[G. R. No. 151992.

September 18, 2002]

COMMISSION ON ELECTIONS, COMELEC CHAIRMAN ALFREDO L. BENIPAYO, COMELEC COMMISSIONERS

RESURRECCION Z. BORRAand FLORENTINO A. TUASON, JR., petitioners, vs. JUDGE MA. LUISA
QUIJANO-PADILLA, REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 215 and PHOTOKINA
MARKETING CORP., respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

The contracting prerogative of public officers is circumscribed with a heavy burden of

responsibility. They must exercise utmost caution and observe the law in order to protect the public from
unjust and inequitable government contracts.

The case at bar provides us with another occasion to stress that with respect to government
contracts, statutes take precedence over the public officers freedom to contract. Here, the primordial
question to be resolved is -- may a successful bidder compel a government agency to formalize a
contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the
project?

Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended,
alleging that respondent Judge Ma. Luisa Quijano-Padilla of the Regional Trial Court, Branch 215, Quezon
City, committed grave abuse of discretion in issuing the (a) Resolution[1] dated December 19, 2001
granting private respondents application for a writ of preliminary prohibitory injunction in Special Civil
Action No. Q-01-45405[2]; and (b) Resolution[3] dated February 7, 2002 denying petitioners Omnibus Motion
to dismiss the petition and their motion for reconsideration of the same Resolution and granting private
respondent's application for a writ of preliminary mandatory injunction.

The facts are undisputed.

In 1996, the Philippine Congress passed Republic Act No. 8189, otherwise known as the "Voter's
Registration Act of 1996," providing for the modernization and computerization of the voters' registration list
and the appropriate of funds therefor "in order to establish a clean, complete, permanent and updated list
of voters."[4]

Pursuant thereto, the Commission on Elections (COMELEC) promulgated Resolution No. 00-
0315[5] approving in principle the Voter's Registration and Identification System Project (VRIS) Project for
brevity). The VRIS Project envisions a computerized database system for the May 2004 Elections. The idea
is to have a national registration of voters whereby each registrant's fingerprints will be digitally entered
into the system and upon completion of registration, compared and matched with other entries to
eliminate double entries. A tamper-proof and counterfeit-resistant voter's identification card will then be
issues to each registrant as a visual record of the registration.

On September 9, 1999, the COMELEC issued invitations to pre-qualify and bid for the supply and
installations of information technology equipment and ancillary services for its VRIS Project. [6] Private
respondent Photokina Marketing Corporation (PHOTOKINA) pre-qualified and was allowed to participate
as one of the bidders. After the public bidding was conducted, PHOTOKINA's bid in the amount of P6.588
Billion Pesos garnered the highest total weighted score and was declared the winning bidder. Thus, on
September 28, 2000, the COMELEC issued Resolution No. 3252 [7] approving the Notice of Award to
PHOTOKINA, which, in turn, immediately accepted the same. The parties then proceeded to formalize the
contract, with Commissioner Mehol K. Sadain and Atty. Rodrigo D. Sta. Ana, acting as negotiators for the
COMELEC and PHOTOKINA, respectively.
 However, under Republic Act No. 8760[8] the budget appropriated by Congress for the COMELECs
modernization project was only One (1) Billion Pesos and that the actual available funds under the
Certificate of Availability of Funds (CAF) issued by the Chief Accountant of the COMELEC was only P1.2
Billion Pesos.

In December 2000, then COMELEC Chairman Harriet O. Demetriou issued a memorandum to the
COMELEC en banc expressing her objections to the contract.Commissioner Sadain, for his part, submitted
a draft of the contract[9] providing a price that would not exceed the certified available appropriation
but covering only Phase I of the VRIS Project, i.e., issuance of registration cards for 1,000,000 voters in
certain areas only.[10] Under the draft, the subsequent completion of the whole project shall be agreed
upon in accordance with the Bid Documents and the annual funds available for it. [11]

On February 2, 2001, the term of former Chairman Demetriou and those of Commissioners Julio F.
Desamito and Teresita Dy-Liacco Flores expired. Appointed as their successors were Alfredo L. Benipayo
as Chairman and Resurreccion Z. Borra and Florentino A. Tuason, Jr. as Commissioners.

Meanwhile, PHOTOKINA, as the winning bidder, wrote several letters to the COMELEC requesting the
formal execution of the contract, but to no avail.[12]

Then Chairman Benipayo, through various press releases and public statements, announced that the
VRIS Project has been scrapped, dropped, junked, or set aside. He further announced his plan to re-
engineer the entire modernization program of the COMELEC, emphasizing his intention to replace the
VRIS Project with his own version, the Triple E Vision.[13]

On October 2, 2001, Senator Edgardo J. Angara directed the creation of a technical working group
to assist the COMELEC in evaluating all programs for the modernization of the COMELEC which will also
consider the PHOTOKINA contract as an alternative program and various competing programs for the
purpose.

Unsatisfied with the adverse turn of events, PHOTOKINA filed with the Regional Trial Court, Branch 215,
Quezon City a petition for mandamus, prohibition and damages (with prayer for temporary restraining
order, preliminary prohibitory injunction and preliminary mandatory injunction) against the COMELEC and
all its Commissioners,[14]docketed as Special Civil Action No. Q- 01- 45405. PHOTOKINA alleged three
causes of action: first, the deliberate refusal of the COMELEC and its Commissioners to formalize the
contract rendered nugatory the perfected contract between them; second, in announcing that
the VRIS Project has been junked and that he has plans to re-engineer the COMELECs entire
modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the
COMELECs failure to perform its duty under the contract has caused PHOTOKINA to incur damages since
it has spent substantial time and resources in the preparation of the bid and the draft contract.

In support of its application for writs of preliminary prohibitory and mandatory injunction, PHOTOKINA
adopted the evidence it adduced during the hearing of its application for the issuance of a temporary
restraining order.

On December 19, 2001, respondent Judge Ma. Luisa Quijano-Padilla issued the first assailed
Resolution granting PHOTOKINAs application for a writ of preliminary prohibitory injunction, thus:

"WHEREFORE, premises considered, the Court resolves to: (1) grant the application for the issuance of a
writ of preliminary prohibitory injunction; and (2) deny the application for the issuance of a writ of
preliminary mandatory injunction.

Accordingly, let a writ of preliminary prohibitory injunction issue enjoining respondents, their agents,
successors and assigns from replacing the VRIS Project upon petitioners posting of a bond in the amount
of P20,000,000.00, which bond shall answer for whatever damages which may be sustained by reason of
the issuance of the said writ, if it turns out that the plaintiffs are not entitled thereto.

SO ORDERED"[15]

Both parties filed their respective motions for reconsideration. PHOTOKINA reiterated its plea for a writ
of preliminary mandatory injunction.[16] For their part, the COMELEC and its Commissioners, through the
Solicitor General, prayed that the writ of preliminary prohibitory injunction be set aside and that the
petition for mandamus, prohibition and damages be dismissed.[17]

On February 8, 2002, respondent judge issued the second assailed Resolution denying the COMELECs
Omnibus Motion and, this time, granting PHOTOKINAs application for a writ of preliminary mandatory
injunction, thus:

"WHEREFORE, premises considered, this Court resolves to: (1) deny Respondents Omnibus Motion for the
dismissal of this case and for the reconsideration of this Courts Resolution granting the writ of preliminary
prohibitory injunction; (2) grant Petitioners Motion dated January 2, 2002 insofar as it prays for the issuance
of a writ of preliminary mandatory injunction; (3) Grant the prayer for the reduction of the preliminary
prohibitory injunction bond from P20,000,000.00 to P10,000,000.00; (4) Clarify its Resolution dated
December 19, 2001 to the extent that the writ of preliminary prohibitory injunction will also enjoin
Respondents, their agents, successors and assigns from disregarding the contract for the VRIS Project
between Petitioner and Respondent COMELEC; (5) deny Petitioners motion to declare Respondents in
default.

"Accordingly, let a writ of preliminary mandatory injunction issue directing all respondent Commissioners to
immediately resume negotiations to formalize the execution of the contract with Petitioner for the VRIS
Project upon petitioners posting of a bond, separate from the above bond for the writ of preliminary
prohibitory injunction, in the amount of P20,000,000.00, which bond shall answer for whatever damages
that may be sustained by reason of the issuance of the said writ, if it turns out that Petitioner is not entitled
thereto.

"SO ORDERED."[18]

Hence, the instant petition for certiorari filed by the Office of the Solicitor General (OSG) in behalf of
then COMELEC Chairman Alfredo L. Benipayo and Commissioners Resurreccion Z. Borra and Florentino A.
Tuason, Jr..

Petitioners contend that: (1) a petition for mandamus and prohibition does not lie to enforce
contractual obligations, hence, PHOTOKINAs proper recourse before the Regional Trial Court should have
been an action for specific performance; (2) respondent judge, by issuing the injunctive writs, already
assumed that the VRIS Project was lawfully awarded by the COMELEC to PHOTOKINA, and that there is a
valid perfected contract between them, thus, manifesting her prejudgment; and (3) injunctive writs
should not be issued when an action for damages can adequately compensate for the
injuries. Petitioners pray that the two assailed Resolutions be nullified and Special Civil Action No. Q-01-
45405 be dismissed outright.[19]

On February 21, 2002, the majority of the COMELEC Commissioners -- Luzviminda G. Tancangco,
Rufino S.B. Javier, Ralph C. Lantion and Mehol K. Sadain filed with this Court a Manifestation [20] that the
Chairman and the two Commissioners who filed the instant Petition acted without authority from the
COMELEC en banc to take such action.

PHOTOKINA filed a Comment with Motion to Dismiss,[21] the present petition, on two procedural
grounds. First, the petition violates the doctrine of hierarchy of courts. And second, the OSG has no
authority and/or standing to file the petition considering that the petitioners have not been authorized by
the COMELEC en banc to take such action. Without the concurrence of at least a majority of the
members of the COMELEC, neither petitioners nor the OSG could file the petition in behalf of the
COMELEC.

In refutation of petitioners arguments, PHOTOKINA contends that mandamus is an appropriate

remedy since what is involved in Special Civil Action No. Q-01-45405 is the performance of a ministerial
duty. Citing Isada vs. Bocar,[22] PHOTOKINA maintains that mandamus may be availed of by private
parties to compel public officers to act on a contract entered into pursuant to law. In its Supplemental
Comment,[23] PHOTOKINA invites the Courts attention to Metropolitan Manila Development Authority vs.
Jancom Environmental Corporation[24]whereby the winning bidder was afforded every right to seek
enforcement of its perfected contract with the government.
 The petition is impressed with merit.

Initially, we must resolve the procedural roadblocks.

PHOTOKINA alleges that the OSG has no standing to file the present petition since its legal position is
contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-
sequitur conclusion. The OSG is an independent office. Its hands are not shackled to the cause of its client
agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest
of the government is upheld.[25] This is regardless of the fact that what it perceived as the best interest of
the government runs counter to its client agencys position.[26] Endowed with a broad perspective that
spans the legal interest of virtually the entire government officialdom, the OSG may transcend the
parochial concerns of a particular client agency and instead, promote and protect the public
weal.[27] Our ruling in Orbos vs. Civil Service Commission,[28] is relevant, thus:

"x x x It is incumbent upon him (Solicitor General) to present to the court what he considers would legally
uphold the best interest of the government although it may run counter to a clients position. x x x.

"In the present case, it appears that after the Solicitor General studied the issues he found merit in the
cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the
petitioner as he did by filing this petition. He cannot be disqualified from appearing for the petitioner even
if in so doing his representation runs against the interests of the CSC.

"This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients
like the CSC, the National Labor Relations Commission, among others, and even the People of the
Philippines. x x x (Emphasis supplied)

Hence, while petitioners stand is contrary to that of the majority of the Commissioners, still, the OSG
may represent the COMELEC as long as in its assessment, such would be for the best interest of the
government. For, indeed, in the final analysis, the client of the OSG is not the agency but no less than the
Republic of the Philippines in whom the plenum of sovereignty resides.[29]

Moreover, it must be emphasized that petitioners are also public officials entitled to be represented
by the OSG. Under Executive Order No. 292[30] and Presidential Decree No. 478,[31] the OSG is the lawyer of
the government, its agencies and instrumentalities, and its officials or agents. Surely, this mandate includes
the three petitioners[32] who have been impleaded as public respondents in Special Civil Action No. Q-01-
45405.

Anent the alleged breach of the doctrine of hierarchy of courts, suffice it to say that it is not an iron-
clad dictum. On several instances where this Court was confronted with cases of national interest and of
serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of
the case.[33] The case at bar is of similar import. It is in the interest of the State that questions relating to
government contracts be settled without delay. This is more so when the contract, as in this case, involves
the disbursement of public funds and the modernization of our countrys election process, a project that
has long been overdue.

We now resolve the following substantive issues:

1) Is a petition for mandamus the appropriate remedy to enforce contractual obligations? and 2)
May a successful bidder compel a government agency to formalize a
contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the
project?

No rule of law is better settled than that mandamus does not lie to enforce the performance of
contractual obligations.[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,[35] already set forth
the justification of this rule, thus:

Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or
even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts
 stated, are derived from her contract with the city; and no rule of law is better settled than
that mandamus never lies to enforce the performance of private contracts. x x xThe petitioners remedy, if
any she has, is by an original action in the Court of First Instance to compel the city to pay the agreed
price or to pay damages for the breach of contract.

"x x x. As said in Lowe vs. Phelps (14 Bush, 642):

It must, therefore, appear upon every application for a mandamus that it is the legal duty of the
respondent to do that which it is sought to compel him to do, and that he has upon proper application
refused to perform that duty.' (Citing numerous authorities).

"It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of
the other remedies provided by law for the adjudication of disputed claims.Looking at the case from the
standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended,
the appellant had a valid contract with the school board, it also had an adequate remedy at law to
recover damages for its breach; and to permit the writ of mandamus to be used for the purpose of
enforcing a mere contract right would be a wide departure from the settled practice in respect to the
character of cases in which relief by mandamus may be obtained.

"In Parrott vs. City of Bridgeport (44 Conn., 180), the writ was refused where the petitioner sought to
compel a city to construct a public street in a certain manner agreeably to the terms of a special
agreement between the petitioner and the city. In the course of the opinion the court said:

"* * * The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the
petitioner as an individual, not to the public, and the special contract is the foundation upon which it
rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement
of contract rights of a private and personal nature and obligations which rest wholly upon contract and
which involve no questions of public trusts or official duty. Indeed, strictly speaking, it never lies where the
party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute
failure of justice in cases where ordinary legal processes furnish no relief. (Emphasis supplied)

The passage of time has not eroded the wisdom of the foregoing rule. Its invocation by this Court
in Province of Pangasinan vs. Reparation Commission,[36] Aprueba vs.Ganzon,[37] City of Manila vs.
Posadas,[38] Jacinto vs. Director of Lands,[39] National Marketing Corporation vs. Cloribel,[40] Astudillo vs. The
Board of Directors of Peoples Homesite and Housing Corporation,[41] and Sharp International Marketing vs.
Court of Appeals,[42] virtually reinforces the rule. The present case is our latest addition to the above
catena of jurisprudence. We carefully read the pleadings filed in Special Civil Action No. Q-01-45405 and
we are convinced that what PHOTOKINA sought to enforce therein are its rights under the accepted bid
proposal. Its petition alleged that notwithstanding the COMELECs issuance of a Notice of Award and its
(PHOTOKINAs) subsequent acceptance thereof, the COMELEC still refused to formalize the contract. As a
relief, PHOTOKINA prayed that after trial, petitioners be directed to review and finalize the formal
contract and to implement the VRIS Project.[43] Petitioners, on their part, specifically denied the existence
of a perfected contract and asserted that even if there was one, the same is null and void for lack of
proper appropriation. Petitioners labeled the contract as illegal and against public policy.

Akin to our rulings cited above, we hold that mandamus is not the proper recourse to enforce the
COMELEC's alleged contractual obligations with PHOTOKINA. It has other adequate remedy in
law. Moreover, worth stressing is the judicial caution that mandamus applies as a remedy only
where petitioner's right is founded clearly in law and not when it is doubtful.[44] In varying language, the
principle echoed and reechoed is that legal rights may be enforced by mandamus only if those rights are
well-defined, clear and certain.[45] Here, the alleged contract, relied upon by PHOTOKINA as source of its
rights which it seeks to be protected, is being disputed, not only on the ground that it was not perfected
but also because it is illegal and against public policy.

Of course, there are cases in which the writ of mandamus has been used to compel public officers to
perform certain acts, but it will be generally observed that in such cases, the contracts have been
completely performed by the petitioner, and nothing remained to be done except for the government to
 make compensation. These exceptional cases are cited in Isada vs. Bocar[46] where the act of the
respondent public officer has the effect of setting aside contracts already in the process of
consummation. In contrast with Isada, the alleged contract here has not yet been fully performed by
PHOTOKINA; and though it avers readiness to perform, petitioners raised serious questions as to its
validity. Their posture is tenable.

II

To spare PHOTOKINA the drudgery of a fruitless pursuit, we deem it appropriate to lay down the
principles governing government contracts and to apply them to the instant case. Meanwhile, as
PHOTOKINA will later on deduce from the discussion, the contract subject of this controversy is one that can
be slain in sight for being patently void and unenforceable.

Enshrined in the 1987 Philippine Constitution is the mandate that "no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." [47]Thus, in the execution of government
contracts, the precise import of this constitutional restriction is to require the various agencies to limit their
expenditures within the appropriations made by law for each fiscal year.

Complementary to the foregoing constitutional injunction are pertinent provisions of law and
administrative issuances that are designed to effectuate the above mandate in a detailed
manner.[48] Sections 46 and 47, Chapter 8, Subtitle B, Title I, Book V
of Executive Order No. 292, otherwise known as "Administrative Code of 1987," provide:

"SEC. 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public
funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which,
free of other obligations, is sufficient to cover the proposed expenditure; and x x x

"SEC. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a contract for
personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated
consumption for three (3) months, or banking transactions of government-owned or controlled banks, no
contract involving the expenditure of public funds by any government agency shall be entered into or
authorized unless the proper accounting official of the agency concerned shall have certified to the officer
entering into the obligation that funds have been duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the current calendar year is available for expenditure on
account thereof, subject to verification by the auditor concerned. The certificate signed by the proper
accounting official and the auditor who verified it, shall be attached to and become an integral part of
the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any
other purpose until the obligation of the government agency concerned under the contract is fully
extinguished.

It is quite evident from the tenor of the language of the law that the existence of appropriations and
the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of
government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of
the proposed contract.[49] Using this as our premise, we cannot accede to PHOTOKINA's contention that
there is already a perfected contract. While we held in Metropolitan Manila Development Authority vs.
Jancom Environmental Corporation[50] that "the effect of an unqualified acceptance of the offer or
proposal of the bidder is to perfect a contract, upon notice of the award to the bidder," however, such
statement would be inconsequential in a government where the acceptance referred to is yet to meet
certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would
obligate the government in an amount in excess of the appropriations for the purpose for which the
contract was attempted to be made.[51] This is a dangerous precedent.

In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding
stage. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with
the requirements. The BAC shall rate a bid "passed" only if it complies with all the requirements and the
submitted price does not exceed the approved budget for the contract."[52]

Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid
in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760,[53] the only fund appropriated
for the project was P1 Billion Pesos and under the Certification of Available Funds [54] (CAF) only P1.2 Billion
Pesos was available.Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS
Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted
bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should
have rejected the bid for being excessive[55] or should have withdrawn the Notice of Award on the ground
that in the eyes of the law, the same is null and void.[56]

The objections of then Chairman Demetriou to the implementation of the VRIS Project, ardently
carried on by her successor Chairman Benipayo, are therefore in order.

Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the
amount of P1.2 Billion Pesos is unacceptable. Indeed, we share the observation of former Chairman
Demetriou that it circumvents the statutory requirements on government contracts. While the contract
price under the draft contract[57] is only P1.2 Billion and, thus, within the certified available funds, the same
covers only Phase I of the VRIS Project, i.e., the issuance of identification cards for only 1,000,000 voters in
specified areas.[58] In effect, the implementation of the
VRIS Project will be "segmented" or "chopped" into several phases. Not only is such arrangement disallowed
by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the
uncertainty that will loom over its modernization project for an indefinite period oftime. Should Congress fail
to appropriate the amount necessary for the completion of the entire project, what good will the
accomplished Phase I serve? As expected, the project failed "to sell" with the Department of Budget and
Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the
COMELEC's request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligational
authority to assume payment of the total VRIS Project for lack of legal basis. [59] Corollarily, under Section 33
of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational
authority, thus:

"SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall
enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of
Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational
Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount
programmed for implementation during said calendar year."

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them
not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to
act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. In Osmea
vs. Commission on Audit,[60] this Court held:

"The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure
of public funds shall be entered into unless there is an appropriation therefor and the proper accounting
official of the agency concerned shall have certified to the officer entering into the obligation that funds
have been duly appropriated for the purpose and the amount necessary to cover the proposed contract
for the current fiscal year is available for expenditure on account thereof. Any contract entered into
contrary to the foregoing requirements shall be VOID.

"Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning
since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount
(P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and
unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we agree,
that:

'The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and
mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any
government contract involving the expenditure of public funds by all government agencies at all
levels. Such contracts are not to be considered as final or binding unless such a certification as to funds
availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus
essential to government liability on contracts (Zobel vs. City of Manila, 47 Phil. 169). This contract being
violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and
void by virtue of Sec.87.'"
 Verily, the contract, as expressly declared by law, is inexistent and void ab initio.[61] his is to say that
the proposed contract is without force and effect from the very beginning or from its incipiency, as if it
had never been entered into, and hence, cannot be validated either by lapse of time or ratification. [62]

Of course, we are not saying that the party who contracts with the government has no other
recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that
any contract entered into contrary to the above-mentioned requirements shall be void, and the officers
entering into the contract shall be liable to the Government or other contracting party for any
consequent damage to the same as if the transaction had been wholly between private parties." So
when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond
the limits of his contracting authority, the Government is not bound under the contract. It would be as if
the contract in such case were a private one, whereupon, he binds only himself, and thus, assumes
personal liability thereunder.[63] Otherwise stated, the proposed contract is unenforceable as to the
Government.

While this is not the proceeding to determine where the culpability lies, however, the constitutional
mandate cited above constrains us to remind all public officers that public office is a public trust and all
public officers must at all times be accountable to the people. The authority of public officers to enter into
government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their
contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the
contract they entered into. They must exercise a high degree of caution so that the Government may not
be the victim of ill-advised or improvident action.[64]

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to
formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the
VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void; and that in
issuing the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing
Special Civil Action No. Q-01-45405, respondent judge acted with grave abuse of discretion. Petitioners
cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment
and discretion, especially where disbursement of public funds is concerned.

WHEREFORE, the petition is GRANTED. The Resolutions dated December 19, 2001 and February 7, 2002
issued by respondent Judge Padilla are SET ASIDE. SpecialCivil Action No. Q-01-45405 is hereby ordered
DISMISSED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.
RUPERTO A. AMBIL, JR., G.R. No. 175457
Petitioner,

- versus -

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ALEXANDRINO R. APELADO, SR., G.R. No. 175482

Petitioner,
Present:

CORONA, C.J.,
Chairperson,
- versus -
CARPIO,*
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.
PEOPLE OF THE PHILIPPINES,
Promulgated:
Respondent.
July 6, 2011
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DECISION

VILLARAMA, JR., J.:

Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil,

Jr.[1] and petitioner Alexandrino R. Apelado Sr.[2] assailing the Decision[3] promulgated on September 16,

2005 and Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892.

The present controversy arose from a letter [5] of Atty. David B. Loste, President of the Eastern Samar Chapter

of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation

into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for

murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A.

Ambil, Jr. In a Report[6] dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the

filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e) [7] of Republic Act (R.A.) No.

3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended. On September 22, 1999,

the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer

interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint

against petitioners.[8]

Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado,

Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon
reinvestigation, the Office of the Ombudsman issued a Memorandum[10] dated August 4, 2000,

recommending the dismissal of the complaint as regards Balano and the amendment of the Information to

include the charge of Delivering Prisoners from Jail under Article 156 [11] of the Revised Penal Code, as

amended, (RPC) against the remaining accused. The Amended Information[12] reads:

That on or about the 6th day of September 1998, and for sometime prior [or]
subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, [the] above-named
accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and
Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having
been public officers, duly elected, appointed and qualified as such, committing the
offense in relation to office, conniving and confederating together and mutually helping x
x x each other, with deliberate intent, manifest partiality and evident bad faith, did then
and there wilfully, unlawfully and criminally order and cause the release from the Provincial
Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for
Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding
Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention
prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.s custody, by
allowing said Mayor Adalim to stay at accused Ambils residence for a period of Eighty-Five
(85) days, more or less which act was done without any court order, thus accused in the
performance of official functions had given unwarranted benefits and advantage to
detainee Mayor Francisco Adalim to the prejudice of the government.

CONTRARY TO LAW.

BAIL BOND RECOMMENDED: P30,000.00 each.[13]

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalims

transfer was justified considering the imminent threats upon his person and the dangers posed by his

detention at the provincial jail. According to petitioners, Adalims sister, Atty. Juliana A. Adalim-White, had
sent numerous prisoners to the same jail where Mayor Adalim was to be held.

Consequently, the prosecution no longer offered testimonial evidence and rested its case after the

admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with

Reservation to Present Evidence in Case of Denial[14] but the same was denied.

At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and

Mayor Francisco C. Adalim.

Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to
him, it was upon the advice of Adalims lawyers that he directed the transfer of Adalims detention to his

home. He cites poor security in the provincial jail as the primary reason for taking personal custody of
Adalim considering that the latter would be in the company of inmates who were put away by his sister

and guards identified with his political opponents.[15]

For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of

Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in

Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of

Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayors

safety.[16]

Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his

arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court

(RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he spotted inmates who

served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also

noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called

on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for almost three months before he

posted bail after the charge against him was downgraded to homicide.[17]

Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on

September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor

Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalims arrest and arguing with the jail

guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White

who informed him that he was under the governor, in the latters capacity as a provincial jailer. Petitioner

claims that it is for this reason that he submitted to the governors order to relinquish custody of Adalim. [18]

Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and

undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were

two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable

at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits. [19]

On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision [20] finding

petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a

private residence, petitioners have conspired to accord him unwarranted benefits in the form of more

comfortable quarters with access to television and other privileges that other detainees do not enjoy. It

stressed that under the Rules, no person under detention by legal process shall be released or transferred
except upon order of the court or when he is admitted to bail.[21]
The Sandiganbayan brushed aside petitioners defense that Adalims transfer was made to ensure his

safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalims life but

relied simply on the advice of Adalims lawyers. The Sandiganbayan also pointed out the availability of an

isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been

used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn over Adalim

despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior and Local

Government.

Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of

imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4)

months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of

obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to

nine (9) years and eight (8) months.

Hence, the present petitions.

Petitioner Ambil, Jr. advances the following issues for our consideration:

WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO
PETITIONERS CASE BEFORE THE SANDIGANBAYAN.

II

WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR

PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED.

III

WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT
BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e).

IV

WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS

1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND
SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A
DETENTION PRISONER.

WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF

FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

VI
 WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION
EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.[22]

For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan:
I

THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND

JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN
CONSPIRACY WITH HIS CO-ACCUSED AMBIL.

II

IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY

BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL
CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE
REVISED PENAL CODE.

III

THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER
OF HAVING GIVEN MAYOR ADALIM UNWARRANTED BENEFITS AND ADVANTAGE TO THE
PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.[23]

The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond

reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority

to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying

circumstance of fulfillment of duty under Article 11(5)[24] of the RPC.

Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed into two: (1) Whether he is

guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to

the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under

Article 11(6)[25]of the RPC.

Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case

because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a

public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be

held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking

custody of the mayor pursuant to his duty as a Provincial Jailer under the Administrative Code of

1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty

or lawful exercise of duty.

Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner

Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he

transferred the detention of Adalim. As well, he invokes immunity from criminal liability.

For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that

restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP

explains that it is enough to show that in performing their functions, petitioners have accorded undue

preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is

deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted

benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of

murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn

over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners lack of authority

to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not

entitled to the benefit of any justifying circumstance.

After a careful review of this case, the Court finds the present petitions bereft of merit.

Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt

Practices Act which provides:

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

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

xxxx

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

In order to hold a person liable under this provision, the following elements must concur: (1) the accused

must be a public officer discharging administrative, judicial or official functions; (2) he must have acted

with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any

undue injury to any party, including the government, or gave any private party unwarranted benefits,

advantage or preference in the discharge of his functions.[26]

As to the first element, there is no question that petitioners are public officers discharging official functions

and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public

officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No.

1606,[27] as amended by R.A. No. 8249.[28] The pertinent portions of Section 4, P.D. No. 1606, as amended,
read as follows:

SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction

in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional

director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

(a) Provincial governors, vice-governors, members of

the sangguniang panlalawigan and provincial treasurers, assessors,
engineers and other provincial department heads[;]

xxxx

In cases where none of the accused are occupying positions corresponding to Salary
Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction thereof shall be vested in the
proper regional trial court, metropolitan trial court, municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided
in Batas Pambansa Blg. 129, as amended.

xxxx

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as
regards petitioner Apelado, Sr. As to him, a Certification[29] from the Provincial Government Department

Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22.Nonetheless,

it is only when none of the accused are occupying positions corresponding to salary grade 27 or higher

shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a co-

principal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he

was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction

over them the Sandiganbayan.

The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No.

3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable

negligence.

In Sison v. People,[30] we defined partiality, bad faith and gross negligence as follows:

Partiality is synonymous with bias which excites a disposition to see and report
matters as they are wished for rather than as they are. Bad faith does not simply connote
bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill
will; it partakes of the nature of fraud. Gross negligence has been so defined as
negligence characterized by the want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but wilfully and intentionally with a
conscious indifference to consequences in so far as other persons may be affected. It is
the omission of that care which even inattentive and thoughtless men never fail to take on
their own property. x x x[31]

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the

detention of Mayor Adalim to petitioner Ambil, Jr.s house.There is no merit to petitioner Ambil, Jr.s

contention that he is authorized to transfer the detention of prisoners by virtue of his power as the Provincial

Jailer of Eastern Samar.

Section 28 of the Local Government Code draws the extent of the power of local chief executives over the

units of the Philippine National Police within their jurisdiction:

SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National
Police.The extent of operational supervision and control of local chief executives over the
police force, fire protection unit, and jail management personnel assigned in their
respective jurisdictions shall be governed by the provisions of Republic Act Numbered
Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as The Department of the
Interior and Local Government Act of 1990, and the rules and regulations issued pursuant
thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975 [32] on the Bureau of Jail Management and Penology

provides:

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over
all city and municipal jails. The provincial jails shall be supervised and controlled by the
provincial government within its jurisdiction, whose expenses shall be subsidized by the
National Government for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer
had done in the performance of his duties and to substitute the judgment of the former for that of the

latter.[33] An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in
his discretion, order the act undone or re-done by his subordinate or he may even decide to do it

himself.[34]

On the other hand, the power of supervision means overseeing or the authority of an officer to see to it that

the subordinate officers perform their duties.[35] If the subordinate officers fail or neglect to fulfill their duties,

the official may take such action or step as prescribed by law to make them perform their

duties. Essentially, the power of supervision means no more than the power of ensuring that laws are

faithfully executed, or that subordinate officers act within the law. [36] The supervisor or superintendent

merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion

to modify or replace them.[37]

Significantly, it is the provincial government and not the governor alone which has authority to exercise

control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts

beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the

bounds of law.In the event that the subordinate performs an act ultra vires, rules may be laid down on how

the act should be done, but always in conformity with the law.

In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III

of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides:

SEC. 1731. Provincial governor as keeper of jail.The governor of the province shall
be charged with the keeping of the provincial jail, and it shall be his duty to administer the
same in accordance with law and the regulations prescribed for the government of
provincial prisons. The immediate custody and supervision of the jail may be committed to
the care of a jailer to be appointed by the provincial governor. The position of jailer shall
be regarded as within the unclassified civil service but may be filled in the manner in which
classified positions are filled, and if so filled, the appointee shall be entitled to all the
benefits and privileges of classified employees, except that he shall hold office only during
the term of office of the appointing governor and until a successor in the office of the jailer
is appointed and qualified, unless sooner separated. The provincial governor shall, under
the direction of the provincial board and at the expense of the province, supply proper
food and clothing for the prisoners; though the provincial board may, in its discretion, let
the contract for the feeding of the prisoners to some other person. (Emphasis supplied.)

This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision

designate the provincial governor as the provincial jailer, or even slightly suggest that he is empowered to

take personal custody of prisoners. What is clear from the cited provision is that the provincial governors

duty as a jail keeper is confined to the administration of the jail and the procurement of food and clothing

for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to
carry out legislative policies and purposes already declared by the legislative body or such as are
devolved upon it[38] by the Constitution. Therefore, in the exercise of his administrative powers, the governor

can only enforce the law but not supplant it.

Besides, the only reference to a transfer of prisoners in said article is found in Section 1737 [39] under which

prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure

or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by

Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides:

SEC. 3. No release or transfer except on court order or bail.-No person under

detention by legal process shall be released or transferred except upon order of the court
or when he is admitted to bail.

Indubitably, the power to order the release or transfer of a person under detention by legal process is

vested in the court, not in the provincial government, much less the governor. This was amply clarified by

Asst. Sec. Ingeniero in his communication[40] dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst.

Sec. Ingeniero wrote:

06 October 1996

GOVERNOR RUPERTO AMBIL

Provincial Capitol
Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by
this Department, relative to your alleged action in taking into custody Mayor Francisco
Aising Adalim of Taft, that province, who has been previously arrested by virtue by a
warrant of arrest issued in Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with the provision of
Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be
delivered to the nearest police station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused
municipal mayor is misplaced. Said section merely speaks of the power of supervision
vested unto the provincial governor over provincial jails. It does not, definitely, include the
power to take in custody any person in detention.

In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of
law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal
complications.

Please be guided accordingly.

Very truly yours,

(SGD.)
JESUS I. INGENIERO
Assistant Secretary
 Still, petitioner Ambil, Jr. insisted on his supposed authority as a provincial jailer. Said petitioners

usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to

accommodate a former political party mate,[41] betray his unmistakable bias and the evident bad faith

that attended his actions.

Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned

above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act

constituting the offense consist of either (1) causing undue injury to any party, including the government, or

(2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the

accused of his official, administrative or judicial functions.

In the case at hand, the Information specifically accused petitioners of giving unwarranted

benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release

from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the

applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to

him allegedly because the last sentence thereof provides that the provision shall apply to officers and

employees of offices or government corporations charged with the grant of licenses, permits or other

concessions and he is not such government officer or employee. Second, the purported unwarranted

benefit was accorded not to a private party but to a public officer.

However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is

not altogether unaware, of our ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution

for violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or not the accused public

officer is charged with the grant of licenses or permits or other concessions. Following is an excerpt of what

we said in Mejorada,

Section 3 cited above enumerates in eleven subsections the corrupt practices of any
public officers (sic) declared unlawful. Its reference to any public officer is without
distinction or qualification and it specifies the acts declared unlawful. We agree with the
view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e)
is intended to make clear the inclusion of officers and employees of officers (sic) or
government corporations which, under the ordinary concept of public officers may not
come within the term. It is a strained construction of the provision to read it as applying
exclusively to public officers charged with the duty of granting licenses or permits or other
concessions.[43] (Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a prosecution for violation

of said provision will lie regardless of whether the accused public officer is charged with the grant of
licenses or permits or other concessions.[45]
Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of R.A. No. 3019 defines a

public officer to include elective and appointive officials and employees, permanent or temporary,

whether in the classified or unclassified or exemption service receiving compensation, even nominal from

the government.Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes

the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim

was the recipient of such benefits take petitioners case beyond the ambit of said law?

We believe not.

In drafting the Anti-Graft Law, the lawmakers opted to use private party rather than private person to

describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term party

is a technical word having a precise meaning in legal parlance[46] as distinguished from person which, in

general usage, refers to a human being.[47] Thus, a private person simply pertains to one who is not a public

officer. While a private party is more comprehensive in scope to mean either a private person or a public

officer acting in a private capacity to protect his personal interest.

In the present case, when petitioners transferred Mayor Adalim from the provincial jail and detained him at

petitioner Ambil, Jr.s residence, they accorded such privilege to Adalim, not in his official capacity as a

mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section

3(e), R.A. No. 3019, Adalim was a private party.

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

unjustified favor or benefit to another in the exercise of his official, administrative or judicial functions. [48] The

word unwarranted means lacking adequate or official support; unjustified; unauthorized or without

justification or adequate reason. Advantage means a more favorable or improved position or condition;

benefit, profit or gain of any kind; benefit from some course of action.Preference signifies priority or higher

evaluation or desirability; choice or estimation above another.[49]

Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial

jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to

move about the house and watch television. Petitioners readily extended these benefits to Adalim on the

mere representation of his lawyers that the mayors life would be put in danger inside the provincial jail.

As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on
Adalims safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even

if we treat Akyatans gesture of raising a closed fist at Adalim as a threat of aggression, the same would still
not constitute a special and compelling reason to warrant Adalims detention outside the provincial jail. For

one, there were nipa huts within the perimeter fence of the jail which could have been used to separate

Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair

could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s house. More importantly,

even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court

order was still indispensable for his transfer.

The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners.

Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of

right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or

in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying

circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a

duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the

necessary consequence of the due performance of duty or the lawful exercise of such right or

office.[50] Both requisites are lacking in petitioner Ambil, Jr.s case.

As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer

and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not

proceed from the due performance of his duty or lawful exercise of his office.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued

for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to

an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying

circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior;

(2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out

said order is lawful.[51] Only the first requisite is present in this case.

While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor, neither

said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as

the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial

jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him

liable as a principal by direct participation under Article 17(1)[52] of the RPC.

An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one

performing one part of and another performing another so as to complete it with a view to the attainment
of the same object, and their acts although apparently independent were in fact concerted and

cooperative, indicating closeness of personal association, concerted action and concurrence of

sentiments.[53]

Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful cooperation in executing

petitioner Ambil, Jr.s order to move Adalim from jail, despite the absence of a court order. Petitioner

Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a

court order to transfer a person under detention by legal process is elementary. Truth be told, even

petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to

transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the

violation charged, makes them equally responsible as conspirators.

As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or

a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and

one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under

Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is

punished by a special law, the court shall sentence the accused to an indeterminate sentence, the

maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less

than the minimum term prescribed by the same.

Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9)

years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a

co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado,

Sr. shall suffer the same penalty.

WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No.

25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr.

guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is,

likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1)

day to twelve (12) years and four (4) months.

With costs against the petitioners.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice
WE CONCUR:

RENATO C. CORONA
Chief Justice
Chairperson

ANTONIO T. CARPIO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.

RENATO C. CORONA
Chief Justice
 SECOND DIVISION

G.R. No. 191219 July 31, 2013

SPO1 RAMON LIHAYLIHAY1 AND C/INSP. VIRGILIO V. VINLUAN, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari2 are the Decision3 dated August 8, 2008 and
Resolution4 dated February 12, 2010 of the Sandiganbayan in Criminal Case No. 22098 which found
petitioners Virgilio V. Vinluan (Vii1luan) and Ramon Lihaylihay (Lihaylihay) guilty beyond reasonable doubt
of the crime of violation of Section 3(e) of Republic Act No. (RA) 3019, otherwise known as the "Anti-Graft
and Corrupt Practices Act."

The Facts

Acting on the special audit report5 submitted by the Commission on Audit, the Philippine National Police
(PNP) conducted an internal investigation6 on the purported "ghost" purchases of combat, clothing, and
individual equipment (CCIE) worth ₱133,000,000.00 which were allegedly purchased from the PNP Service
Store System (SSS) and delivered to the PNP General Services Command (GSC). As a result of the internal
investigation, an Information7 was filed before the Sandiganbayan, charging 10 PNP officers, including,
among others, Vinluan and Lihaylihay, for the crime of violation of Section 3(e) of RA 3019, the accusatory
portion of which reads:

That on January 3, 6, 8, 9 and 10, 1992, and for sometime subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused public officers namely: Gen.
Cesar P. Nazareno, being then the Director General of the Philippine National Police (PNP); Gen. Guillermo
T. Domondon, Director for Comptrollership, PNP; Sr. Supt. Bernardo Alejandro, Administrator, PNP Service
Store System; Sr. Supt. Arnulfo Obillos, Director, PNP, General Services Command (GSC); C/Insp. Virgilio
Vinluan, Chairman, Inspection and Acceptance Committee, PNP, GSC; C/Insp. Pablito Magnaye,
Member, Inspection and Acceptance Committee, PNP, GSC; Sr. Insp. Amado Guiriba, Jr., Member,
Inspection and Acceptance Committee, PNP, GSC; SPO1 Ramon Lihay-Lihay, Inspector, Office of the
Directorate for Comptrollership, PNP; Chief Supt. Jose M. Aquino, Director, Finance Service, PNP; and Sr.
Supt. Marcelo Castillo III, Chief, Gen. Materials Office/Technical Inspector, PNP, while in the performance of
their respective official and administrative functions as such, taking advantage of their positions,
committing the offense in relation to their office and conspiring, confederating with one another, did then
and there willfully, unlawfully and criminally, through evident bad faith, cause undue injury to the
government in the following manner:

Accused Gen. Nazareno in his capacity as Chief, PNP and concurrently Board Chairman of the PNP
Service Store System, surreptitiously channeled PNP funds to the PNP SSS through "Funded RIVs" valued at ₱8
[M]illion and Director Domondon released ASA No. 000-200-004-92 (SN-1353) without proper authority from
the National Police Commission (NAPOLCOM) and Department of Budget and Management (DBM), and
caused it to appear that there were purchases and deliveries of combat clothing and individual
equipment (CCIE) to the General Service Command (GSC), PNP, by deliberately and maliciously using
funds for personal services and divided the invoices of not more than ₱500,000.00 each, pursuant to which
the following invoices were made and payments were effected therefor through the corresponding
checks, to wit:

Invoice No. Check No. Amount

 30368 880932 P 500,000.00
30359 880934 500,000.00
30324 880935 500,000.00
30325 8080936 500,000.00
30322 8080937 500,000.00
30356 8080938 500,000.00
30364 8080939 500,000.00
30360 8080940 500,000.00
30365 8080941 500,000.00
30323 880943 500,000.00
30358 880942 500,000.00
30362 880943 500,000.00
30366 880943 500,000.00
30357 880946 500,000.00
30361 880947 500,000.00
30363 880948 500,000.00
P 8,000,000.00
=============

thereafter, accused members of the Inspection and Acceptance Committee together with respondents
Marcelo Castillo III and Ramon Lihay-Lihay certified or caused to be certified that the CCIE items covered
by the aforementioned invoices were delivered, properly inspected and accepted, and subsequently
distributed to the end-users, when in truth and in fact, as accused well knew, no such purchases of CCIE
items were made and no items were delivered, inspected, accepted and distributed to the respective
end-users; that despite the fact that no deliveries were made, respondent Alejandro claimed payment
therefor, and respondent Obillos approved the disbursement vouchers therefor as well as the checks
authorizing payment which was countersigned by respondent Aquino; and as a result, the government,
having been caused to pay for the inexistent purchases and deliveries, suffered undue injury in the amount
of EIGHT MILLION PESOS (₱8,000,000.00), more or less.

CONTRARY TO LAW.8

Four of the above-named accused died during the pendency of the case, while Chief Supt. Jose M.
Aquino was dropped from the Information for lack of probable cause.9 As such, only Director Guillermo
Domondon, Sr. (Domondon), Supt. Arnulfo Obillos (Obillos), C/Inspector Vinluan, Sr. Inspector Amado
Guiriba, Jr. (Guiriba), and SPO1 Lihaylihay remained as accused in the subject case. During their
arraignment, Domondon, Obillos, Vinluan, and Lihaylihay all pleaded not guilty to the crime
charged,10 while Guiriba remained at large.11

The Sandiganbayan Ruling

On August 8, 2008, the Sandiganbayan rendered the assailed Decision,12 exonerating Domondon but
finding Obillos, Vinluan, and Lihaylihay guilty beyond reasonable doubt of the crime charged. 13 It found
that all the essential elements of the crime of violation of Section 3(e) of RA 3019 were present in the case,
in particular that: (a) Obillos, Vinluan, and Lihaylihay are public officers discharging administrative functions;
(b) they have acted with evident bad faith in the discharge of their respective functions considering that:
(1) seven of the sixteen Requisition and Invoice Vouchers (RIVs) bore erasures and/or superimposition to
make it appear that the transactions were entered into in 1992 instead of 1991; 14 (2) the details of the
supplies purportedly received and inspected were not reflected in the Reports of Public Property
Purchased, thus, indicating that no actual inspection of the items were made;15 and (3) there was a
"splitting" of the subject transactions into ₱500,000.00 each to avoid the review of a higher authority as well
as to make it fall within the signing authority of Obillos; and (c) they failed to refute the prosecution’s claim
that the subject CCIE items were never received by Supply Accountable Officer of the GSC (GSC SAO),
Dante Mateo (Mateo), nor delivered to its end-users,17 hence, leading to the conclusion that the subject
transactions were indeed "ghost" purchases which resulted to an ₱8,000,000.00 loss to the government. In
view of their conviction, Obillos, Vinluan, and Lihaylihay were sentenced to suffer imprisonment for a term
of six years and one month, as minimum, to nine years and one day, as maximum, including the penalty of
perpetual disqualification from public office. They were likewise ordered to jointly and severally indemnify
the government the amount of ₱8,000,000.00.18 Aggrieved, Obillos, Vinluan, and Lihaylihay filed their
separate motions for reconsideration which were all denied in a Resolution19 dated February 12, 2010.
Hence, the instant petition.

The Issue Before the Court

The essential issue in this case is whether or not petitioners’ conviction for the crime of violation of Section
3(e) of RA 3019 was proper.

The Court’s Ruling

The petition lacks merit.

At the outset, it bears pointing out that in appeals from the Sandiganbayan, as in this case, only questions
of law and not questions of fact may be raised. Issues brought to the Court on whether the prosecution was
able to prove the guilt of the accused beyond reasonable doubt, whether the presumption of innocence
was sufficiently debunked, whether or not conspiracy was satisfactorily established, or whether or not good
faith was properly appreciated, are all, invariably, questions of fact.20 Hence, absent any of the recognized
exceptions to the above-mentioned rule,21the Sandiganbayan’s findings on the foregoing matters should
be deemed as conclusive.

Petitioners were charged with the crime of violation of Section 3(e)22 of RA 3019 which has the following
essential elements: (a) the accused must be a public officer discharging administrative, judicial or official
functions; (b) he must have acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and (c) his action caused any undue injury to any party, including the government, or gave
any private party unwarranted benefits, advantage or preference in the discharge of his functions. 23 As
observed by the Sandiganbayan, all these elements are extant in this case:

As to the first element, it is undisputed that both petitioners were public officers discharging administrative
functions at the time material to this case.

As to the second element, records show that Vinluan, in his capacity as Chairman of the Inspection and
Acceptance Committee, signed the 16 certificates of acceptance, inventory, and delivery of articles from
the PNP SSS despite its incompleteness or lack of material dates, while Lihaylihay certified to the correctness
of the Inspection Report Forms even if no such deliveries were made.24 Petitioners’ claim that the subject
CCIE items were received by GSC SAO Mateo25 is belied by the absence of any proof as to when the said
deliveries were made. Moreover, the supposed deliveries to the Narcotics Command26 were properly
rejected by the Sandiganbayan considering that the said transactions pertained to a different set of end-
users other than the PNP GSC. Hence, having affixed their signatures on the disputed documents despite
the glaring defects found therein, petitioners were properly found to have acted with evident bad faith in
approving the "ghost" purchases in the amount of ₱8,000,000.00.27 To note, their concerted actions, when
taken together, demonstrate a common design28 which altogether justifies the finding of
conspiracy.1âwphi1
Lastly, as to the third element, petitioners’ participation in facilitating the payment of non-existent CCIE
items resulted to an ₱8,000,000.00 loss on the part of the government.1âwphi1

Thus, considering the presence of all its elements, the Court sustains the conviction of petitioners for the
crime of violation of Section 3(e) of RA 3019.

In this relation, it must be clarified that the ruling in Arias v. Sandiganbayan 29 (Arias) cannot be applied to
exculpate petitioners in view of the peculiar circumstances in this case which should have prompted them
to exercise a higher degree of circumspection, and consequently, go beyond what their subordinates had
prepared. In particular, the tampered dates on some of the RIVs, the incomplete certification by GSC SAO
Mateo on the date of receipt of the CCIE items, the missing details on the Reports of Public Property
Purchased and the fact that sixteen checks all dated January 15, 1992 were payable to PNP SSS should
have aroused a reasonable sense of suspicion or curiosity on their part if only to determine that they were
not approving a fraudulent transaction. In a similar case where the documents in question bore
irregularities too evident to ignore, the Court in Cruz v. Sandiganbayan 30carved out an exception to the
Arias doctrine and as such, held:

Unlike in Arias, however, there exists in the present case an exceptional circumstance which should have
prodded petitioner, if he were out to protect the interest of the municipality he swore to serve, to be
curious and go beyond what his subordinates prepared or recommended. In fine, the added reason
contemplated in Arias which would have put petitioner on his guard and examine the check/s and
vouchers with some degree of circumspection before signing the same was obtaining in this case.

We refer to the unusual fact that the checks issued as payment for construction materials purchased by the
municipality were not made payable to the supplier, Kelly Lumber, but to petitioner himself even as the
disbursement vouchers attached thereto were in the name of Kelly Lumber. The discrepancy between the
names indicated in the checks, on one hand, and those in the disbursement vouchers, on the other, should
have alerted petitioner - if he were conscientious of his duties as he purports to be - that something was
definitely amiss. The fact that the checks for the municipality’s purchases were made payable upon his
order should, without more, have prompted petitioner to examine the same further together with the
supporting documents attached to them, and not rely heavily on the recommendations of his
subordinates.31 (Emphasis supplied)

Equally compelling is the nature of petitioners’ responsibilities and their role in the purchasing of the CCIE
items in this case which should have led them to examine with greater detail the documents which they
were made to approve. As held in the recent case of Bacasmas v.

Sandiganbayan,32 when there are reasons for the heads of offices to further examine the documents in
question, they cannot seek refuge by invoking the Arias doctrine:

Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan charge just because they did not
personally examine every single detail before they, as the final approving authorities, affixed their
signatures to certain documents. The Court explained in that case that conspiracy was not adequately
proven, contrary to the case at bar in which petitioners’ unity of purpose and unity in the execution of an
unlawful objective were sufficiently established. Also, unlike in Arias, where there were no reasons for the
heads of offices to further examine each voucher in detail, petitioners herein, by virtue of the duty given to
them by law as well as by rules and regulations, had the responsibility to examine each voucher to
ascertain whether it was proper to sign it in order to approve and disburse the cash advance. 33 (Emphasis
supplied)

Finally, on the matter of the admissibility of the prosecution’s evidence, suffice it to state that, except as to
the checks,34 the parties had already stipulated on the subject documents’ existence and authenticity and
accordingly, waived any objections thereon.35 In this respect, petitioners must bear the consequences of
their admission and cannot now be heard to complain against the admissibility of the evidence against
them by harking on the best evidence rule. In any event, what is sought to be established is the mere
general appearance of forgery which may be readily observed through the marked alterations and
superimpositions on the subject documents, even without conducting a comparison with any original
document as in the case of forged signatures where the signature on the document in question must
always be compared to the signature on the original document to ascertain if there was indeed a forgery.

WHEREFORE, the petition is OENIED. The Decision dated August 8, 2008 and Resolution dated February 12,
2010 of the Sandiganbayan in Criminal Case No. 22098 are hereby AFFIRMED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. Nos. 153952-71

Plaintiff,
Present:

CORONA, C.J.,

Chairperson,

VELASCO, JR.,

- versus - LEONARDO-DE CASTRO,

DEL CASTILLO, and

PEREZ, JJ.
 Promulgated:

THE HON. SANDIGANBAYAN (4THDiv.) and HENRY

BARRERA,
August 23, 2010
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

LEONARDO-DE CASTRO, J.:

This Petition for Certiorari under Rule 65 of the Rules of Court assails the Decision[1] dated May 6,

2002 of the Sandiganbayan granting the Demurrer to Evidence of Mayor Henry E. Barrera (Mayor Barrera)

and dismissing Criminal Case Nos. 25035-25037, 25039-25041, 25043, 25045-25047, 25049-25050, and 25053-

25054, on the ground that the elements of the offense under Section 3(e) of Republic Act No. 3019,

otherwise known as the Anti-Graft and Corrupt Practices Act, as amended, were not established beyond

reasonable doubt.

Mayor Barrera, together with Rufina Escala (Escala) and Santos Edquiban (Edquiban), were
charged with 14 counts of violation of Sections 3(e) and 9 of Republic Act No. 3019 in separate

Informations, which alleged essentially similar set of facts, save for the names of the complainants, to wit:

That on or about 30 June 1998, or sometime prior or subsequent thereto, in

Candelaria, province of Zambales, Philippines, and within the jurisdiction of this Honorable
Court, accused Henry E. Barrera, Santos Edquiban and Rufina E. Escala, all public officers,
then being the Municipal Mayor, Market Collector, and District Supervisor, respectively, all
of Candelaria, Province of Zambales, committing the penal offense herein charged
against them while in the performance of, in relation to, and taking advantage of their
official functions and duties as such, thru manifest partiality and/or evident bad faith, did
then and there, willfully, unlawfully, and criminally, in conspiracy with one another, prevent
[Ermelinda Abella (Criminal Case No. 25035), Lourdes Jaquias (C.C. No. 25036), John
Espinosa (C.C. No. 25037), Jean Basa (C.C. No. 25038), Lerma Espinosa (C.C. No. 25039),
Eduardo Sison (C.C No. 25040), Lina Hebron (C. C. No. 25041), Nora Elamparo (C.C. No.
25042), Luz Aspiras (C.C . No. 25043), Oscar Lopez (C.C. No. 25044), Corazon Cansas (C.C.
No. 25045), Michelle Palma (C.C. No. 25046), Mila Saberon (C.C. No.25047), Merlina
 Miraflor (C.C. No. 25048), Edna Bagasina (C.C. No. 25049), Jocelyn Educalane (C.C. No.
25050), Alvin Gatdula (C.C. No. 25051), Helen Egenias (C.C. No. 25052), Luz Eclarino (C.C.
No. 25053) and Josephine Elamparo (C.C. No. 25054)], a legitimate lessee-stallholder from
exercising his/her contractual and/or proprietary rights to transfer to, occupy and/or
operate his/her assigned stall at the public market of Candelaria, Province of Zambales,
under the subsisting lease contract dated 25 June 1998, without any valid or justifiable
reason whatsoever, by means of the issuance and implementation of the patently
unlawful Memorandum No. 1 dated 30 June 1998, thereby causing undue injury to (private
complainants).[2]

During the Pre-Trial Conference on February 22, 2000, the People and Mayor Barrera marked their

respective documentary exhibits and entered into the following stipulation of facts:

1. That at the time material to this case as alleged in all of the Informations,
accused Henry E. Barrera was a public officer being then the municipal mayor of
Candelaria, Zambales;

2. That private complainants were awarded individual contract of lease

for a market stall in the new Candelaria Public Market by the former Mayor Fidel Elamparo
before the oath taking of the accused on June 30, 1998;

3. That the awardees are the following:

1. Ermelina Abella 11. Corazon Cansas

2. Lourdes Jaquias 12. Michelle Palma

3. John Espinosa 13. Mila Saberon

4. Jean Basa 14. Merlinda Miraflor

5. Lerma Espinosa 15. Edna Bagasina

6. Eduardo Sison 16. Jocelyn Educalane

7. Lina Hebron 17. Alvin Gatdula

8. Nora Elamparo 18. Helen Egenias

9. Luz Aspiras 19. Luz Eclarino

10. Oscar Lopez 20. Josephine Elamparo

4. That on June 30, 1998 accused Henry E. Barrera after taking his oath as the new
Mayor of Candelaria, Zambales went to the public market and pleaded with the
complainants herein not to occupy the new market stalls;

5. That there was a public hearing conducted on the issue of the public market on
July 8, 1998 by the Sangguniang Bayan with the new elected mayor as presiding officer;

6. That accused Henry E. Barrera was the Vice-Mayor of Candelaria, Zambales

from 1986 to 1992;

7. That the accused was a stall holder or lessee of one of the stalls at the
Candelaria Public Market;

8. That on March 11, 1995 during the time of Mayor Fidel Elamparo, the
public market of Candelaria, Zambales was razed to the ground;

9. That the incident displaced about 60 market vendors;

10. That Ex-Mayor Elamparo assured the market vendors who were
displaced together with Congressman Antonio Diaz that they will enjoy priority/preference
over the new stalls once the public market is re-built; and

11. That the displaced market vendors were temporarily sheltered along
Perla St. and Ruby St., adjacent to the burned public market.

The parties agreed, that the only issue to be resolved is: whether or not accused Henry E.
Barrera is liable for violation of Section 3(e) and 9 of Republic Act No. 3019.[3]
 While the Pre-Trial Order, reflecting the foregoing stipulation of facts, was not signed by the

members of the Fourth Division of the Sandiganbayan, the issuance, authenticity, and contents thereof

were never disputed nor put in issue by any of the parties.

When arraigned, accused Mayor Barrera, Escala, and Edquiban separately pleaded not guilty.

On August 2, 2000, Escala and Edquiban filed an Omnibus Motion: 1) For the Issuance of an Order

Dropping Dr. Rufina Escala and Mr. Santos Edquiban from the Information; 2) To Withdraw Bond; and 3) To

Lift Hold Departure Orders on the ground that the Ombudsman approved the recommendation of the

Special Prosecutor to drop said two accused from the Informations.

In an Order dated August 8, 2000, the Sandiganbayan granted the Omnibus Motion and

accordingly ordered Escala and Edquiban dropped from the Informations.

Complainants Abella, Jaquias, John Espinosa, Lerma Espinosa, Sison, Hebron, Cansas, Palma,

Saberon, Bagasina, Educalane, Eclarino, and Josephine Elamparo testified for the People. Upon motion of

the People, the Sandiganbayan issued an Order dated August 14, 2001, dismissing the complaints of Basa,

Norma Elamparo, Lopez, Miraflor, Gatdula, and Egenias, on the ground that said charges cannot be

prosecuted successfully without the testimony of these six complainants.The People, however, proceeded

with the prosecution of the complaints of Abella and the 13 other complainants (Abella, et

al.). Subsequently, the People formally offered its documentary exhibits, which were admitted in evidence.

Mayor Barrera filed a Motion for Leave to File Demurrer to Evidence on October 23, 2001, which

the Sandiganbayan granted in an Order dated October 29, 2001.

Mayor Barrera filed his Demurrer to Evidence on November 8, 2001, avowing that there was no bad

faith in his issuance of Memorandum No. 1, which prevented Abella, et al., from occupying the new stalls
at the Candelaria Public Market. He explained that he needed to issue Memorandum No. 1 since the

previous Municipal Mayor, Fidel Elamparo, awarded the Lease Contracts over the new public market stalls
less than a week before the end of the latters term and without regard to the requirement of pertinent

laws. Mayor Barrera also claimed that he did not act with manifest partiality in issuing Memorandum No. 1

considering that said issuance applies not only to Abella, et al., but also to all awardees of the

questionable Lease Contracts. Mayor Barrera further pointed out that Abella, et al., did not suffer any

undue injury even when they were unable to occupy the new public market stalls as they were able to

continue working and earning as market vendors at the temporary public market site. Hence, Mayor

Barrera argued that any purported damage sustained by Abella, et al., by reason of the issuance and

implementation of Memorandum No. 1 should be solely borne by them, being damnum absque injuria.

In its Comment/Opposition to Mayor Barreras Demurrer to Evidence, the People asserted that the
pieces of evidence it adduced and presented were more than sufficient to sustain the accused Mayors

conviction. The People maintained that it would be in Mayor Barreras best interest to explain during trial

why on June 30, 1998, said Mayor, assisted by the police, forcibly evicted Abella, et al., from the new public

market and padlocked the market stalls without the benefit of any court order. According to the People,

Mayor Barreras actuations displayed a wanton disregard of the constitutional rights to life and property, as

well as to due process of law, which resulted to business losses on the part of Abella, et al., from the time

their market stalls were closed.

On May 6, 2002, the Sandiganbayan rendered its Decision granting Mayor Barreras Demurrer to

Evidence and dismissing the criminal cases against said Mayor. The dispositive portion of the Decision

reads:

WHEREFORE, the Demurrer to Evidence filed by accused HENRY E. BARRERA,

through counsel, is hereby GRANTED and Criminal Cases Nos. 25035-37; 25039-41; 25043;
25045-47; 25049-50 and 25053-54 are hereby DISMISSED on the ground that the elements of
the offense under Sec. 3(e) of R.A. No. 3019, as amended, were not established beyond
reasonable doubt.[4]

Without filing a Motion for Reconsideration of the Sandiganbayan judgment, the People filed the

present Petition, faulting the graft court for the following:

 I

THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN PROMULGATING THE
ASSAILED DECISION AS IT NEVER EXPRESSED CLEARLY AND DISTINCTLY THE FACTS AND THE
EVIDENCE ON WHICH IT IS BASED, IN VIOLATION OF THE PROVISIONS OF SEC. 14, ARTICLE VIII
OF THE CONSTITUTION.

II

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE
PROSECUTION FAILED TO PROVE AND QUANTIFY ACTUAL INJURY AND DAMAGE SUFFERED
BY THE PRIVATE COMPLAINANTS.

III

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE
PROSECUTION FAILED TO PROVE EVIDENT BAD FAITH ON THE PART OF THE PRIVATE
RESPONDENT.

The Petition has no merit.

At the outset, we note that this Petition for Certiorari under Rule 65 of the Rules of Court was filed
without a Motion for Reconsideration of the Decision dated May 6, 2002 having been filed before the

Sandiganbayan. This fact alone would have warranted the dismissal of the instant Petition given the

general rule that a motion for reconsideration is a condition sine qua non before the filing of a petition

for certiorari. In Republic v. Sandiganbayan,[5] we held:

As a rule, the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, lies only when the lower court has been given the opportunity to
correct the error imputed to it through a motion for reconsideration of the assailed order or
resolution. The rationale of the rule rests upon the presumption that the court or
administrative body which issued the assailed order or resolution may amend the same, if
given the chance to correct its mistake or error. The motion for reconsideration, therefore,
is a condition sine qua non before filing a petition for certiorari.
 Here, petitioners filed the instant petitions for certiorari without interposing a
motion for reconsideration of the assailed Resolution of the Sandiganbayan. Section 1 of
the same Rule 65 requires that petitioners must not only show that the trial court, in issuing
the questioned Resolution, acted without or in excess of its jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, but that there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law. We have held
that the plain, speedy, and adequate remedy referred to in Section 1 of
Rule 65 is a motion for reconsideration of the questioned Order or Resolution. It bears
stressing that the strict application of this rule will also prevent unnecessary and premature
resort to appellate proceedings. We thus cannot countenance petitioners disregard of
this procedural norm and frustrate its purpose of attaining speedy, inexpensive, and orderly
judicial proceedings.

In justifying their failure to file the required motion for reconsideration, petitioners
vehemently assert that they were deprived of due process and there is extreme urgency
for relief, and that under the circumstances, a motion for reconsideration would be useless.

We are not persuaded.

Petitioners may not arrogate to themselves the determination of whether a motion

for reconsideration is necessary or not. To dispense with the requirement of filing a motion
for reconsideration, petitioners must show concrete, compelling, and valid reason for
doing so. They must demonstrate that the Sandiganbayan, in issuing the assailed
Resolution, acted capriciously, whimsically and arbitrarily by reason of passion and
personal hostility. Such capricious, whimsical and arbitrary acts must be apparent on the
face of the assailed Resolution. These, they failed to do.

The People in the instant case absolutely failed to provide any explanation as to why it did not first

move for reconsideration of the challenged Sandiganbayan judgment before seeking a writ

of certiorari from this Court. We therefore cannot find any concrete, compelling, and valid reason to

except the People from the aforementioned general rule of procedure.

The Petition at bar must also be dismissed on substantive grounds.

 Article VIII, Section 14 of the 1987 Constitution mandates that [n]o decision shall be rendered by

any court without expressing therein clearly and distinctly the facts and the law on which it is based. The

purpose of Article VIII, Section 14 of the Constitution is to inform the person reading the decision, and

especially the parties, of how it was reached by the court after consideration of the pertinent facts and

examination of the applicable laws. The losing party is entitled to know why he lost, so he may appeal to a

higher court, if permitted, should he believe that the decision should be reversed. A decision that does not

clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to

how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible

errors of the court for review by a higher tribunal. Thus, a decision is adequate if a party desiring to appeal

therefrom can assign errors against it.[6]

Our review of the Sandiganbayan Decision dated May 6, 2006 reveals that said judgment actually

contained a summary of the antecedent facts and proceedings; as well as a discussion on the relevant

statutory provisions, the elements of the offense charged, and the testimonial and documentary evidence

presented by the People. The factual and legal bases of the assailed Sandiganbayan Decision, granting

Mayor Barreras Demurrer to Evidence, are readily evident in the following excerpts therefrom:

The instant Demurrer to Evidence is impressed with merit.

Section 3, paragraph (e) of R.A. 3019, provides that:

Section 3. Corrupt Practices of Public Officers. In addition to acts or omissions of

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

xxxx

e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefit, advantage or preference in the
discharge of his official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. x x x
 To be liable for violation of Section 3(e) of Republic Act No. 3019, four essential
elements (as stated in the Information filed in the present cases) must be present:

1) That the accused is a public officer or a private person charged in

conspiracy with the public officers;

2) That said public officer commits the prohibited acts during the
performance of his official duties or in relation to his public position;

3) That he causes undue injury to any party, whether government or

private individuals; and

4) That the public officer has acted with manifest partiality, evident
bad faith or gross inexcusable negligence.

The first two above-stated elements are clearly present in the instance
cases. However, the third and fourth elements appear to be absent, or at best remain
doubtful.

The undue injury mentioned as the third essential element in the commission of the
crime requires proof of actual injury and damage. Clarifying, the Supreme Court,
in Llorente v. Sandiganbayan, stated:

x x x 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 a
crime. In fact, the causing of undue injury or the giving of any
unwarranted 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.

In the instant cases, the evidence presented by the prosecution failed to prove
actual injury and damage suffered by the private complainants, as one of the elements of
the crime herein charged, in that it failed to specify, quantify and prove to the point of
moral certainty the purported undue injury. The complainants in their testimonies, admitted
that they have been working and earning, either as market vendors or in pursuit of their
profession from the time of the closure of their respective market stalls up to now. Also, their
claims of business losses, at the time material to the cases at bar, leave much to be
desired vis--vis the moral certitude exacted by law to prove the alleged undue
injury.Pathetically, said evidence, are either contradictory or incredible.

Likewise, the prosecutions evidence failed to prove manifest

partiality and/or evident bad faith on the part of the accused, as the fourth of the above-
stated requisites for the commission of the crime herein charged.

For an act to be considered as exhibiting manifest partiality, there must be a

showing of a clear, notorious or plain inclination or predilection to favor one side rather
than the other. Partiality is synonymous with bias which excites a disposition to see and
report matters as they are wished for rather than as they are. Evident bad faith, on the
other hand, is something which 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. It contemplates a state of mind affirmatively operating with furtive design, or some
motive of self-interest or ill will for ulterior purpose. Evident bad faith connotes a manifest
and deliberate intent on the part of the accused to do wrong or cause damage.

The evidence presented by the prosecution falls short of that quantum of proof
necessary to establish the fact that the accused acted with manifest partiality or with
evident bad faith. On the contrary, what is clear from the evidence adduced, was that
herein accused simply exercised his legitimate powers under the Local Government Code
of 1991 (LGC) which provides that a municipal mayor has the power to enforce all laws
and ordinances relative to the governance of the municipality and the exercise of its
corporate powers and, for this purpose, he shall have the power to issue such executive
order as are necessary for the proper enforcement and execution of the laws and
ordinances. Ex-Mayor Elamparos acts of entering into lease contracts, when his term was
about to expire and herein accused-movants term was about to commence, being the
mayor-elect, was not only in violation of the Local Government Code provision that no
contract may be entered into by the local chief executive in behalf of the local
government unit without prior authorization by the sangguniang concerned, but also of
the other requirements of law such as, a verified application from the complainants,
payment of application fees, drawing of lots and the opening of bids, since not all the
displaced vendors can be accommodated in the thirty-two stalls in the new public
market. The intent of such a maneuvering was obviously to tie the hands of the incoming
administration.

The undue haste of awarding stalls in the new public market by Ex-Mayor
Elamparo was flagrant, because from 26 June to 30 June, 1998, former stall holders of the
old market that burned down, held a rally to denounce the allegedly unfair awarding of
contracts of lease over the new stalls, complaints ranging from awards to new comers, to
instances of two stalls, being awarded to one lessee.
 It was precisely in this state of affair that prompted herein accused-movant
Barrera to cause the issuance of Memorandum No. 1, Series of 1998, after he had taken his
oath as mayor of Candelaria, Zambales, to wit:

You are hereby advised that effective 1:00 PM, June 30, 1998, the
transferring to and occupancy of stalls inside the Public Market shall be
temporarily suspended.

For your strict implementation and compliance.

Lastly, of significance is the fact that Memorandum No. 1 applied to all stallholders
at the new public market, be they supporters or not of Mayor Barrera during the 1998
mayoralty elections just past. These admissions of the complaining witnesses in open court,
thus, refute their allegations in their affidavits that the purpose of the memorandum was to
award the new stalls to Mayor Barreras supporters.

In the light of all the foregoing, We find that herein accused-movant Henry E.
Barrera cannot in fairness be held liable under the indictment. In this connection, it has
been held that the prosecution must rely on the strength of its own evidence and not on
the weakness of the defense; the burden of proof is never on the accused to disprove the
facts necessary to establish the crime charged. It is safely entrenched in our jurisprudence
says the Supreme Court, that unless the prosecution discharges its burden to prove the
guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in
his behalf.[7]

In fact, based on the foregoing, the People was able to identify and discuss with particularity in its
present Petition the grave abuse of discretion allegedly committed by the graft court in granting Mayor

Barreras Demurrer to Evidence. Thus, contrary to the Peoples contention, the aforequoted Sandiganbayan

judgment did not violate the mandate of Article VIII, Section 14 of the 1987 Constitution.

We further disagree with the Peoples assertion of grave abuse of discretion on the part of

Sandiganbayan in ruling that several elements for the violation of Section 3(e) of Republic Act No.

3019[8] are lacking, or at best, doubtful, in this case.

 In order to be held guilty of violating Section 3(e) of Republic Act No. 3019, the provision itself

explicitly requires that the accused caused undue injury for having acted with manifest partiality, evident

bad faith, or with gross inexcusable negligence, in the discharge of his official administrative or judicial

function.The Peoples evidence failed to support the existence of these two elements.

The issuance by Mayor Barrera of Memorandum No. 1 is rooted in Section 444, in relation to Section 22, of
Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which provide:

Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. (a) The
municipal mayor, as the chief executive of the municipal government, shall exercise such
powers and perform such duties and functions as provided by this Code and other laws.

(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code,
the municipal mayor shall:

xxxx

(2) Enforce all laws and ordinances relative to the governance of the
municipality and the exercise of its corporate powers provided for under Section 22 of this
Code, implement all approved policies, programs, projects, services and activities of the
municipality and, in addition to the foregoing, shall:

xxxx

(iii) Issue such executive orders as are necessary for the proper enforcement and
execution of laws and ordinances.

Section 22. Corporate Powers. x x x

xxxx

(c) Unless otherwise provided in this Code, no contract may be entered into by
the local chief executive in behalf of the local government unit without prior
authorization by the sanggunian concerned. A legible copy of such contract shall
be posted at a conspicuous place in the provincial capitol or the city, municipality
or barangay hall.

The award of Lease Contracts over the new public market stalls were marred by several

irregularities, among which, was it being made by the former Mayor with only one week before the

expiration of his term and the lack of prior authorization by the sanggunian as required by Section 22(c) of

Republic Act No. 7160.Also, there were 60 market vendors displaced by the fire at the old public market,
but only 32 stalls were available for occupancy at the new public market. A rally was held by the stall

holders displaced by the fire from the old public market to denounce the allegedly unfair awarding of the
Lease Contracts over the new public market stalls to new comers, and even in some instances, the

awarding of two stalls to only one lessee. These circumstances prompted Mayor Barrera, the newly elected

Municipal Mayor, to issue Memorandum No. 1 pursuant to his duty of enforcing and implementing laws and

ordinances for the general welfare of the municipality and its inhabitants. It bears to stress that

Memorandum No. 1 applies equitably to all awardees of the Lease Contracts over the new public market

stalls, not just Abella, et al., and did not give any unwarranted benefit, advantage, or preference to any

particular private party. Consequently, we find that the Sandiganbayan did not commit grave abuse of

discretion when it declared that Mayor Barrera did not issue Memorandum No. 1 with manifest partiality,

evident bad faith, or with gross inexcusable negligence.

Moreover, in Pecho v. Sandiganbayan,[9] we explained that the undue injury caused to any party,

including the government, under Section 3(e) of Republic Act No. 3019, could only mean actual injury or

damage which must be established by evidence. Abella, et al., alleged undue damage/injury by reason of

Memorandum No. 1 because they had been unable to occupy the new public market stalls and were thus

deprived of their daily income of varying amounts. However, Abella, et al., in their own

testimonies,[10] admitted that that they have continued working and earning either as market vendors at

the temporary public market site, or in pursuit of their profession from the time their market stalls were

closed until present time. Hence, there was no sufficient evidence to establish actual injury or damage

suffered by Abella, et al., by reason of Memorandum No. 1.

In People v. Sandiganbayan,[11] we defined grave abuse of discretion as follows:

Grave abuse of discretion is the capricious and whimsical exercise of judgment as

equivalent to lack of jurisdiction or where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to
act in contemplation of law. x x x.

xxxx

The demurrer to evidence in criminal cases, such as the one at bar, is filed after
the prosecution had rested its case, and when the same is granted, it calls for an
appreciation of the evidence adduced by the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits,
tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant
 of demurrer to evidence may not be appealed, for to do so would be to place the
accused in double jeopardy. The verdict being one of acquittal, the case ends there.

The sole office of an extraordinary writ of certiorari is the correction of errors of

jurisdiction including the commission of grave abuse of discretion amounting to lack or
excess of jurisdiction. For as long as the court acted within its jurisdiction, an error of
judgment that it may commit in the exercise thereof is not correctible through the special
civil action of certiorari. To reiterate, the Sandiganbayan, in rendering the challenged
Decision, acted with jurisdiction and did not gravely abuse its discretion.

There being no grave abuse of discretion on the part of the Sandiganbayan in granting Mayor

Barreras Demurrer to Evidence as to deprive the graft court of jurisdiction, the issuance of a writ
of certiorari is not warranted in the present case.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
G.R. No. 197567 November 19, 2014

GOVERNOR ENRIQUE T. GARCIA, JR., Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, LEONARDO B. ROMAN, ROMEO L. MENDIOLA, PASTOR P. VICHUACO, AURORA
J. TIAMBENG, and NUMERIANO G. MEDINA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari 1 are the Resolution2 dated May 30, 2006 and the Order3 dated October
9, 2009 of the Office of the Ombudsman (Ombudsman) in OMB-L-C-05-0084-A, which dismissed the criminal
complaint against herein respondents for lack of probable cause.

The Facts

The present case stemmed from a Complaint-Affidavit4 filed by herein petitioner Enrique T. Garcia, Jr.
(Garcia), incumbent Provincial Governor of the Province of Bataan (Province), before the Ombudsman,
docketed as OMB-L-C-05-0084-A, against respondents former Provincial Governor Leonardo B. Roman
(Roman), former Executive Assistant Romeo L. Mendiola (Mendiola), former Provincial Treasurer Pastor P.
Vichuaco (Vichuaco), former Budget Officer Aurora J. Tiambeng (Tiambeng), and incumbent 5 Provincial
Accountant Numeriano G. Medina (Medina), all of the Provincial Capitol of Bataan, charging them with
Malversation of Public Funds through Falsification of Public Documents under Article 217 in relation to Article
171 of the Revised Penal Code (RPC) and violation of Section 3, paragraphs (a) and (e) of Republic Act
No. (RA) 3019, or the "Anti-Graft and Corrupt Practices Act," inter alia.

Also charged were incumbent6 Provincial Engineer Amelia R. De Pano (De Pano), Assistant Provincial
Engineer Angelito A. Rodriguez (Rodriguez), Engineer Noel G. Jimenez (Jimenez), and Architect Bernardo T.
Capistrano (Capistrano), as well as Noel Valdecañas7 (Valdecañas), the owner and manager of V.F.
Construction of Balanga City.

The essential allegations in the Complaint-Affidavit are as follows:

On November 3, 2003, Roman, being the Provincial Governor at that time, entered into a contract8 with
V.F. Construction, as represented by Valdecañas, for the construction of a mini-theater at the Bataan State
College - Abucay Campus, Abucay, Bataan (project) for the contract price of ₱3,660,000.00.9

Thereafter, or on February 23, 2004, Roman signed and issued a Certificate of Acceptance,10 stating that
the project was "100% completed in accordance with plans and specification[s]" per the Accomplishment
Report11 and Certification,12 both dated February 20, 2004, prepared and signed by Capistrano, Jimenez,
Rodriguez, and De Pano. Valdecañas also affixed his signature on the said Accomplishment Report and
later executed an Affidavit13dated May 26, 2004 stating that the project was 100% completed.

In view of the project’s purported completion, two (2) Land Bank of the Philippines checks 14 (Land Bank
checks) – each in the amount of ₱1,655,318.18 (or ₱3,310,636.36 in total) – were respectively issued by
Roman and Vichuaco on April 30 and June 2, 2004 in favor of V.F. Construction. The issuances were made
pursuant to two (2) separate Disbursement Vouchers15 prepared and issued by De Pano, Medina, and
Vichuaco, and approved for payment by Roman. In addition, an Allotment and Obligation Slip 16 (ALOBS)
was issued, prepared, and signed by De Pano, Tiambeng, and Medina to reimburse V.F. Construction for
the cost of the labor and materials utilized for the construction of the project. Tiambeng also certified in the
ALOBS the "existence of [an] appropriation" for the said project.17 Meanwhile, Mendiola prepared all the
supporting documents for the approval and release of the funds therefor, and submitted the same to
Roman for his signature.18

The receipts issued by V.F. Construction dated May 5, 200419 and June 3, 200420 show that it received the
payments for the project.

Notwithstanding the various documents attesting to the project’s supposed completion, as well as the
disbursement of funds in payment therefor, Garcia – Roman’s successor as Provincial Governor – authorized
the inspection of the project sometimein August 2004 and discovered that while its construction was
indeed commenced, it remained unfinished as reflected in a Memorandum Report 21 dated August 24,
2004.

Hence, Garcia filed the above-mentioned Complaint-Affidavit against, among others, respondents, who,
in response, proffered their individual defenses.22

For his part, Roman cited political enmity between him and Garcia as the reason for the filing of the
complaint.23 He defended the genuineness of the project, averring that it was not a "ghost project" as, in
fact, substantial work had been done thereon.24 He ascribed the falsehood in this case to the
Accomplishment Report and Certification dated February 20, 2004, as well as Valdecañas’s Affidavit,
which all stated that the project was 100% completed, claiming that he had no participation in their
preparation and execution25 and that he only signed the Disbursement Vouchers after finding no
irregularities on the said documents.26

Similarly, Mendiola denied any participation in the preparation and execution of any of the documents
involved in the project.27

On the other hand, Vichuaco admitted having signed the Disbursement Vouchers and Land Bank checks,
from which the project was funded, but denied having any knowledge that the construction thereof was
not yet completed.28 He claimed to have signed the Disbursement Vouchers only after having ascertained
that De Pano and Medina, in their official capacities, had already signed the same, and ventured that he
would not have done so had he known that the project was not yet complete.29

Medina also admitted having signed the Disbursement Vouchers and ALOBS, but claimed that he did so
after a thorough examination of the supporting documents, i.e., the Accomplishment Report and
Certification. He stated that he was not informed that the project was not yet completed when he signed
the Disbursement Vouchers and the ALOBS, adding that the project was already substantially completed
when Garcia prevented further work on the same.30 He further insisted that the project was covered by a
corresponding appropriation.31

Meanwhile, Tiambeng claimed that, as the Budget Officer of Bataan at the time, she verified that there
was a corresponding appropriation for the project. Thus, she signed the ALOBS, which she claimed was a
ministerial duty on her part.32 In this regard, she posited that she would not have signed the same had she
known that there was no appropriation for the project.33

As for the other officials charged, namely, De Pano, Rodriguez, Jimenez, and Capistrano, they collectively
admitted having signed the Accomplishment Report and Certification, but maintained that they did so
only after the same had been reviewed by the other provincial engineers.34 Valdecañas, for his part,
denied35 the allegations against him and claimed that Medina borrowed his contractor’s accreditation in
order to participate in the bidding for the project. He pointed out that it was Medina who actually
participated in the bidding process and that his signature appearing on the documents pertaining to the
project was falsified.36 He added that he was out of the country when payments for the project were
made.37

The Ombudsman Ruling

In a Resolution38 dated May 30, 2006, the Ombudsman found probable cause to indict De Pano,
Rodriguez, Jimenez, and Capistrano for the crime of Falsification of Public Documents by making it appear
through the aforesaid Certification and Accomplishment Report that the project had already been
completed when the same was only partially constructed. The Ombudsman held that their report was
necessary for the issuance of a certification for the disbursement of funds therefor. 39

On the other hand, the Ombudsman cleared respondents from liability on the ground of insufficiency of
evidence, reasoning that "mere signature on a voucher or certification is not enough" to establish any
conspiracy among them which would warrant their conviction.40 Relying on the doctrine enunciated in the
case of Arias v. Sandiganbayan41(Arias) which states that "[a]ll heads of offices have to rely to a
reasonable extent on their subordinates and on the good faith ofthose who prepare bids, purchase
supplies, or enter into negotiations,"42 the Ombudsman held that there was "no direct and strong evidence
that [Roman] participated in the fraudulent act/transaction" 43 and that his act, together with that of the
other respondents, was protected by the "legal presumption of good faith and regularity," 44 which Garcia
failed to overcome.

Oddly, no pronouncement was made with regard to the criminal charges against Valdecañas. 45

Dissatisfied, Garcia moved for reconsideration,46 citing the Commission on Audit’s (CoA) Audit Observation
Memorandum (AOM) No. 2005-004-100 (2004)47 dated April 21, 2005 (CoA Memo), which stated that the
project had no source of funds, thus rendering the contract therefor void and the payments made therefor
illegal.48Moreover, by approving and effecting the payment of the project despite its non-completion and
the absence of an allotment therefor, Garcia claimed that respondents, who acted in conspiracy with
each other, should beheld liable this time for the crime of Technical Malversation under Article 220 49 of the
RPC.50

In an Order51 dated October 9, 2009, the Ombudsman denied Garcia’s motion for reconsideration, hence,
this certiorari petition.

The Issue Before the Court

The central issue for the Court’s resolution is whether or not the Ombudsman gravely abused its discretion in
dismissing all the criminal charges against respondents for lack of probable cause. In his certiorari petition,
Garcia maintains that the findings in the CoA Memo are sufficient to establish probable cause and to hold
respondents for trial for the crimes of Technical Malversation, Malversation of Public Funds through
Falsification of Public Documents, and for Violation of Section 3 (e) of RA 3019.52 As it appears, the other
criminal and administrative charges contained in his complaint-affidavit53 were not anymore discussed in
the said petition.Thus, the Court is constrained to confine its analysis only to what has been alleged therein.

The Court's Ruling

The petition is partly meritorious.

I.

The present Constitution and RA 6770,54 otherwise known as the "Ombudsman Act of 1989," have endowed
the Office of the Ombudsman with wide latitude, in the exercise ofits investigatory and prosecutorial
powers, to pass upon criminal complaints involving public officials and employees.55 Hence, as a general
rule, the Court does not interfere with the Ombudsman’s findings and respects the initiative and
independence inherent in its office, which "beholden to no one, acts as the champion of the people and
the preserver of the integrity of the public service."56

The foregoing principle does not, however, apply when the Ombudsman’s ruling is tainted with grave
abuse of discretion, subjecting the same to certiorari correction. Among other instances, the Ombudsman
may be deemed to have gravely abused its discretion when it unjustifiably fails to take essential facts and
evidence into consideration in the determination of probable cause.57 It may also be committed when the
Ombudsman patently violates the Constitution, the law or existing jurisprudence. Indeed, any decision,
order or resolution of a tribunal tantamount to overruling a judicial pronouncement of the highest Court is
unmistakably grave abuse of discretion.58

Legally classified, such misdeeds fall squarely within the concept of grave abuse of discretion which is
defined as the capricious and whimsical exercise of judgment on the part of the public officer concerned,
which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law as where the poweris exercised in an arbitrary and despotic manner by
reason of passion or hostility.59

Applying these principles to thiscase, the Court finds that the Ombudsman gravely abused its discretion
when it disregarded the CoA Memo and patently misapplied existing jurisprudence – particularly, the
Ariascase – in ruling that there was no probable cause for the crime of Violation of Section 3 (e), 60 RA 3019.
Accordingly, respondents should be indicted for such. However, the same does not hold true for the other
crimes of Technical Malversation and Malversation of PublicFunds through Falsification of Public Documents
for reasons that will be hereinafter discussed.

II.

Probable cause, for the purpose of filing a criminal information, exists when the facts are sufficient to
engender a well-founded belief that a crime has been committed and that the respondent is probably
guilty thereof. To engender a well-founded belief that a crime has been committed, and to determine if
the suspect is probably guilty of the same, the elements of the crime charged should, in all reasonable
likelihood, be present. This is based on the principle that every crime is defined by its elements, without
which there should be, at the most, no criminal offense.61

The elements of the crime of Violation of Section 3 (e),62 RA 3019 are as follows: (a) the offender must be a
public officer discharging administrative,judicial, or official functions; (b) he must have acted with manifest
partiality, evident bad faith or gross inexcusable negligence; and (c) his action caused any undue injury to
any party, including the government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.63

Considering the findings contained in the CoA Memo, which the Ombudsman, however, disregarded, it is
quite clear that all the foregoing elements are, in all reasonable likelihood, present with respect to
respondents’ participation in this case.

Respondents, who were all public officers at the time of the alleged commission of the crime – particularly,
as provincial officials of Bataan discharging administrative functions (first element) – apparently acted with
manifest partiality, evident bad faith – or, at the very least, gross inexcusable negligence – when they
issued the pertinent documents and certifications that led to the diversion of public funds to a project that
had no proper allotment, i.e., the mini-theater project (second element). The absence of such allotment
not only renders invalid the release of funds therefor but also taints the legality of the project’s
appropriation64 as well as the Province’s contract with V.F. Construction. As the CoA Memo pertinently
explains:

Four contracted infrastructure projects and a financial assistance extended to [the] barangay by your
administration amounting to ₱5,404,000 and ₱100,000, respectively, were found devoid of valid
appropriations. Of the amounts, ₱4,992,750 was already paid while the remaining balance of ₱511,250 was
lodged to Accounts Payable. The non-existence of valid appropriations rendered the contracts void and
the payments illegal.

The said projects were among the 19 provided with appropriations totalling ₱14,005,000 in the [P]rovince’s
2003 Closing Budgets embodied under Ordinance No. A-6 and approved by the Sangguniang
Panlalawigan in its Resolution No. 54 on February 23, 2004.
The validity of the appropriations and the subsequent transactions were not considered in audit due tolack
of legal basis, to wit:

a. No sources of funds for the ₱14.005M appropriation rendering it invalid

The ₱43,487,527.16 computed source/available balance for the ₱14,005,000 appropriation was already
used as the beginning available balance in the computation of the Estimated Revenues and Receipts
considered in the earlier approved CY 2004 Annual General Fund Budget contained in Appropriation
Ordinance No. 2 and passed under S.P. Resolution No. 6 on January 12, 2004 (Please see Annex A [with the
heading "Supplemental Appropriations of ₱14,005,000. CY 2003 Closing Budget]). Sec. 321 of RA 7160
provides, among others, that:

"No ordinance providing for a supplemental budget shall be enacted, except when supported by funds
actually available as certified by the local treasurer or by new revenue sources."

b. Non-release of allotments for the ₱14.005 M appropriation

Allotment is the authorizationissued by the Local Chief Executive (LCE) to a department/office of the LGU,
which allows it to incur obligations, for specified amounts, within the appropriation ordinance. (Sec. 08,
Manual on the NGAS for LGUs, Volume I).

As verified from the Accounting and Budget offices, no allotments were released for the projects, hence
the incurrence of the obligations were not authorized. In spite of this, the amount of ₱14,005,000 was taken
up among the continuing appropriations/allotments in CY 2004. Also, Allotment and Obligation Slips
(ALOBS) which serve as the LGU commitments to pay were certified for eight of the projects in the amount
of ₱7,816,000.65 (Emphases and underscoring supplied)

To be clear, the nineteen (19) projects mentioned in the CoA Memo were listed under "Annex B" 66 thereof
entitled "Schedule of Contracted Projects and Financial Assistance Out ofInvalid Appropriations, CY 2004,"
all of which had no allotments issued. First and foremost on the list is the construction of the mini-theater
project. A similar CoA memorandum, AOM No. 2004-2667 dated September 6, 2004, which was also ignored
by the Ombudsman, contains the same audit results with regard to the lack of a valid allotment for the
project. Thus, absent compliance with this basic requirement, the authorizations made by respondents in
relation to the project were therefore prima facie tainted with illegality, amounting to either manifest
partiality, evident bad faith, or, at the very least, to gross inexcusable negligence. Indeed, it is reasonable
to expect that respondents – being the Province’s accountable officers at that time – had knowledge of
the procedure on allotments and appropriations. Knowledge of basic procedure is part and parcel of
respondents’ shared fiscal responsibility under Section 305 (l) of RA 7160, viz.:

Section 305. Fundamental Principles.- The financial affairs, transactions, and operations of local
government units shall be governed by the following fundamental principles:

xxxx

(l) Fiscal responsibility shall beshared by all those exercising authority over the financial affairs, transactions,
and operations of the local government units; x x x.

Hence, unless the CoA’s findings are substantially rebutted, the allotment’s absence should have roused
respondents’ suspicions, as regards the project’s legality, and, in consequence, prevented them from
approving the disbursements therefor. This is especially true for Roman, who, as the Local Chief Executive of
the Province at that time, was primarily charged with the issuance of allotments.68 As such, he was in the
position to know if the allotment requirement had, in the first place, been complied with, given that it was a
pre-requisite before the project could have been contracted.
In addition, the Court observes the same degree of negligence on the part of respondents in seemingly
attesting to the project’s 100% completion when such was not the case. The erroneous certification
rendered the disbursements made by the Province suspect as V.F. Construction had still to fulfill its
contractual obligations to the Province and yet were able to receive full payment.

Considering that the illegal diversion of public funds for the mini theafter project would undermine the
execution of other projects legitimately supported by proper allotments, it is quite obvious that undue injury
on the part of the Province and its residents would be caused. Likewise, considering that V.F. Construction
had already received full payment for a project that had yet to be completed,it also appears that a
private party was given unwarranted benefits by respondents inthe discharge of their functions (third
element).

Thus, with the elements of the crime of Violation of Section 3 (e), RA 3019 herein ostensibly present, the
Court hereby holds that the Ombudsman committed grave abuse of discretion whenit dismissed said
charge against respondents.

That the Ombudsman had not, in any manner, mentioned the two (2) CoA AOMs, i.e., AOM Nos. 2005-004-
100 (2004) (i.e., the CoA Memo) and 2004-26, in its ruling leads the Court to believe that it deliberately
failed to consider the same. As the Court sees it, these are significant pieces of evidence which should not
have been casually ignored. This stems from a becoming respect which all government agencies should
accord to the CoA’s findings. Verily, being the constitutionally-mandated audit arm of the government, the
CoA is vested with broad powers over all accounts pertaining to government revenue and expenditures
and the uses of public funds and property.69 As held in the case of Belgica v. Ochoa, Jr.:70

[I]t is the general policy of the Court to sustain the decisions of administrative authorities, especially
onewhich is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the decision and order are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when
the CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack
or excess of jurisdiction, that this Court entertains a petition questioning its rulings.71

With the weight accorded to the CoA’s findings, the Ombudsman should have, at the very least, explained
its reasons as to why the two (2) CoA AOMs had no bearing in this case. However, no such explanation was
herein made. As such, the Court holds that the Ombudsman committed grave abuse of discretion in this
respect.

Palpable too is the Ombudsman’s grave abuse of discretion by its misplaced reliance on the Arias
doctrine.1âwphi1

The factual circumstances which led to the Court’s ruling in Arias were such that there was nothing else in
the documents presented before the head of office therein that would haverequired the detailed
examination of each paper or document, viz.:

We can, in retrospect, argue that Arias should have probed records, inspected documents, received
procedures, and questioned persons. It is doubtful if any auditor for a fairly-sized office could personally do
all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All
heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those
who prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains
important visitors, the auditor isnot ordinarily expected to call the restaurant aboutthe amount of the bill,
question each guest whether he was present at the luncheon, inquire whether the correct amount of food
was served, and otherwise personally look into the reimbursement voucher’s accuracy, propriety, and
sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any
executive head of even small government agencies or commissions can attest to the volume ofpapers
that must be signed. x x x.72 (Emphasis supplied)
Simply put, when a matter is irregular on the document’s face, so much so that a detailed examination
becomes warranted, the Arias doctrine is unavailing.

Here, it cannot be denied that the absence of an allotment for the project already rendered all related
documents/transactions irregular on their face. By this fact alone, respondents ought to have known that
something was amiss. To echo the CoA Memo, Section 321 of RA 7160 provides, among others, that "[n]o
ordinance providing for a supplemental budget shall be enacted, except when supported by funds
actually availableas certified by the local treasurer or by new revenue sources." Section 8, Chapter 3 of the
Manual on the NGAS for LGUs, Volume I further defines an "[a]llotment [as] the authorizationissued by the
Local Chief Executive (LCE) to a department/office of the LGU, which allows it to incur obligations, for
specified amounts, within the appropriation ordinance." Since the mini-theater project was an
appropriation made in a supplemental budget, then there should have been funds certified to be actually
available for such appropriation to even be made. However, as the CoA found, no such funds were
certified as available. Likewise, the project had no supporting allotment, which means thatthere was
basically no authority for the provincial officials, i.e., respondents, to even incur the obligations under the
V.F. Construction contract, much morefor them to disburse the funds in connection therewith. Section 344
of RA 7160 provides:

Section 344. Certification on, and Approval of, Vouchers.- No money shall be disbursed unless the local
budget officer certifies to the existence of appropriation that has been legally made for the purpose, the
local accountant has obligated said appropriation, and the local treasurer certifies to the availability of
funds for the purpose. x x x.

xxxx

With these apparent irregularities, it is quite perplexing how the Ombudsman could have applied the Arias
doctrine in support of its ruling, especially with respect to the charge of Violation of Section 3 (e), RA 3019.
Thus, by patently misapplying existing jurisprudence, the Court finds that the Ombudsman also committed
a grave abuse of discretion on this score and its ruling, in these aspects, must bereversed and set aside. In
fine, the Ombudsman is ordered to file in the proper court the necessary Information against respondents
for violating Section 3 (e), RA 3019.

That being said, the Court proceeds to discuss the other charges contained in Garcia’s petition. III.

As earlier stated, Garcia, in his petition, also seeks that respondents be indicted for the crimes of Technical
Malversation, and Malversation of Public Funds through Falsification of Public Documents. However, unlike
the charge for the crime of Violation of Section 3 (e), RA 3019, the Court is unable to render the same
disposition.

First, while Garcia insists upon the sufficiency of his evidence to indict respondents for Technical
Malversation, the Court cannot pass upon this issue, considering that the Complaint-Affidavit filed before
the Ombudsman originally charged respondents not with Technical Malversation under Article 220 73 of the
RPC, but with Malversation of Public Funds through Falsification of Public Documents, defined and
penalized under Article 217,74 in relation to Article 17175 of the RPC, a complex crime.76 It bears stressing
that the elements of Malversation of Public Funds are distinctly different from those of Technical
Malversation. In the crime of Malversation of Public Funds, the offender misappropriates public funds for his
own personal useor allows any other person to take such public funds for the latter’s personal use. On the
other hand, in Technical Malversation, the public officer applies public funds under his administration not
for his or another’s personal use, but to a public use other than that for which the fund was appropriated
by law or ordinance.77 Technical Malversation does not include, or is not necessarily included in the crime
of Malversation of Public Funds.78

Since the acts supposedly committed by respondents constituting the crime of Technical Malversation
were not alleged in the Complaint Affidavit and the crime for which respondents raised their respective
defenses was not Technical Malversation, the petition must perforce be denied on this score. Otherwise,
the Court would be sanctioning a violation of respondents’ constitutionally-guaranteed right to be
informed of the nature and cause of the accusation against them, so as to deny them a reasonable
opportunity to suitably prepare their defense.79

Finally, with respect to the chargeof Malversation of Public Funds through Falsification of Public Documents,
the Court observes that there lies no evidence which would give a prima facieindication that the funds
disbursed for the project were misappropriated for any personal use. The CoA Memo shows that the
Province’s funds were used for a public purpose, i.e., the mini-theater project, albeit without any allotment
issued therefor. Garcia also fails to convince the Court that the Province’s funds were diverted to some
personal purpose. Failing in which, the Court cannot pronounce that the Ombudsman committed a grave
abuse of discretion in dismissing such charge.

As it stands, Garcia’s petition is granted only in part as respondents should be indicted for the lone crime of
Violation of Section 3 (e), RA 3019 for the reasons above-discussed. It must, however, be clarified that the
dismissal of the charge of Technical Malversation is without prejudice to its proper re-filing unless barred by
prescription, considering that such dismissal was based merely on procedural grounds and is not, in any
way, tantamount to an acquittal. WHEREFORE, the petition is PARTLY GRANTED. The Resolution dated May
30, 2006 and the Order dated October 9, 2009 of the Office of the Ombudsman in OMB-L-C-05-0084-A,
insofar as they dismissed the criminal charge against respondents Leonardo B. Roman, Romeo L. Mendiola,
Pastor P. Vichuaco, Aurora J. Tiambeng, and Numeriano G. Medina (respondents), for Malversation of
Public Funds through Falsification of Public Documents, are AFFIRMED. However, the said Resolution and
Order, insofar as they dismissed the criminal charge against respondents for violation of Section 3 (e),
Republic Act No. (RA) 3019 or the "Anti-Graft and Corrupt Practices Act" are REVERSED and SET ASIDE. The
Ombudsman is ORDERED to file in the proper court the necessary Information for violation of Section 3 (e),
RA 3019 against respondents. Finally, for reasons herein discussed, the criminal charge against respondents
for Technical Malversation is DISMISSED, without prejudice to its proper re-filing.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice
Chairperson

PRESBITERO J. VELASCO, JR.,* TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice
G.R. No. 188066 October 22, 2014

OFFICE OF THE OMBUDSMAN, Petitioner,

vs.
CYNTHIA E. CABEROY, Respondent.

DECISION

REYES, J.:

This is a petition for review1 under Rule 45 of the Rules of Court of the Decision2 dated November 21, 2008
and Resolution3 dated May 14, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 03498, which reversed
and set aside the Consolidated Decision4 dated June 30, 2005 of the Office of the Ombudsman-Visayas
(Ombudsman) and absolved respondent Cynthia E. Caberoy (Caberoy) of any administrative liability.

Caberoy is the principal of Ramon Avanceña National High School (RANHS) in Arevalo, Iloilo City. She was
charged with Oppression and Violation of Section 3(e) and (f) ofRepublic Act (R.A.) No. 3019 or the "Anti-
Graft and Corrupt Practices Act"by Angeles O. Tuares (Tuares) for allegedly withholding her salary for the
month of June 2002. The case was docketed as OMB-V-A-03-0239-E. Saidcase was consolidated with OMB-
V-A-03-0572-I, which was a complaint filed by Tuares against Ida B. Endonila, Erlinda G. Gencaya, Clarissa
G. Zamora and Victoria T. Calunsod.

Caberoy denied the charge against her, alleging, among others, that the payrolls of June 1 to15, 2002 and
June16 to 30, 2002 show that Tuares received her salary as shown by her signatures on lines no. 11 of the
payrolls.5

In the Consolidated Decision dated June 30, 2005 rendered by the Ombudsman, Caberoy was found guilty
of Oppression and was meted out the penalty of dismissal from service. The dispositive portion of the
consolidated decision provides:

WHEREFORE, premises considered, respondent CYNTHIA E. CABEROY, Principal II, Ramon Avanceña
National High School, (RANHS), Arevalo, Iloilo City, is hereby found GUILTY of OPPRESSION and is hereby
meted the penalty of DISMISSAL FROM THE SERVICE WITH CANCELLATION OF CIVIL SERVICE ELIGIBILITY,
FORFEITURE OFEARNED LEAVECREDITS AND RETIREMENT BENEFITS, AND DISQUALIFICATION FROM
REEMPLOYMENT IN THE GOVERNMENT SERVICE. On the other hand, respondents IDA B. ENDONILA, Schools
Division Superintendent, ERLINDA G. GENCAYA, Asst. Schools Division Superintendent, CLARISSA G.
ZAMORA, Administrative Officer III, all three of the Division of Iloilo City, DepEd Region VI, Iloilo City, and
VICTORIA T. CALUNSOD, Officer-In-Charge/Secondary School Head Teacher III, Ramon Avanceña National
High School, (RANHS) Arevalo, Iloilo City, are found NOT GUILTYof the same offense and/or violating Sec. 3
(f) of R.A. 3019and thus these cases are considered DISMISSED as far as they are concerned. Furthermore,
on the administrative aspect of the counter-allegation of Perjury against herein complainant ANGELES O.
TUARES, Ramon Avanceña National High School, Arevalo, Iloilo City, the same is likewise DISMISSED, for lack
of merit.

SO DECIDED.6

Caberoy filed a joint motion for reconsideration, which was denied by the Ombudsman in its Order dated
September 19, 2006.7

The Ombudsman found that Tuares was not paid any amount in June 2002 because of her failure to submit
her clearance and Performance Appraisal Sheet for Teachers (PAST), while the other teachers received
their salaries for the same month.8 The Ombudsman concluded that Tuares was "singled out by respondent
Caberoy as the only one who did not receive any amount from the school on June 2002 because, as
established earlier, the former failed to submit her clearance and PAST." 9 The Ombudsman also took into
consideration several infractions previously committed by Caberoy, which allegedly displayed her
"notoriousundesirability as a government officer for withholding teachers’ salaries without
authority."10 According to the Ombudsman, Caberoy could not honestly claim that she had not been
forewarned by the Ombudsman of the grave consequences of her repeated illegal act. 11Caberoy filed a
petition for certiorariwith the CA, seeking the reversal of her dismissal from service, and in the assailed
Decision dated November 21, 2008, the CA granted Caberoy’s petition. The dispositive portion of the CA
decision states:

WHEREFORE, the petition is GRANTED. The consolidated decision dated June 30, 2005, of the respondent
Ombudsman is hereby REVERSED and SET ASIDE and another judgment is hereby rendered ABSOLVING the
petitioner of any liability, with costs de oficio.

SO ORDERED.12

The Ombudsman filed a motion for reconsideration, which was denied by the CA in the assailed Resolution
dated May 14, 2009.

In clearing Caberoy from the charge against her, the CA found that no undue injury was caused to Tuares
since she received her June 2002 salary. According to the CA, since Caberoy was charged with Violation
of Section 3(e) of R.A. No. 3019 and the element of undue injury is absent in this case, Caberoy cannot be
held liable for the offense.13 The CA also ruled that Caberoy’s "refusal" to release Tuares’ salary was justified
and the element of "failure to so act x x x for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or advantage in favor of an
interestedparty, or [discrimination] against another" under Section 3(f) of R.A. No. 3019, is likewise
absent.14 Finally, the CA found that the acts of Caberoy are not constitutive of oppression.15

Lastly, the CA ruled that the Ombudsman’s findings and conclusions are not supported by substantial
evidencesince Caberoy’s act of withholding Tuares’ salaries was clearly justified.16 Hence, the present
petition, based on the ground that:

THE HONORABLE COURT OF APPEALS’ REVERSAL OF THE PETITIONER OFFICE OF THE OMBUDSMAN’S
DECISION FINDING [CABEROY] ADMINISTRATIVELY LIABLE FOR OPPRESSION IS AN ERROR OF LAW
CONSIDERING THAT ITS FINDINGS IS SUPPORTED BY SUBSTAN[T]IAL EVIDENCE.17

The Ombudsman argues that it was error for the CA to exonerate Caberoy on the reasons that the
withholding of Tuares’ salary was justified and that there was no undue injury onher part as she later
received her salary. The Ombudsman contends that Caberoy was found guilty of Oppression, which is an
administrative offense under the Civil Service law, and is distinct from the crime of Violation of R.A. No.
3019, from which she was absolved. According to the Ombudsman, the quantum of proof in these two
offenses (Oppression and Violation ofR.A. No. 3019) is distinct and the records of the case disclose that
there is substantial evidence to support its decision. The Ombudsman also contests the factual findings of
the CA that Tuares actually received her salary, stating that in the summary of payrolls and the checks,
Tuares’ name does not appear. Moreover, no evidence was presented by Caberoy to prove that Tuares
actually received her salary, other than her bare allegation. Finally, the Ombudsman states that Caberoy
has already been penalized several times for previous misconduct, which displays her propensity to commit
the misdemeanor.18

Ruling of the Court

Initially, it must be stated thatin a petition for review filed under Rule 45 of the Rules of Court, the Court is
limited only to a review of errors of law committed by the CA, and the Court is not required to review all
over again the evidence presented before the Ombudsman.19 The rule, nevertheless, admits of exceptions,
such as when the findings of the CA and the Ombudsman are conflicting,20 which is what occurred in the
present case. Hence, the Court must now look into the matter of whether the CA committed a reversible
error when it reversed the findings and conclusions of the Ombudsman.
Tuares charged Caberoy in OMB-V-A-03-0239-E with both Oppression and Violation of Section 3(e)(f) of R.A.
No. 3019. The Ombudsman, however, found Caberoy guilty only of Oppression.

Oppression is an administrative offense21 penalized under the Uniform Rules on Administrative Cases in the
Civil Service,22 which provides:

Section 52. Classification of Offenses.—Administrative offenses with corresponding penalties are classified
into grave, less grave or light, depending on their gravity or depravity and effects on the government
service.

A. The following are grave offenses with their corresponding penalties:

xxxx

14. Oppression.

1st Offense – Suspension for six (6) months and one (1) day to one (1) year;

2nd Offense – Dismissal.

xxxx

Oppression is also known as grave abuse of authority, which is a misdemeanor committed by a public
officer, who under color of his office, wrongfully inflict upon any person any bodily harm, imprisonment or
other injury. It is an act ofcruelty, severity, or excessive use of authority.23 To be held administratively liable
for Oppression or Grave Abuse of Authority, there must be substantial evidence presented proving the
complainant’s allegations.24 Substantial evidence is that amount of relevant evidence which a reasonable
mind might accept asadequate to support a conclusion.25 In this case, the CA correctly overturned the
Ombudsman’s findings and conclusions, and explained the reasonsfor exculpating Caberoy, as follows:

Evidently, from the foregoing disquisitions, respondent Ombudsman contradicted itself when it found and
held thatpetitioner was guilty of "oppression" for not paying the private respondent her June 2002 salary,
because as a matter of fact she has been paidalbeit delayed. Such payment is clearly and indubitably
established from the table where it was shown that private respondent received on July 17 and 25, 2002,
her June 2002 salary in the amounts of ₱4,613.80 and ₱4,612.00, respectively.

xxxx

The above narration of facts do not show that petitioner committed acts constitutive of "oppression."
Assuming petitioner’s action is erroneous or overly zealous, this certainly does not merit the most severe
penalty of dismissal from government service. Apparently, the petitioner is only protecting herself from any
future, adverse consequences if she allows the disbursement of public funds without the appropriate
supporting documents. "It is a well-known fact that in the government service an employee must submit his
daily time record duly accomplished and approved before one cancollect his salary."

xxxx

Finally, on the contention that the findings and conclusions of the respondent Ombudsman is considered
conclusive and deserve respect and finality is true only when the same is based on substantial evidence. As
discussed above, the action taken by petitioner in withholding the salaries of private respondent was
clearly justified. It was a measure taken by a superior against a subordinate who ignored the basic tenets of
law by not submitting the required documents to support payment of her salary and proportional vacation
pay for the aforesaid period. x x x.
x x x [I]n this case before us, the records is bereft of substantial evidence to support respondent
Ombudsman’s findings and conclusion that petitioner committed oppressive acts against private
respondent and violated Sections 3(e) and (f) of RA 3019. On the contrary and as earlier discussed,
respondent Ombudsman found and concluded that private respondent was paid her June salaryalbeit
late. Hence, it cannot be gainsaid that the act of respondent Ombudsman in concluding that petitioner is
guilty as charged despite absence of substantial evidence to support the same is totally unfounded and is
therefore, tantamount to grave abuse of discretion amounting to a lack or excess of discretion. x x
x.26 (Citations omitted)

The complaint filed by Tuares against Caberoy charged the latter with "manifest partiality, evident bad
faith or gross inexcusable negligence for having ordered the payroll clerk of [RANHS] to cause the exclusion
of [her] name in the payroll of June 2002 x x x and [in spite of] the fact that [she has already] rendered full
service during said days x x x without any justifiable reason and without due process and without any
authority under the law."27 A perusal of Tuares’ allegations shows that her claim pertains to the alleged
withholding of her salary for the month of June 2002. Records show, however, that Tuares was actually paid
her salary for the month of June 2002. Thus, the vouchers for the payroll period of June 1 to 15, 200228 and
June 16 to 30, 200229 showed Tuares’ name on line 11 and her signature acknowledging receipt of her
salary for such period. This was, in fact, confirmed in the 2002 salary payrolls submitted by the RANHS Office
of the Auditor and summarized by the Ombudsman,30 to wit:

Voucher Date of Tuares’ No. in Amount

Period
No. Check the Payroll Received
June (Proportional 101-02-6- June 25, Name not Name not
pay & salary) 161 2002 Found Found
June (Proportional 101-02-6- June 28, Name not Name not
pay) 164 2002 Found Found
June (Proportional PS-02-7- July 4, 2002 Name not Name not
pay) 182 Found Found
June (Proportional PS-02-7- July 17, 11 ₱4,613.80
pay & salary) 195 2002
June (Proportional PS-02-7- July 19, Name not Name not
pay) 196 2002 Found Found
June PS-02-7- July 25, 11 ₱4,612.00
200 2002
July 101-02-8- August 19, 16 ₱4,694.72
231 2002
1âwphi1

The amounts received and signed for by Tuares correspond essentially to the other amounts she received
as salaryfor the other periods in 2002. On this score, entries in the payroll, being entries in the course of
business, enjoy the presumption of regularity under Section 43, Rule 130 of the Rules of Court,31 and absent
any evidence presented by Tuares showing the contrary, good faith must be presumed in the preparation
and signing of such payrolls.32

Even assuming, as the Ombudsman asserted, that Tuares received her June 2002 salary only on July 2002,
the same does not constitute Oppression or Grave Abuse of Authority. The delay in the release of Tuares’
salary hardly qualifies as an "act of crueltyor severity or excessive use of authority," especially when she
contributed to the cause of the delay, that is, she submitted her Form 48 (Daily Time Record) for June 2002
only on July 11, 2002.33

Neither can the Court subscribe to the Ombudsman’s conclusion that Tuares was singled out by
Caberoy.According to the Ombudsman:
In other words, as far as these fortunate teachers are concerned, checks dated June 25 and 28, 2002 and
July 04 and 19, 2002 actually and in paper covered their June 2002 salary; checks dated July 17 and 19,
2002 actually and in paper covered their July 2002 salary; x x x.

Whereas on the part of complainant Tuares, this is what really happened: The checks dated July 17 and 25,
2002 were technically for services rendered in June 2002 ascorrected by COA but the amounts
corresponding to complainant’s salaryfor the whole month of June 2002 was actually received by her only
in July 2002 and that in effect means that she did not really receive any amount from the school in June
2002; x x x.

Viewed from the discussion above, it is therefore crystal clear that complainant was singled out by
respondent Caberoy as the only one who did not receive any amount from the school on June 2002
because, as established earlier, the former failed to submit her clearance and PAST.34

It must be stressed that like other grave offenses classified under the Civil Service laws, bad faith must
attend the act complained of. Bad faith connotes 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.35 There must be evidence, independent of the fact of such delay, which will lead to
the inevitable conclusion that it was for the purpose of singling out Tuares. The Court has consistently
upheld the principle that in administrative cases, to be disciplined for grave misconduct or any grave
offense, the evidence against the respondent should be competent and must be derived from direct
knowledge.36 "Reliance on mere allegations, conjectures and suppositions will leave an administrative
complaint with no leg to stand on."37 Except for the Ombudsman’s deduction based on the dates of
issuance of the vouchers and the checks as shown in the payroll, the records of thiscase are bereft of
evidence that will support its view that the delay in the release of Tuares’ salary indicated that she was
singled out. Moreover, as correctly pointed out by the CA, "[t]he certifications issued by Acting Book
keeper Hayde S. Momblan will show that it was not only [Tuares] who was not included in the June 2002
payrolls; there were other teachers who were not included because they failed to submit the required
year-end clearance. x x x Evidently, [Tuares] was not singled out or discriminated against as insisted by her
and respondent Ombudsman."38

All told, the Court finds that the CA did not commit a reversible error in exonerating Caberoy from the
charge against her.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA*
Associate Justice
Acting Chairperson

MARTIN S. VILLARAMA, JR. ESTELA M. PERLAS-BERNABE**

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

ATTESTATION
G.R. No. 168539 March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HENRY T. GO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari assailing the Resolution 1 of the Third Division2 of the
Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein respondent for
alleged violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known as the Anti-Graft
and Corrupt Practices Act.

The Information filed against respondent is an offshoot of this Court's Decision3 in Agan, Jr. v. Philippine
International Air Terminals Co., Inc. which nullified the various contracts awarded by the Government,
through the Department of Transportation and Communications (DOTC), to Philippine Air Terminals, Co.,
Inc. (PIATCO) for the construction, operation and maintenance of the Ninoy Aquino International Airport
International Passenger Terminal III (NAIA IPT III). Subsequent to the above Decision, a certain Ma. Cecilia L.
Pesayco filed a complaint with the Office of the Ombudsman against several individuals for alleged
violation of R.A. 3019. Among those charged was herein respondent, who was then the Chairman and
President of PIATCO, for having supposedly conspired with then DOTC Secretary Arturo Enrile (Secretary
Enrile) in entering into a contract which is grossly and manifestly disadvantageous to the government.

On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to indict,
among others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was likewise a
finding of probable cause against Secretary Enrile, he was no longer indicted because he died prior to the
issuance of the resolution finding probable cause.

Thus, in an Information dated January 13, 2005, respondent was charged before the SB as follows:

On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then Secretary of the
Department of Transportation and Communications (DOTC), committing the offense in relation to his office
and taking advantage of the same, in conspiracy with accused, HENRY T. GO, Chairman and President of
the Philippine International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and
criminally enter into a Concession Agreement, after the project for the construction of the Ninoy Aquino
International Airport International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo
Consortium/PIATCO, which Concession Agreement substantially amended the draft Concession
Agreement covering the construction of the NAIA IPT III under Republic Act 6957, as amended by Republic
Act 7718 (BOT law), specifically the provision on Public Utility Revenues, as well as the assumption by the
government of the liabilities of PIATCO in the event of the latter's default under Article IV, Section 4.04 (b)
and (c) in relation to Article 1.06 of the Concession Agreement, which terms are more beneficial to PIATCO
while manifestly and grossly disadvantageous to the government of the Republic of the Philippines. 4

The case was docketed as Criminal Case No. 28090.

On March 10, 2005, the SB issued an Order, to wit:

The prosecution is given a period of ten (10) days from today within which to show cause why this case
should not be dismissed for lack of jurisdiction over the person of the accused considering that the
accused is a private person and the public official Arturo Enrile, his alleged co-conspirator, is already
deceased, and not an accused in this case.5
The prosecution complied with the above Order contending that the SB has already acquired jurisdiction
over the person of respondent by reason of his voluntary appearance, when he filed a motion for
consolidation and when he posted bail. The prosecution also argued that the SB has exclusive jurisdiction
over respondent's case, even if he is a private person, because he was alleged to have conspired with a
public officer.6

On April 28, 2005, respondent filed a Motion to Quash7 the Information filed against him on the ground that
the operative facts adduced therein do not constitute an offense under Section 3(g) of R.A. 3019.
Respondent, citing the show cause order of the SB, also contended that, independently of the deceased
Secretary Enrile, the public officer with whom he was alleged to have conspired, respondent, who is not a
public officer nor was capacitated by any official authority as a government agent, may not be
prosecuted for violation of Section 3(g) of R.A. 3019.

The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:

Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing that
Henry T. Go, the lone accused in this case is a private person and his alleged co-conspirator-public official
was already deceased long before this case was filed in court, for lack of jurisdiction over the person of the
accused, the Court grants the Motion to Quash and the Information filed in this case is hereby ordered
quashed and dismissed.9

Hence, the instant petition raising the following issues, to wit:

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF SUBSTANCE IN A
MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE IN GRANTING THE DEMURRER TO
EVIDENCE AND IN DISMISSING CRIMINAL CASE NO. 28090 ON THE GROUND THAT IT HAS NO JURISDICTION
OVER THE PERSON OF RESPONDENT GO.

II

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF SUBSTANCE IN A
MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE, IN RULING THAT IT HAS NO
JURISDICTION OVER THE PERSON OF RESPONDENT GO DESPITE THE IRREFUTABLE FACT THAT HE HAS ALREADY
POSTED BAIL FOR HIS PROVISIONAL LIBERTY

III

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD OF THE EQUAL
PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE INFORMATION AND DISMISSED CRIMINAL CASE
NO. 2809010

The Court finds the petition meritorious.

Section 3 (g) of R.A. 3019 provides:

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

xxxx
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

The elements of the above provision are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the
government.11

At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of
R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain acts of public
officers and private persons alike constituting graft or corrupt practices act or which may lead
thereto.12 This is the controlling doctrine as enunciated by this Court in previous cases, among which is a
case involving herein private respondent.13

The only question that needs to be settled in the present petition is whether herein respondent, a private
person, may be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public officer, with
whom he was alleged to have conspired, has died prior to the filing of the Information.

Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who was
charged in the Information and, as such, prosecution against respondent may not prosper.

The Court is not persuaded.

It is true that by reason of Secretary Enrile's death, there is no longer any public officer with whom
respondent can be charged for violation of R.A. 3019. It does not mean, however, that the allegation of
conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged.
The only thing extinguished by the death of Secretary Enrile is his criminal liability. His death did not
extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private
respondent. Stated differently, the death of Secretary Enrile does not mean that there was no public officer
who allegedly violated Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy Ombudsman for Luzon
found probable cause to indict Secretary Enrile for infringement of Sections 3 (e) and (g) of R.A.
3019.14 Were it not for his death, he should have been charged.

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019, among
others, is that such private person must be alleged to have acted in conspiracy with a public officer. The
law, however, does not require that such person must, in all instances, be indicted together with the public
officer. If circumstances exist where the public officer may no longer be charged in court, as in the present
case where the public officer has already died, the private person may be indicted alone.

Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy.15 If two or
more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are jointly responsible therefor. 16 This means that
everything said, written or done by any of the conspirators in execution or furtherance of the common
purpose is deemed to have been said, done, or written by each of them and it makes no difference
whether the actual actor is alive or dead, sane or insane at the time of trial.17 The death of one of two or
more conspirators does not prevent the conviction of the survivor or survivors.18 Thus, this Court held that:

x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends
upon the joint act or intent of two or more persons. Yet, it does not follow that one person cannot be
convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not remove the bases
of a charge for conspiracy, one defendant may be found guilty of the offense.19

The Court agrees with petitioner's contention that, as alleged in the Information filed against respondent,
which is deemed hypothetically admitted in the latter's Motion to Quash, he (respondent) conspired with
Secretary Enrile in violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act of one is the act of all.
Hence, the criminal liability incurred by a co-conspirator is also incurred by the other co-conspirators.

Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative intent to
repress "acts of public officers and private persons alike, which constitute graft or corrupt
practices,"20 would be frustrated if the death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of People v. Peralta21 as to the nature of and the
principles governing conspiracy, as construed under Philippine jurisdiction, is instructive, to wit:

x x x A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. Generally, conspiracy is not a crime except when the law specifically
provides a penalty therefor as in treason, rebellion and sedition. The crime of conspiracy known to the
common law is not an indictable offense in the Philippines. An agreement to commit a crime is a
reprehensible act from the view-point of morality, but as long as the conspirators do not perform overt acts
in furtherance of their malevolent design, the sovereignty of the State is not outraged and the tranquility of
the public remains undisturbed.

However, when in resolute execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the liability
of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in U.S. vs. Infante
and Barreto opined that

While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to
commit a crime is in many cases a fact of vital importance, when considered together with the other
evidence of record, in establishing the existence, of the consummated crime and its commission by the
conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of the
crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of
one is the act of all. The foregoing rule is anchored on the sound principle that "when two or more persons
unite to accomplish a criminal object, whether through the physical volition of one, or all, proceeding
severally or collectively, each individual whose evil will actively contributes to the wrong-doing is in law
responsible for the whole, the same as though performed by himself alone." Although it is axiomatic that no
one is liable for acts other than his own, "when two or more persons agree or conspire to commit a crime,
each is responsible for all the acts of the others, done in furtherance of the agreement or conspiracy." The
imposition of collective liability upon the conspirators is clearly explained in one case where this Court held
that x x x it is impossible to graduate the separate liability of each (conspirator) without taking into
consideration the close and inseparable relation of each of them with the criminal act, for the commission
of which they all acted by common agreement x x x. The crime must therefore in view of the solidarity of
the act and intent which existed between the x x x accused, be regarded as the act of the band or party
created by them, and they are all equally responsible x x x

Verily, the moment it is established that the malefactors conspired and confederated in the commission of
the felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy,
and the court shall not speculate nor even investigate as to the actual degree of participation of each of
the perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from
the situs of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved
that through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to
carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply
justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally
viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.

xxxx

x x x A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of the
conspirators who acted in furtherance of the common design are liable as co-principals. This rule of
collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of the
conspirators in consummating their common purpose is a patent display of their evil partnership, and for
the consequences of such criminal enterprise they must be held solidarily liable. 22

This is not to say, however, that private respondent should be found guilty of conspiring with Secretary
Enrile. It is settled that the absence or presence of conspiracy is factual in nature and involves evidentiary
matters.23 Hence, the allegation of conspiracy against respondent is better left ventilated before the trial
court during trial, where respondent can adduce evidence to prove or disprove its presence.

Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25 that in a
different case, he was likewise indicted before the SB for conspiracy with the late Secretary Enrile in
violating the same Section 3 (g) of R.A. 3019 by allegedly entering into another agreement (Side
Agreement) which is separate from the Concession Agreement subject of the present case. The case was
docketed as Criminal Case No. 28091. Here, the SB, through a Resolution, granted respondent's motion to
quash the Information on the ground that the SB has no jurisdiction over the person of respondent. The
prosecution questioned the said SB Resolution before this Court via a petition for review on certiorari. The
petition was docketed as G.R. No. 168919. In a minute resolution dated August 31, 2005, this Court denied
the petition finding no reversible error on the part of the SB. This Resolution became final and executory on
January 11, 2006. Respondent now argues that this Court's resolution in G.R. No. 168919 should be applied
in the instant case.

The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R. No.
168919, he already posted bail for his provisional liberty. In fact, he even filed a Motion for Consolidation26 in
Criminal Case No. 28091. The Court agrees with petitioner's contention that private respondent's act of
posting bail and filing his Motion for Consolidation vests the SB with jurisdiction over his person. The rule is
well settled that the act of an accused in posting bail or in filing motions seeking affirmative relief is
tantamount to submission of his person to the jurisdiction of the court.27

Thus, it has been held that:

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest
or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he must raise the
question of the court’s jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to
the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over
his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

xxxx

As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:

"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly. When
a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of the court. If
he so wishes not to waive this defense, he must do so seasonably by motion for the purpose of objecting to
the jurisdiction of the court; otherwise, he shall be deemed to have submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the court
over the person, it must be for the sole and separate purpose of objecting to said jurisdiction. If the
appearance is for any other purpose, the defendant is deemed to have submitted himself to the
jurisdiction of the court. Such an appearance gives the court jurisdiction over the person."

Verily, petitioner’s participation in the proceedings before the Sandiganbayan was not confined to his
opposition to the issuance of a warrant of arrest but also covered other matters which called for
respondent court’s exercise of its jurisdiction. Petitioner may not be heard now to deny said court’s
jurisdiction over him. x x x.28

In the instant case, respondent did not make any special appearance to question the jurisdiction of the SB
over his person prior to his posting of bail and filing his Motion for Consolidation. In fact, his Motion to Quash
the Information in Criminal Case No. 28090 only came after the SB issued an Order requiring the
prosecution to show cause why the case should not be dismissed for lack of jurisdiction over his person.

As a recapitulation, it would not be amiss to point out that the instant case involves a contract entered into
by public officers representing the government. More importantly, the SB is a special criminal court which
has exclusive original jurisdiction in all cases involving violations of R.A. 3019 committed by certain public
officers, as enumerated in P.D. 1606 as amended by R.A. 8249. This includes private individuals who are
charged as co-principals, accomplices or accessories with the said public officers. In the instant case,
respondent is being charged for violation of Section 3(g) of R.A. 3019, in conspiracy with then Secretary
Enrile. Ideally, under the law, both respondent and Secretary Enrile should have been charged before and
tried jointly by the Sandiganbayan. However, by reason of the death of the latter, this can no longer be
done. Nonetheless, for reasons already discussed, it does not follow that the SB is already divested of its
jurisdiction over the person of and the case involving herein respondent. To rule otherwise would mean that
the power of a court to decide a case would no longer be based on the law defining its jurisdiction but on
other factors, such as the death of one of the alleged offenders.

Lastly, the issues raised in the present petition involve matters which are mere incidents in the main case
and the main case has already been pending for over nine (9) years. Thus, a referral of the case to the
Regional Trial Court would further delay the resolution of the main case and it would, by no means,
promote respondent's right to a speedy trial and a speedy disposition of his case.

WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated June 2, 2005, granting
respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith
DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No. 28090.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

No part, former counsel in related cases

MARIA LOURDES P. A. SERENO
Chief Justice