PART II.

LAUREL VS DESIERTO
The Evaluation and Preliminary Investigation Bureau
of the Office of the Ombudsman directed petitioner,
Chairman of the National Centennial Commission
(NCC), to submit his counter affidavit on the charges
of anomalies found by the Senate Blue Ribbon and
Saguisag Committees. The Blue Ribbon Committee
recommended his prosecution for violation of the
rules on public bidding on the award of centennial
contracts and manifest bias in the issuance of the
Notice to Proceed in the absence of a valid contract,
while the Saguisag Committee recommended the
further investigation of petitioner for violations of
Section 3 (e) of RA. No. 3019, Section 4 (a) in relation
to Section 11 of R.A. 6713, and Article 217 of the
Revised Penal Code. Petitioner moved to dismiss on
ground of lack of jurisdiction claiming that he is not a
public officer and that NCC is a private organization.
The motion was denied by the Ombudsman, hence,
the instant recourse.
The NCC was created under Administrative Order No.
223 and Executive Order No. 128 to ensure a more
coordinated and synchronized celebrations of the
Philippine Centennial and wider participation from
the government and nongovernment or private
organizations. It aims to implement the state policies
on the promotion of the nation's historical and
cultural heritage and resources. It is thus a public
office performing executive functions. Thus, the
Chairman of this Committee is a public officer who
may be investigated by the Office of the
Ombudsman.
A definition of public officers cited in jurisprudence is
that provided by Mechem, a recognized authority on
the subject: A public office is the right, authority and
duty, created and conferred by law, by which, for a
given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is
invested with some portion of the sovereign
functions of the government, to be exercised by him
for the benefit of the public. The individual so
invested is a public officer.
In the Court's decision in Uy, we held that "it is the
prosecutor, not the Ombudsman, who has the
authority to file the corresponding information/s
against petitioner in the regional trial court. The
Ombudsman exercise prosecutorial powers only in
cases cognizable by the Sandiganbayan." The
foregoing ruling in Uy, however, was short-lived.
Upon motion for clarification by the Ombudsman in
the same case, the Court set aside the foregoing
pronouncement in its Resolution dated March 20,
2001. The Court explained the rationale for this
reversal. The power to investigate and to prosecute
granted by law to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any
public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient.
The law does not make a distinction between cases
cognizable by the Sandiganbayan and those
cognizable by regular courts. It has been held that
the clause "any illegal act or omission of any public
official" is broad enough to embrace any crime
committed by a public officer or employee.

HANNAH EUNICE SERANA VS SANDIGANBAYAN

CAN the Sandiganbayan try a government scholar **
accused, along with her brother, of swindling
government funds?
Sandiganbayan has jurisdiction over the offense of
estafa. Section 4 (B) of P.D. No. 1606 reads:
B. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in
subsection a of this section in relation to their office.
Evidently, the Sandiganbayan has jurisdiction over
other felonies committed by public officials in relation
to their office. We see no plausible or sensible reason
to exclude estafa as one of the offenses included in
Section 4 (B) of P.D. No. 1606. Plainly, estafa is one of
those other felonies. The jurisdiction is simply subject
to the twin requirements that (a) the offense is
committed by public officials and employees
mentioned in Section 4 (A) of P.D. No. 1606, as
amended, and that (b) the offense is committed in
relation to their office.
Petitioner UP student regent is a public officer.
Petitioner contends that she is not a public officer.
She does not receive any salary or remuneration as a
UP student regent. This is not the first or likely the
last time that we will be called upon to define a
public officer. In Khan, Jr. v. Office of the
Ombudsman, We ruled that it is difficult to pin down
the definition of a public officer. 39 The 1987
Constitution does not define who are public officers.
Rather, the varied definitions and concepts are found
in different statutes and jurisprudence.
Petitioner claims that she is not a public officer with
Salary Grade 27; she is, in fact, a regular tuition feepaying student. This is likewise bereft of merit. It is
not only the salary grade that determines the
jurisdiction
of
the
Sandiganbayan.
The
Sandiganbayan also has jurisdiction over other
officers enumerated in P.D. No.1606. In Geduspan v.
People, 43 We held that while the first part of Section
4 (A) covers only officials with Salary Grade 27 and
higher, its second part specifically includes other
executive officials whose positions may not be of
Salary Grade 27 and higher but who are by express
provision of law placed under the jurisdiction of the
said court. Petitioner falls under the jurisdiction of
the Sandiganbayan as she is placed there by express
provision of law.
Section 4 (A) (1) (g) of P.D. No. 1606 explictly vested
the Sandiganbayan with jurisdiction over Presidents,
directors or trustees, or managers of government
owned or controlled corporations, state universities
or educational institutions or foundations. Petitioner
falls under this category. As the Sandiganbayan
pointed out, the BOR performs functions similar to
those of a board of trustees of a non-stock
corporation. 45 By express mandate of law,
petitioner is, indeed, a public officer as contemplated
by P.D. No. 1606. Moreover, it is well established that
compensation is not an essential element of public
office. 46 At most, it is merely incidental to the public
office. 47 Delegation of sovereign functions is
essential in the public office. An investment in an
individual of some portion of the sovereign functions
of the government, to be exercised by him for the
benefit of the public makes one a public officer. 48
The administration of the UP is a sovereign function
in line with Article XIV of the Constitution. UP

performs a legitimate governmental function by

providing
advanced
instruction
in
literature,
philosophy, the sciences, and arts, and giving
professional and technical training. 49 Moreover, UP
is maintained by the Government and it declares no
dividends and is not a corporation created for profit.
The offense charged was committed
in relation to public office, according to the
Information.
Petitioner likewise argues that even assuming that
she is a public officer, the Sandiganbayan would still
not have jurisdiction over the offense because it was
not committed in relation to her office. It is axiomatic
that jurisdiction is determined by the averments in
the information. More than that, jurisdiction is not
affected by the pleas or the theories set up by
defendant or respondent in an answer, a motion to
dismiss, or a motion to quash. Otherwise, jurisdiction
would become dependent almost entirely upon the
whims of defendant or respondent.
In the case at bench, the information alleged, in no
uncertain terms that petitioner, being then a student
regent of U.P., "while in the performance of her
official functions, committing the offense in relation
to her office and taking advantage of her position,
with intent to gain, conspiring with her brother, JADE
IAN D. SERANA, a private individual, did then and
there wilfully, unlawfully and feloniously defraud the
government." (Underscoring supplied) Clearly, there
was no grave abuse of discretion on the part of the
Sandiganbayan when it did not quash the information
based on this ground.
Source of funds is a defense that should be raised
during trial on the merits. It is contended anew that
the amount came from President Estrada's private
funds and not from the government coffers.
Petitioner insists the charge has no leg to stand on.
We cannot agree. The information alleges that the
funds came from the Office of the President and not
its then occupant, President Joseph Ejercito Estrada.
Under the information, it is averred that "petitioner
requested the amount of FifteeN Million Pesos
(P15,000,000.00), Philippine Currency, from the
Office of the President, and the latter relying and
believing
on
said
false
pretenses
and
misrepresentation gave and delivered to said
accused Land Bank Check No. 91353 dated October
24, 2000 in the amount of Fifteen Million Pesos
(P15,000,000.00)." Again, the Court sustains the
Sandiganbayan observation that the source of the
P15,000,000 is a matter of defense that should be
ventilated during the trial on the merits of the instant
case.
TECSON VS SANDIGANBAYAN
Claiming that Demetrio Tecson, then mayor
of Prosperidad, Agusan del Sur, solicited and
received P4,000.00 as consideration of the issuance
of a business permit in her favor, Salvacion Luzana
filed an administrative complaint against Tecson
before the Sangguniang Panlalawigan. A complaint
for violation of the "Anti-Graft and Corrupt Practices
Act" was likewise filed with the OMBUDSMAN. The
administrative case was dismissed on October 23,
1991. On June 30, 1995, the Sandiganbayan
rendered

a decision convicting Tecson. Hence, this petition

wherein Tecson interposed res judicata and double
jeopardy, among others.
Res judicata is a doctrine of civil law. It has no
bearing in the criminal proceedings before the
Sandiganbayan. A public officer may be held civilly,
criminally and administratively liable for a wrongful
doing. Thus, the dismissal of an administrative case
does not necessarily bar the filing of a criminal
prosecution for the same or similar acts which were
the object of the administrative complaint.
The proceedings conducted by the Sanggunian were
not criminal but administrative in nature. Hence,
double jeopardy will not lie. Absent a showing that
the prosecution witnesses were actuated by any
improper motive, their testimony is entitled to full
faith and credit. Recourse to the records showed that
no error of law or abuse of discretion was committed
by the respondent court when it gave credence to
the positive testimony of the prosecution's witness as
opposed to petitioner's bare denials. Denial, like alibi,
is a weak defense, which becomes even weaker in
the face of positive testimony by prosecution
witnesses. The petition was denied.
Having been exonerated by the Sangguniang
Panlalawigan of Agusan del Sur in the administrative
case, he now submits the same is res judicata and
thus bars the Sandiganbayan from hearing his case.
Petitioner's theory has no leg to stand on. First, it
must be pointed out that res judicata is a doctrine of
civil law. It thus has no bearing in the criminal
proceedings before the Sandiganbayan. Second, it is
a basic principle of the law on public officers that a
public official or employee is under a three-fold
responsibility for violation of duty or for a wrongful
act or omission. This simply means that a public
officer may be held civilly, criminally, and
administratively liable for a wrongful doing. Thus, if
such violation or wrongful act results in damages to
an individual, the public officer may be held civilly
liable to reimburse the injured party. If the law
violated attaches a penal sanction, the erring officer
may be punished criminally. Finally, such violation
may also lead to suspension, removal from office, or
other administrative sanctions. This administrative
liability is separate and distinct from the penal and
civil
liabilities.
Thus,
the
dismissal
of
an
administrative case does not necessarily bar the
filing of a criminal prosecution for the same or similar
acts, which were the subject of the administrative
complaint. We conclude, therefore, that the decision
of the Sangguniang Panlalawigan of Agusan del Sur
exonerating petitioner in Administrative Case No. SP
90-01 is no bar to the criminal prosecution before the
Sandiganbayan.
ESPINOSA VS OFFICE OF OMBUDSMAN
Petitioner Francisco Enriquez was Municipal
Treasurer, while petitioner Carmencita G. Espinosa
was Administrative Officer and Acting Municipal
Cashier of the Office of the Municipal Treasurer of
Pasig. By virtue of Local Government Audit Order No.
88- 01-3, an audit examination of the cash and
accounts of the Pasig Treasury covering the period
from May 4, 1987 to November 30, 1987 was
conducted. The audit disclosed, among other things,
that Enriquez's accounts contained a shortage
amounting to P3,178,777.41, which shortage was

mainly due to a dishonored China Banking Check No.

303100 dated October 7, 1987 in the amount of
P3,267,911.10. Said check was deposited with the
Quezon City Treasury as part of the collections of the
Pasig Treasury. The check was dishonored for several
reasons. A demand for the restitution of the value of
the dishonored check was made on Enriquez.
However, Enriquez denied responsibility for the
shortage. He claimed that it was Espinosa, the
custodian of the check, who was responsible for the
alleged shortage. Enriquez and Espinosa were
charged, tried and convicted of the crime of
malversation of public funds by the Sandiganbayan.
The Sandiganbayan found that petitioners, in
conspiracy with each other, misappropriated public
funds in their custody and sought to cover up the
shortages already existing in the municipal treasury's
collections by depositing the subject check. The
Sandiganbayan found the denials of the accused and
their acts of shifting the blame and passing the
responsibility for the dishonored check to each other
as unacceptable and indicative of their guilt.
After an assiduous scrutiny of the pleadings
and the evidence, testimonial and documentary, the
Supreme Court acquitted the petitioners. The
evidence in this case has not been proven beyond
reasonable doubt that the accused were guilty of the
crime charged for the following reasons: First, there
was no evidence to prove that the Pasig Treasury
incurred a cash shortage in the amount of
P3,178,777.41. Second, there was no evidence that
Enriquez or Espinosa had received such an amount,
which they could no longer produce or account for at
the time of the audit.
Third, there was no showing that the subject check
was received by the Pasig Treasury in an official
capacity; that there was a duty to receive or collect
the said amount, and that there was an obligation to
account for the same. The evidence submitted,
would point out that the subject check was not
issued in payment of taxes or obligations due to the
municipality and, consequently, no official receipt
was issued for it. Indeed, the subject check never
formed a portion of the public funds of the
municipality for which either Enriquez or Espinosa
are accountable for.
The crime of malversation for which
ENRIQUEZ and ESPINOSA had been charged is
defined under Article 217 of the Revised Penal Code.
The elements of malversation under the above penal
provision are: (a) That the offender is a public officer.
(b) That he has the custody or control of funds or
property by reason of the duties of his office. (c) That
those funds or property are public funds or property
for which he is accountable. (d) That he
appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted
another person to take them.
We are constrained to conclude that the
prosecution, upon whose burden was laden the task
of establishing proof beyond reasonable doubt that
petitioners had committed the offense charged,
failed
to
discharge
this
obligation.
The
Sandiganbayan found the denials of the accused and
their acts of shifting the blame and passing the
responsibility for the dishonored check to each other
as unacceptable and indicative of their guilt.

However, it must be emphasized that although the

evidence for the defense may be characterized as
weak, criminal conviction must come from the
strength of the prosecution's evidence and not from
the weakness of the defense. We are not convinced
that the evidence in this case has proven beyond
reasonable doubt that the accused are guilty of the
crime charged.
There is no evidence to prove that the Pasig
Treasury incurred a cash shortage in the amount of
P3,178,777.41, which amount, incidentally, is even
less than the amount of the dishonored check. As per
report of the audit team, the alleged shortage was
computed and based on the value of the dishonored
check. As stated in the assailed decision, it was only
the drawn check, based on the audit examination
that brought about the shortage. It was palpable
error for the Sandiganbayan to conclude that the
check which the audit team had pinpointed as the
shortage due to its dishonor was at the same time,
intended and used by ENRIQUEZ and ESPINOSA to
"cover up" shortages in the funds allegedly in their
custody. The shortage must be clearly established as
a fact, i .e., that over and above the funds found by
the auditor in the actual possession of the
accountable officers, there is an additional amount of
P3,178,771.42 which could no longer be produced or
accounted for at the time of audit. Evidence of
shortage is necessary before there could be any
taking, appropriation, conversion, or loss of public
funds that would amount to malversation. It makes
no sense for any bogus check to be produced to
"cover up" an inexistent malversation. Indeed, no
less than the sole witness for the prosecution, audit
team leader, Carmelita Antasuda, who conducted the
cash count and cash examination of the Pasig
Treasury, testified that based on their audit
examination, it was only the subject check that
brought about the shortage.
The Sandiganbayan relied on the statutory
presumption that the "failure of a public officer to
have duly forthcoming any public funds with which
he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that
he has put such missing funds or property to
personal uses." It must be emphasized that the
prima facie presumption arises only if there is no
issue as to the accuracy, correctness, and regularity
of the audit findings and if the fact that funds are
missing is indubitably established. In the instant
case, audit team leader Carmelita Antasuda could
not even equivocally state whether it was cash or
check that was lost, if at all there was any, belying
the accuracy and correctness of the team's audit
report.
There is no showing that the subject check
was received by the Pasig Treasury in an official
capacity; that there was a duty to receive or collect
the said amount; and that there was an obligation to
account for the same. The evidence submitted, just
to the contrary, would point out that the subject
check was not issued in payment of taxes or
obligations due to the municipality and consequently
no official receipt was issued for it. Indeed, the
subject check never formed a portion of the public

funds of the municipality for which either ENRIQUEZ

or ESPINOSA are accountable for.
There would appear to have been lapses or
deficiencies in the observance of auditing rules and
regulations in the handling of the funds of the
municipal treasury e.g. delay in deposits of
collections, cash balances exceeding cash reserve
limit, loose controls and no control records, etc. as
pointed out by the audit team, and questions as to
how a private check was bundled together with
legitimate collections of the Pasig Treasury for
transmittal to the Quezon City Treasury, but the
same do not warrant a finding of criminal culpability,
which requires proof beyond reasonable doubt on the
part of ENRIQUEZ and ESPINOSA. However, the
Chairman of the Commission on Audit should be
apprised of this decision for whatever action he may
deem appropriate.
LACSON
VS
THE
EXECUTIVE
SECRETARY,
SANDIGANBAYAN
This is a petition for prohibition and
mandamus filed by petitioner Panfilo M. Lacson and
petitioners-intervenors Romeo Acop and Francisco
Zubia, Jr. questioning the constitutionality of Sections
4 and 7 of Republic Act 8249 an Act which further
defines the jurisdiction of the Sandiganbayan. They
also seek to prevent the Sandiganbayan from
proceeding with the trial of Criminal Cases Nos.
23047-23057 against them on the ground of lack of
jurisdiction. They further argued that if the case is
tried before the Sandiganbayan, their right to
procedural due process would violate as they could
no longer avail of the two-tiered appeal to the
Sandiganbayan, which they acquired under RA 7975,
before recourse to the Supreme Court.
The Court ruled that the challengers of Sections 4
and 7 of RA 8249 failed to rebut the presumption of
constitutionality
and
reasonableness
of
the
questioned provisions. The classification between
those pending cases involving the concerned public
officials whose trial has not yet commenced and
whose cases could have been affected by the
amendments of the Sandiganbayan jurisdiction under
RA 8249, as against those cases where trial had
already started as of the approval of the law, rests on
substantial distinction that makes real differences.
Since it is within the power of the Congress to define
the jurisdiction of courts subject to the constitutional
limitations, it can be reasonably anticipated that an
alteration of that jurisdiction would necessarily affect
pending cases, which is why it has to provide for a
remedy in the form of a transitory provision. Thus,
petitioner and intervenors cannot now claim that
Sections 4 and 7 placed them under a different
category from those similarly situated as them.
Moreover, petitioner's and intervenor's contention
that their right to a two-tiered appeal which they
acquired under RA 7975 has been diluted by the
enactment of RA 8249 is incorrect. The same
contention had already been rejected by the Court
considering that the right to appeal is not a natural
right but statutory in nature that can be regulated by
law.
The mode of procedure provided for in the statutory
right to appeal is not included in the prohibition
against ex post facto law. RA 8249 pertains only to
matters of procedure, and being merely an

amendatory statute it does not partake the nature of

an ex post facto law.
Anent the issue of jurisdiction, the Court
ruled that for failure to show in the amended
informations that the charge of murder was
intimately connected with the discharge of official
functions of those accused PNP officers, the offense
charged in the subject criminal cases is plain murder
and therefore, within the exclusive jurisdiction of the
Regional Trial Court, not the Sandiganbayan.
Accordingly, the constitutionality of Sections 4 and 7
of RA 8249 is sustained and the Addendum to the
March 5, 1997 resolution of the Sandiganbayan is
reversed.
A perusal of the aforequoted Section 4 of
R.A. 8249 reveals that to fall under the exclusive
original jurisdiction of the Sandiganbayan, the
following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as
amended (the Anti-Graft and Corrupt Practices Act),
(b) R.A. 1379 (the law on ill-gotten wealth), (c)
Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code (the law on bribery), (d) Executive Order
Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration
cases), or (e) other offenses or felonies whether
simple or complexed with other crimes; (2) the
offender committing the offenses in items (a), (b), (c)
and (e) is a public official or employee holding any of
the positions enumerated in paragraph a of Section
4; and (3) the offense committed is in relation to the
office.
Considering that herein petitioner and
intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal
Code, the governing provision on the jurisdictional
offense is not paragraph a but paragraph b, Section 4
of R.A. 8249. This paragraph b pertains to "other
offenses or felonies whether simple or complexed
with other crimes committed by the public officials
and employees mentioned in subsection (a) of
[Section 4, R.A. 8249] in relation to their office." The
phrase "other offenses or felonies" is too broad as to
include the crime of murder, provided it was
committed in relation to the accused's official
functions. Thus, under said paragraph b, what
determines the Sandiganbayan's jurisdiction is the
official position or rank of the offender that is,
whether he is one of those public officers or
employees enumerated in paragraph a of Section 4.
The offenses mentioned in paragraphs a, b and c of
the same Section 4 do not make any reference to the
criminal participation of the accused public officer as
to whether he is charged as a principal, accomplice
or accessory. In enacting R.A. 8249, the Congress
simply restored the original provisions of P.D. 1606
which does not mention the criminal participation of
the public officer as a requisite to determine the
jurisdiction of the Sandiganbayan.
The jurisdiction of a court is defined by the
Constitution or statute. The elements of that
definition must appear in the complaint or
information so as to ascertain which court has
jurisdiction over a case. Hence the elementary rule
that the jurisdiction of a court is determined by the
allegations in the complaint or information, and not
by the evidence presented by the parties at the trial.

As stated earlier, the multiple murder charge against

petitioner and intervenors falls under Section 4
[paragraph b] of R.A. 8249. Section 4 requires that
the offense charged must be committed by the
offender in relation to his office in order for the
Sandiganbayan to have jurisdiction over it. This
jurisdictional requirement is in accordance with
Section 5, Article XIII of the 1973 Constitution which
mandated that the Sandiganbayan shall have
jurisdiction over criminal cases committed by public
officers and employees, including those in
government-owned or controlled corporations, "in
relation to their office as may be determined by law."
This constitutional mandate was reiterated in the
new [1987] Constitution when it declared in Section 4
thereof that the Sandiganbayan "shall continue to
function and exercise its jurisdiction as now or
hereafter may be provided by law."
The stringent requirement that the charge
be set forth with such particularity as will reasonably
indicate the exact offense which the accused is
alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the
mere allegation in the amended information that the
offense was committed by the accused public officer
in relation to his office" is not sufficient. That phrase
is merely a conclusion of law, not a factual averment
that would show the close intimacy between the
offense charged and the discharge of the accused's
official duties. In People vs. Magallanes, where the
jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled: "It is an
elementary rule that jurisdiction is determined by the
allegations in the complaint or information and not
by the result of evidence after trial. "In (People vs.
Montejo (108 Phil. 613 [1960]), wherethe amended
information alleged Leroy S. Brown City Mayor of
Basilan City, as such, has organized groups of police
patrol and civilian commandoes consisting of regular
policemen and . . . special policemen appointed and
provided by him with pistols and high power guns
and then established a camp . . . at Tipo-tipo which is
under his command . . . supervision and control
where his co-defendants were stationed, entertained
criminal
complaints
and
conducted
the
corresponding investigations as well as assumed the
authority to arrest and detain person without due
process of law and without bringing them to the
proper court, and that in line with this set-up
established by said Mayor of Basilan City as such,
and acting upon his orders his co-defendants
arrested and maltreated Awalin Tebag who died in
consequence thereof. We held that the offense
charged was committed in relation to the office of
the accused because it was perpetrated while they
were in the performance, though improper or
irregular of their official functions and would not have
been committed had they not held their office,
besides, the accused had no personal motive in
committing the crime thus, there was an intimate
connection between the offense and the office of the
accused. "Unlike in Montejo the informations in
Criminal Cases Nos. 15562 and 15563 in the court
below do not indicate that the accused arrested and
investigated the victims and then killed the latter in
the course of the investigation. The informations
merely allege that the accused, for the purpose of
extracting or extorting the sum of P353,000.00

abducted, kidnapped and detained the two victims,

and failing in their common purpose, they spot and
killed the said victims. For the purpose of
determining jurisdiction, it is these allegations that
shall control, and not the evidence presented by the
prosecution at the trial." In the aforecited case of
People vs. Montejo, it is noteworthy that the phrase
committed in relation to public office does not appear
in the information, which only signifies that the said
phrase is not what determines the jurisdiction of the
Sandiganbayan. What is controlling is the specific
factualallegations in the information that would
indicate the close intimacy between the discharge of
the accused's official duties and the commission of
the offense charged, in order to qualify the crime as
having been committed in relation to public office.
Consequently, for failure to show in the amended
informations that the charge of murder was
intimately connected with the discharge of official
functions of the accused PNP officers, the offense
charged in the subject criminal cases is plain murder
and, therefore, within the exclusive original
jurisdiction of the Regional Trial Court, not the
Sandiganbayan.
ROMUALDEZ VS SANDIGANBAYAN
The issues are as follows: (1) whether
Section 5 of Republic Act 3019 is unconstitutional; (2)
whether the Information is vague; (3) whether there
was a valid preliminary investigation; (4) whether the
criminal action or liability has been extinguished by
prescription; and (5) whether petitioner is immune
from criminal prosecution under then Section 17 of
Article VII of the 1973 Constitution.
The petition has no merit.
First Issue: The Court holds that the challenged
provision is not vague, and that in any event, the
overbreadth and void for vagueness doctrines
are not applicable to this case.
Second Issue: While it is fundamental that every
element of the offense must be alleged in the
information, matters of evidence as distinguished
from the facts essential to the nature of the offense
need not be averred. Whatever facts and
circumstances must necessarily be alleged are to be
determined by reference to the definition and the
essential elements of the specific crimes. In the
instant case, a cursory reading of the Information
shows that the elements of a violation of Section 5 of
RA 3019 have been stated sufficiently. Likewise, the
allegations describe the offense committed by
petitioner with such particularity as to enable him to
prepare an intelligent defense. Details of the acts he
committed are evidentiary matters that need not be
alleged in the Information.
Third Issue: The Sandiganbayans actions are in
accord also with Raro v. Sandiganbayan, which held
that the failure to conduct a valid preliminary
investigation would not warrant the quashal of an
information. If the information has already been filed,
the proper procedure is for the Sandiganbayan to
hold the trial in abeyance while the preliminary
investigation is being conducted or completed.

Fourth Issue: Act No. 3326, as amended, 65 governs

the prescription of offenses penalized by special
laws. Its pertinent provision reads:
Sec. 2. Prescription shall begin to run from
the day of the commission of the violation of the law,
and if the same not be known at the time, from the
discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
The general rule that prescription shall
begin to run from the day of the commission of the
crime cannot apply to the present case. It is not
legally prudent to charge the State, the aggrieved
party, with knowledge of the violation of RA 3019 at
the time the alleged intervention was made. The
accused is the late President Ferdinand E. Marcos
brother-in-law. He was charged with intervening in a
sale involving a private corporation, the majority
stocks of which was allegedly owned by President
Marcos.
Prior to February 1986, no person was expected to
have seriously dared question the legality of the sale
or would even have thought of investigating
petitioners alleged involvement in the transaction. It
was only after the creation of PCGG and its
exhaustive investigations that the alleged crime was
discovered. This led to the initiation on November 29,
1988 of a Complaint against former President Marcos
and petitioner for violation of the Anti-Graft and
Corrupt Practices Act. Consequently, the filing of the
Information on July 12, 1989 was well within the
prescriptive period of ten years from the discovery of
the offense.
Fifth Issue: Petitioner argues that he enjoys
derivative immunity, because he allegedly served as
a high-ranking naval officer specifically, as naval
aide-de-camp of former President Marcos. 70 He
relies on Section 17 of Article VII of the 1973
Constitution, as amended, which we quote:
The President shall be immune from suit
during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
As the Sandiganbayan aptly pointed out, the above
provision is not applicable to petitioner because the
immunity amendment became effective only in 1981
while the alleged crime happened in 1975.
QUINON VS PEOPLE
For failure to return the two super caliber .
38 pistol and their magazines and one 12-gauge
shotgun that were issued to him during his
incumbency and by reason of his function as Station
Commander of Calinog, Iloilo PC/INP, Pablo N. Quion
was convicted by the Sandiganbayan of the crime of
Malversation of Public Property. Thus, he interposed
this petition for review claiming that the
Sandiganbayan erred in holding that he is an
accountable public officer. The Court ruled that
Article 217 of the Revised Penal Code is designed to
protect the government and to penalize erring public
officials
and
conspiring
private
individuals
responsible for the loss of public funds and property
by reason of corrupt motives or neglect or disregard
of duty. Its all encompassing provision cannot be

limited by petitioner's absurd interpretation of the

provisions of the Administrative Code restricting the
application thereof only to government funds and to
bonded public officials. Accordingly, the decision of
the Sandiganbayan was affirmed.
The elements of malversation, essential for
the conviction of an accused under the above penal
provision are: 1. That the offender is a public officer;
2. That he has the custody or control of funds or
property by reason of the duties of his office; 3. That
the funds or property are public funds or property for
which he is accountable; and 4. That he
appropriated, took, misappropriated or consented or
through abandonment or negligence, permitted
another person to take them.
An accountable public officer, within the
purview of Article 217 of the Revised Penal Code, is
one who has custody or control of public funds or
property by reason of the duties of his office. To be
liable for malversation, an accountable officer need
not be a bonded official. The name or relative
importance of the office or employment is not the
controlling factor. What is decisive is the nature of
the duties that he performs and that as part of, and
by reason of said duties, he receives public money or
property which he is bound to account.
In the case at bar, the delivery to petitioner
of the firearms belonging to the Government, by
reason of his office as Station Commander of Calinog,
Iloilo, PC-INP, necessarily entailed the obligation on
his part to safely keep the firearms, use them for the
purposes for which they were entrusted to him, and
to return them to the proper authority at the
termination of his tenure as commander, or on
demand by the owner, the duty to account for said
firearms. Thus, in Felicilda v. Grospe, the Court held a
police officer accountable for the firearms issued to
him
and
consequently
convicted
him
for
malversation of public property when he failed to
produce said firearms upon demand by the proper
authority.
Article 217 of the Revised Penal Code is
designed to
protect the government and to penalize erring public
officials
and
conspiring
private
individuals
responsible for the loss of public funds and property
by reason of corrupt motives or neglect or disregard
of duty. Its all encompassing provision cannot be
limited by petitioner's absurd interpretation of the
provisions of the Administrative Code restricting the
application thereof only to government funds and to
bonded public officials.
Under Article 217 of the Code, the failure of
the public officer to have duly forthcoming such
public funds or property, upon demand by a duly
authorized officer, shall be prima facie evidence that
he has put such missing funds or property to
personal use. Considering that petitioner failed to
adduce evidence on why he failed to produce, after
the expiration of his term and despite lawful demand,
the two .38 caliber pistols with Serial Nos. 310136
and 310150 issued to him by reason of his duties as
Station Commander of the Calinog, Iloilo, PC-INP, the

Sandiganbayan
correctly
convicted
malversation of public property.

him

of

MENESES VS SANDIGANBAYAN
Article 217 of the Revised Penal Code
provides that any public officer who, by reason of the
duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through
abandonment or negligence, shall permit any other
person to take such public funds or property, wholly
or partially, shall be guilty of the misappropriation or
malversation of such funds or property
(Emphasis supplied).
The grant of loans through the "vale" system is a
clear case of an accountable officer consenting to the
improper or unauthorized use of public funds by
other persons, which is punishable by the law. To
tolerate such a practice is to give a license to every
disbursing officer to conduct a lending operation with
the use of public funds. There is no law or regulation
allowing accountable officers to extend loans to
anyone against "vale" or chits given in exchange by
the borrowers. On the other hand, in Cabello vs.
Sandiganbayan, we held that the giving of "vales" by
public officers out of their accountable funds is
prohibited by P.D. No. 1145, otherwise known as the
Government Auditing Code of the Philippines and
Memorandum Circular No. 570, dated June 24, 1968
of the General Auditing Office.
CABRERA ET. AL VS MARCELO
Facts: Before the Ombudsman, complaints were filed
by private respondent Franco P. Casanova against
incumbent Taal, Batangas mayor Librado M. Cabrera,
his wife, former Mayor Fe M. Cabrera, and Taal
Municipal Councilor Luther Leonor, for violation of
Article 217 in relation to Articles 171 and 48 of the
Revised Penal Code (i.e., the complex crime of
Malversation of Public Funds thru Falsification of
Public Documents), and Section 3(e) of Republic Act
No. 3019 or the Anti-Graft and Corrupt Practices Act.
The cases pertained to the allegedly unauthorized
travels of the spouses Cabrera, and the allegedly
anomalous purchase of medicines involving Leonor
and the Cabreras. The complaint pertaining to the
alleged unauthorized travel, docketed as OMB-1-010873-J, alleges that during his previous term, Librado
Cabrera had, on 13 March 1998 and 22 June 1998,
collected
and
received
from
the
Municipal
Government of Taal, reimbursement of alleged travel
expenses incurred outside of the Province of
Batangas in the respective amounts of Thirteen
Thousand Six Hundred Seventy Pesos and TwentyNine Centavos (P13,670.29) and Thirteen Thousand
Nine Hundred Eighty-One Pesos and Fifty Four
Centavos (P13,981.54). Likewise, Fe Cabrera, during
her own term, obtained reimbursement for alleged
travel expenses incurred outside the province of
Batangas in the total amount of One Hundred
Seventy Thousand Nine Hundred Eighty-Seven Pesos
and Sixty-Six Centavos
(P170,987.66). 1 The Cabreras, prior to undertaking
the questioned trips, did not secure formal approval
from the Provincial Governor of Batangas as required
under the Local Government Code. It is also alleged
that the Cabreras forged the signature of then

Governor Hermilando I. Mandanas in a purported

Certification dated 14 December 2000, which
appeared to approve the travel orders and expenses
incurred by the Cabreras.
Issue: Petitioners claim that the Ombudsman acted
without or in excess of his jurisdiction or with grave
abuse of discretion in approving the 22 March 2002
Resolution and the 30 October 2002 Memorandum.
They allege that there is no sufficient basis in fact or
in law to charge petitioners with violations of Section
3(e) of the Anti-Graft and Corrupt Practices Act. They
also question the reliance made by the Ombudsman
on the COA Audit Report, which
they point out had not yet become final it being the
subject of a pending appeal with the COA head office.
They also note that the Ombudsman previously
dismissed an administrative complaint lodged by
Casanova with the Office of the Ombudsman,
involving the same matters.
Ruling: It should be borne in mind that the interest of
the COA is solely administrative, and that its
investigation does not foreclose the Ombudsman's
authority to investigate
and determine whether
there is a crime to be prosecuted for which a public
official is answerable.
An examination though of the Orders of the
Ombudsman dismissing the administrative complaint
reveal that the dismissal was warranted not because
the charges had no merit. In disposing of the
administrative complaint, the Office of the
Ombudsman noted that since Fe Cabrera was no
longer the Mayor of Taal, the administrative
complaint against her should be dismissed because
the Ombudsman could no longer acquire jurisdiction
over her person. 34 In the cases of Librado Cabrera
and Luther Leonor, it was observed that since both
were subsequently reelected to their incumbent
positions in 2001, their reelection, concordant to
Aguinaldo v. Santos, operates as a condonation of
whatever administrative infraction or misconduct
they may have committed during their previous
terms.
Clearly then, these complaints were
dismissed not because the charges were unfounded,
but because of prevailing doctrines peculiar to
administrative complaints. Besides, it is well settled
that condonation of an officer's fault or misconduct
during a previous expired term by virtue of his
reelection to office for a new term can be deemed to
apply only to his administrative and not to his
criminal guilt.
It is the Ombudsman's determination that
there is probable cause to charge petitioners with
violating Section 3(e) of the Anti-Graft and Corrupt
Practices Act.
The provision reads: (e) Causing any undue
injury to any party, including the Government, or
giving any private party any unwarranted benefits,
advantage or preference in the discharge of his
official administrative or judicial functions through
manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to
officers and employees of offices or government
corporations charged with the grant of licenses or
permits or other concessions.
The elements of the offense were spelled
out in Sistoza v. Desierto: The elements of the
offense are: (a) The accused is a public officer or a

private person charged in conspiracy with the

former; (b) The public officer commits the prohibited
acts during the performance of his or her official
duties or in relation to his or her public functions; (c)
That he or she causes undue injury to any party,
whether the government or a private party; (d) Such
undue injury is caused by giving unwarranted
benefits, advantage or preference to such parties;
and (e) That the public officer has acted with
manifest partiality, evident bad faith or gross
inexcusable neglect. Evidently, mere bad faith or
partiality and negligence per se are not enough for
one to be held liable under the law since the act of
bad faith or partiality must in the first place be
evident or manifest, respectively, while the negligent
deed should both be gross and inexcusable. It is
further required that any or all of these modalities
ought to result in undue injury to a specified party.
We are convinced that the Ombudsman did
not commit a grave abuse of discretion when he
found the existence of undue injury, manifest
partiality, and evident bad faith, sufficient to
establish a prima facie case against the petitioners
for violation of the Anti-Graft and Corrupt Practices
Act.
All told, we are satisfied with the finding of
probable cause as established by the Office of the
Ombudsman, and find no grave abuse of discretion
on its part that would warrant the allowance of this
petition.
TABUENA VS SANDIGANBAYAN
Tabuena and Peralta stress that they were being
charged with intentional malversation. But they were
convicted of malversation by negligence. Their
theory is that such variance is a reversible flaw.
We do not agree with Tabuena and Peralta on this
point. Illuminative and controlling is "Cabello v.
Sandiganbayan " where the Court passed upon
similar protestations raised by therein accusedpetitioner Cabello whose conviction for the same
crime of malversation was affirmed, in this wise: ". . .
even on the putative assumption that the evidence
against petitioner yielded a case of malversation by
negligence but the information was for intentional
malversation, under the circumstances of this case
his
conviction
under
the
first
mode
of
misappropriation would still be in order. Malversation
is committed either intentionally or by negligence.
The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the
same offense of malversation is involved and
conviction thereof is proper."
Good faith is a valid defense in a
prosecution for malversation for it would negate
criminal intent on the part of the accused.
In so far as Tabuena is concerned, with the
due presentation in evidence of the MARCOS
Memorandum, we are swayed to give credit to his
claim of having caused the disbursement of the P55
Million solely by reason of such memorandum.
Tabuena had no other choice but to make the
withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the

presidential directive, and to argue otherwise is

something easier said than done. Marcos was
undeniably Tabuena's superior the former being
then
the
President
of
the
Republic
who
unquestionably exercised control over government
agencies such as the MIAA and PNCC. In other words,
Marcos
had
a
say
in
matters
involving
intergovernment agency affairs and transactions,
such as for instance, directing payment of liability of
one entity to another and the manner in which it
should be carried out. And as a recipient of such kind
of a directive coming from the highest official of the
land no less, good faith should be read on Tabuena's
compliance, without hesitation nor any question, with
the MARCOS Memorandum. Tabuena therefore is
entitled to the justifying circumstance of "Any person
who acts in obedience to an order issued by a
superior for some lawful purpose." The subordinatesuperior relationship between Tabuena and Marcos is
clear. And so too, is the lawfulness of the order
contained in the MARCOS Memorandum, as it has for
its purpose partial payment of the liability of one
government agency (MIAA) to another (PNCC). The
MARCOS Memorandum is patently legal (for on its
face it directs payment of an outstanding liability)
and that Tabuena acted under the honest belief that
the P55 million was a due and demandable debt and
that it was just a portion of a bigger liability to PNCC.
Thus, even if the order is illegal if it is patently legal
and the subordinate is not aware of its illegality, the
subordinate is not liable, for then there would only be
a mistake of fact committed in good faith. The
principles underlying all that has been said above in
exculpation of Tabuena equally apply to Peralta in
relation to the P5 Million for which he is being held
accountable, i.e., he acted in good faith when he,
upon the directive of Tabuena, helped facilitate the
withdrawal of P5 Million of theP55 Million of the MIAA
funds.
There is no denying that the disbursement,
which
Tabuena admitted as "out of the ordinary," did not
comply with certain auditing rules and regulations.
But this deviation was inevitable under the
circumstances Tabuena was in. He did not have the
luxury of time to observe all auditingprocedures of
disbursement considering the fact that the MARCOS
Memorandum enjoined his "immediate compliance"
with the directive that he forward to the President's
Office the P55 Million in cash. Be that as it may,
Tabuena surely cannot escape responsibility for such
omission. But since he was acting in good faith, his
liability should only be administrative or civil in
nature, and not criminal.
The Sandiganbayan made the finding that
Tabuena had already converted and misappropriated
the P55 Million when he delivered the same to Mrs.
Gimenez and not to the PNCC. We do not agree. It
must be stressed that the MARCOS Memorandum
directed Tabuena "to pay immediately the Philippine
National Construction Corporation, thru this office,the
sum of FIFTY FIVE MILLION . . .," and that was what
Tabuena precisely did when he delivered the money
to Mrs. Gimenez. Such delivery, no doubt, is in effect
delivery to the Office of the President in as much as
Mrs. Gimenez was Marcos' secretary then.
Furthermore, Tabuena had reasonable ground to

believe that the President was entitled to receive the

P55 Million since he was certainly aware that Marcos,
as Chief Executive, exercised supervision and control
over government agencies. And the good faith of
Tabuena in having delivered the money to the
President's office (thru Mrs. Gimenez), in strict
compliance with the MARCOS Memorandum, was not
at all affected even if it later turned out that PNCC
never received the money.
Even assuming that the real and sole
purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of
those then in power, still, no criminal liability can be
imputed to Tabuena. There is no showing that
Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there
proof that he profited from the felonious scheme. In
short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million.
MENDIOLA VS PEOPLE
REPUBLIC ACT NO. 3019, AS AMENDED
(ANTI-GRAFT LAW); KNOWINGLY GRANTING LICENSE
OR PERMIT TO UNQUALIFIED PERSONS, AND
CAUSING UNDUE INJURY TO ANY PARTY; A
SUBSTANTIAL QUESTION OF LAW MAY BE THE BASIS
OF GOOD FAITH; GOOD FAITH, VALID DEFENSE, IN
CASE AT BAR. The information for violation of Section
3(j) of R.A. No. 3019, as amended, alleged that
Ortillada, Rosales and Blanco were not legally
entitled to "building permits for market stalls" for the
reason that "the place or location to where these
permits were issued is already covered by a valid and
existing building permit previously by accused on
March 12, 1987 in favor of the Municipality of
Angono, Rizal." The evidence at the trial, showed
that when petitioner issued the building permit for
the new or Phase II building, he noted the
encroachment of the proposed building upon the
Phase I market stalls of Ortillada, Rosales and Blanco
and had precisely required that the building plan be
corrected. The factors tending to show good faith on
the part of petitioner Mendiola include the following:
Firstly, the permits issued by petitioner to Ortillada,
Rosales and Blanco upon their application were
merely temporary renovation permits that authorized
the renovation of the stalls demolished by the Phase
II contractor. As pointed out earlier, these renovation
permits were qualified by the terms of an
accompanying transmittal letter issued by petitioner
Mendiola stating that the renovation permits would
become ineffective should the courts or proper
higher authority restrain the three (3) permittees
from renovating their makeshift market stalls.
Secondly, the three (3) permittees were long-time
stallholders, having been so at least since the fire
which had destroyed the old Angono Public Market.
They were not strangers to the Angono Public Market,
since they were stallholders, with temporary stalls, in
APM-Phase I. Thirdly, the three (3) permittees had
outstanding and paid-up municipal business permits
when petitioner issued them their stall renovation
permits. Fourthly, the permittees' temporary stalls
had been demolished without prior hearing or a court
order, or a demolition order from the authorized
building official which was petitioner Mendiola
himself. Thus, whether Ortillada, Rosales and Blanco
were legally entitled to the temporary renovation
permits presented a substantial question of law and

it is well to recall that mistake on a doubtful or

difficult question of law may be the basis of good
faith. There are other factors, environmental in
nature, tending to show good faith on the part of
petitioner Mendiola which relate to Resolution No. 71987 of the
Angono Municipal Council, the enabling Resolution
which lay at the heart of the boiling controversy
between the Phase I stallholders and the Phase II
awardees. Firstly, as already pointed out, the validity
of Resolution No. 7-1987 was being litigated before
the courts. The record shows that there were at least
three (3) cases before the Regional Trial Court of
Binangonan involving the validity or enforceability of
Resolution No. 7-1987. What was brought up before
the Court of Appeals on a petition for certiorari was
an interlocutory order of the trial court in one of the
cases denying a preliminary writ of injunction
stopping the construction of the new building.
Secondly, the decision dated 31 August 1988 of the
Secretary, DPWH, was not really final since the
applicable statute itself provided for an appeal by
way of a petition for review before the Office of the
President. Contrary to the submission of the Solicitor
General, we believe and so hold that all the above
factors support the claim of good faith in respect of
both the first and second charges against petitioner
Mendiola. The question of validity and enforceability
of Resolution No. 7-1987 was all pervasive and
inevitably affected both the entitlement of the three
(3) Phase I stallholders to the temporary renovation
permits issued by petitioner Mendiola and the
entitlement of the contractor and Phase II awardees
to a certificate of partial occupancy of the admittedly
incomplete new building. The facts or events
surrounding the first charge are so intertwined with
those surrounding the second charge as to render it
very difficult to separate them, even conceptually.
CAUSING UNDUE INJURY TO ANY PARTY;
EVIDENT BAD FAITH, NOT ESTABLISHED IN CASE AT
BAR;
ABSENCE
OF
ANY
ALLEGATION
THAT
ACCUSEDRECEIVED MONEY FOR ISSUING THE
QUESTIONED RENOVATION PERMIT. Section 3(e) of
R.A. No. 3019, as amended, requires proof of
"manifest partiality" or "evident bad faith" or "gross
inexcusable negligence." The information for
violation of Section 3(e) alleged only "evident bad
faith." We believe that, in the totality of the
circumstances of this case, the prosecution failed to
show beyond reasonable doubt the presence of any
of these three (3) elements. Indeed, it appears that
the prosecution failed to overcome the presumption
of good faith to which every public official, acting in
discharge of his official duties, is entitled. The
petitioner, caught between two (2) contending
groups was constantly trying to specify in writing the
reasons for his acts. While one need not agree with
all his acts or stated reasons therefor or the wisdom
thereof, one cannot say that they were so obviously
and palpably sham justifications for merely arbitrary
and capricious acts as to warrant a finding of
"evident bad faith." No one had claimed that
petitioner received any money for issuing the
renovation permits or refraining from issuing the
demanded certificate(s) of partial occupancy.

ABSENCE OF UNDUE INJURY TO ANY PARTY

IN CASE AT BAR. There is also substantial doubt
whether the element of "undue injury to any party"
required in Section 3(e) was adequately shown by
the prosecution. The respondent Sandiganbayan
apparently overlooked the circumstance that the
Phase II awardees had in fact entered and occupied
their respective stalls in the new building, without
waiting for the certificate(s) of partial occupancy
which they demanded from petitioner Mendiola and
without paying heed to Resolution No. 097-1988 of
the new Municipal Council warning them not to open
up their stalls in the still incomplete new building.
The record strongly suggests that petitioner Mendiola
had the misfortune of getting caught in the middle of
a heated controversy between two (2) local interest
groups and between the outgoing OIC municipal
officials and the incoming newly elected set of
municipal officials. In the course of requiring
complete
compliance
with
all
formal
and
documentary requirements for issuance of a
certificate of occupancy or partial occupancy, he was
charged with violation of R.A. No. 3019 as amended,
doubtless at the behest of the Phase II awardees, the
contractor and the old or OIC set of municipal
officials. Had he in fact issued the demanded
certificate(s) of partial occupancy, he in all
probability would have been charged criminally by
the Samahan of Phase I stallholders and the newly
elected municipal officials, probably under the same
statutory provisions. The Court of Appeals decision
did not pass upon the merits of the question of
validity of Resolution No. 7-1987; it merely assumed
the validity of that Resolution which was precisely
being controverted before the trial court. The DPWH
Secretary did not pass upon the grounds relating to
Resolution No. 7-1987 urged in the motion for
reconsideration of petitioner Mendiola and the new
Mayor. Under these circumstances, the filing of the
two (2) criminal informations appears quite
unfortunate. We note also that, so far as the record
would show, petitioner Mendiola was, curiously, the
only person or public official criminally charged in
connection with the whole affair. That the three (3)
Phase I stallholders on whose stalls the new building
encroached happened to be relatives or friends of
petitioner, appears to us as essentially if not
completely
co-incidental;
the
ruling
of
the
Sandiganbayan that petitioner deliberately chose to
protect the interests of his relatives and friend and
not the interests of the general community appears
bereft of basis and as speculative. The standard of
proof beyond reasonable doubt was not met.
LAYNO VS PEOPLE
The law on nepotism, as provided in Section
49(a) of PD No. 807, prohibits the appointing or
recommending
authority
from
making
any
appointment in the national, provincial, city or
municipal governments or in any branch or
instrumentality thereof, including government-owned
or controlled corporations, in favor of his (appointing
or recommending authority's) relative within the third
degree of consanguinity or affinity. Thus, in order to
guarantee that the law is duly observed, it is
required, among others, that the appointment paper
should be accompanied by a certification of the
appointing or recommending authority stating
therein that he is not related to the appointee within

the third degree of consanguinity or affinity. Although

Section. 49(a) of PD No. 807 does not explicitly
provide that the appointing or recommending
authority shall disclose his true relationship with the
appointee in the form of a certification, nonetheless,
in the light of the rulings in People vs. Po Giok To
(196 Phil. 913) and People vs. Kho, (CA G.R. No.
03618-CR), the legal obligation of the appointing or
recommending authority to state the true facts
required to be stated in the certification is inherent in
the law on prohibition against nepotism and the
nature and purpose of such certification. In the case
at bar, since the petitioner was the appointing
authority when he made the appointment in favor of
his son, Fernando T. Layno, as meat inspector in the
office of the municipal treasurer of Lianga, Surigao
del Sur, he had the legal obligation to disclose in the
certification his true relationship with the appointee.
FALSIFICATION OF PUBLIC DOCUMENTS;
DEFENSE OF GOOD FAITH UNAVAILING IN CASE AT
BAR. This Court has indeed ruled that good faith is a
valid defense in a charge of falsification of public
documents by making untruthful statements in a
narration of facts. In the present case, however, the
petitioner's claim of good faith is unavailing as it is
inconsistent with his very defense that he did not
sign nor issue the certification in question. As held by
the Sandiganbayan "The plea cannot be accepted.
He expressly admitted that Fernando Y. Layno was his
legitimate son. Nevertheless, he deliberately
disregarded that fact, brazenly certifying that he was
not related to him within the third degree of
consanguinity. The perversion was designed to
conceal his father-son relationship from the Civil
Service Commission and thereby deceived it, as it
was in fact deceived, in approving the appointment
he extended to him. The criminal intent is not only
obvious, but is also presumed, from the untruthful
narration of fact. The crime of falsification having
already
been
committed,
no
acts
showing
subsequent repentance and abandonment of
purpose, even if true, can relieve the accused of his
penal liability."
FALSIFICATION BY PUBLIC OFFICER; MAKING
UNTRUTHFUL STATEMENTS IN A NARRATION OF FACT;
REQUISITES; CASE AT BAR. In Syquian vs. The People
of the Philippines, (171 SCRA 223), this Court held
that: "The offense of falsification by a public officer
under Article 171 of the Revised Penal Code is
committed by 'any public officer, employee or notary
who, taking advantage of his official position, shall
falsify a document by committing any of the
following acts: . .. 4. Making untruthful statements in
a narration of fact; . . .' It is settled that in this fourth
kind of falsification, the following requisites must
concur: (a) That the offender makes in a document
untruthful statements in a narration of facts; (b) That
he has a legal obligation to disclose the truth of the
facts narrated by him; and (c) That the facts narrated
by the offender are absolutely false (Cabigas v.
People, G.R. No. 67472, July 3, 1987, 152 SCRA 18.)"
After a thorough review of the records, the Court
finds that all the elements of the crime of falsification
of public document under Article 171, par. 4, of the
Revised Penal Code are present in the case at bar.
The petitioner was a public officer being then the
incumbent mayor of the Municipality of Lianga,

Surigao del Sur, when he issued on 16 March 1980

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

BANCO FILIPINO VS PURISIMA

ANTI-GRAFT
AND
CORRUPT
PRACTICES
ACT;
ADDITIONAL
EXCEPTIONS
TO
RULE
AGAINST
DISCLOSURE OF BANK DEPOSITS UNDER REPUBLIC
ACT NO. 1405. Section 8 of Republic Act No. 3019,
the Anti-Graft and Corrupt Practices Act, on dismissal
due to unexplained wealth, is an additional exception
under Republic Act No. 1405.
INQUIRY INTO ILLEGALLY ACQUIRED PROPERTY;
EXTENDS TO PROPERTY RECORDED IN THE NAME OF
OTHER PERSON. The inquiry into illegally acquired
property - or property NOT "legitimately acquired" extends to cases where such property is concealed
by being held by or recorded in the name of other
persons. This proposition is made clear by R.A. No.
3019 which quite categorically states that the term,
"legitimately acquired property of a public officer or
employee shall not include . . . property unlawfully
acquired by the respondent, but its ownership is
concealed by its being recorded in the name of, or
held
by,
respondent's
spouse,
ascendants,
descendants, relatives or any other persons.
RATIONALE. To restrict the inquiry only to property
held by or in the name of the government official or
employee, or his spouse and unmarried children,
would make available to persons in government who
illegally acquire property an easy and fool-proof
means of evading investigation and prosecution; all
they would have to do would be to place the property
in the possession or name of persons other than their
spouse and unmarried children.
CLARO VS SANDIGANBAYAN
ANTI-GRAFT AND CORRUPT PRACTICES ACT;
SECTION 2 (b) THEREOF; PUBLIC OFFICER DEFINED
AND CLASSIFIED; APPLICATION IN CASE AT BAR.
Petitioner misconstrues the definition of "public
officer" in R.A. No. 3019 which, according to Sec. 2(b)
thereof "includes elective and appointive officials and
employees, permanent or temporary, whether in the
classified or unclassified or exemption service
receiving compensation, even nominal, from the
government. . .." The word "includes" used in
defining a public officer in Sec. 2(b) indicates that the
definition is not restrictive. The terms "classified,
unclassified or exemption service" were the old
categories of positions in the civil service which have
been reclassified into Career Service and Non-Career
Service by PD 807 providing for the organization of

the Civil Service Commission and by the

Administrative Code of 1987. Non-career service in
particular is characterized by (1) entrance on
bases other than those of the usual test of merit and
fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which
is coterminous with that of the appointing authority
or subject to his pleasure, or which is limited to the
duration of a particular project for which purpose
employment was made. The Non-Career Service shall
include: (1) Elective officials and their personal or
confidential staff; (2) Secretaries and other officials
of Cabinet rank who hold their positions at the
pleasure of the President and their personal or
confidential staff(s); (3) Chairman and members of
commissions and boards with fixed terms of office
and their personal or confidential staff; (4)
Contractual personnel or those whose employment in
the government is in accordance with a special
contract to undertake a specific work or job, requiring
special or technical skills not available in the
employing agency, to be accomplished within a
specific period, which in no case shall exceed one
year, and performs or accomplishes the specific work
or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency;
and (5) Emergency and seasonal personnel. It is
quite evident that petitioner fails under the noncareer service category (formerly termed the
unclassified or exemption service) of the Civil Service
and thus is a public officer as defined by Sec. 2(b) of
the Anti-Graft & Corrupt Practices Act (R.A. No.
3019). The fact that petitioner is not required to
record his working hours by means of a bundy clock
or did not take an oath of office became unessential
considerations in view of the above-mentioned
provision of law clearly including petitioner within the
definition of a public officer.
SECTION 3 (b) THEREOF; COMMITTED BY MERE
DEMAND; CASE AT BAR. Petitioner asserts that it was
improbable for him to have demanded P200,000.00
from Engr. Resoso, when he could have just talked
directly to the contractor himself. It is quite irrelevant
from whom petitioner demanded his percentage
share of P200,000.00 whether from the contractor's
project engineer, Engr. Alexander Resoso or directly
from the contractor himself Engr. Jaime Sta. Maria, Sr.
That petitioner made such a demand is all that is
required by Sec. 3(b) of R.A. No. 3019 and this
element has been sufficiently established by the
testimony of Engr. Resoso.
ESTABLISHED IN CASE AT BAR. Similarly,
petitioner's averment that he could not be
prosecuted under the Anti-Graft & Corrupt Practices
Act because his intervention "was not required by
law but in the performance of a contract of services
entered into by him as a private individual
contractor," is erroneous. As discussed above,
petitioner falls within the definition of a public officer
and as such, his duties delineated in Annex "B" of the
contract of services are subsumed under the phrase
"wherein the public officer in his official capacity has
to intervene under the law." Petitioner's allegation, to
borrow a cliche, is nothing but a mere splitting of
hairs. Among petitioner's duties as project manager
is to evaluate the contractor's accomplishment
reports/billings hence, as correctly ruled by the

Sandiganbayan he has the "privilege and authority to

make a favorable recommendation and act favorably
in behalf of the government," signing acceptance
papers and approving deductives and additives are
some examples. All of the elements of Sec. 3(b) of
the Anti-Graft & Corrupt Practices Act are, therefore,
present. Anent the second issue, we likewise find
Petitioner's allegations completely bereft of merit.
Petitioner insists that the prosecution has failed to
establish his guilt beyond reasonable doubt and that
the charges against him should be rejected for being
improbable, unbelievable and contrary to human
nature. We disagree. Proof beyond reasonable doubt
does not mean that which produces absolute
certainty. Only moral certainty is required or "that
degree of proof which produces conviction in an
unprejudiced mind." We have extensively reviewed
the records of this case and we find no reason to
overturn the findings of the Sandiganbayan.
BERONA VS SANDIGANBAYAN
Facts: Petitioners were public officers and employees
of the Provincial Health Office of Bangued, Abra
("Health Office"). Dr. Demetrio Beroa ("Dr. Beroa")
was Provincial Health Officer II, Dr. Romulo Gaerlan
("Dr. Gaerlan") was Provincial Health Officer I, Aurie
Viado-Adriano ("Viado-Adriano") was resident auditor
and Vida Labios ("Labios") was an accountant.
Petitioners were among the seven 3 charged for
violation of Section 3(e) of Republic Act No. 3019 or
the Anti-Graft and Corrupt Practices Act ("RA 3019")
before the Sandiganbayan in Criminal Case No.
23521. When arraigned, all the accused pleaded not
guilty. On 30 April 1999, the prosecution filed an
Amended Motion to Suspend the Accused Pendente
Lite pursuant to Section 13 of RA 3019 ("Section
13"). The motion sought the suspension of
petitioners from any public office which they may be
occupying pending trial. After the pre-suspension
hearing held on 6 July 1999, the Sandiganbayan
suspended the petitioners from office for 90 days.
The Sandiganbayan held that preventive suspension
is mandatory under Section 13 upon the court's
finding that a valid information charges the accused
for violation of RA 3019 or Title 7, Book II of the
Revised Penal Code or any offense involving public
funds or property or fraud on government. The
Sandiganbayan
observed
that
a
preliminary
investigation was duly conducted before the filing of
the Information, which the Sandiganbayan found
sufficient in form and substance. In the second
Resolution, the Sandiganbayan denied petitioners'
motion for reconsideration.
Issue: Petitioners would now have this Court strike
down the first and second Resolutions as supposedly
rendered with grave abuse of discretion and in
excess of jurisdiction. Petitioners contend that at the
time of their preventive suspension they were no
longer holding the positions they were occupying
when the transactions, subject of the Information in
Criminal Case No. 23521, happened.
Ruling: Suspension pendente lite applies to any office
the officer might be currently holding. The Court
reiterated this doctrine in Segovia v. Sandiganbayan
in this wise:
The provision of suspension pendente lite
applies to all persons indicted upon a valid

information under the Act, whether they be

appointive or elective officials; or permanent or
temporary employees, or pertaining to the career or
non-career service. It applies to a Public High School
Principal; a Municipal Mayor; a Governor; a
Congressman; a Department of Science and
Technology (DOST) non-career Project Manager; a
Commissioner of the Presidential Commission on
Good Government (PCGG). The term "office" in
Section 13 of the law applies to any office which the
officer might currently be holding and not necessarily
the particular office in relation to which he is
charged. (Emphasis supplied)
Petitioners' other contention that there is
no longer any danger that petitioners
would
intimidate prosecution witnesses since two of the
latter's witnesses had already completed their
testimonies in court is also untenable. Equally futile
is their claim that Dr. Beroa's suspension would
deprive his constituents in the Municipality of Pilar
the services and leadership of their highest elected
municipal official to the greater detriment of public
service. These reasons cannot override the
mandatory character of Section 13. The possibility
that the accused would intimidate witnesses or
hamper their prosecution is just one of the grounds
for preventive suspension. Another is to prevent the
accused from committing further acts of malfeasance
while in office. The period imposed by the
Sandiganbayan is also in accord with our previous
rulings limiting to 90 days the period of preventive
suspension under Section 13. Section 13 reinforces
the principle that a public office is a public trust. Its
purpose is to prevent the accused public officer from
hampering his prosecution by intimidating or
influencing witnesses, tampering with documentary
evidence, or committing further acts of malfeasance
while in office. Petitioners' last feeble argument that
the prosecution evidence is weak misses the point.
They lose sight of the fact that preventive suspension
is not a penalty. The accused public officers whose
culpability remains to be proven are still entitled to
the constitutional presumption of innocence. 12 The
presence or absence of the elements of the crime is
evidentiary in nature which the court will pass on
after a full-blown trial on the merits.
DOROMAL VS SANDIGANBAYAN
WHEN THE CHARGE HAS BEEN CHANGED;
RIGHT OF THE
ACCUSED IS SUBSTANTIAL. The petitioner's right to a
preliminary investigation of the new charge is
secured to him by the following provisions of Rule
112 of the 1985 Rules on Criminal Procedure. That
right of the accused is "a substantial one." Its denial
over his opposition is a "prejudicial error, in that it
subjects the accused to the loss of life, liberty, or
property without due process of law" (U.S. vs.
Marfori, 35 Phil. 666).
ACCUSED ALONE MAY WAIVE THE RIGHT. The Solicitor
General's argument that the right to a preliminary
investigation may be waived and was in fact waived
by the petitioner, impliedly admits that the right
exists. Since the right belongs to the accused, he
alone may waive it. If he demands it, the State may
not withhold it.

ABSENCE OF, IS NOT A GROUND TO QUASH THE

COMPLAINT; CASE MUST BE REMANDED FOR
PRELIMINARY INVESTIGATION. As the absence of a
preliminary investigation is not a ground to quash the
complaint or information (Sec. 3, Rule 117, Rules of
Court), the proceedings upon such information in the
Sandiganbayan should be held in abeyance and the
case should be remanded to the office of the
Ombudsman for him or the Special Prosecutor to
conduct a preliminary investigation. Thus we did rule
in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs.
Enrile, 139 SCRA 349 and more recently in
Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4.
ANTI-GRAFT
AND
CORRUPT
PRACTICES
ACT;
PRESENCE OF A SIGNED DOCUMENT, NOT A SINE
QUA NON FOR THE PETITIONER TO BE CHARGED. The
Sandiganbayan in its order of August 19, 1988
correctly observed that "the presence of a signed
document bearing the signature of accused Doromal
as part of the application to bid . . . . is not a sine qua
non" (Annex O, p. 179. Rollo), for, the Ombudsman
indicated in his Memorandum/Clearance to the
Special Prosecutor, that the petitioner "can rightfully
be charged . . . with having participated in a business
which act is absolutely prohibited by Section 13 of
Article VII of the Constitution" because "the DITC
remained a family corporation in which Doromal has
at least an indirect interest." (pp. 107-108, Rollo)
PARTICIPATION OF PUBLIC OFFICIALS IN ANY
BUSINESS; BAN IS SIMILAR TO THE PROHIBITION IN
THE CIVIL SERVICE LAW. Section 13, Article VII of the
1987 Constitution provides that "the President, VicePresident, the members of the Cabinet and their
deputies or assistants shall not . . . during (their)
tenure, . . . directly or indirectly . . . participate in any
business." The constitutional ban is similar to the
prohibition in the CivilService Law (PD No. 807, Sec.
36, subpar. 24) that "pursuit of private business . . .
without the permission required by Civil Service
Rules and Regulations" shall be a ground for
disciplinary action against any officer or employee in
the civil service.
VIOLATION
OF
PROHIBITION
COMMANDS
SUSPENSION FROM OFFICE; LEAVE OF ABSENCE IS
NOT A BAR TO PREVENTIVE SUSPENSION. Since the
petitioner is an incumbent public official charged in a
valid information with an offense punishable under
the Constitution and the laws (RA 3019 and PD 807),
the law's command that he "shall be suspended from
office" pendente lite must be obeyed. His approved
leave of absence is not a bar to his preventive
suspension for as indicated by the Solicitor General,
an approved leave, whether it be for a fixed or
indefinite period, may be cancelled or shortened at
will by the incumbent.
CIVIL SERVICE; PREVENTIVE SUSPENSION; MAXIMUM
PERIOD IS 90 DAYS. As we held in Layno, Sr. vs.
Sandiganbayan , 136 SCRA 536 (1985), a preventive
suspension for an indefinite period of time, such as
one that would last until the case against the
incumbent official shall have been finally terminated,
would "outrun the bounds of reason and result in
sheer oppression" and a denial of due process. The
petitioner herein is no less entitled to similar
protection. Since his preventive suspension has

exceeded the reasonable maximum period of ninety

(90) days provided in Section 42 of the Civil Service
Decree of the Philippines (P.D. 807), it should now be
lifted.
BOLASTIG VS SANDIGANBAYAN
REPUBLIC ACT NO. 3019; PREVENTIVE
SUSPENSION
UNDER
SECTION
13
THEREOF
MANDATORY.
It is now settled that Sec. 13 of
Republic Act No. 3019 makes it mandatory for the
Sandiganbayan to suspend any public officer against
whom a valid information charging violation of that
law. Book II, Title 7 of the Revised Penal Code, or any
offense involving fraud upon government or public
funds or property is filed. The court trying a case has
neither discretion nor duty to determine whether
preventive suspension is required to prevent the
accused from using his office to intimidate witnesses
or frustrate his prosecution or continue committing
malfeasance in office. The presumption is that unless
the accused is suspended he may frustrate his
prosecution or commit further acts of malfeasance or
do both, in the same way that upon a finding that
there is probable cause to believe that a crime has
been committed and that the accused is probably
guilty thereof, the law requires the judge to issue a
warrant for the arrest of the accused. The law does
not require the court to determine whether the
accused is likely to escape or evade the jurisdiction
of the court.
NINETY-DAY
PERIOD
OF
PREVENTIVE
SUSPENSION; EXPLAINED. It is indeed true that in
some of our decisions the expression "the maximum
period of ninety (90) days" is used. But that is only
for the purpose of emphasizing that the preventive
suspension therein involved, which were for more
than ninety (90) days, were excessive and
unreasonable. It is to be noted that the ninety-day
period of preventive suspension is not found in Sec.
13 of Republic Act No. 3019 but was adopted from
Sec. 42 of the Civil Service Decree (P.D. NO. 807),
which is now Sec. 52 of the Administrative Code of
1987. . . . The duration of preventive suspension is
thus coeval with the period prescribed for deciding
administrative disciplinary cases. If the case is
decided before ninety days, then the suspension will
last less than ninety days, but if the case is not
decided within ninety days, then the preventive
suspension must be up to ninety days only. Similarly,
as applied to criminal prosecutions under Republic
Act No. 3019, preventive suspension will last for less
than ninety days only if the case is decided within
that period; otherwise, it will continue for ninety
days. The duration of preventive suspension will,
therefore, vary to the extent that it is contingent on
the time it takes the court to decide the case but not
on account of any discretion lodged in the court,
taking into account the probability that the accused
may use his office to hamper his prosecution.
CONTENTION THAT SUSPENSION WILL
DEPRIVE PETITIONER'S CONSTITUENCY OF HIS
SERVICES NOT SUFFICIENT BASIS FOR REDUCING
MANDATORY PERIOD. The fact that petitioner's
preventive suspension may deprive the people of
Samar of the services of an official elected by them,
at least temporarily, is not a sufficient basis for
reducing what is otherwise a mandatory period

prescribed by law. The vice governor, who has

likewise been elected by them, will act as governor.
Indeed, even the Constitution authorizes the
suspension for not more than sixty days of members
of Congress found guilty of disorderly behavior, thus
rejecting the view expressed in one case that
members of the legislature could not be suspended
because in the case of suspension, unlike in the case
of removal, the seat remains filled but the
constituents are deprived of representation.

CABAL VS KAPUNAN
ANTI-GRAFT
LAW;
FORFEITURE
OF
UNEXPLAINED WEALTH; NATURE OF FORFEITURE AS
PENALTY. The purpose of the charge against
petitioner is to apply the provisions of Republic Act
No. 1379, as amended, otherwise known as the AntiGraft Law, which authorizes the forfeiture to the
State of property of a public officer or employee
which is manifestly out of proportion to his salary as
such public officer or employee and his other lawful
income and the income from legitimately acquired
property. Such forfeiture has been held, however, to
partake of the nature of a penalty.
EXEMPTION OF DEFENDANTS FROM OBLIGATION TO
BE WITNESS AGAINST THEMSELVES. Proceedings for
forfeiture of property are deemed criminal or penal,
and hence, the exemption of defendants in criminal
cases from the obligation to be witness against
themselves are applicable thereto.
FORFEITURE OF PROPERTY IN SUBSTANCE IS A
CRIMINAL PROCEEDING FOR THE PURPOSE OF
PROTECTION OF THE RIGHTS OF THE DEFENDANT
AGAINST SELF-INCRIMINATION; CASE OF BOYD vs.
U.S. and THURSTON vs. CLARK, CITED. In Boyd vs.
U.S. (116 U.S. 616, 29 L. ed., 746), it was held that
the information, in a proceeding to declare a
forfeiture of certain property because of the evasion
of a certain revenue law, "though technically a civil
proceeding, is in substance and effect a criminal
one", and that suits for penalties and forfeitures are
within the reason of criminal proceedings for the
purposes of that portion of the Fifth Amendment of
the Constitution of the U.S. which declares that no
person shall be compelled in a criminal to be a
witness against himself. Similarly, a proceeding for
the removal of an officer was held, in Thurston vs.
Clark (107 Cal. 285, 40 pp. 435, 437), to be in
substance criminal, for said portion of the Fifth
Amendment applies "to all cases in which the action
prosecuted is not to establish, recover or redress
private and civil rights, but to try and punish persons
charged with the commission of public offenses" and
"a criminal case is an action, suit or cause instituted
to punish an infraction of the criminal laws, and, with
this object in view, it matters not in what form a
statute may clothe it; it is still a criminal case . . . ."
CASE
OF
ALMEDA
vs.
PEREZ,
DISTINGUISHED.
In Almeda vs. Perez, L-18428
(August 30, 1962) the theory that, after the filing of
respondents' answer to a petition for forfeiture under
Republic Act No. 1379, said petition may not be
amended as to substance pursuant to our rules of
criminal procedure, was rejected by this Court upon

the ground that said forfeiture proceeding is civil in

nature. This doctrine refers, however, to the purely
procedural aspect of said proceeding, and has no
bearing on the substantial rights of the respondents
therein, particularly their constitutional right against
self-incrimination.
REPUBLIC VS SANDIGANBAYAN (2002)
The Presidential Commission on Good Government
(PCGG) issued a sequestration writ against all the
assets, shares of stock, property records and bank
deposits of Hans Menzi Holdings and Management,
Inc. (HMHMI). The estate of Hans M. Menzi, in behalf
of HMHMI, filed with the Sandiganbayan a motion to
lift freeze order which was granted by the
Sandiganbayan. Thereafter, the Republic of the
Philippines filed with the Supreme Court a petition for
review assailing the resolution of the Sandiganbayan
lifting the freeze order. The Court set aside the
Sandiganbayan resolution and remanded the case
back to the Sandiganbayan to resolve the issue of
the issuance of the writ of sequestration. The
Sandiganbayan lifted the writ of sequestration
reasoning that there was no prima facie factual basis
for its issuance. The Sandiganbayan denied
petitioner's motion for reconsideration. Hence, this
petition.
The Supreme Court ruled that the Sandiganbayan
has full authority to decide on all incidents in the illgotten case, including the propriety of the writs of
sequestration that the PCGG initially issued. In the
absence of competent evidence showing thus far
that President Marcos or his cronies ever acquired
Bulletin shares of the late Hans M. Menzi or HMHMI
that might be subject to sequestration, the Supreme
Court may not void the resolutions of the
Sandiganbayan in question. Moreover, the appellate
jurisdiction of the Supreme Court over decisions or
final orders of the Sandiganbayan is limited to
questions of law. The Supreme Court is not a trier of
facts. It is not the Court's function to examine and
weigh all over again the evidence presented in the
proceedings below.
APPELLATE JURISDICTION OF THE SUPREME
COURT OVER DECISIONS OF THE SANDIGANBAYAN,
LIMITED TO QUESTIONS OF LAW. It is well settled
that the appellate jurisdiction of the Supreme Court
over decisions or final orders of the Sandiganbayan is
limited to questions of law. A question of law exists
when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain set of
facts; or when the issue does not call for an
examination of the probative value of the evidence
presented, the truth or falsehood of facts being
admitted.
QUESTION OF FACT, DEFINED. A question of fact
exists when the doubt or difference arises as to the
truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly
the credibility of the witnesses, the existence and
relevancy of specific surrounding circumstances as
well as their relation to each other and to the whole,
and the probability of the situation.
SANDIGANBAYAN HAS FULL AUTHORITY TO DECIDE
ON ALL INCIDENTS IN THE ILL-GOTTEN CASE
INCLUDING THE PROPRIETY OF THE WRITS OF

SEQUESTRATION IN CASE AT BAR. We agree with

respondents that the Sandiganbayan has full
authority to decide on all incidents in the ill-gotten
case, including the propriety of the writs of
sequestration that the PCGG initially issued. Based
on the evidence the PCGG submitted so far to the
Sandiganbayan, the late Hans M. Menzi owned the
Bulletin Publishing Corporation almost one hundred
(100%) per cent since 1957, except those Bulletin
shares sold to U.S. Automotive corporation in 1985,
those converted to treasury shares in 1986, and
those sold to the general public at public offerings. In
the absence of competent evidence showing thus far
that President Ferdinand E. Marcos or his cronies ever
acquired Bulletin shares of the late Hans M. Menzi or
HMHMI that might be subject to sequestration, we
may not void the resolutions of the Sandiganbayan in
question.
REPUBLIC VS SANDIGANBAYAN (2003)
These consolidated cases stemmed from the
resolutions of the Sandiganbayan (1) ordering the
calling
and
holding
of
the
Eastern
Telecommunications, Philippines, Inc.
(ETPI) annual stockholders meeting for 1992 under
its supervision and (2) authorizing the Presidential
Commission on Good Government (PCGG) to cause
the holding of a special stockholders' meeting to
increase ETPI's authorized capital stock and to vote
therein the sequestered Class "A" shares of stock.
The Supreme Court ruled that the Members of the
Sandiganbayan
cannot
participate
in
the
stockholders meeting for the election of the ETPI
Board of Directors. Neither shall the Clerk of Court be
appointed to call such meeting and issue notices
thereof. The Sandiganbayan shall appoint, or the
parties may agree to constitute, a committee of
competent and impartial persons to call, send notices
and preside at the meeting for the election of the
ETPI Board of Directors. The Court likewise ruled that
the PCGG cannot vote sequestered shares to elect
the ETPI Board of Directors or to amend the Articles
of Incorporation for the purpose of increasing the
authorized capital stock unless there is a prima facie
evidence showing that said shares are ill-gotten and
there is an imminent danger of dissipation.
Consequently, the Court referred the petitions at bar
to the Sandiganbayan for reception of evidence to
determine whether there is a prima facie evidence
showing that the sequestered shares in question are
ill-gotten and there is an imminent danger of
dissipation to entitle the PCGG to vote them in a
stockholders' meeting.
SEQUESTERED SHARES; EXCEPTION. The PCGG
cannot thus vote sequestered shares, except when
there are "demonstrably weighty and defensible
grounds"
or
"when
essential
to
prevent
disappearance or wastage of corporate property."
TWO-TIERED TEST IN DETERMINING WHETHER
SEQUESTERED SHARES MAY BE VOTED UPON. The
principle laid down in Baseco was further enhanced
in the subsequent cases of Cojuangco v. Calpo and
Presidential Commission on Good Government v.
Cojuangco, Jr. , where this Court developed a "twotiered" test in determining whether the PCGG may
vote sequestered shares: The issue of whether PCGG
may vote the sequestered shares in SMC

necessitates a determination of at least two factual

matters: 1. whether there is prima facie evidence
showing that the said shares are ill-gotten and thus
belong to the state; and 2. whether there is an
immediate danger of dissipation thus necessitating
their continued sequestration and voting by the
PCGG while the main issue pends with the
Sandiganbayan.
INAPPLICABLE IN CASES INVOLVING FUNDS OF
PUBLIC
CHARACTER. The two-tiered test, however, does not
apply in cases involving funds of "public character."
In such cases, the government is granted the
authority to vote said shares, namely: (1) Where
government shares are taken over by private persons
or entities who/which registered them in their own
names, and (2) Where the capitalization or shares
that were acquired with public funds somehow
landed in private hands.
STOCK AND TRANSFER BOOK, SHALL BE THE BASIS
OF DETERMINING THE TRUE OWNERS OF THE
SHARES OF STOCK, REGARDLESS OF THE PRESENCE
OF ALTERATIONS BY SUBSTITUTION THEREIN; CASE
AT BAR. This Court sees no grave abuse of discretion
on the part of the Sandiganbayan in ruling that: "The
charge that there were "alterations by substitution"
in the Stock and Transfer Book is not a matter which
should preclude the Stock and Transfer Book from
being the basis or guide to determine who the true
owners of the shares of stock in ETPI are. If there be
any substitution or alterations, the anomaly, if at all,
may be explained by the corporate secretary who
made the entries therein. At any rate, the accuracy
of the Stock and Transfer Book may be checked by
comparing the entries therein with the issued stock
certificates. The fact is that any transfer of stock or
issuance thereof would necessitate an alteration of
the record by substitution. Any anomaly in any entry
which may deprive a person or entity of its right to
vote may generate a controversy personal to the
corporation and the stockholder and should not
affect the issue as to whether it is the PCGG or the
shareholder who has the right to vote. In other
words, should there be a stockholder who feels
aggrieved by any alteration by substitution in the
Stock and Transfer Book, said stockholder may object
thereto at the proper time and before the
stockholders meeting." Whether the ETPI Stock and
Transfer Book was falsified and whether such
falsification deprives the true owners of the shares of
their right to vote are thus issues best settled in a
different proceeding instituted by the real parties-ininterest.
REGISTRATION IS A PREREQUISITE FOR
VOTING OF SHARES; RATIONALE. Explaining why
registration is a prerequisite for the voting of shares,
this Court, in Batangas Laguna Tayabas Bus
Company, Inc., v. Bitanga, discoursed: "Indeed, until
registration is accomplished, the transfer, though
valid between the parties, cannot be effective as
against the corporation. Thus, the unrecorded
transferee cannot vote nor be voted for. The purpose
of registration, therefore, is two-fold: to enable the
transferee to exercise all the rights of a stockholder,
including the right to vote and to be voted for, and to
inform the corporation of any change in share

ownership so that it can ascertain the persons

entitled to the rights and subject to the liabilities of a
stockholder. Until challenged in a proper proceeding,
a stockholder of record has a right to participate in
any meeting; his vote can be properly counted to
determine whether a stockholders' resolution was
approved, despite the claim of the alleged
transferee. On the other hand, a person who has
purchased stock, and who desires to be recognized
as a stockholder for the purpose of voting, must
secure such a standing by having the transfer
recorded on the corporate books. Until the transfer is
registered, the transferee is not a stockholder but an
outsider."
STOCK CERTIFICATES; CONSIDERED AS NONNEGOTIABLE INSTRUMENTS; CASE AT BAR. With
respect to the PCGG's submission that under Section
34 of the Negotiable Instruments Law, it may take
title to the shares represented by the blank stock
certificates found in Malacaang and vote the same,
the same is untenable. The PCGG assumes that stock
certificates are negotiable. They are not. ". . .
[A]lthough a stock certificate is sometimes regarded
as quasi - negotiable, in the sense that it may be
transferred by delivery, it is well settled that the
instrument is non-negotiable, because the holder
thereof takes it without prejudice to such rights or
defenses as the registered owner or creditor may
have under the law, except insofar as such rights or
defenses are subject to the limitations imposed by
the principles governing estoppel." That the PCGG
found the stock certificates endorsed in blank does
not necessarily make it the owner of the shares
represented therein. Their true ownership has to be
ascertained in a proper proceeding.
NO OTHER COURT THAN THE ONE CONTEMNED WILL
PUNISH A GIVEN CONTEMPT; EXCEPTION. "In
whatever context it may arise, contempt of court
involves the doing of an act, or the failure to do an
act, in such a manner as to create an affront to the
court and the sovereign dignity with which it is
clothed. As a matter
of practical judicial
administration, jurisdiction has been felt properly to
rest in only one tribunal at a time with respect to a
given controversy. Partly because of administrative
considerations, and partly to visit the full personal
effect of the punishment on a contemnor, the rule
has been that no other court than the one
contemned will punish a given contempt. The
rationale that is usually advanced for the general
rule that the power to punish for contempt rests with
the court contemned is that contempt proceedings
are sui generic and are triable only by the court
against whose authority the contempts are charged;
the power to punish for contempt exists for the
purpose of enabling a court to compel due decorum
and respect in its presence and due obedience to its
judgments, orders and processes; and in order that a
court may compel obedience to its orders, it must
have the right to inquire whether there has been any
disobedience thereof, for to submit the question of
disobedience to another tribunal would operate to
deprive the proceeding of half its efficiency." The
above rule is not of course absolute as it admits
exception "when the entire case has already been
appealed [in which case] jurisdiction to punish for
contempt rests with the appellate court where the

appeal completely transfers to proceedings thereto

or where there is a tendency to affect the status quo
or otherwise interfere with the jurisdiction of the
appellate court."
GARCIA VS SANDIGANBAYAN
Facts: On 27 September 2004, Atty. Maria Olivia
Elena A. Roxas, Graft Investigation and Prosecution
Officer II of the Field Investigation Office of the Office
of the Ombudsman, after due investigation, filed a
complaint against petitioner with public respondent
Office of the Ombudsman, for violation of Sec. 8, in
relation to Sec. 11 of Republic Act (R.A.) No. 6713, 3
violation of Art. 183 of the Revised Penal Code, and
violation of Section 52 (A)(1), (3) and (20) of the Civil
Service Law. Based on this complaint, a case for
Violations of R.A. No. 1379, 4 Art. 183 of the Revised
Penal Code, and Sec. 8 in relation to Sec. 11 of R.A.
No. 6713, docketed as Case No. OMBP- C-04-1132-I,
was filed against petitioner. 5 Petitioner's wife Clarita
Depakakibo Garcia, and their three sons, Ian Carl,
Juan Paolo and Timothy Mark, all surnamed Garcia,
were impleaded in the complaint for violation of R.A.
No. 1379 insofar as they acted as conspirators,
conduits, dummies and fronts of petitioner in
receiving, accumulating, using and disposing of his
ill-gotten wealth. On the same day, 27 October 2004,
the Republic of the Philippines, acting through public
respondent Office of the Ombudsman, filed before
the Sandiganbayan, a Petition with Verified Urgent Ex
Parte Application for the Issuance of a Writ of
Preliminary Attachment 6 against petitioner, his wife,
and three sons, seeking the forfeiture of unlawfully
acquired properties under Sec. 2 of R.A. No. 1379, as
amended. The petition was docketed as Civil Case
No. 0193, entitled "Republic of the Philippines vs.
Maj. Gen. Carlos F. Garcia, et al." It was alleged that
the Office of the Ombudsman, after conducting an
inquiry similar to a preliminary investigation in
criminal cases, has determined that a prima facie
case exists against Maj. Gen. Garcia and the other
respondents therein who hold such properties for,
with, or on behalf of, Maj. Gen. Garcia, since during
his incumbency as a soldier and public officer he
acquired huge amounts of money and properties
manifestly out of proportion to his salary as such
public officer and his other lawful income, if any.
Acting on the Republic's prayer for issuance of a writ
of preliminary attachment, the Sandiganbayan issued
the questioned Resolution granting the relief prayed
for. The corresponding writ of preliminary attachment
was subsequently issued on 2 November 2004 upon
the filing of a bond by the Republic. On 17 November
2004, petitioner (as respondent a quo) filed a Motion
to Dismiss 8 in Civil Case No. 0193 on the ground of
lack of jurisdiction of the Sandiganbayan over
forfeiture proceedings under R.A. No. 1379. On even
date, petitioner filed the present Petition, raising the
same issue of lack jurisdiction on the part of the
Sandiganbayan.
Issue: Petitioner argues in this Petition that the
Sandiganbayan is without jurisdiction over the "civil
action" for forfeiture of unlawfully acquired properties
under R.A. No. 1379, maintaining that such
jurisdiction actually resides in the Regional Trial
Courts as provided under Sec. 2 9 of the law, and
that the jurisdiction of the Sandiganbayan in civil
actions pertains only to separate actions for recovery

of unlawfully acquired property against President

Marcos, his family, and cronies as can be gleaned
from Sec. 4 of Presidential Decree (P.D.) No. 1606, 10
as amended, and Executive Orders (E.O.) Nos. 14 11
and 14-A.
Petitioner further contends that in any
event, the petition for forfeiture filed against him is
fatally defective for failing to comply with the
jurisdictional requirements under Sec. 2, R.A. No.
1379, 14 namely: (a) an inquiry similar to a
preliminary
investigation
conducted
by
the
prosecution arm of the government; (b) a
certification to the Solicitor General that there is
reasonable ground to believe that there has been
violation of the said law and that respondent is guilty
thereof; and (c) an action filed by the Solicitor
General on behalf of the Republic of the Philippines.
15 He argues that only informations for perjury were
filed and there has been no information filed against
him for violation of R.A. No. 1379. Consequently, he
maintains, it is impossible for the Office of the
Ombudsman to certify that there is reasonable
ground to believe that a violation of the said law had
been committed and that he is guilty thereof. The
petition is also supposedly bereft of the required
certification which should be made by the
investigating
City
or
Provincial
Fiscal (now
Prosecutor) to the Solicitor General. Furthermore, he
opines that it should have been the Office of the
Solicitor General which filed the petition and not the
Office of the Ombudsman as in this case. The petition
being fatally defective, the same should have been
dismissed, petitioner concludes.
Ruling: The petition is patently without merit. It
should be dismissed.
The Court in Republic v. Sandiganbayan ,
deduced that jurisdiction over violations of R.A. No.
3019 and 1379 is lodged with the Sandiganbayan. 42
It could not have taken into consideration R.A. No.
7975 43 and R.A. No. 8249 44 since both statutes
which also amended the jurisdiction of the
Sandiganbayan were not yet enacted at the time.
The subsequent enactments only serve to buttress
the conclusion that the Sandiganbayan indeed has
jurisdiction over violations of R.A. No. 1379. Under
R.A. No. 8249, the Sandiganbayan is vested with
exclusive original jurisdiction in all cases involving
violations of R.A. No. 3019, R.A. No. 1379, and
Chapter II, Sec. 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are
officials occupying the following positions whether in
a permanent, acting or interim capacity, at the time
of the commission of the offense: (1) Officials of the
executive branch occupying the positions of regional
director and higher, otherwise classified as Grade
'27' and higher, of the Compensation and Position
Classification Act of 989 (R.A. No. 6758), specifically
including: (a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan, and
provincial treasurers, assessors, engineers, and other
city department heads; (b) City mayor, vice-mayors,
members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city
department heads; (c) Officials of the diplomatic
service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank; (e) Officers

of the Philippine National Police while occupying the

position of provincial director and those holding the
rank of senior superintendent or higher; (f) City and
provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the
Ombudsman and special prosecutor; (g) Presidents,
directors or trustees, or managers of government
owned or controlled corporations, state universities
or educational institutions or foundations; (2)
Members of Congress and officials thereof classified
as Grade '27' and up under the Compensation and
Position Classification Act of 1989; (3) Members of
the judiciary without prejudice to the provisions of
the Constitution; (4) Chairmen and members of
Constitutional Commission, without prejudice to the
provisions of the Constitution; and (5) All other
national and local officials classified as Grade '27'
and higher under the Compensation and Position
Classification Act of 1989.
The Court has had occasion to rule that forfeiture of
illegally acquired property partakes the nature of a
penalty.
It is logically congruent, therefore, that violations of
R.A. No. 1379 are placed under the jurisdiction of the
Sandiganbayan, even though the proceeding is civil
in nature, since the forfeiture of the illegally acquired
property amounts to a penalty. The soundness of this
reasoning becomes even more obvious when we
consider that the respondent in such forfeiture
proceedings is a public officer or employee and the
violation of R.A. No. 1379 was committed during the
respondent officer or employee's incumbency and in
relation to his office. This is in line with the purpose
behind the creation of the Sandiganbayan, as an
anti-graft court to address the urgent problem of
dishonesty in public service.
Ostensibly, it is the Ombudsman who should file the
petition for forfeiture under R.A. No. 1379. However,
the Ombudsman's exercise of the correlative powers
to investigate and initiate the proper action for
recovery of ill-gotten and/or unexplained wealth is
restricted only to cases for the recovery of ill-gotten
and/or unexplained wealth amassed after 25
February 1986. 81 As regards such wealth
accumulated on or before said date, the Ombudsman
is without authority to commence before the
Sandiganbayan such forfeiture action since the
authority to file forfeiture proceedings on or before
25 February 1986 belongs to the Solicitor
General although he has the authority to
investigate such cases for forfeiture even before 25
February 1986, pursuant to the Ombudsman's
general investigatory power under Sec. 15 (1) of R.A.
No. 6770. It is obvious then that respondent Office of
the Ombudsman acted well within its authority in
conducting the investigation of petitioner's illegally
acquired assets and in filing the petition for forfeiture
against him. The contention that the procedural
requirements under Sec. 2 of R.A. No. 1379 were not
complied with no longer deserve consideration in
view of the foregoing discussion.
ONG VS SANDIGANBAYAN
LAW ON FORFEITURE OF ILL-GOTTEN
WEALTH; REPUBLIC ACT 1379; FORFEITURE OF
PROPERTY PARTAKES THE NATURE OF A PENALTY. In

Republic v. Sandiganbayan, we ruled that forfeiture

proceedings under RA 1379 are civil in nature and
not penal or criminal in character, as they do not
terminate in the imposition of a penalty but merely in
the forfeiture of the properties illegally acquired in
favor of the State. Moreover, the procedure outlined
in the law is that provided for in a civil action,
viz.: . . . . Hence, unlike in a criminal proceeding,
there is to be no reading of the information,
arraignment, trial and reading of the judgment in the
presence of the accused. In the earlier case of Cabal
v. Kapunan, however, we declared that forfeiture to
the State of property of a public official or employee
partakes of the nature of a penalty and proceedings
for forfeiture of property, although technically civil in
form, are deemed criminal or penal. We clarified
therein that the doctrine laid down in Almeda v. Perez
that forfeiture proceedings are civil in nature applies
purely to the procedural aspect of such proceedings
and has no bearing on the substantial rights of the
respondents therein. This ruling was reiterated in
Katigbak v. Solicitor General, where we held that the
forfeiture of property provided for in RA 1379 is in the
nature of a penalty. It is in recognition of the fact that
forfeiture partakes the nature of a penalty that RA
1379 affords the respondent therein the right to a
previous inquiry similar to a preliminary investigation
in criminal cases. Preliminary investigation is an
inquiry or proceeding to determine whether there is
sufficient ground to engender a well- founded belief
that a crime has been committed and the respondent
is probably guilty thereof, and should be held for
trial. Although the right to a preliminary investigation
is not a fundamental right guaranteed by the
Constitution but a mere statutory privilege, it is
nonetheless considered a component part of due
process in criminal justice.
AFFORDS A CO-RESPONDENT WHO IS NOT A
PUBLIC OFFICER OR EMPLOYEE THE RIGHT TO A
PRELIMINARY INVESTIGATION. RA 1379, entitled "An
Act Declaring Forfeiture in Favor of the State of Any
Property Found to Have Been Unlawfully Acquired by
Any Public Officer or Employee and Providing for the
Procedure Therefor," expressly affords a respondent
public officer or employee the right to a previous
inquiry similar to preliminary investigation in criminal
cases, but is silent as to whether the same right is
enjoyed by a co-respondent who is not a public
officer or employee. Is this silence to be construed to
mean that the right to a preliminary investigation is
withheld by RA 1379 from a co-respondent, such as
Nelly Ong, who is not herself a public officer or
employee? The answer is no. It is a significant fact in
this case that the questioned assets are invariably
registered under the names of both Jose and Nelly
Ong owing to their conjugal partnership. Thus, even
as RA 1379 appears to be directed only against the
public officer or employee who has acquired during
his incumbency an amount of property which is
manifestly out of proportion to his salary as such
public officer or employee and his other lawful
income and the income from legitimately acquired
property, the reality that the application of the law is
such that the conjugal share of Nelly Ong stands to
be subjected to the penalty of forfeiture grants her
the right, in line with the due process clause of the
Constitution, to a preliminary investigation.

FAILURE TO NOTIFY THE PETITIONERS OF

THE PROCEEDINGS AND TO BE PRESENT THEREAT IS
A DENIAL OF FUNDAMENTAL FAIRNESS WHICH TAINTS
THE PRELIMINARY INVESTIGATION. However, Ong
calls the Court's attention to the fact that he was not
notified of the subpoenas duces tecum ad
testificandum apparently issued to SGV, Allied Bank
and the BIR and the proceedings taken thereon. This
objection was raised in his Motion dated February 17,
1993, which was, unfortunately, perfunctorily denied.
The Rules of Procedure of the Office of the
Ombudsman
provides
that
the
"preliminary
investigation of cases falling under the jurisdiction of
the Sandiganbayan and Regional Trial Court shall be
conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the
following provisions: . . . (f) If, after the filing of the
requisite affidavits and their supporting evidences,
there are facts material to the case which the
investigating officer may need to be clarified on, he
may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be
present but without the right to examine or crossexamine the witness being questioned. Where the
appearance of the parties or witness is impracticable,
the clarificatory questioning may be conducted in
writing, whereby the questions desired to be asked
by the investigating officer or a party shall be
reduced into writing and served on the witness
concerned who shall be required to answer the same
in writing and under oath." Ong, therefore, should
have been notified of the subpoenas duces tecum ad
testificandum issued to SGV, Allied Bank and the BIR.
Although there is no indication on record that
clarificatory hearings were conducted pursuant to the
subpoenas, Ong is entitled to be notified of the
proceedings and to be present thereat. The fact that
he was not so notified is a denial of fundamental
fairness which taints the preliminary investigation.
DOES NOT OFFEND THE BASIC CONCEPT OF
FAIRNESS AND THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
Finally, the attacks against the
constitutionality of RA 1379 because it is vague,
violates the presumption of innocence and the right
against self incrimination, and breaches the authority
and prerogative of the Supreme Court to promulgate
rules concerning the protection and enforcement of
constitutional rights, are unmeritorious. The law is
not vague as it defines with sufficient particularity
unlawfully acquired property of a public officer or
employee as that "which is manifestly out of
proportion to his salary as such public officer or
employee and to his other lawful income and the
income from legitimately acquired property." It also
provides a definition of what is legitimately acquired
property. Based on these parameters, the public is
given fair notice of what acts are proscribed. The law,
therefore, does not offend the basic concept of
fairness and the due process clause of the
Constitution.
DOES NOT VIOLATE THE PRESUMPTION OF
INNOCENCE CLAUSE; PRINCIPLE OF PRESUMPTION OF
INNOCENCE, EXPLAINED. Neither is the presumption
of innocence clause violated by Sec. 2 of RA 1379
which states that property acquired by a public
officer or employee during his incumbency in an
amount which is manifestly out of proportion to his

salary as such public officer or employee and to his

other lawful income and the income from legitimately
acquired property shall be presumed prima facie to
have been unlawfully acquired. As elaborated by Fr.
Joaquin Bernas, under the principle of presumption of
innocence, it is merely required of the State to
establish a prima facie case, after which the burden
of proof shifts to the accused. In People v. Alicante,
the Court held: No rule has been better established
in criminal law than that every man is presumed to
be innocent until his guilt is proved beyond a
reasonable doubt. In a criminal prosecution,
therefore, the burden is upon the State to prove
every fact and circumstance constituting the crime
charged, for the purpose of showing the guilt of the
accused. While that is the rule, many of the States
have established a different rule and have provided
that certain facts only shall constitute prima facie
evidence, and that then the burden is put upon the
defendant to show or to explain that such facts or
acts are not criminal. It has been frequently decided,
in case of statutory crimes, that no constitutional
provision is violated by a statute providing that proof
by the State of some material fact or facts shall
constitute prima facie evidence of guilt, and that
then the burden is shifted to the defendant for the
purpose of showing that such act or acts are innocent
and are committed without unlawful intention. . . .
The State having the right to declare what acts are
criminal, within certain well defined limitations, has a
right to specify what act or acts shall constitute a
crime, as well as what proof shall constitute prima
facie evidence of guilt, and then to put upon the
defendant the burden of showing that such act or
acts are innocent and are not committed with any
criminal intent or intention.
DOES NOT INFRINGE THE RIGHT AGAINST
SELF-INCRIMINATION. The constitutional assurance of
the right against self-incrimination likewise cannot be
invoked by petitioners. The right is a prohibition
against the use of physical or moral compulsion to
extort communications from the accused. It is simply
a prohibition against legal process to extract from the
accused's own lips, against his will, admission of his
guilt. In this case, petitioners are not compelled to
present themselves as witnesses in rebutting the
presumption established by law. They may present
documents evidencing the purported bank loans,
money market placements and other fund sources in
their defense.
OMBUDSMAN; MUST BE CIRCUMSPECT IN
ITS CONDUCT OF PRELIMINARY INVESTIGATION. The
next question is whether we should direct the
Ombudsman to rectify the errors committed during
the preliminary investigation, i.e., the failure to give
Ong notice of the subpoenas issued to SGV, Allied
Bank and the BIR and notice of the Resolution
directing the filing of the petition for forfeiture. To so
order the Ombudsman at this point would no longer
serve any useful purpose and would only further
delay the proceedings in this case. Verily, petitioners
have been allowed to fully plead their arguments
before this Court. After all has been said, this case
should now be allowed to proceed in its course.
Nonetheless, we find this an opportune time to
admonish the Ombudsman to be more circumspect
in its conduct of preliminary investigation to the end

that participants therein are accorded

measure of their rights under the
Constitution and our laws.

the

full

POWERS. Petitioners are the first to agree

that the Ombudsman is vested with jurisdiction to
investigate and prosecute any act or omission of a
public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient.
They recognize that the Ombudsman has primary
jurisdiction over cases, such as the present one,
cognizable by the Sandiganbayan. The problem with
petitioners' contention is their assumption that the
Ombudsman, a constitutionally-created body, will not
perform its functions faithfully. The duality of roles
which the Ombudsman exercises does not
necessarily warrant a conclusion that it will be given
to making a finding of probable cause in every case.
At any rate, "[I]n the debates on this matter in the
Constitutional Commission, it was stressed by the
sponsors of the Office of the Ombudsman that,
whereas the original Tanodbayan was supposed to be
limited to the function of prosecution of cases
against public functionaries, generally for graft and
corruption, the former would be considered 'the
champion of the citizen,' to entertain complaints
addressed to him and to take all necessary action
thereon." This should leave no doubt as regards the
constitutionality and propriety of the functions
exercised by the Ombudsman in this case. Verily, the
Court in Republic v. Sandiganbayan, reviewed the
powers of the
Ombudsman and held: At present, the powers of the
Ombudsman, as defined by Republic Act No. 6770
corollary to Section 13, Article XI of the 1987
Constitution, include, inter alia, the authority to: (1)
investigate and prosecute on its own or on complaint
by any person, any act or omission of any public
officer or employee, office or agency, when such act
or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of
Government, the investigation of such cases; and (2)
investigate and initiate the proper action for the
recovery of ill-gotten wealth and/or unexplained
wealth amassed after February 25, 1986 and the
prosecution of the parties involved there. In the same
case, we declared that the Ombudsman has the
correlative powers to investigate and initiate the
proper action for the recovery of ill-gotten and/or
unexplained wealth which were amassed after
February 25, 1986. There is therefore no merit in
petitioners' contention that the absence of
participation of the OSG taints the petition for
forfeiture with nullity.
SEGOVIA VS SANDIGANBAYAN
Petitioners who hold regular executive
positions in the National Power Corporation were
designated by the NPC Board to compose the
Contract Committee for NPC projects. During the prequalification and bidding for a project, it declared a
failure of bidding and directed a re-bidding. The
recommendation was unanimously approved by the
NPC Board, but for no apparent reasons, the project
was eventually cancelled. Feeling aggrieved by the
turn of events, Urban, the lowest bidder in the failed

bidding filed a complaint before the Ombudsman.

After investigation, an information was accordingly
filed with the Sandiganbayan charging petitioners
with violation of R.A. 3019. They were suspended
pendente lite. The suspension is the subject of this
special civil action for certiorari and prohibition
before the Supreme Court. Petitioners contend that
their suspension was not mandatory considering that
the positions they occupy were quite sensitive and
had no relations to prequalification of contractors,
biddings or awards which was an additional
function temporarily assigned to them.
The Supreme Court held that under R.A. 3019, the
suspension of a public officer is mandatory after a
determination has been made of the validity of the
information in a pre-suspension hearing conducted
for that purpose. It is also had the occasion to
reiterate the rule as was stressed in Libanan v.
Sandiganbayan that . . . When the statue is clear and
explicit, there is hardly room for any extended court
ratiocination or rationalization of the law. Republic
Act No. 3019 unequivocally mandates the suspension
of a public official from office pending a criminal
prosecution against him. This Court has repeatedly
held that such preventive suspension is mandatory,
and there are no 'ifs' and 'buts' about it.
PREVENTIVE SUSPENSION; SUSPENSION OF
PUBLIC
OFFICIALS AND EMPLOYEES; NOT PENAL IN
CHARACTER BUT MERELY PREVENTIVE MEASURE
BEFORE FINAL JUDGMENT. The validity of Section 13,
R.A. 3019, as amended treating of the suspension
pendentelite of an accused public officer may no
longer be put at issue, having been repeatedly
upheld by this Court. As early as 1984, in Bayot v.
Sandiganbayan, the Court held that such suspension
was not penal in character but merely a preventive
measure before final judgment; hence, the
suspension of a public officer charged with one of the
crimes listed in the amending law, committed before
said amendment, does not violate the constitutional
provision against an ex post facto law. The purpose
of suspension is to prevent the accused public officer
from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering
with documentary evidence, or from committing
further acts of malfeasance while in office.
Substantially to the same effect was the Court's
holding, in 1991, in Gonzaga v. Sandiganbayan, that
preventive suspension is not violative of the
Constitution as it is not a penalty; and a person
under preventive suspension remains entitled to the
constitutional presumption of innocence since his
culpability must still be established.
POWER TO SUSPEND LIES IN THE COURT IN
WHICH CRIMINAL CHARGE IS FILED. The Anti-Graft
and Corrupt Practices Act implicitly recognizes that
the power of preventive suspension lies in the court
in which the criminal charge is filed; once a case is
filed in court, all other acts connected with the
discharge of court functions including preventive
suspension should be acknowledged as within the
competence of the court that has taken cognizance
thereof, no violation of the doctrine of separation of
powers being perceivable in that acknowledgment.

APPLICABILITY OF SUSPENSION PENDENTE LITE. The

provision of suspension pendente lite applies to all
persons indicted upon a valid information under the
Act, whether they be appointive or elective officials;
or permanent or temporary employees, or pertaining
to the career or non-career service. It applies to a
Public High School Principal; a Municipal Mayor; a
Governor; a Congressman; a Department of Science
and Technology (DOST) non-career Project Manager,
a Commissioner of the Presidential Commission on
Good Government (PCGG). The term "office" in
Section 13 of the law applies to any office which
might currently be holding and not necessarily the
particular office in relation to which he is charged.
MANDATORY. It is mandatory for the court to
place under preventive suspension a public officer
accused before it. Imposition of suspension, however,
is not automatic or self-operative. A pre-condition
therefor is the existence of a valid information,
determined at a pre-suspension hearing. Such a
hearing is in accord with the spirit of the law,
considering
the
serious
and
far-reaching
consequences of a suspension of a public official
even before his conviction, and the demands of
public interest for a speedy determination of the
issues involved in the case. The purpose of the presuspension hearing is basically to determine the
validity of the information and thereby furnish the
court with a basis to either suspend the accused and
proceed with the trial on the merits of the case, or
refuse suspension of the latter and dismiss the case,
or correct any part of the proceeding which impairs
its validity. The accused should be given adequate
opportunity to challenge the validity or regularity of
the criminal proceedings against him; e.g. that he
has not been afforded the right to due preliminary
investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the
Revised
Penal Code) warranting his mandatory suspension
from office under Section 13 of the Act; or that the
information is subject to quashal on any of the
grounds set out on Rule 117 of the Rules of Court.
But once a proper determination of the validity of the
information has been made, it becomes the
ministerial duty of the court to forthwith issue the
order of preventive suspension. The court has no
discretion, for instance, to hold in abeyance the
suspension of the accused official on the pretext that
the order denying the latter's motion to quash is
pending review before the appellate courts.
PREVENTIVE SUSPENSION; MAY NOT EXCEED
NINETY (90) DAYS. However, the preventive
suspension may not be of indefinite duration or for
an unreasonable length of time; it would be
constitutionally proscribed otherwise as it raises, at
the very least, questions of denial of due process and
equal protection of the laws. The Court has thus laid
down the rule that preventive suspension may not
exceed the maximum period of ninety (90) days in
consonance with Presidential Decree No. 807 (the
Civil Service Decree), now Section 52 of the
Administrative Code of 1987.
PURPOSES OF PREVENTIVE SUSPENSION. The Court's
pronouncement in Bolastig v. Sandiganbayan , supra,
are germane: "Our holding that, upon the filing of a

valid information charging violation of Republic Act

No. 3019, Book II, Title 7 of the Revised Penal Code,
or fraud upon government or public property, it is the
duty of the court to place the accused under
preventive suspension disposes of petitioner's other
contention that since the trial in the
Sandiganbayan is now over with respect to the
presentation of evidence for the prosecution there is
no longer any danger that petitioners would
intimidate prosecution's witnesses. The fact is that
the possibility that the accused would intimidate
witnesses or otherwise hamper his prosecution is just
one of the grounds for preventive suspension. The
other one is, to prevent the accused from committing
further acts of malfeasance while in office."
SOCRATES VS SANDIGANBAYAN
THE CHARACTER OF THE CRIME IS NOT
DETERMINED BY THE TITLE OF THE INFORMATION
BUT BY THE FACTS ALLEGED IN THE BODY THEREOF.
Axiomatic is the rule that what controls is not the
designation of the offense but its description in the
complaint or information. The real nature of the
criminal charge is determined not from the caption or
preamble of the information nor from the
specification of the provision of law alleged to have
been violated, they being conclusions of law, but by
the actual recital of facts in the complaint or
information. It is not the technical name given by the
fiscal appearing in the title of the information that
determines the character of the crime but the facts
alleged in the body of the information. This Court has
repeatedly held that when the facts, acts and
circumstances are set forth in the body of an
information with sufficient certainty to constitute an
offense and to apprise the defendant of the nature of
the charge against him, a misnomer or innocuous
designation of a crime in the caption or other parts of
the information will not vitiate it. In such a case, the
facts set forth in the charge controls the erroneous
designation of the offense and the accused stands
indicted for the offense charged in the statement of
facts. The erroneous designation may be disregarded
as surplusage.
WHERE THE OFFENSE MAY BE COMMITTED IN
SEVERAL MODES, THE RULE IS IT IS SUFFICIENT TO
PROVE THE OFFENSE AS COMMITTED IN ANY ONE OF
THEM IN ORDER TO SUSTAIN CONVICTION. It is an old
and well-settled rule in the appreciation of
indictments that where an offense may be
committed in any of several different modes, and the
offense, in any particular instance, is alleged to have
been committed in two or more of the modes
specified, it is sufficient to prove the offense
committed through any one of them, provided that it
be such as to constitute the substantive offense.
Thereafter, a judgment of conviction must be
sustained if it appears from the evidence in the
record that the accused was guilty as charged of any
one of these modes of the offense.
PRELIMINARY
INVESTIGATION;
ABSENCE
THEREOF IS NOT A GROUND FOR THE QUASHAL OF A
COMPLAINT OR INFORMATION. It has been
consistently held that the absence of a preliminary
investigation does not impair the validity of the
criminal information or render it defective. Dismissal
of the case is not the remedy. It is not a ground for

the quashal of a complaint or information. The proper

course of action that should be taken is for the
Sandiganbayan to hold in abeyance the proceedings
upon such information and to remand the case to the
office of the Ombudsman for him or the Special
Prosecutor to conduct a preliminary investigation, if
the accused actually makes out a case justifying such
relief.
AN ORDER DENYING A MOTION TO QUASH IS
INTERLOCUTORY ANDNOT APPEALABLE. We have but
to reiterate the fundamental rule that an order
denying a motion to quash is interlocutory and
therefore not appealable, nor can it be the subject of
a petition for certiorari. Such order may only be
reviewed in the ordinary course of law by an appeal
from the judgment after trial. In other words, it
cannot be the subject of appeal until the judgment or
a final order is rendered. The ordinary procedure to
be followed in that event is to enter a plea, go to trial
and if the decision is adverse, reiterate the issue on
appeal from the final judgment. The special civil
action for certiorari may be availed of in case there is
a grave abuse of discretion or lack of jurisdiction.
REPUBLIC ACT NO. 3019 (ANTI-GRAFT LAW);
SUSPENSION OF PUBLIC OFFICER IS MANDATORY
AFTER THE VALIDITY OF THE INFORMATION HAS BEEN
UPHELD IN A PRE-SUSPENSION HEARING. This Court
has ruled that under Section 13 of the anti-graft law,
the suspension of a public officer is mandatory after
the validity of the information has been upheld in a
pre-suspension hearing is conducted to determine
basically the validity of the information, from which
the court can have a basis to either suspend the
accused and proceed with the trial on the merits of
the case, or withhold the suspension of the latter and
dismiss the case, or correct any part of the
proceeding which impairs its validity. That hearing
may be treated in the same manner as a challenged
to the validity of the information by way of a motion
to quash. It is evident that upon a proper
determination of the validity of the information, it
becomes mandatory for the court to immediately
issue the suspension order. The rule on the matter is
specific and categorical. It leaves no room for
interpretation. It is not within the court's discretion to
hold in abeyance the suspension of the accused
officer on the pretext that the order denying the
motion to quash is pending review before the
appellate courts. Its discretion lies only during the
pre-suspension hearing where it is required to
ascertain whether or not (1) the accused had been
afforded due preliminary investigation prior to the
filing of the informations against him, (2) the acts for
which he was charged constitute a violation of the
provisions of Republic Act No. 3019 or of the
provisions of Title 7, Book II of the Revised Penal
Code, or (3) informations against him can be
quashed, under any of the grounds provided in
Section 2, Rule 117 of the Rules of Court. Once the
information is found to be sufficient in form and
substance, then the court must issue the order of
suspension as a matter of court. There are no ifs and
buts about it. This is because a preventive
suspension is not a penalty. It is not imposed as a
result of judicial proceedings. In fact, if acquitted, the
official concerned shall be entitled to reinstatement

and to the salaries and benefits which he failed to

receive during suspension. To further emphasize the
ministerial duty of the court under Section 13 of
Republic Act No.
3019, it is said that the court trying a case has
neither discretion nor duty to accused from using his
office to intimidate witnesses or frustrate his
prosecution or continue committing malfeasance in
office. The presumption is that unless the accused is
suspended, he may frustrate his prosecution or
commit further acts of malfeasance or do both, in the
same way that upon a finding that there is probable
cause to believe that a crime has been committed
and that the accused is probably guilty thereof, the
law requires the judge to issue a warrant for the
arrest of the accused. The law does not require the
court to determine whether the accused is likely to
escape or evade the jurisdiction of the court.

INFORMATION. Where the government prosecutor

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

IT IS THE DUTY OF THE PROSECUTING OFFICER TO

FILE
CHARGES
AGAINST
WHOMSOEVER
THE
EVIDENCE MAY SHOW TO BE RESPONSIBLE FOR AN
OFFENSE. The rule under Section 1, Rule 110 of the
Rules of Court, as reformulated in Section 2, Rule 110
of the 1985 Rules on Criminal Procedure, is that all
criminal actions must be commenced either by
complaint or information in the name of the People of
the Philippines "against all persons who appear to be
responsible for the offense involved." The law makes
it a legal duty for prosecuting officers to file the
charges against whomsoever the evidence may show
to be responsible for an offense. This does not mean,
however, that they have no discretion at all; their
discretion lies in determining whether the evidence
submitted justify a reasonable belief that a person
has committed an offense. What the rule demands is
that all persons who appear responsible shall be
charged in the information, which conversely implies
that those against whom no sufficient evidence of
guilt exists are not required to be included.

CASTILLO-CO VS BARBERS
Congressman Junie Cua, in the course of the
congressional investigation, discovered irregularities
in the purchase of heavy equipment by petitioner
and the Provincial Engineer constituting overpricing,
purchase of reconditioned and not brand new
equipments, absence of public bidding and
inspection, and advance payment prior to delivery.
He filed a complaint against the two before the Office
of the Ombudsman for violation of Sections 3(e) and
3 (g) of the Anti-Graft and Corrupt Practices Act, as
amended. Petitioner was placed under preventive
suspension for 6 months a week after the filing of the
complaint. The order was approved by the Deputy
Ombudsman
for
Luzon.
Their
motions
for
reconsideration having been denied, petitioner filed
the present recourse contesting the authority of the
Deputy Ombudsman to sign the order of preventive
suspension, the period of suspension was excessive,
and denial of due process.
The Supreme Court held that R.A. 7975 (An Act to
Strengthen the Functional and Standard Organization
of the Sandiganbayan, as amended) does not
suggest that only the Ombudsman and not his
deputy may order the preventive suspension of
officials occupying positions classified as grade 27 or
above; that the Ombudsman and his deputy may
order preventive suspension pursuant to the
provisions of Section 24 of R.A. 6770 and Section 9,
Rule 111 of the Rules of Procedure of the Office of the
Ombudsman; that preventive suspension, being
merely a preliminary step in an administrative
investigation, may be decreed even before the
charges are heard; and that the six-month
suspension of petitioner is within the limits
prescribed by Section 24 of R.A. 6770.

MOTION TO QUASH; GROUNDS; FAILURE TO ASSERT,

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

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

things enumerated. The law does not require that

only the
Ombudsman himself may sign the order of
suspension.
NOT IN THE NATURE OF PENALTY, HENCE, CAN BE
DECREED EVEN BEFORE THE CHARGES ARE HEARD.
A preventive suspension, however, can be decreed
on an official under investigation after charges are
brought and even before the charges are heard since
the same is not in the nature of a penalty, but merely
a preliminary step in an administrative investigation.
IMMEDIATE
ISSUANCE
THEREOF
DOES
NOT
CONSTITUTE GRAVE ABUSE OF DISCRETION. The fact
that the said order was issued seven days after the
complaint was filed did not constitute grave abuse of
discretion. The immediate issuance of such order is
required in order to prevent the subject of the
suspension from committing further irregularities.
Such prompt action, moreover, is in consonance with
Section 15 of R.A. 6770.
PUBLIC OFFICIALS ENJOY THE PRESUMPTION OF
REGULARITY OF PERFORMANCE OF DUTIES. We do
not give much credence to petitioner's suggestions of
a malicious conspiracy between the Deputy
Ombudsman Guerrero and Congressman Cua,
reputedly petitioner's political adversary, to harass
her. The Deputy Ombudsman and the Congressman,
being public officials, enjoy the presumption of
regularity
of
performance
of
duties.
Such
presumption can be overcome only by strong and
convincing evidence. No such evidence exists in this
case.
PUBLIC
OFFICERS;
PREVENTIVE
SUSPENSION;
CONDITIONS; MET IN CASE AT BAR. Contrary to
petitioner's contention, the conditions required to
sustain her preventive suspension have been met in
this case. These conditions are: (1) That the evidence
of guilt is strong; and (2) That any of the following
circumstances are present: (a) the charge against
such officer or employee involves dishonesty,
oppression, or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed
against him.
DETERMINATION WHETHER THE EVIDENCE OF GUILT
IS
STRONG RESTS UPON THE DETERMINATION OF THE
OMBUDSMAN. The first requisite rests upon the
determination of the disciplining authority, the Office
of the Ombudsman in this case: As held in
Buenaseda v. Flavier, however, whether the evidence
of guilt is strong is left to the determination of the
Ombudsman by taking into account the evidence
before him. A preliminary hearing as in bail petitions
in cases involving capital offenses is not required. In
rejecting a similar argument as that made by
petitioner in this case, this Court said in that case:
The import of the Nera decision is that the
disciplining authority is given the discretion to decide
when the evidence of guilt is strong. This fact is
bolstered by Section 24 of R.A. No. 6770, which
expressly left such determination of guilt to the
'judgment' of the Ombudsman on the basis of the

administrative complaint . . . We find no reason to

disturb such determination in this case.
EVIDENCE NEED NOT BE ADDUCED TO PROVE THAT
PETITIONER MAY INFLUENCE POSSIBLE WITNESSES
OR MAY TAMPER WITH PUBLIC RECORDS. Petitioner's
high position likewise gives her access to public
records and the clout to influence possible witnesses.
Her continued stay in office may thus prejudice the
prosecution of the case filed against her. It is
immaterial that, as petitioner contends, no evidence
has been adduced to prove that petitioner may
influence possible witnesses or may tamper with the
public records. It is sufficient that there exists such a
possibility.
SUSPENSION FOR SIX (6) MONTHS, WITHIN THE
PRESCRIBED LIMITS. Finally, the duration of
petitioner's suspension is not excessive. Petitioner's
suspension for six (6) months is within the limits
prescribed by Section
24 of R.A. 6770. The length of the period of
suspension within such limits, like the evaluation of
the strength of the evidence, lies in the discretion of
the Ombudsman.
JARAVATA VS SANDIGANBAYAN
ANTI-GRAFT AND CORRUPT PRACTICES ACT;
SECTION 3 (b) THEREOF; OFFICIAL INTERVENTION BY
PUBLIC OFFICER MUST BE REQUIRED BY LAW; CASE
AT BAR. Section 3(b) of Republic Act No. 3019, refers
to a public officer whose official intervention is
required by law in a contract or transaction. There is
no law which invests the petitioner with the power to
intervene in the payment of the salary differentials of
the complainants or anyone for that matter. Far from
exercising any power, the petitioner played the
humble role of a supplicant whose mission was to
expedite payment of the salary differentials. In his
official capacity as assistant principal, he is not
required by law to intervene in the payment of the
salary differentials. Accordingly, he cannot be said to
have violated the law afore-cited although he exerted
efforts to facilitate the payment of the salary
differentials.
QUIBAL VS SANDIGANBAYAN
ANTI-GRAFT AND CORRUPT PRACTICES;
ELEMENTS FOR
CONVICTION. Violation of Section 3(e) of R.A. 3019
requires proof of the following facts, viz: 1.The
accused is a public officer discharging administrative
or official functions or private persons charged in
conspiracy with them; 2. The public officer
committed the prohibited act during the performance
of his official duty or in relation to his public position;
3. The public officer acted with manifest partiality,
evident bad faith or gross, inexcusable negligence;
and 4. His action caused undue injury to the
Government or any private party, or gave any party
any unwarranted benefit, advantage or preference to
such parties.
ELEMENT OF MANIFEST PARTIALITY AND EVIDENT
BAD FAITH, ESTABLISHED IN CASE AT BAR.
Petitioners insist that their guilt has not been proved
beyond reasonable doubt for they did not act with
manifest partiality, evident bad faith or gross,
inexcusable negligence nor did they cause any injury

or damage to the municipal government for the

construction of the municipal market was eventually
completed. We reject these contentions. The
construction of the municipal market should have
been finished on March 7, 1988. At the time of the
audit on August 31, 1988, however, only 36.24% of
the construction of the market has been completed.
Yet, out of the contract price of P652,562.60,
petitioners already paid the contractor a total of
P650,000.00. In so doing, petitioners disregarded the
provision in the contract that payment should be
based on the percentage of work accomplishment.
Moreover, the contract provided that in case of delay
in the completion of the project, the contractor shall
be liable for liquidated damages at the rate of 1/10 of
1% of the contract price per day of delay. Petitioners
did not impose this provision against the contractor.
By their acts, petitioners clearly acted with manifest
partiality and evident bad faith relative to the
construction of the municipal market.
ELEMENT OF GROSS NEGLIGENCE; CONSTRUED IN
CASE AT BAR. Petitioners' acts and omissions are, to
say the least, grossly negligent. Gross negligence is
the pursuit of a course of conduct which would
naturally and reasonably result in injury. It is an utter
disregard
of
or
conscious
indifference
to
consequences. In cases involving public officials,
there is gross negligence when a breach of duty is
flagrant and palpable. In the case at bench,
petitioners' acts and omissions demonstrated an
utter lack of care in enforcing the contract for the
construction of the public market and a reckless
disregard of the COA rules and regulations regarding
disbursement of municipal funds. Petitioners contend
that they released P650,000.00 of the contract price
to enable the contractor to take advantage of the low
cost of construction materials prevailing at that time.
Plainly petitioners' act violates the provision of the
contract requiring that payment shall be made on the
basis of the percentage of completion of the project .
Moreover, as correctly pointed out by the
Sandiganbayan: . . . "The escalation of prices of
construction materials which allegedly prompted
Quibal to pay the contractor prematurely is not a
justification that would absolve the accused public
officers from criminal liability. The parties could have
included an escalation clause in the contract . . .
Moreover, there is a law which authorizes the
adjustment of contract price (R.A. 5979, as amended
by PD No. 454) . . ."
UNDUE INJURY OR DAMAGE CAUSED TO THE
GOVERNMENT; ESTABLISHED IN CASE AT BAR.
Petitioners also insist that no undue injury or damage
was caused to the municipal government considering
the later completion of the public market. We cannot
share this myopic view. The construction of the
municipal market was completed only at the end of
December 1989 when it should have been finished
by March 7, 1988. This unnecessary delay of almost
two (2) years caused considerable monetary loss to
the municipal government in the form of monthly
rentals. The least that petitioners should have done
was to enforce the penalty clause of the contract
(providing for payment of liquidated damages in case
of breach) when the contractor failed to meet his
deadline on March 7, 1988. Instead of doing so,
petitioners even made two (2) additional payments

to the contractor (on March 14 and April 22, 1988) in

the total sum of P250,000.00. Thus,
it cannot
be successfully argued that the acts and omissions of
petitioners did not cause damage or injury to the
municipal government.
WHEN PROVED, REQUEST FOR RE-AUDITING NO
LONGER FEASIBLE. To bolster their claim of denial of
due process, petitioners cite the case of Tinga v.
People of the Philippines (No. L-57650, April 15,
1988, 160 SCRA 483). Petitioners' reliance on the
Tinga case is misplaced. In said case, we ruled that
Tinga was denied due process when the Commission
on Audit refused to conduct a reevaluation of the
accountabilities of Tinga. The ruling was based on
the Court's finding that COA's evaluation of Tinga's
accountabilities was replete with errors. Petitioners
also claim that considering the value of the unused
stockpile of construction materials and supplies, a reaudit would prove that the payment they made was
justified and that the actual cost of the project at the
time of the initial inspection is indeed P650,000.00.
We hold that the suggested re-audit would not
exonerate the petitioners. The re-audit cannot blur
the fact that undue damage has already been caused
to the municipal government in view of the delay in
the construction of the municipal market and the
failure of the petitioners to enforce the penalty
clause in the construction contract.
RIOS VS SANDIGANBAYAN
Petitioner, then incumbent Mayor of San Fernando,
Romblon, was charged with
violation
of
Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act) for alleged unauthorized disposition of
confiscated, assorted and sawn tangible lumber
without proper authority from DENR and the
Sangguniang Bayan. He moved to quash the
information on the ground of lack of probable cause
and alleged that the disposition of lumber did not
result in any "undue injury" because the proceeds of
the disposition went to the coffers of the municipal
government. On motion by the Office of the Special
Prosecutor, petitioner was suspended pendente lite
by the Sandiganbayan for a period ninety days.
Reconsideration sought by petitioner was denied,
hence, the present recourse.
The Supreme Court held that the act of disposing
confiscated lumber without proper authority from the
DENR and the Sangguniang Bayan constituted a
violation of Section 3(e) of R.A. 3019. It also held that
it was mandatory for the Sandiganbayan to suspend
any incumbent public officer charged with violation
of R.A. 3019 or any crime committed by public
officers or for any offense involving fraud upon
government or public funds or property; and that any
single preventive suspension of local elective officials
should not extend beyond sixty (60) days.
DISPOSAL OF CONFISCATED LUMBER WITHOUT PRIOR
AUTHORITY FROM DENR AND THE SANGGUNIANG
BAYAN, A VIOLATION OF SECTION 3(e) OF R.A. 3019.
The act of disposing of confiscated lumber without
prior authority: from DENR and the Sangguniang
Bayan constituted a violation of Sec. 3(e) of R.A.
3019. Therefore, there is probable cause to hold
petitioner liable for such act, for which the
information was validly filed.

PUBLIC OFFICE; PUBLIC OFFICE IS A PUBLIC TRUST.

This
Court would like to stress adherence to the doctrine
that public office is a public trust. Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism
and justice, and lead modest lives. Public servants
must bear in mind this constitutional mandate at all
times to guide them in their actions during their
entire tenure in the government service. "The good
of the service and the degree of morality with every
official and employee in the public service must
observe, if respect and confidence are to be
maintained by the Government in the enforcement of
the law, demand that no untoward conduct on his
pan, affecting morality, integrity and efficiency while
holding office should be left without proper and
commensurate sanction, all attendant circumstances
taken into account."
R.A. 3019; SUSPENSION OF PUBLIC OFFICER VALIDLY
CHARGED WITH VIOLATION THEREOF, MANDATORY.
The suspension pendent lite meted out by the
Sandiganbayan is, without doubt, a proper and
commensurate sanction against petitioner. Having
ruled that the information filed against petitioner is
valid, there can be no impediment to the application
of Section 13 of R.A. No. 3019, which states, inter
alia: "Sec. 13. Suspension and loss of benefits. Any
incumbent public officer against whom any criminal
prosecution under a valid information under this Act
or under Title 7, Book II of the Revised Penal Code or
for any offense involving fraud upon government or
public funds or property, whether as a simple or as a
complex offense and in whatever stage of execution
and mode of participation, is pending in court, shall
be suspended from office."
LOCAL
GOVERNMENT
CODE,
PREVENTIVE
SUSPENSION OF LOCAL ELECTIVE OFFICIALS; PERIOD
SHALL NOT EXCEED SIXTY
(60) DAYS. It is settled jurisprudence that the
aforequoted provision (Sec. 13, R.A. No. 3019) makes
it mandatory for the Sandiganbayan to suspend any
public officer who has been validly charged with a
violation of R.A. No. 3019, Book II, Title 7 of the
Revised Penal Code, or any offense involving fraud
upon government or public funds or property. "The
court trying a case has neither discretion nor duty to
determine whether preventive suspension is required
to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office." This is
based on the presumption that unless the public
officer is suspended, he may frustrate his
prosecution or commit further acts of malfeasance or
both. On the other hand, we find merit in petitioner's
second assigned error. The Sandiganbayan erred in
imposing a 90-day suspension upon petitioner for the
single case filed against him. Under Section 63 (b) of
the Local Government Code, "any single preventive
suspension of local elective officials shall not extend
beyond sixty (60) days."
ARIAS VS SANDIGANBAYAN
This case presents a conspiracy of silence and
inaction where chiefs of office who should have been
vigilant to protect the interest of the Government in

the purchase of Agleham's two-hectare riceland,

accepted as gospel truth the certifications of their
subordinates, and approved without question the
million-peso purchase which, by the standards
prevailing in 1976-78, should have pricked their
curiosity and prompted them to make inquiries and
to verify the authenticity of the documents presented
to them for approval. The petitioners kept silent
when they should have asked questions; they looked
the other way when they should have probed deep
into the transaction. Since it was too much of a
coincidence that both petitioners were negligent at
the same time over the same transaction, the
Sandiganbayan was justified in concluding that they
connived and conspired to act in that manner to
approve the illegal transaction which would favor the
seller of the land and defraud the Government.
STATE AUDIT CODE OF THE PHILIPPINES;
ASPECTS OF THE AUDITIONAL FUNCTION OF AN
AUDITOR. The primary function of an auditor is to
prevent
irregular,
unnecessary,
excessive
or
extravagant expenditures of government funds. The
auditorial function of an auditor, as a representative
of the Commission on Audit, comprises three
aspects: (1) examination; (2) audit: and (3)
settlement of the accounts, funds, financial
transactions and resources of the agencies under
their respective audit jurisdiction (Sec. 43,
Government Auditing Code of the Phil.). Examination,
as applied to auditing, means "to probe records, or
inspect securities or other documents; review
procedures, and question persons, all for the purpose
of arriving at an opinion of accuracy, propriety,
sufficiency, and the like." (State Audit Code of the
Philippines, Annotated by Tantuico, 1 982 Ed., p. 57.)
EMINENT DOMAIN; TAX DECLARATION; A
GUIDE OR INDICATOR OF THE REASONABLE VALUE
OF THE PROPERTY. The acquisition of Agleham's
riceland was not done by expropriation but through a
negotiated sale. In the course of the negotiations,
there was absolutely no allegation nor proof that the
price of P80 per square meter was its fair market
value in 1978, i.e., eleven (11) years ago. What the
accused did was to prove the value of the land
through fake tax declarations (Exhs. B, F, K), false
certifications (Exhs. J, D and E) and a forged sworn
statement on the current and fair market value of the
real property (Exh. Z) submitted by the accused in
support of the deed of sale. Because fraudulent
documents were used, it may not be said that the
State agreed to pay the price on the basis of its
fairness, for the Government was in fact deceived
concerning the reasonable value of the land. When
Ocol testified in 1983 that P80 was a reasonable
valuation for the Agleham's land, he did not clarify
that was also its reasonable value in 1975, before
real estate values in Pasig soared as a result of the
implementation of the Mangahan Floodway Project.
Hence, Ocol's testimony was insufficient to rebut the
valuation in Agleham's genuine 1978 Tax Declaration
No. 47895 that the fair valuation of the riceland then
was only P5 per square meter. A Tax Declaration is a
guide or indicator of the reasonable value of the
property (EPZA vs. Dulay, 149 SCRA 305).
PARTIALITY; MAYBE PROVEN BY ATTENDANT
CIRCUMSTANCES IN THE ABSENCE OF DIRECT

EVIDENCE. Partiality for Agleham/Gutierrez may be

inferred from their having deliberately closed their
eyes to the defects and irregularities of the
transaction in his favor and their seeming neglect, if
not deliberate omission, to check, the authenticity of

the documents presented to them for approval. Since

partiality is a mental state or predilection, in the
absence of direct evidence, it may be proved by the
attendant circumstances.