Republic of the Philippines

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE

OFFICE OF THE REGIONAL PROSECUTOR

Region IV, San Pablo City

VICTORIANO E. ATIENZA,
Complainant,
NPS NO. IV-07-INV-15F00156
-versusGrave Threats

For Violation of RA 3019 &

LEE S. MANALAYSAY,
Respondent.
x---------------------------------------------x

COUNTER AFFIDAVIT
I, LEE MANALAYSAY, Filipino, of legal age with postal address
at of Block 6, Sta. Maria Village,Calapan City, Oriental Mindoro
and currently employed as Harbor Operation Officer A of the
Philippine Ports Authority currently stationed at the Port of
Bulalacao, Oriental Mindoro, after having been duly sworn to in
accordance with law, do hereby depose and state that:
1. That I am the respondent in the above-captioned case;
2. That I have received an Order 03 August 2015 from this
Honorable Office on 21 August 2015 (although our office
informed me that the same was received by them on 20
August 2015);
3. That the Order states among others that I have 10 days to
submit my counter affidavit 10 days from receipt of said
Order. Hence, I still have until today, 01 September 2015
to submit the same counting from the date of receipt of
our office. (the 30th of August 2015 being a Saturday and
31 August 2015, a Monday, is a non-working holiday);
4. That I am vehemently denying the charges levelled
against me by the Complainant;
5. The truth of the matter being the following;

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 2 of 14

5.1. On the date mentioned in the Complaint, 08 March

2015, at around 2:45 PM, I was at the back of our office at
the Port of Puerto Galera, located in Brgy. Balatero, Puerto
Galera with one of my officemates, Melynda San Jose
Tadeno1 and our guard, Mr. Mervin Flambirhen at the back
of our office dumping gravel because the said area tends
to be muddy specially when it rains;
5.2. Mr. Mervin Flambirhen2 saw a vehicle entering the
premises of the port and he approached it. Thereafter, he
called me because he said that the occupant of the
vehicle has an official transaction with our office. In fact,
Mr. Flambirhen was in civilian uniform and unarmed at
that time because he was assisting us in the dumping of
the gravel;
5.3. I immediately went to the location of the said car
inside the port parking area and inquired on the driver of
the car on the purpose of their visit. He said that an owner
of a RORO (Roll On/Roll Off) vessel is inside the car. When
the driver alighted from the car, I asked him what is the
name of the vessels RORO company but he did not reply.
5.4. At that moment, another man went out of the car
from the passenger side and said Actuarial if my
memory serves me right then he uttered the term Bakit,
bawal ba bumyahe dito? The man who came out of the
car turns out to be the Complainant in this case;
5.5. I answered his query because I treated what he
uttered as one by saying that so long as the papers and
permits are in order, then they can start their operations;
5.6. To my surprise, the Complainant stated that the tone
of my voice was high and that my attitude towards him
was boastful;
1 Annex 1 SS of Melinda San Jose Tadeno
2 Annex 2 SS of Mervin Flambirhen

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 3 of 14

5.7. I am maintaining that I never raise my voice or being

boastful in my conversation with the Complainant.
However, being a public servant for a long time, we were
thought to be tolerant and understanding to our clients
that is why I apologized to the Complainant immediately if
indeed he perceived that I raised my voice several times;
5.8. But like a shark that smelled blood in the water, the
Complainant pounced at me by continuously uttering
offensive languages in intimidating manner with
occasional finger pointing against me while I kept my
composure. The Complainant even went as far as saying
the following, to wit;
5.8.1. Ewan ko ba kung bakit napunta sa PPA ito,
malaki na gastos ko dito.
5.8.2. Ano gusto mo, bumunot ka kung may baril
ka o kaya suntukan na lang tayo.
5.8.3. Kaya pala walang bumabyahe dito dahil
mo, irereklamo kita kay Tulfo, ipapadyaryo kita.
5.9. In the melee of offensive and threatening tirade of the
Complainant, I just told him that we are not here for any
quarrel but just to serve. Up to the last possible moment, I
tried to register my apology if indeed he thought I acted
inappropriately but the same fell on deaf ears;
5.10. As if a final salvo into a vicious unprovoked aggression
by a ruthless tyrant, I overheard him as if talking to someone
in his cellular phone asking for my removal from my post. At
around 3:12 PM Complainant and his son/companion left;
6. That, after the incident, I immediately wrote an Incident
Report3 about the matter;
7. That the next day, 09 March 2015, I reported 4 the matter
to the office of the Punong Barangay of Balatero, Puerto
Galera;
3 Annex 3 Incident Report

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 4 of 14

8. That the other allegations as to my integrity as a

government employee are nothing but a concoction of the
vile and twisted imagination of the Complainant. My track
record as a government employee will prove the same.
First, I was never charged of any wrong doing as an
employee of the Philippine Ports Authority 5 and Second,
my performance evaluations6 will prove that I am
competent and doing my duty at par with what is required
of me;
9. That as can be gleaned from the Resolution 7 of the Office
of the Provincial Prosecutor of Oriental Mindoro dated 14
July 2015, the Complainant himself showed flashes of
his personality when he has the audacity to
question the wisdom of the Honorable Provincial
Prosecutor of Oriental Mindoro in the cases he has
filed before. Instead of filing a motion for
reconsideration to the Order of the Honorable
Provincial Prosecutor or file an Appeal before the
Department of Justice, the Complainant, at the very
office of the Honorable Provincial Prosecutor,
questioned her capacity. This led to the inhibition of
the Office of the Provincial Prosecutor of Oriental Mindoro
in this complaint;
10. In fine, it can be gleaned from the said resolution that;
10.1. Complainant has a confrontational attitude and
may have a habit of filing complaints;

4 Annex 4 Barangay Blotter from the Office of the Punong Barangay Balatero,
Puerto Galera, Oriental Mindoro
5 Annex 5 Certification from the Philippine Ports Authority
6 Annex 6 Performance Evaluation of the Respondent
7 Annex 7 OPP Oriental Mindoro Resolution dated 14 July 2015 in relation to this
case

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 5 of 14

10.2. Complainant maybe prone in insisting on his views,

even on matters of law, although he is a non-lawyer; and
10.3. Complainant may have a problem in dealing with
authorities; even if those public servants are doing their
duties by the letter.
11. That it will be contrary to human experience and
nature that I will be the one who will be
confrontational in a place where the Complainants
family is wielding so much influence. It was like
signing a death warrant of sort if indeed I would
have the guts to face off with the Complainant in
his own turf with such cavalier approach;
12.
That another craven fact that needs amplification is
the lack of proof from the Complainant that he lodged a
complaint or had the same be recorded by the authorities
although he allegedly informed the Municipal Police
Station of Puerto Galera of the incident. Complainant
could have attached the same to his complaint if indeed
he made a report;
13. That no witness, not even his companion/son
executed an affidavit to support his baseless claim
and accounts for the Complainant. This is a
manifestation that his complaint has no leg to
stand on the first place;
14. That in the complaint, I was accused of violation of
Paragraph 3 (e) of Republic Act No. 3019;
15. That according to jurisprudence8, there are two ways to
violate this proviso, to wit;
i.

by causing undue injury to any

party, including the government;
and

8 Cabrera vs. Sandiganbayan, GR No. 162314 17, October 25, 2004

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 6 of 14

ii.

by giving any private party any

unwarranted benefits, advantage
or preference.

16. The question of what is undue injury in relation to

violation of Paragraph 3 (e) of Republic Act No. 3019 has
been settled by the Supreme Court in the case of Llorente
vs. Sandiganbayan9 when it opined that;
Unlike in actions for torts, undue
injury in Sec. 3[e] cannot be presumed
even after a wrong or a violation of a
right
has
been
established. Its
existence must be proven as one of the
elements of the crime. In fact, the
causing of undue injury, or the giving of
any unwarranted benefits, advantage
or
preference
through
manifest
partiality, evident bad faith or gross
inexcusable negligence constitutes the
very
act
punished
under
this
section. Thus, it is required that the
undue
injury
be
specified,
quantified and proven to the point
of moral certainty. (Emphasis Ours)
17. That on the face of the complaint itself, there
was no showing of undue injury that was suffered
by the complainant, the government or any entity
for that matter. This is true because in the first place, all
of the contentions of the Complainant are lies. Logically,
since they are lies, it cannot support the claim for undue
injury;
18. That, the second mode of violating Paragraph 3 (e) of
Republic Act No. 3019 does not exist in the complaint. As
can be gleaned, there was no intimation that I am giving
undue benefits or advantage to any individual. At best,
the Complainant was just forwarding unsupported
9 G.R. No. 122166. March 11, 1998

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 7 of 14

and self-serving claims;all are hearsays which is not

worthy of anything, more so, as a source of
probable cause;
19. That in order to be convicted of a violation of Paragraph
3 (e) of Republic Act No. 3019, the following elements
must concur;
i.

the offender is a public officer;

ii.

the act was done in the discharge

of the public officers official,
administrative
or
judicial
functions;

iii.

the act was done through

manifest partiality, evident bad
faith,
or
gross
inexcusable
negligence; and

iv.

the public officer caused any

undue injury to any party,
including the Government, or
gave any unwarranted benefits,
advantage or preference.10

20. That at the get go, the third and fourth elements are
not even present in the said complaint;
21. That the Supreme Court was clear when it defined
manifest partiality, bad faith and gross negligence in the
case of Fonacier, et. al. vs. Sandiganbayan, et.al., 11
"Partiality"
is
synonymous
with
"bias" which "excites a disposition to
10 Ampil vs. The Honorable Office of the Ombudsman, et.,al. G.R. No. 192685, July
31, 2013
11 238 SCRA 655

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 8 of 14

see and report matters as they are

wished for rather than as they are."
"Bad faith does not simply connote bad
judgment or negligence; it imputes a
dishonest purpose or some moral
obliquity and conscious doing of a
wrong; a breach of sworn duty through
some motive or intent or ill will; it
partakes of the nature of fraud."
"Gross negligence has been so defined
as negligence characterized by the
want of even slight care, acting or
omitting to act in a situation where
there is a duty to act, not inadvertently
but wilfully and intentionally with a
conscious indifference to consequences
in so far as other persons may be
affected. It is the omission of that care
which even inattentive and thoughtless
men never fail to take on their own
property."
22. That bad faith is also obviously absent for the
Complainant cannot substantiate his claim. No motivation,
prior incident or even the simplest of quarrels in the past
between the parties was forwarded by the Complainant to
show that I have a reason to treat him unfairly;
23. That in the complaint, Complainant just solely
claim that I am discouraging the return of RORO
operations at the Port of Puerto Galera because it
is, in the words of the Complainant typically used
for some underhand activities for the benefit of
motor banca users is just a manifestation that
either he does not know what he is talking about or
he is being untruthful by concocting lies after lies.
Not even a single piece of evidence was presented
to support Complainants assertions nor did he
even bother to explain the process on how I favor

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 9 of 14

motor
banca
operators
by
blocking
RORO
operations. Relying on his intuitions over my
alleged inclinations will not to lit the smallest of
flame that would compel the State to use its
resources for litigation. Thus, no substantiation of
my partiality or bias were made by the
Complainant;
24. That to be candid, it is the Complainant who might have
a vested interest in fabricating this complaint when he
uttered the words that Ewan ko ba kung bakit napunta sa
PPA ito, malaki na gastos ko dito.This shows that he
has been uncomfortable with the fact that the
agency I serve is now the one operating the port
and not the local government. Thus, Complainant
wanted the PPA to be out of the picture in the operations
of the Port of Puerto Galera;
25. That gross negligence is most especially not present.
No allegations were once again substantiated in the shot
gun complaint. Only conjectures without backbone
concocted to malign me seems to be writing on the wall
so they say;
26. That as to his claim that I only report to duty at my
station mostly weekend and that I am using the port
facilities for pleasure and residence is very much out of
touch with reality;
27. That the complaint itself would reveal that the
allegation in the preceding paragraph is a product of
hearsay. By his own words, Complainant revealed
that he was just only told by others. Hearsay
claims coupled with bugling web of lies is a potent
combination that would warrant the dismissal of his
Complaint;
28. That as to his allegation that Complainant was not able
to meet me and he has been coming back and forth at my
office is so much vague to connote into my misconduct as

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 10 of 14

a government official. First, he does not even state the

nature why he was not able to meet me. I might be on
official travel or I was summoned by my superiors in
Calapan City. There was no declaration that I refused
to see him although I was at my office. Also there was
no showing by evidence that he indeed came back and
forth for a number times. Second, granting that our
schedules does not meet, he could have wrote a letter
addressed to me so that we can fix our schedule and
thirdly, if his intention is to measure the depth of the port
and other matters, we have other personnel who are able
and willing to accommodate and answer their queries or
give them what they need even in my absence. Another
typical untruthful and baseless claim;
29. That in order to paint unfavourably, not only me but my
agency, it was also intimated that on the day of the
alleged incident, Complainant stated that there was as if a
celebration going on at the office. This is another sinister
lie. Again, no evidence that such celebration was on going
at that time and should there be any, then the alleged
commotion between us would have catch the attention of
the ones joining the alleged celebration. We are, at that
time doing our job as employees of the government, even
on weekends for management of port operations is a 24/7
job;
30. That Complainant failed to destroy, in miserable
fashion, the presumption that I am performing my duties
in accordance to my oath as government official. In order
to destroy that presumption, the complaint should have
been accompanied by documents and other pieces of
evidence, much more, witnesses to shatter this time
honored doctrine. Instead, the Complainant only attached
mostly business documents, which are not even directly
related when indicting one for violation of Paragraph 3 (e)
of Republic Act No. 3019;

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 11 of 14

31. That also, the Complainant alleged that I committed the

crime of Grave Threats as punishable by Article 286 of the
Revised Penal Code;
32. That by law and jurisprudence, there are two ways of
committing Grave threats which are;
i.

ii.

By preventing another by means of

violence, threats or intimidation,
from doing something not prohibited
by law; and
By compelling another, by means of
violence, threats or intimidation, to
do something against his will,
whether it be right or wrong.

33. That the elements of grave threats are;

i.

ii.

iii.

That a person prevented another

from doing something not prohibited
by law, or by compelling him to do
something against his will, be it right
or wrong;
That the prevention or compulsion
be effected by violence, either
material force or such display of
force as would produce intimidation
and control the will of the offended
party;and
That the person that restrained the
will and liberty of another had no
authority.

34. That interestingly, the Complainant cannot somehow fit

his puzzle of fantastic machinations together. Probing the
complaint itself would reveal that he was not able to
coherently convey what exactly did I prevented or
compelled them to do;
35. That the claim that one of my allegedly armed
companions closed the gate as if we were trying to
prevent from leaving the port is full of

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 12 of 14

inconsistencies and untruthful declarations. If

indeed we were armed with intent to detain,
terrorize or harass the Complainant and his
companion, then why would one of my allegedly
armed companion would succumb to his words
Bakit nyo kami ikukulong? and somehow reacted
by opening the gate when Complainant uttered
those words? We could have kept the gate closed,
prevented them from going anywhere and pursued
with the threats. Anyway, as twistedly declared by
the Complainant, we have the guns and the
muscles, allegedly of course. The answer is simple
- no crime was committed for what Complainant
claimed never happened;
36. That noteworthy is the fact that since he claimed
that I have with me a gun and two armed
individuals in civilian clothing and had the matter
reported to the police, why did not even one
element of the PNP Puerto Galera went to our
office to at least verify this claim considering that
the same is very alarming to the peace of the town?
Why did the Complainant never fully explained in
detail how I and the alleged two men in civilian
clothing with firearms intimidated him and his
companion? It is no rocket science to determine
through this that the Complainant made a poorly
concocted lie;
37. That not only by law but when put to the crucible of
common human experience, Complainants version of
things as reflected in his complaint will definitely fail. I am
from Calapan City while the Complainant is from Puerto
Galera. It is common knowledge that his brother was a
former mayor of that town and that his nephew is the
current mayor. Who would be bold enough to
challenge the Complainant into a gun fight in a
town in which his family is in a position of
advantage?

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 13 of 14

38.
This is a clear indication that the complaint is a
complete sham that is full of loopholes and constructed to
put up a make believe scenario that the Complainant was
the victim when all indicators and priors are stacked up to
the contrary. Put it bluntly, I am the victim here;
39. That in the end, the Complaint does not engender a
well-founded belief that I committed the crimes Im
accused of. It is akin to a poorly written work of fiction that
is full of inconsistencies and wayward assertions;
40. That I am humbly beseeching the kind indulgence of
the Honorable Regional State Prosecutor (herein Acting
Provincial Prosecutor for Oriental Mindoro) to dismiss this
case outright which, to my view is an attempt to harass,
malign and impugn my dignity as a person and as an
honest government employee by abusing the criminal
prosecution arm of the government and put into waste
precious resources of the Department of Justice to pursue
his vile motives;
01 September 2015, City of Calapan for San Pablo City,
Laguna.

IN WITNESS WHEREOF, I have hereunto set my hand this

_____________ at Calapan City, Philippines.

LEE S. MANALAYSAY
Respondent/Affiant

CERTIFICATION
SUBSCRIBED AND SWORN to before me this _________,
2015 in the City Prosecution Office of Calapan City. Affiant

COUNTER AFFIDAVIT
Atienza vs. Manalaysay
NPS NO. IV-07-INV-15F-00156
Violation of RA 3019 & Grave Threats
Page 14 of 14

attested to the truth of the foregoing. I further certify that I have

personally examined the affiant and I am fully satisfied that he
voluntarily executed the same, and fully understood the contents
thereof.
ADMINISTERING OFFICER