ) A Properties, 1nc., against petitioners for possible violation of Article !$% of the Revised Penal Code on unfair co#petition. 1n its Report dated June ,, !%%-, the ) 1 stated that ) A Properties, 1nc., is a foreign corporation organi2ed under the la3s of the 4nited States of A#erica, and is the registered o3ner of ) A trade#ar(s and na#es of ) A bas(etball tea#s such as 54SA as(etball,6 5Chicago ulls,6 57rlando Magic,6 58os Angeles 8a(ers,6 5Roc(ets,6 5Phoeni9 Suns,6 5 ullets,6 5Pacers,6 5Charlotte Hornets,6 5 la2ers,6 5:enver )uggets,6 5Sacra#ento ;ings,6 5Mia#i Heat,6 4tah Ja22,6 5:etroit Pistons,6 5Mil3au(ee uc(s,6 5Seattle Sonics,6 5Toronto Raptors,6 5Atlanta Ha3(s,6 5Cavs,6 5:allas Maveric(s,6 5Minnesota Ti#ber3olves,6 and 58os Angeles Clippers.6 These na#es are used on hosier0, foot3ear, t*shirts, s3eatshirts, tan( tops, pa"a#as, sport shirts, and other gar#ent products, 3hich are allegedl0 registered 3ith the ureau of Patents, Trade#ar(s and Technolog0 Transfer. The Report further stated that during the investigation, it 3as discovered that petitioners are engaged in the #anufacture, printing, sale, and distribution of counterfeit 5) A6 gar#ent products. Hence, it reco##ended petitioners< prosecution for unfair co#petition under Article !$% of the Revised Penal Code..=/ 1n a Special Po3er of Attorne0 dated 7ctober -, !%%-, Ric( >elts, as President of ) A Properties, 1nc., constituted the la3 fir# of 7rtega, :el Castillo, acorro, 7dulio, Cal#a ? Carbonell, as the co#pan0<s attorne0*in*fact, and to act for and on behalf of the co#pan0, in the filing of cri#inal, civil and ad#inistrative co#plaints, a#ong others..@/ The Special Po3er of Attorne0 3as notari2ed b0 )icole ro3n of )e3 Aor( Count0 and certified b0 )or#an Good#an, Count0 Cler( and Cler( of the Supre#e Court of the State of )e3 Aor(. Consul Cecilia . Rebong of the Consulate General of the Philippines, )e3 Aor(, authenticated the certification..,/ >elts also e9ecuted a Co#plaint*Affidavit on Bebruar0 !=, !%%$, before )otar0 Public )icole J. ro3n of the State of )e3 Aor(..C/

Thereafter, in a Resolution dated Jul0 !C, !%%$, Prosecution Attorne0 Aileen Marie S. Gutierre2 reco##ended the filing of an 1nfor#ation against petitioners for violation of Article !$% of the Revised Penal Code..+/ The accusator0 portion of the 1nfor#ation readsD That on or about Ma0 %, !%%- and on dates prior thereto, in the Cit0 of Manila, Philippines, and 3ithin the "urisdiction of this Honorable Court, above na#ed accused A88A):A8E SAS7T and ME8 AR7SE SAS7T of Allandale Sportslines, 1nc., did then and there 3illfull0, unla3full0 and feloniousl0 #anufacture and sell various gar#ent products bearing the appearance of 5) A6 na#es, s0#bols and trade#ar(s, inducing the public to believe that the goods offered b0 the# are those of 5) A6 to the da#age and pre"udice of the ) A Properties, 1nc., the trade#ar( o3ner of the 5) A6. C7)TRARA T7 8A>..-/ efore arraign#ent, petitioners filed a Motion to Fuash the 1nfor#ation on the follo3ing groundsD 1. THAT THE BACTS CHARGE: :7 )7T C7)ST1T4TE A) 7BBE)SE 11. A): TH1S H7)7RA 8E C74RT HA: )7 J4R1S:1CT17) 7GER THE 7BBE)SE CHARGE: 7R THE PERS7) 7B THE ACC4SE:.$/ 1n support of the foregoing, petitioners argue that the fiscal should have dis#issed >elts<s co#plaint because under the rules, the co#plaint #ust be s3orn to before the prosecutor and the cop0 on record appears to be onl0 a fa9 trans#ittal..%/ The0 also contend that co#plainant is a foreign corporation not doing business in the Philippines, and cannot be protected b0 Philippine patent la3s since it is not a registered patentee. Petitioners aver that the0 have been using the business na#e 5A88A):A8E SP7RTS81)E, 1)C.6 since !%-=, and their designs are original and do not appear to be si#ilar to co#plainant<s, and the0 do not use co#plainant<s logo or design..!H/ The trial prosecutor of the RTC*Manila & ranch !', Jai#e M. Gura0, filed his Co##entI7pposition to the #otion to Juash, stating that he has the original cop0 of the co#plaint, and that co#plainant has an attorne0*in*fact to represent it. Prosecutor Gura0 also contended that the State is entitled to prosecute the offense even 3ithout the participation of the private offended part0, as the cri#e charged is a public cri#e..!!/

The trial court sustained the prosecution<s argu#ents and denied petitioners< #otion to Juash in its 7rder dated March C, !%%%..!=/ Petitioners filed a special civil action for certiorari 3ith the Court of Appeals &CA' doc(eted as CA*G.R. SP )o. C=!C! 3hich 3as dis#issed per its :ecision dated Januar0 =+, =HHH..!@/ According to the CA, the petition is not the proper re#ed0 in assailing a denial of a #otion to Juash, and that the grounds raised therein should be raised during the trial of the case on the #erits..!,/ The dispositive portion of the assailed :ecision readsD >HEREB7RE, pre#ises considered, the petition for certiorari is hereb0 :1SM1SSE:. Respondent court is hereb0 ordered to conduct further proceedings 3ith dispatch in Cri#inal Case )o. %$*!++!,-. S7 7R:ERE:..!C/ Petitioners sought reconsideration of the :ecision but this 3as denied b0 the CA..!+/ Hence, the present petition for revie3 on certiorari under Rule ,C of the Rules of Court, 3ith issues raised as follo3sD !. >HETHER A B7RE1G) C7RP7RAT17) )7T E)GAGE: A): 81CE)SE &sic' T7 :7 4S1)ESS 1) THE PH181PP1)ES MAA MA1)TA1) A CA4SE 7B ACT17) B7R 4)BA1R C7MPET1T17). =. >HETHER A) 7BB1CER 7B A B7RE1G) C7RP7RAT17) MAA ACT 1) EHA8B 7B A C7RP7RAT17) >1TH74T A4TH7R1TA BR7M 1TS 7AR: 7B :1RECT7RS. @. >HETHER A B7RE1G) C7RP7RAT17) )7T E)GAGE: 1) 4S1)ESS A): >H7SE EM 8EM 1T S74GHT T7 PR7TECT 1S )7T 1) ACT4A8 4SE 1S E)T1T8E: T7 THE PR7TECT17) 7B THE PH181PP1)E 8A>. ,. >HETHER THE RESP7):E)T REG17)A8 TR1A8 C74RT C7RRECT8A ASS4ME: J4R1S:1CT17) 7GER THE CASE A): THE PERS7)S 7B THE ACC4SE:. C. >HETHER THE C74RT 7B APPEA8S C7MM1TTE: GRAGE A 4SE 7B :1SCRET17) AM74)T1)G T7 8AC; 7B J4R1S:1CT17) >HE) 1T :1SM1SSE: THE PET1T17)..!-/

Petitioners reiterate the argu#ent that the co#plaint filed b0 Ric( >elts of the ) A Properties, 1nc., is defective and should have been dis#issed b0 the fiscal because it should have been personall0 s3orn to b0 the co#plainant before the investigating prosecutor. The0 also reiterate the clai# that >elts failed to sho3 an0 board resolution sho3ing his authorit0 to institute an0 action in behalf of the co#pan0, and that the ) A<s trade#ar(s are not being actuall0 used in the Philippines, hence, the0 are of public do#inion and cannot be protected b0 Philippine patent la3s. Petitioners further contend that the0 have not co##itted acts a#ounting to unfair co#petition..!$/ The 7ffice of the Solicitor General appeared in behalf of the People, and filed its A#ended Co##ent to the petition, pra0ing for its dis#issal, arguing that the CA did not co##it an0 grave abuse of discretion in dis#issing the petition for reasons stated in its :ecision dated Januar0 =+, =HHH..!%/ The petition #ust be denied. The Court has consistentl0 held that a special civil action for certiorari is not the proper re#ed0 to assail the denial of a #otion to Juash an infor#ation..=H/ The proper procedure in such a case is for the accused to enter a plea, go to trial 3ithout pre"udice on his part to present the special defenses he had invo(ed in his #otion to Juash and, if after trial on the #erits, an adverse decision is rendered, to appeal therefro# in the #anner authori2ed b0 la3. .=!/ Thus, petitioners should not have forth3ith filed a special civil action for certiorari 3ith the CA and instead, the0 should have gone to trial and reiterate the special defenses contained in their #otion to Juash. There are no special or e9ceptional circu#stances.==/ in the present case such that i##ediate resort to a filing of a petition for certiorari should be per#itted. Clearl0, the CA did not co##it an0 grave abuse of discretion in dis#issing the petition. Moreover, the Court does not find an0 "ustification for the Juashal of the 1nfor#ation filed against petitioners. Bor one, 3hile petitioners raise in their #otion to Juash the grounds that the facts charged do not constitute an offense and that the trial court has no "urisdiction over the offense charged or the person of the accused,.=@/ their argu#ents focused on an alleged defect in the co#plaint filed before the fiscal, co#plainant<s capacit0 to sue and petitioners< e9culpator0 defenses against the cri#e of unfair co#petition.

Section @, Rule !!- of the !%$C Rules of Cri#inal Procedure, 3hich 3as then in force at the ti#e the alleged cri#inal acts 3ere co##itted, enu#erates the grounds for Juashing an infor#ation, to 3itD a' That the facts charged do not constitute an offenseK

for#, 3hich does not affect the substantial rights of the defendant on the #erits..=C/ 1n this case, >elts<s Co#plaint*Affidavit contains an ac(no3ledge#ent b0 )otar0 Public )icole ro3n of the State of )e3 Aor( that the sa#e has been subscribed and s3orn to before her on Bebruar0 !=, !%%$,.=+/ dul0 authenticated b0 the Philippine Consulate. >hile the cop0 on record of the co#plaint*affidavit appears to be #erel0 a photocop0 thereof, Prosecution Attorne0 Gutierre2 stated that co#plainant<s representative 3ill present the authenticated notari2ed original in court,.=-/ and Prosecutor Gura0 #anifested that the original cop0 is alread0 on hand..=$/ 1t is apt to state at this point that the prosecutor en"o0s the legal presu#ption of regularit0 in the perfor#ance of his duties and functions, 3hich in turn gives his report the presu#ption of accurac0..=%/ Moreover, records sho3 that there are other supporting docu#ents fro# 3hich the prosecutor based his reco##endation, to 3itD &!' The ) 1 Report dated June ,, !%%-, containing an account of the investigation conducted fro# April @H, !%%- to Ma0 %, !%%-, and the subseJuent search and sei2ure of several ite#s fro# petitioners< establish#entK.@H/ &=' The letter dated Ma0 $, !%%- fro# the la3 fir# of 7rtega, :el Castillo, acorro, 7dulio, Cal#a ? Carbonell to the ) 1, see(ing assistance in stopping the illegal #anufacture, distribution and sale of 5fa(e products bearing the L) A< trade#ar(, and in prosecuting the proprietors of aforesaid factor0K6.@!/ and &@' The Joint Affidavit e9ecuted b0 Rechie :. Malicse and :alisa0 P. al*ot of the Pin(erton Consulting Services &Phils.' 1nc., 3hich 3as certified to b0 Prosecution Attorne0 Gutierre2, attesting to their findings that petitioners 3ere found to be #anufacturing, printing, selling, and distributing counterfeit 5) A6 gar#ent products..@=/ ConseJuentl0, if the infor#ation is valid on its face, and there is no sho3ing of #anifest error, grave abuse of discretion and pre"udice on the part of public prosecutor, as in the present case, the trial court should respect such deter#ination..@@/ More i#portantl0, the cri#e of 4nfair Co#petition punishable under Article !$% of the Revised Penal Code.@,/ is a public cri#e. 1t is essentiall0 an act against the State and it is the latter 3hich principall0 stands as the in"ured part0. The co#plainant<s capacit0 to sue in such case beco#es i##aterial.

b' That the court tr0ing the case has no "urisdiction over the offense charged or the person of the accusedK c' That the officer 3ho filed the infor#ation had no authorit0 to do soK d' That it does not confor# substantiall0 to the prescribed for#K e' That #ore than one offense is charged e9cept in those cases in 3hich e9isting la3s prescribe a single punish#ent for various offensesK f' That the cri#inal action or liabilit0 has been e9tinguishedK

g' That it contains aver#ents 3hich, if true, 3ould constitute a legal e9cuse or "ustificationK and h' That the accused has been previousl0 convicted or in "eopard0 of being convicted, or acJuitted of the offense charged. )o3here in the foregoing provision is there an0 #ention of the defect in the co#plaint filed before the fiscal and the co#plainant<s capacit0 to sue as grounds for a #otion to Juash. Bor another, under Section @, Rule !!= of the !%$C Rules of Cri#inal Procedure, a co#plaint is substantiall0 sufficient if it states the (no3n address of the respondent, it is acco#panied b0 co#plainant<s affidavit and his 3itnesses and supporting docu#ents, and the affidavits are s3orn to before an0 fiscal, state prosecutor or govern#ent official authori2ed to ad#inister oath, or in their absence or unavailabilit0, a notar0 public 3ho #ust certif0 that he personall0 e9a#ined the affiants and that he is satisfied that the0 voluntaril0 e9ecuted and understood their affidavits. All these have been dul0 satisfied in the co#plaint filed before Prosecution Attorne0 Aileen Marie S. Gutierre2. 1t #ust be noted that even the absence of an oath in the co#plaint does not necessaril0 render it invalid..=,/ >ant of oath is a #ere defect of

1n 8a Che#ise 8acoste, S.A. vs. Bernande2,.@C/ a case a(in to the present dispute, as it involved the cri#e of 4nfair Co#petition under Article !$% of the Revised Penal Code, and the Juashal of search 3arrants issued against #anufacturers of gar#ents bearing the sa#e trade#ar( as that of the petitioner, the Court succinctl0 ruled thatD More i#portant is the nature of the case 3hich led to this petition. >hat preceded this petition for certiorari 3as a letter*co#plaint filed before the ) 1 charging He#andas 3ith a cri#inal offense, i.e., violation of Article !$% of the Revised Penal Code. 1f prosecution follo3s after the co#pletion of the preli#inar0 investigation being conducted b0 the Special Prosecutor the infor#ation shall be in the na#e of the People of the Philippines and no longer the petitioner 3hich is onl0 an aggrieved part0 since a cri#inal offense is essentiall0 an act against the State. 1t is the latter 3hich is principall0 the in"ured part0 although there is a private right violated. PetitionerMs capacit0 to sue 3ould beco#e, therefore, of not #uch significance in the #ain case. >e cannot allo3 a possible violator of our cri#inal statutes to escape prosecution upon a far*fetched contention that the aggrieved part0 or victi# of a cri#e has no standing to sue. 1n upholding the right of the petitioner to #aintain the present suit before our courts for unfair co#petition or infringe#ent of trade#ar(s of a foreign corporation, 3e are #oreover recogni2ing our duties and the rights of foreign states under the Paris Convention for the Protection of 1ndustrial Propert0 to 3hich the Philippines and Brance are parties. >e are si#pl0 interpreting and enforcing a sole#n international co##it#ent of the Philippines e#bodied in a #ultilateral treat0 to 3hich 3e are a part0 and 3hich 3e entered into because it is in our national interest to do so..@+/ &E#phasis supplied' 8astl0, 3ith regard to petitioners< argu#ents that the ) A Properties, 1nc., is not entitled to protection under Philippine patent la3s since it is not a registered patentee, that the0 have not co##itted acts a#ounting to unfair co#petition for the reason that their designs are original and do not appear to be si#ilar to co#plainant<s, and the0 do not use co#plainant<s logo or design, the Court finds that these are #atters of defense that are better ventilated and resolved during trial on the #erits of the case. >HERB7RE, the petition is :E)1E: for lac( of #erit. 8et the records of this case be REMA):E: to the Regional Trial Court of

Manila & ranch =,' 3here Cri#inal Case )o. %$*!++!,- is presentl0 assigned, for further proceedings 3ith reasonable dispatch. S7 7R:ERE:. BRA);81) P. A4T1STA, petitioner, vs. SA):1GA) AAA) &Third :ivision', 7BB1CE 7B THE 7M 4:SMA) and PE7P8E 7B THE PH181PP1)ES, respondents. This petition see(s to set aside the !@ March !%%$ Resolution of the Sandiganba0an.!/ den0ing petitionerMs Motion to Fuash Cri#. Case )o. =,=-+ and its % 7ctober !%%$ Resolution den0ing reconsideration. The petition also pra0s for the issuance of a 3rit of preli#inar0 in"unction andIor te#porar0 restraining order to restrain and en"oin public respondents fro# proceeding in an0 #anner 3ith Cri#. Case )o. =,=-+ during the pendenc0 of the petition. J(s# An anon0#ous, unverified and unsigned letter*co#plaint dated =H )ove#ber !%%+ allegedl0 prepared b0 the Contractors Association of :avao del Sur and the Good Govern#ent E#plo0ees.=/ of :avao del Sur initiated this case. 1t 3as filed 3ith the 7ffice of the 7#buds#an for Mindanao charging petitioner Bran(lin P. autista, incu#bent #a0or of the Municipalit0 of Malita, :avao del Sur, for violation of Sec. @, par. &e', of RA @H!%, as a#ended, other3ise (no3n as the Anti*Graft and Corrupt Practices Act..@/ The letter* co#plaint alleged, a#ong others, that petitioner caused the hiring of one hundred and ninet0*t3o &!%=' casual e#plo0ees in the #unicipal govern#ent for political considerations and that the pa0#ent of their honoraria and salaries 3as charged to the peace and order fund despite #eager savings of the #unicipalit0..,/ Acting on the letter*co#plaint, Graft 1nvestigation 7fficer 11 &G17 11' Cora2on A. Arancon issued on !+ Januar0 !%%- an 7rder directing respondent Bran(lin P. autista, petitioner herein, to sub#it his counter*affidavit..C/ 1n his counter*affidavit of =+ Bebruar0 !%%petitioner, ans3ering the charges against hi#, clai#ed that the co#plaint, 3hich 3as unsigned, 3as fictitious and fabricated as sho3n b0 the affidavits of EnriJue Ponce :e 8eon, President of the ContractorMs Association of :avao del SurK.+/ Rogelio E. 8lanos, Governor for :avao del SurK.-/ Eduardo M. Masi3el Gice Ma0or of Malita, :avao del SurK.$/ Engineer Antonio P. Ca0oca, :epart#ent of Public >or(s and High3a0s, =nd :istrict, :avao del SurK.%/ Juanito A. 1torralba, Assistant Provincial Treasurer of :avao del SurK .!H/ Juan 8. de Gu2#an and Belipe :. Macalinao,.!!/ both teachers, therein attached, 3hich disclai#ed an0 (no3ledge of the institution

of the co#plaint nor cause of its filing. He further argued that the hiring of the one hundred ninet0*t3o &!%=' casuals and the pa0#ent of their honoraria and 3ages did not "ustif0 the filing of an0 charge against hi#. After due consideration, G17 11 Arancon in his Resolution dated =Ma0 !%%- found a pri#a facie case for violation of Sec. @, par. &e', of RA @H!%, as a#ended, against petitioner and for3arded the resolution to the 7#buds#an for approval. Chief 7n @ 7ctober !%%- the 7#buds#an approved the resolution. Thereafter, an 1nfor#ation for violation of Sec. @, par. &e', of RA @H!%, as a#ended, 3as filed against petitioner before the Sandiganba0an, doc(eted as Cri#. Case )o. =,=-+,.!=/ 3hich read * That so#eti#e in !%%C or so#eti#e prior thereto, in the Municipalit0 of Malita, :avao del Sur, and 3ithin the "urisdiction of this Honorable Court, the above*na#ed accused, a high ran(ing public officer, being the Ma0or, Municipalit0 of Malita, :avao del Sur, 3hile in the perfor#ance of his official functions, ta(ing advantage of his position and co##itting the offense in relation to his office, 3ith #anifest partialit0, did then and there 3illfull0, unla3full0 and cri#inall0 caused the hiring of so#e one hundred ninet0*t3o &!%=' casual e#plo0ees in flagrant disregard of Secs. =$$ and =$% of the Govern#ent Accounting and Auditing Manual &GAAM', the honoraria and salaries of 3ho# 3ere charged to the peace and order fund and to the pro"ect co#ponent and other services activit0 fund, respectivel0 and 3hich represented -=.CN of the total personnel services e9penditures, thereb0 giving un3arranted benefits, advantage and preference to the said casuals, causing undue in"ur0 to the Municipalit0 of Malita. 7n !@ )ove#ber !%%- petitioner filed a Motion to Fuash the 1nfor#ation anchored on the ground that the acts charged therein did not constitute the offense indicated in Sec. @, par. &e', of RA @H!%, as a#ended, and that #ore than one &!' offense 3as charged in the 1nfor#ation. After the filing of the opposition, the Sandiganba0an denied on !@ March !%%$ the Motion to Fuash stating that all essential ele#ents of the cri#e charged 3ere sufficientl0 alleged in the 1nfor#ation 3hich charged onl0 one offense. 7n !@ April !%%$ petitioner filed a #otion for reconsideration but on % 7ctober !%%$ his #otion 3as denied. Petitioner assails in this petition the denial of his Motion to Fuash despite failure of the 7#buds#an to properl0 establish a cause of

action. He asserts that there 3as no legal basis for the 7#buds#an to conduct a preli#inar0 investigation in Case )o. CP8*M1)*%+*!$H, #uch less file the 1nfor#ation in Cri#. Case )o. =,=-+, as the 7#buds#an failed to direct the co#plainants to reduce their evidence into affidavits before reJuiring hi# to sub#it his counter* affidavit. Petitioner invo(es Sec. ,, Rule 11, of the Rules of Procedure of the 7#buds#an 3hich reJuires that for purposes of conducting a preli#inar0 investigation the co#plainant #ust sub#it his affidavit and those of his 3itnesses before respondent can be reJuired to sub#it his counter*affidavit and other supporting docu#ents..!@/ Confor#abl0 3ith such rule, the 7#buds#an should have first reJuired the ContractorMs Association of :avao del Sur and the Good Govern#ent E#plo0ees of :avao del Sur to sub#it their respective affidavits before reJuiring hi# as respondent to sub#it his counter*affidavit, especiall0 since the letter*co#plaint 3as unsigned and unverifiedK hence, there 3as no valid cause of action against petitioner. Es#sc Petitioner cites 7livas v. 7ffice of the 7#buds#an.!,/ 3here the Court declared that in preli#inar0 investigation of cases it is incu#bent upon the co#plainants to sub#it their evidence in affidavit for# and it is onl0 after such sub#ission that respondent #a0 be reJuired to e9plain and sub#it his counter*affidavit, also under oath. This issue has long been laid to rest in 7livas 3here the Court e9plained that 3hile reports and even ra3 infor#ation obtained fro# anon0#ous letters #a0 "ustif0 the initiation of an investigation, this stage of the preli#inar0 investigation can be held onl0 after sufficient evidence, derived fro# sub#itted affidavits fro# the co#plainants and his 3itnesses, shall have been dul0 gathered and evaluated, and onl0 thereafter can the respondent be reJuired to sub#it his affidavits and other docu#ents to e9plain, also under oath..!C/ 1t is fro# such affidavits and counter*affidavits that the 7#buds#an can deter#ine 3hether there is a probable cause for bringing the case to court. Ho3ever, despite its 3isdo#, 3e #ust rule that the principle enunciated in 7livas has no bearing in the instant petition. >hat 3as assailed therein 3as the order of the 7#buds#an co#pelling petitioner 7livas to file his counter*affidavit in ans3er to the charges against hi#, he having refused to do so since the order 3as not acco#panied b0 a single affidavit fro# the co#plainants as #andated b0 la3K 3hile in the instant case, petitioner autista had alread0 filed his counter*affidavit before the 7#buds#an and onl0 Juestioned the latter<s failure to reJuire the co#plainants to

sub#it affidavits prior to the sub#ission of his o3n counter* affidavit after the preli#inar0 investigation had ended and an 1nfor#ation alread0 filed before the Sandiganba0an. The issue therefore of reJuiring the co#plainants to sub#it their affidavits before respondent can be obliged to sub#it his counter*affidavit is #oot and acade#ic in light of autista<s sub#ission of his counter* affidavit despite absence of the co#plainants< affidavits. Cri#inal Case )o. =,=-+ before the Sandiganba0an ste##ed fro# the letter allegedl0 sent b0 the Contractors< Association of :avao del Sur and the Good Govern#ent E#plo0ees of :avao del Sur addressed to the 7ffice of the 7#buds#an for Mindanao. 1t #a0 be true that G17 11 Arancon in his 7rder of !+ Januar0 !%%- directed herein petitioner to sub#it his counter*affidavit thereto 3ithout reJuiring the co#plainants to sub#it theirs 3hich 3ere significantl0 necessar0 because of the unverified, unsigned and anon0#ous nature of their letter. Ho3ever, despite the 7#buds#anMs nonco#pliance 3ith the affidavit reJuire#ent, petitioner filed his counter*affidavit on =+ Bebruar0 !%%- and ans3ered the charges against hi#. Hence, having sub#itted hi#self to the "urisdiction of the 7#buds#an and having allo3ed the proceedings to go on until the preli#inar0 investigation 3as ter#inated and the 1nfor#ation filed at the Sandiganba0an, petitioner is dee#ed to have 3aived 3hatever right he #a0 other3ise have to assail the #anner in 3hich the preli#inar0 investigation 3as conducted. ConseJuentl0, petitioner is li(e3ise estopped fro# Juestioning the validit0 of the 1nfor#ation filed before the Sandiganba0an. Es##is Petitioner li(e3ise avers that the Sandiganba0an gravel0 abused its discretion in den0ing his Motion to Fuash the 1nfor#ation as there 3ere at least t3o &=' offenses charged * the giving of un3arranted benefits, advantage and preference to the casual e#plo0ees in Juestion, and causing undue in"ur0 to the Municipalit0 of Malita. Petitioner invo(es Santiago v. Garchitorena.!+/ 3here it 3as held that there 3ere t3o &=' 3a0s of violating Sec. @, par. &e', of RA @H!%, na#el0, &a' b0 causing undue in"ur0 to an0 part0, including the Govern#ent, and &b' b0 giving an0 private part0 an0 un3arranted benefit, advantage or preference, and as such, he argues that each constitutes t3o &=' distinct offenses that should be charged in separate infor#ations. 1ndeed, Sec. @, par. &e', RA @H!%, as a#ended, provides as one of its ele#ents that the public officer should have acted b0 causing an0 undue in"ur0 to an0 part0, including the govern#ent, or b0 giving an0 private part0 un3arranted benefits, advantage or preference in the discharge of his functions..!-/ The use of the

dis"unctive ter# OorO connotes that either act Jualifies as a violation of Sec. @, par. &e', or as aptl0 held in Santiago, as t3o &=' different #odes of co##itting the offense. This does not ho3ever indicate that each #ode constitutes a distinct offense, but rather, that an accused #a0 be charged under either #ode or under both. 1n Santiago petitioner therein assailed the failure of respondent to include the phrase Ocausing of undue in"ur0 to an0 part0, including the Govern#entO in the a#ended infor#ations filed against her. Refuting the clai#, the Court cited the #inute resolution in 40 v. Sandiganba0an.!$/ and clarified that the Oact of giving an0 private part0 an0 un3arranted benefit, advantage or preferenceO is not an indispensable ele#ent of the offense of Ocausing an0 undue in"ur0 to an0 part0,O although there #a0be instances 3here both ele#ents concur. Thus, in ParePo v. Sandiganba0an.!%/ the infor#ation charged the public officers 3ith O3illfull0 and unla3full0 causing undue in"ur0 to the Govern#ent and giving un3arranted benefits to Tandua0 :istiller0, 1nc.O b0 failing to verif0 and act on the validit0 andIor veracit0 of the clai# for ta9 credit filed b0 the corporation before the 1R. Es*#so 1n Pilapil v. Sandiganba0an.=H/ petitioner Pilapil 3as onl0 charged 3ith having O3illfull0 caused undue in"ur0 to the Municipalit0 of Tigaon, Ca#arines Sur, 3hen he failed to deliver the a#bulance received b0 hi# on behalf of the #unicipalit0 in a :eed of :onation e9ecuted b0 the Philippine Charit0 S3eepsta(es 7ffice in its favor, to the pre"udice and da#age of the #unicipal govern#ent.O 8i(e3ise, in :ia2 v. Sandiganba0an.=!/ the PCGG Co##issioners as public officers 3ere charged onl0 3ith having given EnriJue Ra2on, Jr., a stoc(holder or officer of the seJuestered corporation Metro Port, un3arranted benefits andIor advantage b0 the approval of his loan application for PC,HHH,HHH.HH belonging to the sa#e seJuestered corporation. 0 analog0, Gallego v. Sandiganba0an.==/ finds application in the instant case. There, petitioners clai#ed that the 1nfor#ation charged the accused 3ith three &@' distinct offenses, to 3itD &a' the giving of Oun3arrantedO benefits through #anifest partialit0K &b' the giving of Oun3arrantedO benefits through evident bad faithK and, &c' the giving of Oun3arrantedO benefits through gross ine9cusable negligence 3hile in the discharge of their official andIor ad#inistrative functionsK and thus #oved for the Juashal of the 1nfor#ation. The Sandiganba0an denied the #otion to Juash and held that the phrases O#anifest partialit0,O Oevident bad faithO and Ogross ine9cusable negligenceO #erel0 described the different

#odes b0 3hich the offense penali2ed in Sec. @, par. &e', of RA @H!%, as a#ended, could be co##itted, and the use of all these phrases in the sa#e 1nfor#ation did not #ean that the indict#ent charged three &@' distinct offenses. 1n the instant case, the 1nfor#ation against petitioner read in part * 9 9 9 unla3full0 and cri#inall0 caused the hiring of so#e one hundred ninet0*t3o &!%=' casual e#plo0ees in flagrant disregard of Secs. =$$ and =$% of the Govern#ent Accounting and Auditing Manual &GAAM', the honoraria and salaries of 3ho# 3ere charged to the peace and order fund and to the pro"ect co#ponent and other services activit0 fund, respectivel0, and 3hich represented -=.CN, of the total personnel services e9penditures, thereb0 giving un3arranted benefits, advantage and preference to the said casuals, causing undue in"ur0 to the Municipalit0 of Malita. Ms*es# The use of the phrase Ocausing undue in"ur0O therein can either be interpreted as another #ode of violating the statute, in addition to the giving of un3arranted benefits, advantage and preference to the casuals, or as a conseJuence of the act of giving un3arranted benefits, advantage and preference. Specificall0, for hiring so#e one hundred and ninet0*t3o &!%=' casuals and the charging of their honoraria and salaries to the peace and order fund, petitioner gave the# un3arranted benefits, advantage and preference and caused undue in"ur0 to the Municipalit0 of MalitaK or thereb0 caused undue in"ur0 to the Municipalit0 of Malita. 1n either case, the 1nfor#ation 3ill not suffer an0 defect, as it is clear that petitioner is charged 3ith violation of Sec. @, par. &e', of RA @H!%, as a#ended, 3ith either #ode of co##ission obtaining or 3ith both #anners of violation concurring. Binall0, petitioner finds e9ception in the ter# Oprivate part0O as used in Sec. @, par. &e', of RA @H!%, as a#ended, and argues that the casuals alleged to have been appointed b0 hi# and thus recipients of un3arranted benefits could not Jualif0 as private parties since the0 are in actualit0 public officers 3ithin the conte#plation of Sec. =, par. &b', of RA @H!%, as a#ended. Citing Philnaban( E#plo0ees Association v. Auditor General,.=@/ petitioner points out that Othe e#plo0ees of a govern#ent corporation, regardless of the latterMs functions, are govern#ent e#plo0ees and, therefore, the0 are not Mprivate part0 or entit0KOM and as such, one of the ele#ents constituting the offense under Sec. @, par. &e', of RA @H!%, as a#ended, is #issing thus 3arranting the dis#issal of the 1nfor#ation. E*9s#

The ter# Oprivate part0O or Oprivate personO #a0 be used to refer to persons other than those holding public office..=,/ Ho3ever, petitioner is charged 3ith causing the hiring of so#e one hundred ninet0*t3o &!%=' casual e#plo0ees, and the conseJuent a3arding of their honoraria and salaries ta(en fro# the peace and order fund of the #unicipalit0. The rec(oning period is before the casual e#plo0eesM incu#benc0 3hen the0 3ere still private individuals, and hence, their current positions do not affect the sufficienc0 of the 1nfor#ation. >HEREB7RE, the petition is :1SM1SSE:. The Resolution of the Sandiganba0an of !@ March !%%$ den0ing petitioner Bran(lin P. autistaMs Motion to Fuash in Cri#. Case )o. =,=-+ and its Resolution of % 7ctober !%%$ den0ing reconsideration are ABB1RME:. ConseJuentl0, public respondents Sandiganba0an &Third :ivision' and the 7ffice of the 7#buds#an are directed to proceed 3ith the hearing and trial of Cri#. Case )o. =,=-+ against petitioner until ter#inated. S7 7R:ERE:. ;0*le