Sample Position Paper Omb.docx

REPUBLIC OF THE PHILIPPINES OFFICE OF THE OMBUDSMAN OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON AGHAM ROAD, DILIMAN QUEZON CITY, 1104 LAAAAAAAA Complainant, -versus -

OMB-L-C-00-12345 FOR: MALVERSATION, TECHNICAL MALVERSATION

CCCCCCCCCCCCC Respondents. x-----------------------------------------x

SUPPLEMENTAL POSITION PAPER Respondents _________________,

by counsel, and in the

interest of justice and fair play, respectfully request for leave to file this Supplemental Position Paper to supplement and amplify their arguments why they cannot be held liable for the charges levelled against them . 1. Complainant, in filing the instant criminal complaint, claims that she is a taxpayer. Aside from the fact that this claim is unsubstantiated by any proof, complainant miscontrues the requirement of locus standi or standing in court by claiming that she is a taxpayer. This requirement is material in petitions filed with the Supreme Court which considers locus standi of the petitioner to ask the Supreme Court exercise its power of judicial review. Her being a taxpayer is irrelevant or misplaced. 2. What is important is that complainant should have personal knowledge of the transactions complained of as

basis for the

criminal charges made against the respondents. As emphasized in the case of Borlongan v. Pena, G.R. No. 143591, Nov. 23, 2007: “It must be emphasized that the affidavit of the complainant, or any of his witnesses, shall allege facts within their (affiants) personal knowledge. The allegation of the respondent that the signatures of Ponce, Abad, Ong and Montilla were falsified does not qualify as personal knowledge. Nowhere in said affidavit did respondent state that he was present at the time of the execution of the documents. Neither did he claim that he was familiar with the signatures of the signatories. He simply made a bare assertion that the signatories were mere dummies of ISCI and they were not in fact officers, stockholders or representatives of the corporation. At the very least, the affidavit was based on respondent's "personal belief" and not "personal knowledge”.

Considering

the lack of

personal knowledge on the part of the respondent, he could have submitted the affidavit of other persons who are qualified to attest to the falsity of the signatures appearing in the questioned documents. One cannot just claim that a certain document is falsified without further stating the basis for such claim, i.e., that he was present at the time of the execution of the document or he is familiar with the signatures in question. Otherwise, this could lead to abuse and malicious prosecution. This is actually the reason for the requirement that affidavits must be based on the personal knowledge of the affiant. The requirement assumes added importance in the instant case where the accused were not made to rebut the complainant's allegation through counter-affidavits.”

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3. It does not appear that complainant had worked with the City Government of XXXXXXXX City as to have personal knowledge knowledge, the instant criminal complaint should be dismissed. 4. The charge of malversation against respondents

is

baseless. The elements of malversation of public funds are:(1) that the offender is a public officer;(2) that he had the custody or control of funds or

5. In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession personal

use.

The

presumption

is,

of

course,

rebuttable.

Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. The Supreme Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all.

6. There is no showing that respondents received the public funds in question and have custody over such funds for which they the funds for their personal use. The funds were expended for the public project intended. 0ther charge is clearly unfounded that should be dismissed.

7. As to the last two charges, the elements of the offense, also diverted to any public use other than that provided for by law

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present in this case.

Article 220 of the Revised Penal Code

Provides, to wit: “Art. 220. Illegal use of public funds or property. – Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 percent of the sum misapplied.”

8. As already explained in their Position Paper, there was no unlawful diversion of the funds because the request for the funds account for the public funds. Hence, the filing of the instant complaint is premature aside from being groundless.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the instant complaint be dismissed for lack of probable cause.

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