Title 7 Full Text.docx

1 G.R. No. 145368

April 12, 2002

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity as Ombudsman, respondent. KAPUNAN, J.: On June 13, 1991, President Corazon C. Aquino issued Administrative Order No. 223 "constituting a Committee for the preparation of the National Centennial Celebration in 1998." The Committee was mandated "to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress."1 Subsequently, President Fidel V. Ramos issued Executive Order No. 128, "reconstituting the Committee for the preparation of the National Centennial Celebrations in 1988." It renamed the Committee as the "National Centennial Commission." Appointed to chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons.2 Characterized as an "i body," the existence of the Commission "shall terminate upon the completion of all activities related to the Centennial Celebrations."3 Like its predecessor Committee, the Commission was tasked to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress." Per Section 6 of the Executive Order, the Commission was also charged with the responsibility to "prepare, for approval of the President, a Comprehensive Plan for the Centennial Celebrations within six (6) months from the effectivity of" the Executive Order. E.O. No. 128 also contained provisions for staff support and funding: Sec. 3. The Commission shall be provided with technical and administrative staff support by a Secretariat to be composed of, among others, detailed personnel from the Presidential Management Staff, the National Commission for Culture and the Arts, and the National Historical Institute. Said Secretariat shall be headed by a full time Executive Director who shall be designated by the President. Sec. 4. The Commission shall be funded with an initial budget to be drawn from the Department of Tourism and the president’s Contingent Fund, in an amount to be recommended by the Commission, and approved by the President. Appropriations for succeeding years shall be incorporated in the budget of the Office of the President. Subsequently, a corporation named the Philippine Centennial Expo ’98 Corporation (Expocorp) was created.4Petitioner was among the nine (9) Expocorp incorporators, who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive Officer. On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing alleged anomalies in the construction and operation of the Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator Coseteng’s privilege speech was referred to the Committee on Accountability of Public Officers and Investigation (The Blue Ribbon Committee) and several other Senate Committees for investigation. On February 24, 1999, President Joseph Estrada issued Administrative Order No. 35, creating an ad hoc and independent citizens’ committee to investigate all the facts and circumstances surrounding the Philippine centennial projects, including its component activities. Former Senator Rene A.V. Saguisag was appointed to chair the Committee. On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the Committee’s recommendations was "the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, relative to the award of centennial contracts to AK (Asia Construction & Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid contract that has caused material injury to government and for participating in the scheme to preclude audit by COA of the funds infused by the government for the implementation of the said contracts all in violation… of the anti-graft law."5 Later, on November 5, 1999, the Saguisag Committee issued its own report. It recommended "the further investigation by the Ombudsman, and indictment, in proper cases of," among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.

2 The Reports of the Senate Blue Ribbon and the Saguisag Committee were apparently referred to the Fact-finding and Intelligence Bureau of the Office of the Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report, recommending: 1. that a formal complaint be filed and preliminary investigation be conducted before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Peña and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and Regulations; 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal complainant.6 In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit and those of his witnesses. On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to Dismiss questioning the jurisdiction of said office. In an Order dated June 13, 2000, the Ombudsman denied petitioner’s motion to dismiss. On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order but the motion was denied in an Order dated October 5, 2000. On October 25, 2000, petitioner filed the present petition for certiorari. On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued a resolution finding "probable cause to indict respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594." The resolution also directed that an information for violation of the said law be filed against Laurel and Peña. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but dismissed the charge against Peña. In a Resolution dated September 24, 2001, the Court issued a temporary restraining order, commanding respondents to desist from filing any information before the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. On November 14, 2001, the Court, upon motion of petitioner, heard the parties in oral argument. Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because: A. EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED CORPORATION. B. THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC OFFICE. C. PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7 In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs. Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman was limited to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and higher. As petitioner’s position was purportedly not classified as Grade 27 or higher, the Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over him. This last contention is easily dismissed. In the Court’s decision in Uy, we held that "it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan."

3 In its Resolution of February 22, 2000, the Court expounded: The clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan…" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan’s jurisdiction clearly serve to limit the Ombudsman’s and Special Prosecutor’s authority to cases cognizable by the Sandiganbayan. [Emphasis in the original.] The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office. A review of the development of our Ombudsman law reveals this intent. [Emphasis in the original.] Having disposed of this contention, we proceed to the principal grounds upon which petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was not a public officer. The Constitution10 describes the Ombudsman and his Deputies as "protectors of the people," who "shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations." Among the awesome powers, functions, and duties vested by the Constitution11 upon the Office of the Ombudsman is to "[i]nvestigate… any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient."

4 The foregoing constitutional provisions are substantially reproduced in R.A. No. 6770, otherwise known as the "Ombudsman Act of 1989." Sections 13 and 15(1) of said law respectively provide: SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people shall act promptly on complaints file in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x. The coverage of the law appears to be limited only by Section 16, in relation to Section 13, supra: SEC 16. Applicability. – The provisions of this Act shall apply to all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office. In sum, the Ombudsman has the power to investigate any malfeasance, misfeasance and non-feasance by a public officer or employee of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations.12 Neither the Constitution nor the Ombudsman Act of 1989, however, defines who public officers are. A definition of public officers cited in jurisprudence13 is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.14 The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office.15 Petitioner submits that some of these characteristics are not present in the position of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he purportedly did not receive any compensation; and (3) continuance, the tenure of the NCC being temporary. Mechem describes the delegation to the individual of some of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; – that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 Did E.O. 128 delegate the NCC with some of the sovereign functions of government? Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. May the functions of the NCC then be described as executive? We hold that the NCC performs executive functions. The executive power "is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance." 17 The executive function, therefore, concerns the implementation of the policies as set forth by law. The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof:

5 Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nation’s historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998: Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity; Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values; Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous developmental programming; Whereas, the active participation of the private sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming; Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project; x x x. E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations in 1998, cited the "need to strengthen the said Committee to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and non-government or private organizations." It also referred to the "need to rationalize the relevance of historical links with other countries." The NCC was precisely created to execute the foregoing policies and objectives, to carry them into effect. Thus, the Commission was vested with the following functions: (a) To undertake the overall study, conceptualization, formulation and implementation of programs and projects on the utilization of culture, arts, literature and media as vehicles for history, economic endeavors, and reinvigorating the spirit of national unity and sense of accomplishment in every Filipino in the context of the Centennial Celebrations. In this regard, it shall include a Philippine National Exposition ’98 within Metro Manila, the original eight provinces, and Clark Air Base as its major venues; (b) To act as principal coordinator for all the activities related to awareness and celebration of the Centennial; (c) To serve as the clearing house for the preparation and dissemination of all information about the plans and events for the Centennial Celebrations; (d) To constitute working groups which shall undertake the implementation of the programs and projects; (e) To prioritize the refurbishment of historical sites and structures nationwide. In this regard, the Commission shall formulate schemes (e.g. lease-maintained-and-transfer, build-operate-transfer, and similar arrangements) to ensure the preservation and maintenance of the historical sites and structures; (f) To call upon any government agency or instrumentality and corporation, and to invite private individuals and organizations to assist it in the performance of its tasks; and, (g) Submit regular reports to the President on the plans, programs, projects, activities as well as the status of the preparations for the Celebration.18 It bears noting the President, upon whom the executive power is vested,19 created the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance Power), Section 2 describes the nature of executive orders: SEC. 2. Executive Orders. – Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. [Underscoring ours.]

6 Furthermore, the NCC was not without a role in the country’s economic development, especially in Central Luzon. Petitioner himself admitted as much in the oral arguments before this Court: MR. JUSTICE REYNATO S. PUNO: And in addition to that expounded by Former President Ramos, don’t you agree that the task of the centennial commission was also to focus on the long term over all socio economic development of the zone and Central Luzon by attracting investors in the area because of the eruption of Mt. Pinatubo. FORMER VICE PRESIDENT SALVADOR H. LAUREL: I am glad Your Honor touched on that because that is something I wanted to touch on by lack of material time I could not but that is a very important point. When I was made Chairman I wanted the Expo to be in Batangas because I am a Batangeño but President Ramos said Mr. Vice President the Central Luzon is suffering, suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by putting this Expo in Clark Field and so it was done I agreed and Your Honor if I may also mention we wanted to generate employment aside from attracting business investments and employment. And the Estrada administration decided to junk this project there 48, 40 thousand people who lost job, they were employed in Expo. And our target was to provide 75 thousand jobs. It would have really calibrated, accelerated the development of Central Luzon. Now, I think they are going back to that because they had the airport and there are plan to revive the Expo site into key park which was the original plan. There can hardly be any dispute that the promotion of industrialization and full employment is a fundamental state policy. 20 Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the holding by a municipality of a town fiesta is a proprietary rather than a governmental function. Petitioner argues that the "holding of a nationwide celebration which marked the nation’s 100th birthday may be likened to a national fiesta which involved only the exercise of the national government’s proprietary function."22 In Torio, we held: [Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code] simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. The mere fact that the celebration, as claimed, was not to secure profit or gain but merely to provide entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the town, nonetheless it is [a] private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service. As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element, however beneficial to the public the undertaking may be, is that it is government in essence, otherwise, the function becomes private or propriety in character. Easily, no governmental or public policy of the state is involved in the celebration of a town fiesta. Torio, however, did not intend to lay down an all-encompassing doctrine. Note that the Court cautioned that "there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a municipality; the surrounding circumstances of a particular case are to be considered and will be decisive." Thus, in footnote 15 of Torio, the Court, citing an American case, illustrated how the "surrounding circumstances plus the political, social, and cultural backgrounds" could produce a conclusion different from that in Torio: We came across an interesting case which shows that surrounding circumstances plus the political, social, and cultural backgrounds may have a decisive bearing on this question. The case of Pope v. City of New Haven, et al. was an action to recover damages for personal injuries caused during a Fourth of July fireworks display resulting in the death of a bystander alleged to have been caused by defendants’ negligence. The defendants demurred to the complaint invoking the defense that the city was engaged in the performance of a public governmental duty from which it received no pecuniary benefit and for negligence in the performance of which no statutory liability is imposed. This demurrer was sustained by the Superior Court of New Haven Country. Plaintiff sought to amend his complaint to allege that the celebration was for the corporate advantage of the city. This was denied. In affirming the order, the Supreme Court of Errors of Connecticut held inter alia: Municipal corporations are exempt from liability for the negligent performance of purely public governmental duties, unless made liable by statute….

7 A municipality corporation, which under permissive authority of its charter or of statute, conducted a public Fourth of July celebration, including a display of fireworks, and sent up a bomb intended to explode in the air, but which failed to explode until it reached the ground, and then killed a spectator, was engaged in the performance of a governmental duty. (99 A.R. 51) This decision was concurred in by three Judges while two dissented. At any rate the rationale of the Majority Opinion is evident from [this] excerpt: "July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called Independence Day, by our statutes. All or nearly all of the other states have similar statutes. While there is no United States statute making a similar provision, the different departments of the government recognize, and have recognized since the government was established, July 4th as a national holiday. Throughout the country it has been recognized and celebrated as such. These celebrations, calculated to entertain and instruct the people generally and to arouse and stimulate patriotic sentiments and love of country, frequently take the form of literary exercises consisting of patriotic speeches and the reading of the Constitution, accompanied by a musical program including patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That such celebrations are of advantage to the general public and their promotion a proper subject of legislation can hardly be questioned. x x x" Surely, a town fiesta cannot compare to the National Centennial Celebrations. The Centennial Celebrations was meant to commemorate the birth of our nation after centuries of struggle against our former colonial master, to memorialize the liberation of our people from oppression by a foreign power. 1998 marked 100 years of independence and sovereignty as one united nation. The Celebrations was an occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for fostering nationhood and a strong sense of Filipino identity," an opportunity to "showcase Filipino heritage and thereby strengthen Filipino values." The significance of the Celebrations could not have been lost on petitioner, who remarked during the hearing: Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle the love for freedom, love for country, that is the over-all goal that has to make everybody feel proud that he is a Filipino, proud of our history, proud of what our forefather did in their time. x x x. Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. That petitioner allegedly did not receive any compensation during his tenure is of little consequence. A salary is a usual but not a necessary criterion for determining the nature of the position. It is not conclusive. The salary is a mere incident and forms no part of the office. Where a salary or fees is annexed, the office is provided for it is a naked or honorary office, and is supposed to be accepted merely for the public good.23 Hence, the office of petitioner as NCC Chair may be characterized as an honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which salary, compensation or fees are attached.24 But it is a public office, nonetheless. Neither is the fact that the NCC was characterized by E.O. No. 128 as an "ad-hoc body" make said commission less of a public office. The term office, it is said, embraces the idea of tenure and duration, and certainly a position which is merely temporary and local cannot ordinarily be considered an office. "But," says Chief Justice Marshall, "if a duty be a continuing one, which is defined by rules prescribed by the government and not by contract, which an individual is appointed by government to perform, who enters on the duties pertaining to his station without any contract defining them, if those duties continue though the person be changed, -- it seems very difficult to distinguish such a charge or employment from an office of the person who performs the duties from an officer." At the same time, however, this element of continuance can not be considered as indispensable, for, if the other elements are present "it can make no difference," says Pearson, C.J., "whether there be but one act or a series of acts to be done, -- whether the office expires as soon as the one act is done, or is to be held for years or during good behavior."25 Our conclusion that petitioner is a public officer finds support in In Re Corliss.26 There the Supreme Court of Rhode Island ruled that the office of Commissioner of the United States Centennial Commission is an "office of trust" as to disqualify its holder as elector of the United States President and Vice-President. (Under Article II of the United States Constitution, a person holding an office of trust or profit under the United States is disqualified from being appointed an elector.) x x x. We think a Commissioner of the United States Centennial Commission holds an office of trust under the United States, and that he is therefore disqualified for the office of elector of President and Vice-President of the United States.

8 The commission was created under a statute of the United States approved March 3, 1871. That statute provides for the holding of an exhibition of American and foreign arts, products, and manufactures, "under the auspices of the government of the United States," and for the constitution of a commission, to consist of more than one delegate from each State and from each Territory of the United States, "whose functions shall continue until close of the exhibition," and "whose duty it shall be to prepare and superintend the execution of the plan for holding the exhibition." Under the statute the commissioners are appointed by the President of the United States, on the nomination of the governor of the States and Territories respectively. Various duties were imposed upon the commission, and under the statute provision was to be made for it to have exclusive control of the exhibit before the President should announce, by proclamation, the date and place of opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the duties and functions of the commission were further increased and defined. That act created a corporation, called "The Centennial Board of Finance," to cooperate with the commission and to raise and disburse the funds. It was to be organized under the direction of the commission. The seventh section of the act provides "that the grounds for exhibition shall be prepared and the buildings erected by the corporation, in accordance with plans which shall have been adopted by the United States Centennial Commission; and the rules and regulations of said corporation, governing rates for entrance and admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be fixed and established by the United States Centennial Commission; and no grant conferring rights or privileges of any description connected with said grounds or buildings, or relating to said exhibition or celebration, shall be made without the consent of the United States Centennial Commission, and said commission shall have power to control, change, or revoke all such grants, and shall appoint all judges and examiners and award all premiums." The tenth section of the act provides that "it shall be the duty of the United States Centennial Commission to supervise the closing up of the affairs of said corporation, to audit its accounts, and submit in a report to the President of the United States the financial results of the centennial exhibition." It is apparent from this statement, which is but partial, that the duties and functions of the commission were various, delicate, and important; that they could be successfully performed only by men of large experience and knowledge of affairs; and that they were not merely subordinate and provisional, but in the highest degree authoritative, discretionary, and final in their character. We think that persons performing such duties and exercising such functions, in pursuance of statutory direction and authority, are not to be regarded as mere employees, agents, or committee men, but that they are, properly speaking, officers, and that the places which they hold are offices. It appears, moreover, that they were originally regarded as officers by Congress; for the act under which they were appointed declares, section 7, that "no compensation for services shall be paid to the commissioners or other officers, provided for in this act, from the treasury of the United States." The only other officers provided for were the "alternates" appointed to serve as commissioners when the commissioners were unable to attend. Having arrived at the conclusion that the NCC performs executive functions and is, therefore, a public office, we need no longer delve at length on the issue of whether Expocorp is a private or a public corporation. Even assuming that Expocorp is a private corporation, petitioner’s position as Chief Executive Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair.27 Finally, it is contended that since petitioner supposedly did not receive any compensation for his services as NCC or Expocorp Chair, he is not a public officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman. Respondent seeks to charge petitioner with violation of Section 3 (e) of said law, which reads: 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: xxx (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. A "public officer," under R.A. No. 3019, is defined by Section 2 of said law as follows: SEC. 2. Definition of terms. – As used in this Act, the term – xxx

9 (b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government as defined in the preceding paragraph. [Emphasis supplied.] It is clear from Section 2 (b), above, that the definition of a "public officer" is expressly limited to the application of R.A. No. 3019. Said definition does not apply for purposes of determining the Ombudsman’s jurisdiction, as defined by the Constitution and the Ombudsman Act of 1989. Moreover, the question of whether petitioner is a public officer under the Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, matters that are best resolved at trial. To illustrate, the use of the term "includes" in Section 2 (b) indicates that the definition is not restrictive. 28 The Anti-Graft and Corrupt Practices Act is just one of several laws that define "public officers." Article 203 of the Revised Penal Code, for example, provides that a public officer is: x x x any person who, by direct provision of law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,29 on the other hand, states: Officer – as distinguished from "clerk" or "employee", refers to a person whose duties not being of a clerical or manual nature, involves the exercise of discretion in the performance of the functions of the government. When used with reference to a person having authority to do a particular act or perform a particular person in the exercise of governmental power, "officer" includes any government employee, agent or body having authority to do the act or exercise that function. It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees), one may be considered a "public official" whether or not one receives compensation, thus: "Public Officials" include elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation, regardless of amount. Which of these definitions should apply, if at all? Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term "compensation," which is not defined by said law, has many meanings. Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts, salary, and wages.30 How then is "compensation," as the term is used in Section 2 (b) of R.A. No. 3019, to be interpreted? Did petitioner receive any compensation at all as NCC Chair? Granting that petitioner did not receive any salary, the records do not reveal if he received any allowance, fee, honorarium, or some other form of compensation. Notably, under the by-laws of Expocorp, the CEO is entitled to per diems and compensation.31 Would such fact bear any significance? Obviously, this proceeding is not the proper forum to settle these issues lest we preempt the trial court from resolving them. WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the Court’s Resolution dated September 24, 2001 is hereby LIFTED. SO ORDERED.

10 G.R. No. L-58889 July 31, 1986 NATHANIEL S. MANIPON, JR., petitioner, vs. SANDIGANBAYAN, Second Division composed of HON. BERNARDO P. FERNANDEZ as Acting Presiding Justice and HON. BUENAVENTURA J. GUERRERO and HON. MOISES C. KALLOS, as Associate Justices, respondents. Guillermo B. Bandonill for petitioner. The Solicitor General for respondents.

FERNAN, J.: This is a case of direct bribery penalized under Article 210 of the Revised Penal Code. In its decision dated September 30, 1981, the Sandiganbayan found accused Nathaniel S. Manipon, Jr., 31, guilty of direct bribery, sentenced him to four months and twenty days of arresto mayor with temporary special disqualification for eight years and one day and a fine of P2,000.00 with subsidiary imprisonment in case of insolvency and to pay the costs. Manipon came to this Court on petition for review on certiorari seeking the reversal of the judgment of conviction. The Court dismissed the petition, "the question raised being factual and for lack of merit." 1 However, upon motion for reconsideration, the Court reconsidered its resolution and gave due course to the petition. 2 The facts of this case are as follows: Nathaniel S. Manipon, Jr., a deputy sheriff of the Court of First Instance of Baguio City and Benguet, Branch IV, was assigned to enforce an order of the Minister of Labor dated October 31, 1979 directing the Sheriff of Baguio City or his deputy to execute the decision of the labor arbiter in NLRC Case No. RB-1-C-1428-79 entitled"Longog Tabek, et al vs. Harry Dominguez et al" and to make a return within thirty (30) days from said date. 3 The labor arbiter's decision ordered Harry Dominguez, a building contractor and the then municipal mayor of Tadian, to pay Longog Tabek and the other judgment creditors the amount of P2,720.00 with interest, as the balance of their work contract. 4 Pursuant to that assignment, Manipon on November 9, 1979 sent a notice to the Commercial Bank and Trust branch [Comtrust] in Baguio City garnishing the bank accounts of Dominguez. 5 The bank agreed to hold the accounts. For one reason or another, Manipon did not inform the labor arbiter of the garnishment nor did he exert efforts to immediately satisfy the judgment under execution. On November 12, 1979, Dominguez sought Manipon's help in the withdrawal of the garnished account. Manipon told Dominguez that the money could not be withdrawn. However, on December 27, 1979 when the two met again at the Office of the National Intelligence and Security Authority [NISA] in Baguio City, Manipon told Dominguez that he "can remedy the withdrawal so they will have something for the New Year." 6 Dominguez interpreted this to mean that Manipon would withdraw the garnished amount for a consideration. Dominguez agreed and they arranged to meet at the bank later in the afternoon. After Manipon left, Dominguez confided the offer to NISA Sub-Station Commander Luisito Sanchez. They then hatched up a plan to entrap Manipon by paying him with marked money the next day. Col. Sanchez and a Col. Aguana were able to put up P700.00 in fifty-peso bills which were then authenticated, xeroxed and dusted with fluorescent powder. 7 Thus, at about 4:00 o'clock in the afternoon of December 28, 1979, Dominguez went to Comtrust as planned. Manipon showed up with two companions, named Deputy Sheriff Crisanto Flora and Baltazar Pacis. Manipon delivered his letter to the bank lifting the garnishment. 8 Then Dominguez prepared a withdrawal slip for P2,500.00. 9 As soon as Dominguez received the money from the teller, he took out P300.00 therefrom added it to the P 700.00 in marked bills and handed the total amount of P l,000.00 to Manipon. Then they all left the bank. Dominguez walked over to his car and drove off. Manipon and his two companions walked down Session Road. Moments later, PC and NISA operatives accosted them, seized the P1,000.00 from the left breast pocket of Manipon and thereafter brought them to Camp Dangwa for questioning. Manipon was subjected to an ultraviolet light test and found positive for fluorescent powder. However, after executing a certification relative to the money recovered, he refused to give any statement. 10 He filed his sheriff's return unsatisfied on February 20, 1980 or after 114 days. 11 Originally, Manipon was charged with violation of Presidential Decree No. 46 for having demanded and received P l,000.00 from Dominguez, a private individual, for a favor extended by him to the latter, i.e., by not enforcing the garnishment order

11 issued to Comtrust which was his official duty. However, in an amended information dated February 16, 1981, the charge was changed to direct bribery under the Revised Penal Code. 12 Manipon was released on bail. When arraigned, he pleaded not guilty.

13

In his brief, Manipon contends that the Sandiganbayan erred in convicting him of direct bribery, in not giving credence to the defense theory that there was novation of the money judgment and in admitting illegally-obtained evidence. The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do, and (4) that the crime or act relates to the exercise of his functions as a public officer.14 The promise of a public officer to perform an act or to refrain from doing it may be express or implied. 15 It is not disputed that at the time of the commission of the crime Manipon was the deputy sheriff of the Court of First Instance of Benguet and Baguio assigned to implement the execution order issued in NLRC Case No. RB-1-C-1428-79. It is also not disputed that Manipon garnished the bank accounts of Dominguez at Comtrust and that he lifted the same on December 28, 1979 after which he received P l,000.00 from Dominguez. It is the theory of the defense that the P1,000.00 Manipon collected from Dominguez on December 28, 1979 was not a bribe but a payment in partial satisfaction of the judgment under execution to which the judgment creditors headed by Longog Tabek had agreed. Manipon narrates that during his meeting with Dominguez at the NISA office on December 27, 1979, Dominguez requested Manipon to convey to the creditors that he was only willing to pay for the time being a partial amount of P1,000.00, the balance of P 1,720. 00 to be paid after the New Year. 16 So he visited Longog Tabek who was the "lead man." Tabek, an illiterate, consented to the lesser amount because he needed money badly. 17 His arrangements with Tabek and Dominguez were all verbal. At that time he found no reason to have some written memorandum for his own protection. At Comtrust after Dominguez had given him the P1,000.00 Manipon made a move to hand him a temporary receipt but Dominguez brushed it aside and said he was in a hurry. 18 Manipon maintains that Dominguez had framed him up because of a grudge. He said that in 1978 he and Flora had levied execution against several vehicles owned by Dominguez, an act which the latter had openly resented. 19 The defense theory is so incredible that it leaves no doubt whatsoever in the Court's mind that Manipon is guilty of the crime charged. It is very strange indeed that for such an important agreement that would modify a final judgment, no one took the bother of putting it down on paper. Of course Manipon would have us believe that there was no need for it because he trusted Dominguez and Tabek. And yet did he not also claim that Dominguez had framed him up because of a grudge? And if there was really an agreement to alter the judgment, why did he not inform the labor arbiter about it considering that it was the labor arbiter who had issued the order of execution? Manipon could not give satisfactory explanations because there was no such agreement in the first place. The temporary receipt 20 adduced by Manipon, as correctly pointed out by the Solicitor General, is a last-minute fabrication to provide proof of the alleged agreement for the trial payment of the judgment debt. Contrary to Manipon's claim, it is hard to believe that Dominguez was not interested in getting said temporary receipt because precisely that was the proof he needed to show that he had partially complied with his legal obligation. The testimonies of Crisanto Flora and Longog Tabek are of no help either to the defense. Flora is Manipon's co-sheriff and is therefore biased. On the other hand, Tabek, on several occasions on the witness stand, answered with obvious hesitation, betraying himself to be a rehearsed witness. While he claimed that he was the supposed headman of the other creditors, he could not present any authority that would allow him to speak for them, let alone agree to receive a lesser amount in their behalf. He even admitted that he did not know their names. 21 Indeed, Manipon's behavior at the very outset, had been marked with irregularities. As early as November 9, 1979, he had already garnished the bank accounts of Dominguez at Comtrust, but he did not notify the labor arbiter so that the corresponding order for the payment by the bank of the garnished amount could be made and the sum withdrawn immediately to satisfy the judgment under execution. His lame excuse was that he was very busy in the sheriff's office, attending to voluminous exhibits and court proceedings. That was also the same excuse he gave for not informing the labor arbiter of the novation. In fact he candidly admitted that he never communicated with the NLRC concerning the garnishment. He returned

12 the writ unsatisfied only on February 20, 1980 although by its express terms, it was returnable within thirty days from October 29, 1979. 22 Clearly, Manipon had planned to get Dominguez to acquiesce to a consideration for lifting the garnishment order. Manipon was also asked about the affidavit he executed during the preliminary investigation. 23 That affidavit contained two annexes but the temporary receipt which he allegedly prepared on December 28, 1979 was not included. He said he misplaced it in his office and found it only several weeks after he had made the affidavit. 24 This leads us to strongly suspect there was actually no temporary receipt at all at the time of payment on December 28 and that it was concocted by the defense as a last-ditch effort to make the authorities believe that what had transpired was not a payoff but a legitimate partial satisfaction of a judgment debt. In the final analysis, it all boils down to credibility. In this regard, the prosecution witnesses have acquitted themselves welt The Sandiganbayan did not err in giving weight and credence to their version instead of Manipon's. Indeed, Manipon's guilt for the crime of direct bribery has been proved beyond reasonable doubt. Dwelling on one last point, Manipon has pointed out that the P1,000.00 was illegally seized because there was no valid March warrant and therefore inadmissible. The argument is untenable. The rule that searches and seizures must be supported by a valid warrant is not an absolute rule. There are at least three exceptions to the rule recognized in this jurisdiction. These are: 1) search incidental to an arrest, 2) search of a moving vehicle, and 3) seizure of evidence in plain view. 25 In the case at bar, the records show that at about 2:00 p.m. on December 28,1979, NISA Sub-Station Commander Colonel Luisito Sanchez held a final briefing among his men and some operatives from the Benguet Philippine Constabulary concerning the planned entrapment. He had earlier received word from Dominguez that the lifting of the garnishment would be effected that afternoon and he informed them that Manipon was asking money from Dominguez. 26 As Colonel Sanchez earlier testified, part of the money to be withdrawn after lifting the garnishment was to be given to the accused 27 for agreeing to lift the order of garnishment. After the briefing which lasted from ten to fifteen minutes, they an headed for the Comtrust bank. NISA Agent Caesar Murla stationed himself near the door of the bank so that he could observe what transpired inside the bank. 28 He testified that he saw Dominguez give the marked money to Manipon which the latter accepted and counted. Upon seeing Manipon take the money from Dominguez, Agent Murla gave a signal to some of the agents positioned nearby by placing his right hand on his head to indicate that the money had changed hands. Immediately thereafter, Dominguez left the bank, Manipon placed the money in his left breast pocket and followed suit. As Manipon walked past Murla on his way out, the latter gave another signal by putting his hand on his left breast to indicate that Manipon had placed the money in his left breast pocket. 29 Upon noticing the second signal, the NISA agents and the PC operatives approached Manipon and his two companions. After Identifying themselves as peace officers, they retrieved the P l,000.00 from Manipon. Through it all, Manipon remained amazingly silent and voiced no protest. 30 The search and seizure of the P1,000.00 from Manipon would therefore fall within the first exception. The search was made as an incident to a lawful arrest, in accordance with our pronouncement in Moreno v. Ago Chi 12 Phil. 439, reiterated in Alvero v. Dizon 76 Phil. 637, to wit: An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the case. The evident purpose of this exception is both to protect the arresting officer against physical harm from the person being arrested who might be armed with a concealed weapon and also to prevent the person arrested from destroying evidence within his reach. 31 Since the other issues raised by Manipon are factual they need not be discuss here. WHEREFORE, in view of the foregoing, the instant petition is denied for lack of merit, with costs against petitioner-accused Nathaniel Manipon, Jr. The decision of the Sandiganbayan dated September 30, 1981 is affirmed. SO ORDERED.

13 G.R. No. L-18428

August 30, 1962

MARIANO G. ALMEDA, SR., and VALERIANA F. ALMEDA, petitioners, vs. THE HON. JESUS Y. PEREZ, Judge of the Court of First Instance of Manila, and the REPUBLIC OF THE PHILIPPINES, respondents. Salonga, Ordoñez and Associates for petitioners. Office of the Solicitor General for respondents. LABRADOR, J.: This is a petition for prohibition and certiorari, with preliminary injunction, filed by petitioners seeking to set aside and declare null and void the orders, dated March 15, 1961 and May 8, 1961, of the respondent Judge Jesus Y. Perez of the Court of First Instance of Manila, in Civil Case No. 44693 of said court. The first order allowed the filing of an amended petition for forfeiture against petitioners; the second denied a motion for the reconsideration thereof and for the dismissal of the amended petition for forfeiture. In October, 1961, Epifanio T. Villegas and Jesus A. Mendoza, filed a complaint with the Secretary of Justice, charging Mariano G. Almeda, Sr. with having acquired, during his incumbency as government employee, cash and properties from unknown sources in the total amount of P121,407.98 which acquisitions, according to the complaint, were manifestly out of proportion to the salary and other lawful income of said Mariano G. Almeda, Sr., and, therefore, in violation of the provisions of Republic Act No. 1379, otherwise known as the Anti-Graft Law. Pursuant to the provisions of said Act, a preliminary investigation was conducted by a committee of investigators designated by the Secretary of Justice. In a resolution of said investigators, dated November 4, 1960, it was certified that there is reasonable ground to believe that from 1950 to 1959, Mariano G. Almeda, Sr. acquired properties manifestly out of proportion to his salary as Assistant Director of the National Bureau of Investigation, and to his other lawful income. On the basis of the findings of the investigators, the Solicitor General, representing the Republic of the Philippines as petitioner, filed on November 12, 1960, with, Court of First Instance of Manila, a petition for forfeiture against Mariano G. Almeda, Sr., docketed as Civil Case No. 44693. It charges him with having committed while engaged in the performance of his official and, in consequence of said graft, had acquired properties and made cash disbursements from 1950 to 1959 grossly disproportionate to his lawful income. His wife was included as a co-respondent in her capacity as wife of Mariano G. Almeda, Sr. and as co-owner of their conjugal properties. Petitioners herein filed their answer on December 1960 and thereafter the case was set for hearing, but February 15, 1961, the Solicitor General filed a "Motion for Leave to Amend Petition for Forfeiture". The judge granted the motion but rejected the inclusion of Mariano F. Almeda, Jr. as party respondent. On March 25, 196 the Solicitor General filed the amended petition for forfeiture, adding other counts and items of alleged unlawful acquisitions and disbursements thus increasing the alleged cash from unexplained sources received by the respondent from the years 1950-59 to P208,682.45, as against respondent's salary and other lawful income of only P59,860.97. Respondents, petitioners herein, objected to the amendment on the ground that the new counts or charges already been investigated and dismissed after investigation, and respondents had not been given a new preliminary investigation with respect to the new counts or charges that the proceeding under Republic Act No. 1379 being criminal in nature, the petition may not be amended as substance without respondents' consent. It is also claim that the amendments were presented only to delay the proceedings to the prejudice of the respondents, and that the new counts or charges could not be included because one year had already elapsed after a general election in violation of the provisions of Republic Act No. 1379. After the filing of memoranda by the parties the respondent judge issued the order sought to be reviewed, authorizing the presentation of the second amended petition but without including therein Mariano F. Almeda, Jr. as a party respondent. The court ruled as follows: The Court finds no merit to the contention that the amended petition seeks to include new counts which were previously dismissed by the investigating Fiscals because no such dismissal appears in the resolution of said investigating fiscal and moreover, the only function of the investigating fiscals in the preliminary investigation was to determine whether or not there is probable cause that respondents have acquired properties beyond their means. The items of receipts and disbursements or acquisitions referred to as new counts by the respondents are but allegations in detail respecting the main allegation that respondents unlawfully acquired the properties described in the amended petition. The new allegations of receipts and disbursements embodied in the amended petition objected to by the respondents merely supplement or amplify the facts of unlawful acquisition originally alleged in the original petition. These amendments hence relate back to the date of the filing of the original petition so that the prohibition contained in Rep. Act 1379 that no petition shall be filed within one year before a general election cannot apply with respect to the new items of receipts and disbursements. The Court finds no merit in the respondents' contention that the amended petition should not be admitted on the allegation that this proceeding is penal in nature and no amendment as to matters of substance can be admitted after the respondents have filed their answer because this is a civil case and the rules respecting amendments in civil cases and not of informations in criminal cases should govern the admission of amendments in this case. The mere fact that a preliminary investigation is required to be

14 held in a proceeding of this nature does not make the same a criminal proceeding. Hence, the rule that amendments of pleadings are favored and should be liberally allowed in the furtherance of justice should be applied. With reference to the objection that no preliminary investigation was conducted insofar as the new respondent Mariano P. Almeda is concerned, the Court finds said objection to be well-founded because no preliminary investigation was in fact conducted insofar as said new respondent is concerned in violation of Sec. 2 of Rep. Act 1379. WHEREFORE, the Court hereby orders the petitioner to file, within ten days, a second amended petition without including therein, Mariano F. Almeda as party respondent or make reference therein with respect to said person. SO ORDERED. The principal contention of the petitioners herein, respondents in the court below, is that Republic Act No. 1379 is penal in substance and effect, hence the presentation of the amended petition without the benefit of a previous preliminary investigation under the Act cannot be allowed; that the amendment would have the effect of presenting charge (under Republic Act No. 1379) within one year from the date of a general election; and lastly that amendment may not be made on a matter of substance after the defendants had pleaded. A study of the provisions of Republic Act No. 1379 readily discloses that the proceeding for forfeiture is in nature and not criminal, as claimed by the petitioners. A test has been suggested to determine whether the proceeding for forfeiture is civil or criminal, thus: . . . Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in personam. If they are under a statute such that if an indictment is presented forfeiture can be included in the criminal case they are in nature, although they may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature it cannot be considered as civil. If however, the proceeding does not involve the conviction of wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes which specifically so provision where the act or omission for which the forfeiture is imposed is not also a misdemeanor, such forfeiture may be sued for recovered in a civil action. (37 CJS, Forfeitures, Sec. 5, pp. 15-16). In the first place a proceedings under the Act (Rep. Act No. 1379) does, not terminate in the imposition of penalty but merely in the forfeiture of the properties illegally acquired in favor of the state. (Sec. 6) In the second place the procedure outlined in the law leading to forfeiture is that provided for in a civil action. Thus there is a petition (Sec. 3), then an answer (Sec. 4), and lastly, a hearing. The preliminary investigation which is require prior to the filing of the petition, in accordance with Sec. 2 of the Act, is provided expressly to be one similar to a preliminary investigation in a criminal in a criminal case. If the investigation is only similar to that in a criminal case, but other steps in the proceedings are those for civil proceedings, it stands to reason that the proceeding is not criminal. Had it been a criminal proceeding there would been, after a preliminary investigation, a reading of information, a plea of guilty or not guilty, and a trial thereafter, with the publication of the judgement in the presence of the defendant. But these proceedings as above set forth, are not provided for in the law.1äwphï1.ñët Section 12 of the law provides a penalty to the public officer, but said penalty is against the employee or officer for the transfer or conveyance of any unlawfully acquired properties. The law therefore penalizes an officer for transferring or conveying properties unlawfully acquired but does not do so for making the unlawful acquisition; it merely imposes the penalty of forfeiture of the properties unlawfully acquired. As the proceeding for forfeiture, as pointed out and as provided for in the law, is not a penal proceeding but a civil one for the forfeiture of the properties illegally acquired, and as the procedure outlined in the law is that which is followed in civil actions, amendment of the charges or the petition for forfeiture may be made as in ordinary civil actions; i.e., the amendments may be made before trial or in the course of trial without need of another investigation. It also follows that amendments setting forth newly discovered acquisitions may be in the petition without obtaining the consent of the respondent. WHEREFORE, the petition should be, as it is hereby, denied, with costs. So ordered.

15 G.R. No. L-19052

December 29, 1962

MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, respondents. Francisco Carreon for petitioner. Assistant City Fiscal Manuel T. Reyes for respondent City of Manila. CONCEPCION, J.: This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the whole proceedings in said criminal case. . On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of Nation Defense a lettercomplaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman dictatorial tendencies, giving false statements of his as sets and liabilities in 1958 and other equally reprehensible acts". On September 6, 1961, the President of the Philippines created a committee of five (5) members, consisting of former Justice Marceliana R. Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of unexplained wealth contained in said letter-complaint and submit its report and recommendations as soon as possible. At the beginning of the investigation, on September 15, 1961, the Committee, upon request of complainant Col. Maristela, or considered petitioner herein to take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned charge of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request of Col. Maristela and to the aforementioned order of the Committee, invoking his constitutional right against selfincrimination. The Committee insisted that petitioner take the witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. This notwithstanding, petitioner respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the Court of First Instance of Manila a "charge" reading as follows: The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court, committed as follows: That on or about September 15, 1961, in the investigation conducted at the U.P. Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was created by the President of the Republic of the Philippines in accordance with law to investigate the charges of alleged acquisition by respondent of unexplained wealth and composed of Justice Marceliano Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez and Guillermo Francisco, as members, with the power, among others, to compel the attendance of witnesses and take their testimony under oath, respondent who was personally present at the time before the Committee in compliance with a subpoena duly issued to him, did then and there willfully, unlawfully, and contumaciously, without any justifiable cause or reason refusal and fail and still refuses and fails to obey the lawful order of the Committee to take the witness stand, be sworn and testify as witness in said investigation, in utter disregard of the lawful authority of the Committee and thereby obstructing and degrading the proceedings before said body. Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of contempt of the Presidential Committee and accordingly disciplined as in contempt of court imprisonment until such time as he shall obey the subject order of said committee. This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or answer the charge filed against him within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with respondent Judge a motion to quash the charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither authority nor personality to file said char and the same is null and void, for, if criminal, the charge has been filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil cases being limited to representing the City of Manila; (2) that the facts charged constitute no offense for section 580 of the Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague and uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to specify whether said offense shall be treated also contempt of an inferior court or of a superior court (3) that more than one offense is charged, for the contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as contempt of a superior court an as contempt under section 7 of Rule 64 of the Rules Court; (4) that the Committee had no power to order an require petitioner to take the witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as said order violates petitioner's constitutional right against self-incrimination.

16 By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on October 20, 1961, petitioner began the present action for the purpose adverted to above, alleging that, unless restrained by this court, respondent Judge may summarily punish him for contempt, and that such action would not be appealable. In their answer, respondents herein allege, inter alia, that the investigation being conducted by the Committee above referred to is administrative, not criminal, in nature; that the legal provision relied upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580 of the Revised Administrative Code. contempt against an administrative officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the witness stand, but to answer incriminatory questions. At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character. In this connection, it should be noted that, although said Committee was created to investigate the administrative charge of unexplained wealth, there seems to be no question that Col. Maristela does not seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no longer holds such office. It seems, likewise conceded that the purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property. Such for forfeiture has been held, however, to partake of the nature of a penalty. In a strict signification, a forfeiture is a divestiture property without compensation, in consequence of a default an offense, and the term is used in such a sense in this article. A forfeiture, as thus defined, is imposed by way of punishment not by the mere convention of the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a method deemed necessary by the legislature to restrain the commission of an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.) In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a definite sum of money as the consequence of violating the provisions of some statute or refusal to comply with some requirement of law." It may be said to be a penalty imposed for misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.) As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto. Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment against any person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to the extent that where the person using the res illegally is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a punishment. They have been held to be so far in the nature criminal proceedings that a general verdict on several count in an information is upheld if one count is good. According to the authorities such proceedings, where the owner of the property appears, are so far considered as quasi-criminal proceeding as to relieve the owner from being a witness against himself and to prevent the compulsory production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.) Although the contrary view formerly obtained, the late decisions are to the effect that suits for forfeitures incurred by the commission of offenses against the law are so far of quasi-criminal nature as to be within the reason of criminal proceedings for all purposes of ... that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself. .... It has frequently been held upon constitutional grounds under the various State Constitution, that a witness or party called as witness cannot be made to testify against himself as to matters which would subject his property to forfeiture. At early common law no person could be compelled to testify against himself or to answer any question which would have had a tendency to expose his property to a forfeiture or to form a link in a chain of evidence for that purpose, as well as to incriminate him. Under this common-law doctrine of protection against compulsory disclosures which would tend to subject the witness to forfeiture, such protection was claimed and availed of in some early American cases without placing the basis of the protection upon constitutional grounds. (23 Am. Jur., 616; emphasis ours.) Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings in rem. The statute providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any defect or want of form is applicable to them. In some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within the reason of criminal proceedings for all the purposes of ... that portion of the Fifth Amendment which declares, that no person shall be compelled in any criminal case to be a witness against himself. The proceeding is one against the owner, as well as against the goods; for it is his breach of the laws which has to be proved to

17 establish the forfeiture and his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.)lawphil.net The rule protecting a person from being compelled to furnish evidence which would incriminate him exists not only when he is liable criminally to prosecution and punishment, but also when his answer would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.) As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. This prohibition against compelling a person to take the stand as a witness against himself applied only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.) The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A question is not improper merely because the answer may tend to incriminate but, where a witness exercises his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the witness is improper. The possibility that the examination of the witness will be pursued to the extent of requiring self-incrimination will not justify the refusal to answer questions. However, where the position of the witness is virtually that of an accused on trial, it would appear that he may invoke the privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252; emphasis ours.) A person may not be compelled to testify in an action against him for a penalty or to answer any question as a witness which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a vindication of the public justice of the state. In general, both at common law and under a constitution provision against compulsory self-incrimination, a person may not be compelled to answer any question as a witness which would subject him to a penalty orforfeiture, or testify in action against him for a penalty. The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of a municipal ordinance, even though the action or proceeding for its enforcement is not brought in a criminal court but is prosecuted through the modes of procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.) Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to declaration a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason criminal proceedings for the purposes of that portion the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is a action, suit or cause instituted to punish an infraction the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a redress for a private grievance", but primarily to punish "a violation of duty or a public wrong and to deter others from offending in likewise manner. ...". We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding in civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination. WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered.

18 G.R. No. 74225 April 17, 1989 REPUBLIC OF THE PHILIPPINES, petitioner, vs. INTERMEDIATE APPELLATE COURT, SIMPLICIO BERDON, GAUDIOSA BERDON and LUIS BERDON, respondents. The Solicitor General for petitioner. Bernardito A. Florido for private respondents.

CORTES, J.: The Republic assails as erroneous the decision of the Intermediate Appellate Court affirming that of the Court of First Instance which dismissed the petition for forfeiture of unexplained wealth under Republic Act No. 1379 filed against private respondents herein. The dismissed petition charged Simplicio Berdon, an Assistant Staff Civil Engineer assigned to Regional Office No. VII of the Bureau of Public Highways in Cebu City, with having acquired unexplained wealth in violation of Republic Act No. 1379. It alleged that during the period from 1963 to 1969 he and his wife Gaudiosa Mangubat Berdon purchased parcels of land and constructed a house, the purchase prices and costs of which were not commensurate to their incomes, savings or declared assets. Pleaded as defendants in the petition were Berdon, his wife, and Luis Berdon, his father. Petitioner Republic of the Philippines, which valued the unexplained wealth at P124,495.82, thus sought the forfeiture of the properties and the issuance of a writ of attachment. Upon orders of the trial court, the properties enumerated in the petition were attached. During the course of the trial, the following evidence was adduced by the parties: xxx xxx xxx The evidence for the petitioner as testified to by Joselito Magno and Atty. David Macayayong may be summarized as follows: That on the basis of a letter complaint sent to the Office of the President by a certain George Valde against Simplicio Berdon, the Complaint and Investigation Office, Malacañang, Manila, sent Joselito Magno and Atty. David Macayayong to conduct an actual field investigation on Mr. Simplicio Berdon. Both investigators went to Cebu City, Danao City and the Northern Towns of Bogo and Borbon, Cebu and secured pertinent documents relative to the case such as the service record of the respondent Simplicio Berdon (Exh. 'B') copies of sworn statement of financial condition, assets, income and liabilities of respondent-spouses Berdon, Exhibit "C" for the year 1962; Exhibit "D" for 1963; Exhibit "E" for 1965; Exhibit "F" for 1967 and Exhibit "G" for 1969. Copies of documents regarding the acquisition of respondent Simplicio Berdon were also obtained, to wit: Exhibit 'H' which is a Deed of Absolute Sale of a parcel of land in favor of respondentsspouses Berdon for a consideration of P3,700.00 executed on July 19,1967; Exh. "I" is a contract to sell by installments of a parcel of land of the Singson Village Subdivision, Cebu City, in favor of respondent Simplicio Berdon for a monthly installment of P107.00, more or less, and with a total consideration of P9,000.00; Exh. "J" is a Deed of Absolute Sale of a parcel of agricultural land dated September 6,1967 also in favor of respondent Simplicio Berdon for a consideration of P3,000.00; Exh. "K" is another Deed of Absolute Sale of a parcel of land situated in Cebu City, containing an area of 623 square meters in favor of respondent Simplicio Berdon for the sum of P15,825.00 executed on November 9, 1967; Exh. "L" is a Deed of Sale With Right to Repurchase within a period of 5 years of a parcel of agricultural land situated at Managasa, Borbon, Cebu executed by Fidel Sepulveda in favor of respondent Simplicio Berdon on November 27, 1967 for a consideration of P5,000.00; Exh. 'M' is another Deed of Sale with Right to Repurchase within the period of three (3) years of a parcel of agricultural land also situated at Managasa, Borbon, Cebu, executed by Felicidad S. Guiachon on December 7, 1967 in favor of respondent Simplicio Berdon for a consideration of P3,000.00; Exh. "N-1" is a Deed of Absolute Sale of a parcel of agricultural land situated in Managasa, Borbon, Cebu, executed by Elias M. Dosdos on December 17, 1967 in favor of respondent Simplicio Berdon for the sum of P25,000.00; Exh. "Y" is a Deed of Sale with Right to Repurchase executed by Felicidad S. Guiachon on July 4, 1968 in favor of respondent Simplicio Berdon for a sum of P5,000.00; Exh. "P" is another Deed of Sale with Right to Repurchase executed by Fidel Sepulveda on November 8, 1968 in favor of Simplicio Berdon for the sum of P10,000. 00 and Exh. "O" refer to a Deed of Absolute Sale dated November 18, 1969 of a parcel of land situated at Bogo, Cebu in favor of respondent Simplicio Berdon; Exh. "S" refer to a Deed of Extrajudicial partition of a parcel of land acquired by respondent Luis Berdon for a consideration of P1,000.00. This parcel of land is included since the respondent Luis Berdon had no known source of income and this land must have been purchased by the respondent Simplicio Berdon but under the name of respondent Berdon; and Exh. "R" is a Declaration of

19 Real Property, a residential house of strong materials owned by respondent Simplicio Berdon with an assessed value of P34,480.00. An analysis and evaluation of respondent Simplicio Berdon's financial condition, income, assets and liabilities reflected in Exhs. "C", "D", "E", "F" and "G" from 1962 to 1969 show an unexplained total income of P105,495.92. Not included in the computation is the sum of P1,000.00 which was the consideration of the parcel of land purchased in the name of respondent Luis Berdon so that the total unexplained income of respondent Simplicio Berdon for the years 1962 to 1969 is P109,495.92. The total amounts paid by respondents spouses in the several real properties purchased and/or constructed by them amounts to P101,305.00 as shown in Exhs. "H", "I" , "J" , "K", "L", "M", "N-1", "O" and "P", "Q" and "R" plus the aforementioned sum of P1,000.00 purchased for a parcel of land in the name of Luis Berdon (Exh. 'S'). Since the money used to purchase those real properties came from an unexplained income these properties should be forfeited in favor of the state. The evidence for the respondents as testified to by respondents spouses Simplicio Berdon and Gaudiosa Mangubat Berdon is as follows: Respondent Mrs. Berdon is employed as a pharmacist at the Danao General Hospital (Exh. '4'). Her parents who have several landholdings in the municipality of Borbon, Cebu (Exh. '9') extended to respondents spouses a loan in the sum of P5,000.00 (Exh. '10-A') to buy the house and lot in Danao City. Aside from this amount respondents spouses were given by Mrs. Berdon's mother the sum of P3,000.00 to repair said house which was already very dilapidated. Respondents deny having owned a moviehouse in Bogo, Cebu. Moreover, Mrs. Romualda Mangubat, respondent Mrs. Berdon's mother, owns the moviehouse. Respondent Simplicio Berdon testified that he started in the government service as construction foreman in the year 1955. Since then he has been in the government service and rose from the ranks when he was promoted to the position of Assistant Staff Civil Engineer in the Ministry of Public Highways, Region 7. Aside from respondents spouses' income as government employees they have also other income, and for which they have paid taxes thereon under Presidential Decree 370 (Exhs. '12' and '12- A') and Presidential Decree 631 (Exhs. '13' & '13-A'). In respondents-spouses' statement of assets and liabilities as of December 31, 1967, the P20,000.00 disbursed as insurance premiums was erroneous. This amount represents the face value of the insurance policy of respondent Simplicio Berdon (Exh.'15'). Insurance premiums should have been only P427.66 semi-annually (Exh. '15-A'). The respondent Simplicio Berdon also denied petitioner's allegation that the purchase price of the parcel of land he bought from a certain Elias Dosdos was P45,000.00. The truth is that he paid only P25,000.00 as shown in Exhs. "16" & "16-A". The residential house of respondents spouses situated in Lahug, Cebu City, actually costs about P25,000.00 as shown in the building permit of said house (Exhs. '17' and '17-A') and respondents spouses were able to obtain a real estate loan of P14,000.00 from the GSIS to finance the construction of said building (Exhs. '18' & '19'). Sometime on November 7, 1967, the respondent Simplicio Berdon obtained a personal loan from former Congressman Ramon Durano in the sum of P100,000.00 under a Memorandum of Agreement (Exhs. '20') which amount he used to purchase the several parcels of agricultural lands in 1967 and 1968. The marriage contract of the respondents spouses marked Exh. "21" showed that Congressman and Mrs. Durano stood as sponsors of the wedding of respondents spouses. Defendants spouses had also obtained a loan from the Development Bank of the Philippines (Exh. '22') which they used to purchase the lot in Bogo, Cebu containing an area of 359 sq. m. (Exh. '23') mentioned in petitioner's Exh. "O". Respondent Luis Berdon was not presented. However, Exhibit "11" which is a medical certificate issued by the municipal health officer of Bordon, Cebu was presented to show that the general physical condition of the respondent Luis Berdon cannot sustain long distance land travel. Exhs. "5" and "9" were also presented showing that the respondent Luis Berdon is a retired school teacher and a declared owner of several parcels of land situated in Bordon, Cebu, respectively. (pp. 67-76, Record on Appeal). [IAC Decision, pp. 3-7; Rollo, pp. 34-38.] On the basis of the aforesaid evidence, the trial court dismissed the petition, holding that respondents have no unexplained wealth. The Republic appealed the trial court's decision to the Intermediate Appellate Court. The appellate court, finding no reversible error in the decision appealed from, affirmed said decision. Said court found that, on the basis of the evidence presented, "the assets acquired by the respondent-spouses in excess of their income and receipts from their employment in the Government were satisfactorily explained, thus justifying the conclusion of the trial court that respondent-spouses do not have unexplained wealth subject to forfeiture under Republic Act 1379." [IAC Decision, p. 7; Rollo, p. 38.] Hence, the instant recourse by the Republic to this Court through a petition to review the appellate court's decision. Republic Act No. 1379, entitled "An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired By Any Public Officer or Employee and Providing for the Procedure Thereof," provides inter alia:

20 Sec. 2. Filing of petition. — Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.... xxx xxx xxx Sec. 6. Judgment. — If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property, forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State: Provided, That no judgment shall be released within six months before any general election or within three months before any special election. The Court may, in addition, refer this case to the corresponding Executive Department for administrative or criminal action, or both. xxx xxx xxx Clear from these provisions is that the law creates a presumption against the public officer or employee who acquires property grossly disproportionate to his income, i.e. that the property was unlawfully acquired. However, this presumption is juris tantum. It may be rebutted by the public officer or employee by showing to the satisfaction of the court that his acquisition of the property was lawful. In the instant case, both the trial and the appellate courts had found satisfactory the private respondents' explanation of their acquisition of the properties and consequently held that they do not have any unexplained wealth as contemplated by the law. The Solicitor General contends that the findings of the appellate court are not supported by the evidence and, hence, should not bind the Court. The Court finds the contention unmeritorious, as the evidence indeed obviates a finding of unexplained wealth. The Court has carefully gone over the evidence presented by private respondents, and like the trial court and the Intermediate Appellate Court, finds the acquisition of the subject properties satisfactorily explained. While respondent spouses had acquired properties and constructed a house the costs of which were disproportionate to their combined incomes from their employment in the government it had been proved that such were financed through a donation and loans, to wit: (1) a P3,000.00 donation and a P5,000.00 loan from the parents of Mrs. Berdon who owned several parcels of land and a moviehouse [TSN, October 3,1979, pp. 11-17; Exh. "9"]; (2) a P14,000.00 loan from the Government Service Insurance System [Exhs. "18" and "19"]; (3) a P6,000.00 loan from the Development Bank of the Philippines [TSN, November 21, 1979, pp. 21-22; Exhs. "22" and "23"]; and, (4) a P100,000.00 loan from Congressman Ramon Durano, a wedding sponsor of respondent spouses [TSN, November 20, 1979, pp. 18-19; Exh. "21"], for the purchase of agricultural land to be planted with sugarcane (although only a total amount of approximately P60,000.00 was actually released) [TSN, November 21, 1979, pp. 17-19; Exh. "20"]. The Solicitor General also makes much of the fact that the statements of assets and liabilities filed by private respondent Simplicio Berdon covering the years material to the case did not accurately reflect the donation and the loans granted to private respondent spouses and that Simplicio's testimony in effect contradicts the entries in said statements. It must be emphasized, however, that in determining whether or not there is unexplained wealth within the purview of R.A. No. 1379 the courts are not bound by the statements of assets and liabilities filed by the respondent. ** On the contrary, this statute affords the respondent every opportunity to explain, to the satisfaction of the court, how he had acquired the property in question [Sec. 5, R.A. No. 1379.] In sum, the presumption under See. 2 of R.A. No. 1379 that the subject properties were unlawfully acquired had been successfully rebutted by private respondents through competent evidence. Hence, the Intermediate Appellate Court did not err in affirming the trial court's decision dismissing the Republic's petition. WHEREFORE, no reversible error having been committed by the Intermediate Appellate Court, the instant petition is hereby DENIED and its decision dated March 31, 1986 is AFFIRMED. SO ORDERED.

21 G.R. No. L-20387

January 31, 1968

JESUS P. MORFE, plaintiff-appellee, vs. AMELITO R. MUTUC, as Executive Secretary, ET AL., defendants-appellants. Jesus P. Morfe for and his own behalf as plaintiff-appellee. Office of the Solicitor General for defendants-appellants. FERNANDO, J.: Congress in 1960 enacted the Anti-Graft and Corrupt Practices Act 1 to deter public officials and employees from committing acts of dishonesty and improve the tone of morality in public service. It was declared to be the state policy "in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto." 2 Nor was it the first statute of its kind to deal with such a grave problem in the public service that unfortunately has afflicted the Philippines in the post-war era. An earlier statute decrees the forfeiture in favor of the State of any property found to have been unlawfully acquired by any public officer or employee. 3 One of the specific provisions of the Anti-Graft and Corrupt Practices Act of 1960 is that every public officer, either within thirty (30) days after its approval or after his assumption of office "and within the month of January of every other year thereafter", as well as upon the termination of his position, shall prepare and file with the head of the office to which he belongs, "a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar: . . ." 4 In this declaratory relief proceeding, the periodical submission "within the month of January of every other year thereafter" of such sworn statement of assets and liabilities after an officer or employee had once bared his financial condition upon assumption of office was challenged for being violative of due process as an oppressive exercise of police power and as an unlawful invasion of the constitutional right to privacy, implicit in the ban against unreasonable search and seizure construed together with the prohibition against self-incrimination. The lower court in the decision appealed from sustained plaintiff, then as well as now, a judge of repute of a court of first instance. For it, such requirement of periodical submission of such sworn statement of assets and liabilities exceeds the permissible limit of the police power and is thus offensive to the due process clause. We do not view the matter thus and accordingly reverse the lower court. 1. The reversal could be predicated on the absence of evidence to rebut the presumption of validity. For in this action for declaratory relief filed with the Court of First Instance of Pangasinan on January 31, 1962, plaintiff, after asserting his belief "that it was a reasonable requirement for employment that a public officer make of record his assets and liabilities upon assumption of office and thereby make it possible thereafter to determine whether, after assuming his position in the public service, he accumulated assets grossly disproportionate to his reported incomes, the herein plaintiff [having] filed within the period of time fixed in the aforesaid Administrative Order No. 334 the prescribed sworn statement of financial condition, assets, income and liabilities, . . ." 5 maintained that the provision on the "periodical filing of sworn statement of financial condition, assets, income and liabilities after an officer or employee had once bared his financial condition, upon assumption of office, is oppressive and unconstitutional." 6 As earlier noted, both the protection of due process and the assurance of the privacy of the individual as may be inferred from the prohibition against unreasonable search and seizure and self-incrimination were relied upon. There was also the allegation that the above requirement amounts to "an insult to the personal integrity and official dignity" of public officials, premised as it is "on the unwarranted and derogatory assumption" that they are "corrupt at heart" and unless thus restrained by this periodical submission of the statements of "their financial condition, income, and expenses, they cannot be trusted to desist from committing the corrupt practices defined. . . ." 7 It was further asserted that there was no need for such a provision as "the income tax law and the tax census law also require statements which can serve to determine whether an officer or employee in this Republic has enriched himself out of proportion to his reported income." 8 Then on February 14, 1962, came an Answer of the then Executive Secretary and the then Secretary of Justice as defendants, where after practically admitting the facts alleged, they denied the erroneous conclusion of law and as one of the special affirmative defenses set forth: "1. That when a government official, like plaintiff, accepts a public position, he is deemed to have voluntarily assumed the obligation to give information about his personal affair, not only at the time of his assumption of office but during the time he continues to discharge public trust. The private life of an employee cannot be segregated from his public life. . . ." 9 The answer likewise denied that there was a violation of his constitutional rights against self-incrimination as well as unreasonable search and seizure and maintained that "the provision of law in question cannot be attacked on the ground that it impairs plaintiff's normal and legitimate enjoyment of his life and liberty because said provision merely seeks to adopt a reasonable measure of insuring the interest or general welfare in honest and clean public service and is therefore a legitimate exercise of the police power." 10

22 On February 27, 1962, plaintiff filed a Motion for judgment on the pleadings as in his opinion all his material allegations were admitted. Then on March 10, 1962, an order was issued giving the parties thirty days within which to submit memoranda, but with or without them, the case was deemed submitted for decision the lower court being of the belief that "there is no question of facts, . . . the defendants [having admitted] all the material allegations of the complaint." 11 The decision, now on appeal, came on July 19, 1962, the lower court declaring "unconstitutional, null and void Section 7, Republic Act No. 3019, insofar as it required periodical submittal of sworn statements of financial conditions, assets and liabilities of an official or employee of the government after he had once submitted such a sworn statement upon assuming office; . . . ." 12 In Ermita-Malate Hotel and Motel Operators Association v. The Mayor of Manila, 13 it was the holding of this Court that in the absence of a factual foundation, the lower court deciding the matter purely "on the pleadings and the stipulation of facts, the presumption of validity must prevail." In the present case likewise there was no factual foundation on which the nullification of this section of the statute could be based. Hence as noted the decision of the lower court could be reversed on that ground. A more extended consideration is not inappropriate however, for as likewise made clear in the above Ermita-Malate Hotel case: "What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider." Moreover, in the Resolution denying the Motion for Reconsideration in the above case, we expressly affirmed: "This is not to discount the possibility of a situation where the nullity of a statute, executive order, or ordinance may not be readily apparent but the threat to constitutional rights, especially those involving the freedom of the mind, present and ominous." 14 In such an event therefore, "there should not be a rigid insistence on the requirement that evidence be presented." Also, in the same Resolution, Professor Freund was quoted thus: "In short, when freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers' judgment that commands respect. This dual standard may not precisely reverse the presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause. 15 2. We inquire first whether or not by virtue of the above requirement for a periodical submission of sworn statement of assets and liabilities, there is an invasion of liberty protected by the due process clause. Under the Anti-Graft Act of 1960, after the statement of policy, 16 and definition of terms, 17 there is an enumeration of corrupt practices declared unlawful in addition to acts or omissions of public officers already penalized by existing law. They include persuading, inducing, or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense; requesting or receiving directly or indirectly any gift, present, share, percentage, or benefit, for himself, or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity, has to intervene under the law; requesting or receiving directly or indirectly any gift, present, or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given; accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination; 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; neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party; 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; having directly or indirectly financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity or in which he is prohibited by the Constitution or by any law from having any interests; becoming interested directly or indirectly, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in such action; approving or granting knowingly any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled and divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. 18 After which come the prohibition on private individuals, 19 prohibition on certain relatives, 20 and prohibition on Members of Congress. 21 Then there is this requirement of a statement of assets and liabilities, that portion requiring periodical submission being challenged here. 22 The other sections of the Act deal with dismissal due to unexplained wealth, reference being made to the previous statute, 23 penalties for violation, 24 the vesting of original jurisdiction in the Court of First Instance as the competent court, 25 the prescription of offenses, 26 the prohibition against any resignation or retirement pending investigation, criminal or administrative or pending a prosecution, 27 suspension and loss of benefits, 28 exception of unsolicited gifts or

23 presents of small or insignificant value as well as recognition of legitimate practice of one's profession or trade or occupation, 29 the separability clause, 30 and its effectivity. 31 Nothing can be clearer therefore than that the Anti-Graft Act of 1960 like the earlier statute 32 was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device. The statute was framed with that end in view. It is comprehensive in character, sufficiently detailed and explicit to make clear to all and sundry what practices were prohibited and penalized. More than that, an effort was made, so evident from even a cursory perusal thereof, to avoid evasions and plug loopholes. One such feature is the challenged section. Thereby it becomes much more difficult by those disposed to take advantage of their positions to commit acts of graft and corruption. While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a showing, clear, categorical, and undeniable, that what the Constitution condemns, the statute allows. More specifically, since that is the only question raised, is that portion of the statute requiring periodical submission of assets and liabilities, after an officer or employee had previously done so upon assuming office, so infected with infirmity that it cannot be upheld as valid? Or, in traditional terminology, is this requirement a valid exercise of the police power? In the aforesaid Ermita-Malate Hotel decision, 33 there is a reaffirmation of its nature and scope as embracing the power to prescribe regulations to promote the health, morals, education, good order, safety, or the general welfare of the people. It has been negatively put forth by Justice Malcolm as "that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." 34 Earlier Philippine cases refer to police power as the power to promote the general welfare and public interest; 35to enact such laws in relation to persons and property as may promote public health, public morals, public safety and the general welfare of each inhabitant; 36 to preserve public order and to prevent offenses against the state and to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood calculated to prevent conflict of rights. 37 In his work on due process, Mott 38 stated that the term police power was first used by Chief Justice Marshall. 39 As currently in use both in Philippine and American decisions then, police power legislation usually has reference to regulatory measures restraining either the rights to property or liberty of private individuals. It is undeniable however that one of its earliest definitions, valid then as well as now, given by Marshall's successor, Chief Justice Taney does not limit its scope to curtailment of rights whether of liberty or property of private individuals. Thus: "But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its domain." 40 Text writers like Cooley and Burdick were of a similar mind. 41 What is under consideration is a statute enacted under the police power of the state to promote morality in public service necessarily limited in scope to officialdom. May a public official claiming to be adversely affected rely on the due process clause to annul such statute or any portion thereof? The answer must be in the affirmative. If the police power extends to regulatory action affecting persons in public or private life, then anyone with an alleged grievance can invoke the protection of due process which permits deprivation of property or liberty as long as such requirement is observed. While the soundness of the assertion that a public office is a public trust and as such not amounting to property in its usual sense cannot be denied, there can be no disputing the proposition that from the standpoint of the security of tenure guaranteed by the Constitution the mantle of protection afforded by due process could rightfully be invoked. It was so implicitly held in Lacson v. Romero, 42 in line with the then pertinent statutory provisions 43that procedural due process in the form of an investigation at which he must be given a fair hearing and an opportunity to defend himself must be observed before a civil service officer or employee may be removed. There was a reaffirmation of the view in even stronger language when this Court through Justice Tuason in Lacson v. Roque 44 declared that even without express provision of law, "it is established by the great weight of authority that the power of removal or suspension for cause can not, except by clear statutory authority, be exercised without notice and hearing." Such is likewise the import of a statement from the then Justice, now Chief Justice, Concepcion, speaking for the Court in Meneses v. Lacson; 45 "At any rate, the reinstatement directed in the decision appealed from does not bar such appropriate administrative action as the behaviour of petitioners herein may warrant, upon compliance with the requirements of due process." To the same effect is the holding of this Court extending the mantle of the security of tenure provision to employees of government-owned or controlled corporations entrusted with governmental functions when through Justice Padilla in Tabora v. Montelibano, 46 it stressed: "That safeguard, guarantee, or feeling of security that they would hold their office or employment during good behavior and would not be dismissed without justifiable cause to be determined in an investigation, where an opportunity to be heard and defend themselves in person or by counsel is afforded them, would bring about such a desirable

24 condition." Reference was there made to promoting honesty and efficiency through an assurance of stability in their employment relation. It was to be expected then that through Justice Labrador in Unabia v. City Mayor, 47 this Court could categorically affirm: "As the removal of petitioner was made without investigation and without cause, said removal is null and void. . . ." It was but logical therefore to expect an explicit holding of the applicability of due process guaranty to be forthcoming. It did in Cammayo v. Viña, 48 where the opinion of Justice Endencia for the Court contained the following unmistakable language: "Evidently, having these facts in view, it cannot be pretended that the constitutional provision of due process of law for the removal of the petitioner has not been complied with." Then came this restatement of the principle from the pen of Justice J.B.L. Reyes "We are thus compelled to conclude that the positions formerly held by appellees were not primarily confidential in nature so as to make their terms of office co-terminal with the confidence reposed in them. The inevitable corollary is that respondents-appellees, Leon Piñero, et al., were not subject to dismissal or removal, except for cause specified by law and within due process. . . ." 49 In a still later decision, Abaya v. Subido, 50 this Court, through Justice Sanchez, emphasized "that the vitality of the constitutional principle of due process cannot be allowed to weaken by sanctioning cancellation" of an employee's eligibility or "of his dismissal from service — without hearing — upon a doubtful assumption that he has admitted his guilt for an offense against Civil Service rules." Equally emphatic is this observation from the same case: "A civil service employee should be heard before he is condemned. Jurisprudence has clung to this rule with such unrelenting grasp that by now it would appear trite to make citations thereof." If as is so clearly and unequivocally held by this Court, due process may be relied upon by public official to protect the security of tenure which in that limited sense is analogous to property, could he not likewise avail himself of such constitutional guarantee to strike down what he considers to be an infringement of his liberty? Both on principle, reason and authority, the answer must be in the affirmative. Even a public official has certain rights to freedom the government must respect. To the extent then, that there is a curtailment thereof, it could only be permissible if the due process mandate is not disregarded. Since under the constitutional scheme, liberty is the rule and restraint the exception, the question raised cannot just be brushed aside. In a leading Philippine case, Rubi v. Provincial Board, 51 liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." In accordance with this case therefore, the rights of the citizens to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any avocation, are all deemed embraced in the concept of liberty. This Court in the same case, however, gave the warning that liberty as understood in democracies, is not license. Implied in the term is restraint by law for the good of the individual and for the greater good, the peace and order of society and the general well-being. No one can do exactly as he pleases. Every man must renounce unbridled license. In the words of Mabini as quoted by Justice Malcolm, "liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual." The liberty to be safeguarded is, as pointed out by Chief Justice Hughes, liberty in a social organization, 52implying the absence of arbitrary restraint not immunity from reasonable regulations and prohibitions imposed in the interest of the community. 53 It was Linton's view that "to belong to a society is to sacrifice some measure of individual liberty, no matter how slight the restraints which the society consciously imposes." 54 The above statement from Linton however, should be understood in the sense that liberty, in the interest of public health, public order or safety, of general welfare, in other words through the proper exercise of the police power, may be regulated. The individual thought, as Justice Cardozo pointed out, has still left a "domain of free activity that cannot be touched by government or law at all, whether the command is specially against him or generally against him and others." 55 Is this provision for a periodical submission of sworn statement of assets and liabilities after he had filed one upon assumption of office beyond the power of government to impose? Admittedly without the challenged provision, a public officer would be free from such a requirement. To the extent then that there is a compulsion to act in a certain way, his liberty is affected. It cannot be denied however that under the Constitution, such a restriction is allowable as long as due process is observed. The more crucial question therefore is whether there is an observance of due process. That leads us to an inquiry into its significance. "There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought.' It is not a narrow or 'technical conception with fixed content unrelated to time, place and circumstances,' decisions based on such a clause

25 requiring a 'close and perceptive inquiry into fundamental principles of our society.' Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases." 56 It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service with its everpresent temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a requirement as that imposed on public officials and employees to file such sworn statement of assets and liabilities every two years after having done so upon assuming office. The due process clause is not susceptible to such a reproach. There was therefore no unconstitutional exercise of police power. 4. The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas: "Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." 57 As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by civilized men." 58 The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect. As Laski so very aptly stated: "Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his experience is private, and the will built out of that experience personal to himself. If he surrenders his will to others, he surrenders his personality. If his will is set by the will of others, he ceases to be master of himself. I cannot believe that a man no longer master of himself is in any real sense free." 59 Nonetheless, in view of the fact that there is an express recognition of privacy, specifically that of communication and correspondence which "shall be inviolable except upon lawful order of Court or when public safety and order" 60 may otherwise require, and implicitly in the search and seizure clause, 61 and the liberty of abode 62 the alleged repugnancy of such statutory requirement of further periodical submission of a sworn statement of assets and liabilities deserves to be further looked into. In that respect the question is one of first impression, no previous decision having been rendered by this Court. It is not so in the United States where, in the leading case of Griswold v. Connecticut, 63 Justice Douglas, speaking for five members of the Court, stated: "Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After referring to various American Supreme Court decisions, 64 Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one." The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." 65 It has wider implications though. The constitutional right to privacy has come into its own.1äwphï1.ñët So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." 66 Even with due recognition of such a view, it cannot be said that the challenged statutory provision calls for disclosure of information which infringes on the right of a person to privacy. It cannot be denied that the rational relationship such a requirement possesses with the objective of a valid statute goes very far in precluding assent to an objection of such character. This is not to say that a public officer, by virtue of a position he holds, is bereft of constitutional protection; it is only to emphasize that in subjecting him to such a further compulsory revelation of his assets and liabilities, including the statement of the amounts and sources of income, the amounts of personal and family expenses, and the amount of income taxes paid for the next preceding calendar year, there is no unconstitutional intrusion into what otherwise would be a private sphere.

26 5. Could it be said, however, as plaintiff contends, that insofar as the challenged provision requires the periodical filing of a sworn statement of financial condition, it would be violative of the guarantees against unreasonable search and seizure and against self-incrimination? His complaint cited on this point Davis v. United States. 67 In that case, petitioner Davis was convicted under an information charging him with unlawfully having in his possession a number of gasoline ration coupons representing so many gallons of gasoline, an offense penalized under a 1940 statute. 68 He was convicted both in the lower court and in the Circuit Court of Appeals over the objection that there was an unlawful search which resulted in the seizure of the coupons and that their use at the trial was in violation of Supreme Court decisions. 69 In the District Court, there was a finding that he consented to the search and seizure. The Circuit Court of Appeals did not disturb that finding although expressed doubt concerning it, affirming however under the view that such seized coupons were properly introduced in evidence, the search and seizure being incidental to an arrest, and therefore reasonable regardless of petitioner's consent. In affirming the conviction the United States Supreme Court, through Justice Douglas emphasized that the Court was dealing in this case "not with private papers or documents, but with gasoline ration coupons which never became the private property of the holder but remained at all times the property of the government and subject to inspection and recall by it." 70 He made it clear that the opinion was not to be understood as suggesting "that officers seeking to reclaim government property may proceed lawlessly and subject to no restraints. Nor [does it] suggest that the right to inspect under the regulations subjects a dealer to a general search of his papers for the purpose of learning whether he has any coupons subject to inspection and seizure. The nature of the coupons is important here merely as indicating that the officers did not exceed the permissible limits of persuasion in obtaining them." 71 True, there was a strong dissenting opinion by Justice Frankfurter in which Justice Murphy joined, critical of what it considered "a process of devitalizing interpretation" which in this particular case gave approval "to what was done by arresting officers" and expressing the regret that the Court might be "in danger of forgetting what the Bill of Rights reflects experience with police excesses." Even this opinion, however, concerned that the constitutional guarantee against unreasonable search and seizure "does not give freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation to give testimony. But that obligation can be exacted only under judicial sanctions which are deemed precious to Anglo-American civilization. Merely because there may be the duty to make documents available for litigation does not mean that police officers may forcibly or fraudulently obtain them. This protection of the right to be let alone except under responsible judicial compulsion is precisely what the Fourth Amendment meant to express and to safeguard." 72 It would appear then that a reliance on that case for an allegation that this statutory provision offends against the unreasonable search and seizure clause would be futile and unavailing. This is the more so in the light of the latest decision of this Court in Stonehill v. Diokno, 73 where this Court, through Chief Justice Concepcion, after stressing that the constitutional requirements must be strictly complied with, and that it would be "a legal heresy of the highest order" to convict anybody of a violation of certain statutes without reference to any of its determinate provisions delimited its scope as "one of the most fundamental rights guaranteed in our Constitution," safeguarding "the sanctity, of the domicile and the privacy of communication and correspondence. . . ." Such is precisely the evil sought to be remedied by the constitutional provision above quoted — to outlaw the so-called general warrants. It thus appears clear that no violation of the guarantee against unreasonable search and seizure has been shown to exist by such requirement of further periodical submission of one's financial condition as set forth in the Anti-Graft Act of 1960. Nor does the contention of plaintiff gain greater plausibility, much less elicit acceptance, by his invocation of the nonincrimination clause. According to the Constitution: "No person shall be compelled to be a witness against himself." 74 This constitutional provision gives the accused immunity from any attempt by the prosecution to make easier its task by coercing or intimidating him to furnish the evidence necessary to convict. He may confess, but only if he voluntarily wills it. He may admit certain facts but only if he freely chooses to.75 Or he could remain silent, and the prosecution is powerless to compel him to talk. 76 Proof is not solely testimonial in character. It may be documentary. Neither then could the accused be ordered to write, when what comes from his pen may constitute evidence of guilt or innocence. 77 Moreover, there can be no search or seizure of his house, papers or effects for the purpose of locating incriminatory matter. 78 In a declaratory action proceeding then, the objection based on the guaranty against self-incrimination is far from decisive. It is well to note what Justice Tuason stated: "What the above inhibition seeks to [prevent] is compulsory disclosure of incriminating facts." 79 Necessarily then, the protection it affords will have to await, in the language of Justice J. B. L. Reyes, the existence of actual cases, "be they criminal, civil or administrative." 80 Prior to such a stage, there is no pressing need to pass upon the validity of the fear sincerely voiced that there is an infringement of the non-incrimination clause. What was said in an American State decision is of relevance. In that case, a statutory provision requiring any person operating a motor vehicle, who knows that injury has been caused a person or property, to stop and give his name, residence, and his license number to the injured party or to a police officer was sustained against the contention that the information thus exacted may be used as evidence to establish his connection with the injury and therefore compels him to incriminate himself. As was stated in the opinion: "If the law which exacts this information is invalid, because such information, although in itself no evidence of guilt, might possibly lead to a charge of crime against the informant, then all police regulations which involve identification may be questioned on

27 the same ground. We are not aware of any constitutional provision designed to protect a man's conduct from judicial inquiry or aid him in fleeing from justice. But, even if a constitutional right be involved, it is not necessary to invalidate the statute to secure its protection. If, in this particular case, the constitutional privilege justified the refusal to give the information exacted by the statute, that question can be raised in the defense to the pending prosecution. Whether it would avail, we are not called upon to decide in this proceeding." 81 6. Nor could such a provision be nullified on the allegation that it constitutes "an insult to the personal integrity and official dignity" of public officials. On its face, it cannot thus be stigmatized. As to its being unnecessary, it is well to remember that this Court, in the language of Justice Laurel, "does not pass upon questions of wisdom, justice or expediency of legislation." 82 As expressed by Justice Tuason: "It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern." 83 There can be no possible objection then to the observation of Justice Montemayor: "As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary." 84 For they, according to Justice Labrador, "are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law." 85 It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, 86 that only congressional power or competence, not the wisdom of the action taken may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on its wisdom cannot be sustained. WHEREFORE, the decision of the lower court of July 19, 1962 "declaring unconstitutional, null and void Section 7, Republic Act No. 3019, insofar as it requires periodical submittal of sworn statements of financial conditions, assets and liabilities of an official or employee of the government after he had once submitted such a sworn statement . . . is reversed." Without costs.

28 G.R. No. L-56170 January 31, 1984 HILARIO JARAVATA petitioner, vs. THE HON. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. Franco L. Loyola and Sabas Cacananta for petitioner. The Solicitor General for respondents.

ABAD SANTOS, J.: This is a petition to review the decision of the Sandiganbayan in Criminal Case No. 873. Hilario Jaravata was accused of violating Section 3(b) of Republic Act No. 3019, as amended, said to have been committed in the following manner: That on or about the period from April 30, 1979 to May 25, 1979, in the Municipality of Tubao, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the Assistant Principal of the Leones Tubao, La Union Barangay High School and with the use of his influence as such public official and taking advantage of his moral and official ascendancy over his classroom teachers, with deliberate intent did then and there wilfully, unlawfully and feloniously made demand and actually received payments from other classroom teachers, ROMEO DACAYANAN, DOMINGO LOPEZ, MARCELA BAUTISTA, and FRANCISCO DULAY various sums of money, namely: P118.00, P100.00, P50.00 and P70.00 out of their salary differentials, in consideration of accused having officially intervened in the release of the salary differentials of the six classroom teachers, to the prejudice and damage of the said classroom teachers, in the total amount of THREE HUNDRED THIRTY EIGHT (P338.00) PESOS, Philippine Currency. (Decision, p.1-2.) After trial, the Sandiganbayan rendered the following judgment: WHEREFORE, accused is hereby found guilty beyond reasonable doubt for Violation of Section 3(b), Republic Act No. 3019, as amended, and he is hereby sentenced to suffer an indeterminate imprisonment ranging from ONE (1) YEAR, is minimum, to FOUR (4) YEARS, as maximum, to further suffer perpetual special disqualification from public office and to pay the costs. No pronouncement as to the civil liability it appearing that the money given to the accused was already refunded by him. (Id. pp, 16-17.) The petition raises factual and legal issues but for obvious reasons Our decision shall deal with the legal issue only. The Sandiganbayan states in its decision the following: A perusal of the conflicting versions of the prosecution and the defense shows that there is no dispute that [complainants] Ramos, Lloren, Lopez, Dacayanan, Dulay and Bautista are classroom teachers of the Leones Barangay High School with accused as their assistant principal and [Conrado Baltazar as the administrator; that on January 5, 1979, accused informed the classroom teachers of the approval of the release of their salary differentials for 1978 and to facilitate its payment accused and the classroom teachers agreed that accused follow-up the papers in Manila with the obligation on the part of the classroom teachers to reimburse the accused of his expenses; that accused incurred expenses in the total amount of P220.00 and there being six classroom teachers, he divided said amount by six or at the rate of P36.00 each; that the classroom teachers actually received their salary differentials and pursuant to said agreement, they, with the exception of Lloren and Ramos, gave the accused varying amounts but as Baltazar did not approve it, he ordered the accused to return the money given to him by Lopez, Dacayanan, Dulay and Bautista, and accused complied (Pp. 7-8.) The decision also recites that "the evidence is overwhelming to show that accused received more than the rightful contribution of P36.00 from four classroom teachers, namely: Lopez, Dulay, Dacayanan and Bautista. Lopez categorically declared that he gave the accused P100.00 (TSN, p. 5, August 21, 1980 hearing) after he received his salary differential or an excess of P64.00. So with Dulay, that he gave P70.00 to the accused (TSN, p. 16, supra) or an excess of P34.00; Dacayanan, that he gave to the accused P118.00 (TSN, p. 26, supra) or an excess of P82.00, and Bautista, that he gave to the accused P50.00

29 (TSN, p. 38, supra) or an excess of P14.00. In short, the total amount received by the accused in excess of the share of the classroom teachers in the reimbursement of his expenses is P194.00. " (P. 9.) Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act provides, inter alia the following: 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: xxx xxx xxx (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. xxx xxx xxx The legal issue is whether or not, under the facts stated, petitioner Jaravata violated the above-quoted provision of the statute. A simple reading of the provision has to yield a negative answer. There is no question that Jaravata at the time material to the case was a "public officer" as defined by Section 2 of R.A. No. 3019, i.e. "elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even normal from the government." It may also be said that any amount which Jaravata received in excess of P36.00 from each of the complainants was in the concept of a gift or benefit. The pivotal question, however, is whether Jaravata, an assistant principal of a high school in the boondocks of Tubao, La Union, "in his official capacity has to intervene under the law" in the payment of the salary differentials for 1978 of the complainants. It should be noted that the arrangement was "to facilitate its [salary differential] payment accused and the classroom teachers agreed that accused follow-up the papers in Manila with the obligation on the part of the classroom teachers to reimburse the accused of his expenses. In Our opinion, Sec. 3(b) of R.A. No. 3019, refers to a public officer whose official intervention is required by law in a contract or transaction. There is no law which invests the petitioner with the power to intervene in the payment of the salary differentials of the complainants or anyone for that matter. Far from exercising any power, the petitioner played the humble role of a supplicant whose mission was to expedite payment of the salary differentials. In his official capacity as assistant principal he is not required by law to intervene in the payment of the salary differentials. Accordingly, he cannot be said to have violated the law afore-cited although he exerted efforts to facilitate the payment of the salary differentials. WHEREFORE, the petition is hereby granted and the judgment of the Sandiganbayan convicting the petitioner is set aside. Costs de oficio. SO ORDERED.

30 G.R. No. 70332-43 November 13, 1986 GENEROSO TRIESTE, SR., petitioner, vs. SANDIGANBAYAN (SECOND DIVISION), respondent. Arturo M. de Castro for petitioner. The Solicitor General for respondent.

ALAMPAY, J.: The present case relates to an appeal by way of a Petition for Review of the decision promulgated on November 6, 1984, by the Sandiganbayan convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12) separate violations of Section 3 paragraph (h) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices - Act, which petitioner were accused of in Criminal Cases Nos. 6856-6867 of said Court. Petitioner's motion for reconsideration and/or new trial was denied by the respondent Sandiganbayan under its Resolution of March 11, 1985. The twelve (12) separate Informations filed by the Tanodbayan against the herein petitioner for violation of Section 3 (h) of the Anti-Graft Law are all similarly worded as the information presented in Criminal Case No. 6856 which is hereunder quoted: That on or about the month of July, 1980 and some time subsequent thereto, in the municipality of Numancia, Aklan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the Municipal Mayor and member of the Committee on Award of the Municipality of Numancia, Aklan and as such, had administrative control of the funds of the municipality and whose approval is required in the disbursements of municipal funds, did then and there wilfully and unlawfully have financial or pecuniary interest in a business, contract or transaction in connection with which said accused intervened or took part in his official capacity and in which he is prohibited by law from having any interest, to wit the purchases of construction materials by the Municipality of Numancia, Aklan from Trigen Agro-Industrial Development Corporation, of which the accused is the president, incorporator, director and major stockholder paid under Municipal Voucher No. 211-90-10-174 in the amount of P558.80 by then and there awarding the supply and delivery of said materials to Trigen Agro-Industrial Development Corporation and approving payment thereof to said corporation in violation of the Anti-Graft and corrupt Practices Act. except only as to the dates of the commission of the offense, voucher numbers, and amounts involved. Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were allegedly committed in July, 1980; Criminal Cases Nos. 6863 and 6864, in August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867 in October, 1980. The separate vouchers involved in the twelve (12) cases are said to be the following: Crim. Case #6856, Vchr #211-90-10-174 at P558.80 Crim. Case #6857, Vchr #211-80-10-187 at 943.60 Crim. Case #6858, Vchr #211-80-10-189 at 144.00 Crim. Case #6859, Vchr #211-80-10-190 at 071.30 Crim. Case #6860, Vchr #211-80-10-191 at 270.00 Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00 Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80 Crim. Case #6863, Vchr #211-80-10-407 at 150.00 Crim. Case #6864, Vchr #211-80-12-494 at 500.00 Crim. Case #6865, Vchr #211-81-04-61 at 840.00

31 Crim. Case #6866, Vchr #211-81-04-62 at 787.00 Crim. Case #6867, Vchr #211-81-04-63 at 560.00 T o t a l - - - - P7,730.50 (Consolidated Comment, pg. 4; Rollo, 325) After trial, the Sandiganbayan rendered the challenged decision dated November 6, 1984, convicting the petitioner in all the twelve (12) criminal cases, (Rollo, pp. 324-325) and in each case he was sentenced,"...to suffer the indeterminate penalty of imprisonment ranging from THREE (3) YEARS and ONE (1) DAY as the minimum, to SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer perpetual disqualification from the public office, and to pay the cost of the action." (pp. 37-40, Decision; Rollo, 322). After the petition for review was filed in this case and pending the submission by respondent of its comment to the petition, herein petitioner presented to this Court on June 7, 1985, an urgent petition to lift the order of the Sandiganbayan dated September 12, 1983, suspending him from Office as the elected Municipal Mayor of Numancia, Aklan. His term was to expire in 1986. No objection to the petition for the lifting of the suspension order was interposed by the Solicitor General. Accordingly, and pursuant to the resolution of this Court dated October 1, 1985, petitioner's preventive suspension was lifted and his reinstatement as Municipal Mayor of Numancia, Aklan was ordered to take effect immediately. A supplemental petition, dated October 10, 1985, was later filed by petitioner's new counsel in collaboration with the original counsel on record of petitioner. In this supplemental pleading, it was vigorously stressed that the petitioner did not, in any way, intervene in making the awards and payment of the purchases in question as he signed the voucher only after all the purchases had already been made, delivered and paid for by the Municipal Treasurer. It was further pointed out that there was no bidding at all as erroneously adverted to in the twelve informations filed against herein petitioner because the transactions involved were emergency direct purchases by personal canvass. Upon leave of the Court given, the former Solicitor General filed a consolidated comment dated November 4, 1984, to the original petition filed in this case dated April 30, 1985 as well as on the supplemental petition dated October 10, 1985. He argued the dismissal of the petition on the ground that the same raise factual issues which are, therefore, non-reviewable (Consolidated Comment, pg. 20; Rollo, 341). The submission made by the Office of the Solicitor General in the Consolidated Comment dated November 4, 1986, are hereunder quoted: xxx xxx xxx The impugned decision convicted petitioner for violation of Section 3 (h), paragraph (h) of the Anti-Graft and Corrupt Practices Act which reads as follows: SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already penalized by existing laws, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The elements essential in the commission of the crime are: a) The public officer has financial or pecuniary interest in a business, contract or transaction; b) In connection with which he intervenes in his official capacity. Concurrence of both elements is necessary as the absence of one will not warrant conviction. (Rollo, pp. 338-339). The earlier view taken by the Solicitor General's Office was that petitioner's evidence of divestment of interest in Trigen 'Corporation, which is said to have been effected on February 25, 1980, before the petitioner assumed the Mayorship, should have been presented at the earliest opportunity before the Tanodbayan and because this was not done by him the resolution of the Tanodbayan finding a prima facie case against petitioner should be sustained. Furthermore, petitioner was faulted

32 because the transfer of his interest in the corporate stock of Trigen Corporation should have been recorded in the Securities and Exchange Commission but no evidence of this sort, was presented. The consolidated comment also played up the advertisement of Trigen Corporation in the program of the Rotary Club of Kalibo, Aklan, showing the printed name of petitioner as the President-Manager of the said corporation. (Consolidated Comment; Rollo, pp. 340-341) Petitioner filed a Reply controverting the allegations and arguments recited in the aforestated Consolidated Comment of the Solicitor General. After considering the pleadings filed and deliberating on the issues raised in the petition and supplemental petition for review on certiorari of the decision of the Sandiganbayan, as well as the consolidated comment and the reply thereto filed by petitioner's counsel, the Court in its resolution of January 16, 1986, gave due course to the petition and required the parties to file their respective briefs. Petitioner's exhaustive and well-reasoned out Brief which was filed with the Court on April 14, 1986, raised the following legal questions. xxx xxx xxx From the foregoing recital of facts, the following legal questions arise: 1. Does the mere signing by a Municipal Mayor of municipal vouchers and other supporting papers covering purchases of materials previously ordered by the Municipal Treasurer without the knowledge and consent of the former, subsequently delivered by the supplier, and, thereafter paid by the same Municipal Treasurer also without the knowledge and consent of the Municipal Mayor, constitute a violation of the provisions of Section 3 (h) of Rep. Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act? 2. Does the mere signing of the mere documents above constitute the kind of intervention of taking part in (his) official capacity within the context of the above-mentioned law? 3. Was damage or prejudice, as an element of the offense under Section 3 (h) of the said law, caused to the Government or the Municipality of Numancia as a result of the contracts in question and as a corollary thereto, was undue advantage and gained by the transacting corporation? 4. Was there divestment on the part of the herein petitioner of his shares in Trigen Agro-Industrial Development Corporation long before the questioned transactions? (Appellant's Brief, page 15) It was then discus and argued by the petitioner that the prosecution failed to establish the presence of all the elements of the offense, and more particularly to adduce proof that petitioner has, directly or indirectly, a financial or pecuniary interest in the imputed business contracts or transactions. Discussion of petitioner's arguments in this regard will not however, be recited anymore as this was obviated when a new Solicitor General, after seeking and obtaining several extensions of time to file its Brief in this case at bar, filed on October 7, 1986, a "Manifestation For Acquittal" (in lieu of the People's Brief). Rollo, 293). The new Solicitor General's Office after adopting the statement of facts recited in the consolidated comment of the former Solicitor General's Office moved for the acquittal of the petitioner, upon acknowledging and concluding that: xxx xxx xxx Petitioner has divested his interest with Trigen Petitioner sought to establish that before he assumed office as mayor on March 3, 1980, he had already sold his shares with Trigen to his sister Mrs. Rosene Trieste-Tuason. The sale was made by corresponding indorsements to her stock certificate which was duly recorded in the stock and transfer book of the corporation. Respondent Sandiganbayan however doubts the sale because the same was not reported to the SEC. SEC records, as the prosecution evidence show, do not reflect the sale and petitioner still appears as the firm's President. The prosecution's evidence to establish non-divestment of petitioner's interest with Trigen is weak. Anyway, Trigen has not updated its reports to the SEC since 1976. It have not even submitted its financial annual

33 report ever since. Absence of the sales report in the SEC does not mean that the sale did not take place. Reporting the sale is not a mandatory requirement. Sales of stocks need not be reported to SEC In any event, the law only requires submission of annual financial reports, not sales or disposal of stocks (Section 141, Corporation Code of the Philippines). Upholding the evidence of petitioner's divestment of his interest with Trigen would necessarily allow him to act freely in his official capacity in the municipality's dealings or transactions with Trigen. That in itself is sufficient to acquit him of the crimes charged. (Rollo, pp. 299-300). In the matter of the alleged intervention of petitioner, the Office of the Solicitor General itself subscribes to and on its own volition place on record the following observations: Prosecution failed to prove charges; evidence discloses absence of bidding and award The prosecution's lone witness, Treasurer Aniceto Vega, testified that there never was a public bidding conducted because all the transactions were made by direct purchases from Trigen. Q. In other words, in all these transactions there never really was any public bidding? A. Yes, Sir. There was no public bidding. Q. And these purchases were made by direct purchases from the establishment of Trigen? A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983) In the absence of a public bidding and as emphatically declared by the prosecution's sole witness Vega that all the transactions were on direct purchases from Trigen, how can one ever imagine that petitioner has awarded the supply and delivery of construction materials to Trigen as specifically charged in the twelve (12) informations? The charges are of course baseless and even contradict the evidence of the prosecution itself. Even the respondent Court finally found that petitioner did not intervene during the bidding and award, which of course is a false assumption because of Vega's testimony that there was no public bidding at all. Respondent Court said: . . . . In short, accused's intervention may not be present during the bidding and award, but his liability may also come in when he took part in said transactions such as signing the vouchers under certifications 1, 2 and 3 thereof, to make it appear that the transactions were regular and proper. (Resolution dated March 11, 1985 denying petitioner's motion for reconsideration/new trial, page 7). No evidence to prove petitioner approved payment Now, did petitioner intervene by approving payments to Trigen as also charged in the information? Can there be intervention after payment. Vega testified that petitioner signed the twelve (12) municipal vouchers (Exhibits A to L) for the purchase and payment of construction materials. It was sometime after delivery of the construction materials that he (Vega) signed and paid the twelve (12) -municipal vouchers (pages 5 to 7), decision of respondent Sandiganbayan dated November 2, 1984). The prosecution has not presented evidence to show as to when petitioner signed the twelve (12) municipal vouchers. But it can safely be assumed as a matter of procedure that petitioner had signed the voucher after Treasurer Vega signed and paid them., (Rello, pp. 301-303) xxx xxx xxx Testimonial and documentary evidence confirms that petitioner signed vouchers after payment Additional facts which respondent Court failed to consider and which could have altered the outcome of the case in the following uncontroverted testimony of Josue Maravilla:

34 Q. When these municipal vouchers were prepared by the municipal treasurer, as you said, and then presented to Mayor Trieste for his signature, were the purchases in question already paid? A. They had already been paid for, sir. Q. Previously, prior to the signature of Mayor Trieste? A. Yes, sir. A.J. ESCAREAL: Q. Under what authority were they paid? A. Under official receipt issued by Trigen. Q. Who authorized the payment? A. The municipal treasurer who paid the materials. ATTY. CONSULTA: Q. You said they had already been paid for. Do you know of any receipts issued by Trigen to indicate that at the time these municipal vouchers were signed by Mayor Trieste, the materials had already been delivered and paid by the municipality to Trigen? xxx xxx xxx A. Yes, sir Q. Now, what exhibits particularly do you know were issued by Trigen to indicate that payments were made prior to the signing of the municipal vouchers by Mayor Trieste? A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H. xxx xxx xxx Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which are Trigen receipts showing payments long before the municipal vouchers were prepared, what can you say about the other municipal vouchers in this case in reference to payments made by Trigen to the municipality? ESCAREAL: Payment made by Trigen? ATTY. CONSULTA: I am sorry, Your Honor, made to Trigen by the municipality? A. Official receipts issued by Trigen also indicate that when municipal vouchers marked Exhibits E, B, C, D, F, G, H, I were prepared, they had already been delivered and the amounts indicated therein were already prepared by the municipal treasurer. Q. Did you say already made by the municipal treasurer-the amounts were already paid by the municipal treasurer? A. Already paid.

35 Q. Who disbursed the funds evidenced by the Trigen official receipts? A. The municipal treasurer, then Mr. Vega. Q. Now, do you know why Mr. Vega asked that those municipal vouchers be nevertheless signed in spite of the fact that he knew that the amounts had already been disbursed and paid by him to Trigen? A. He said that the municipal vouchers for record purposes is necessary to be signed by the mayor. (Tsn., Mar. 5, 1984, pp. 19-49). Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's signature on the vouchers after payment is not, we submit the kind of intervention contemplated under Section 3(h) of the Anti-Graft Law. xxx xxx xxx What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach. (Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972 of the Secretary of Justice). The official need not dispose his shares in the corporation as long as he does not do anything for the firm in its contract with the office. For the law aims to prevent the don-tenant use of influence, authority and power (Deliberation on Senate Bill 293, May 6, 1959, Congressional Record, Vol. 11, page 603). There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his influence, power, and authority in having the transactions given to Trigen. He didn't ask anyone-neither Treasurer Vega nor Secretary Maravilla for that matter, to get the construction materials from Trigen. Trigen did not gain any undue advantage in the transaction Petitioner should not be faulted for Trigen's transaction with the municipality, which by the way, has been dealing with it even before petitioner had assumed the mayorship on March 3, 1980. Personal canvasses conducted found that Trigen's offer was the lowest, most reasonable, and advantageous to the municipality. . . . (Rollo, pp. 307-308; Emphasis supplied). It is also an acknowledged fact that there was no complaint for non-delivery, underdelivery or overpricing regarding any of the transactions. Considering the correct facts now brought to the attention of this Court by the Solicitor General and in view of the reassessment made by that Office of the issues and the evidence and the law involved, the Court takes a similar view that the affirmance of the decision appealed from cannot be rightfully sustained. The conscientious study and thorough analysis made by the Office of the Solicitor General in this case truly reflects its consciousness of its role as the People's Advocate in the administration of justice to the end that the innocent be equally defended and set free just as it has the task of having the guilty punished. This Court will do no less and, therefore, accepts the submitted recommendation that the decision and resolution in question of the respondent Sandiganbayan be reversed and that as a matter of justice, the herein petitioner be entitled to a judgment of acquittal. WHEREFORE, the decision rendered by the Sandiganbayan, dated November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding the herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section 3 paragraph (h) of Republic Act 3019, as amended, is hereby set aside and reversing the appealed judgment, a new judgment is now rendered ACQUITTING Generoso Trieste, Sr., of said offenses charged against him with costs de oficio. SO ORDERED.

36 G.R. Nos. L-51065-72

June 30, 1987

ARTURO A. MEJORADA, petitioner, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

CORTES, J.: This petition for certiorari seeks to reverse the May 23, 1979 decision of the Sandiganbayan finding the accused Arturo A. Mejorada in Criminal Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section 3(E) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Eight informations were filed by the Provincial Fiscal against the petitioner and jointly tried before the Sandiganbayan. The eight informations substantially allege the same set of circumstances constituting the offense charged, Criminal Case No. 002 reads as follows: That in (sic) or about and during the period comprised from October 1977 to February 1978, in the municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being employed in the Office of the Highway District Engineer, Pasig, Metro Manila, as Right-of-Way-Agent conspiring and confederating together with two (2) other John Does whose true Identities and present whereabouts are still unknown, with evident bad faith, and for personal gain, did then and there wilfully, unlawfully and feloniously, directly intervene, work for, and facilitate the approval of one Isagani de Leon's claim for the payment in the removal and reconstruction of his house and a part of his land expropriated by the government having been affected by the proposed Pasig-Sta Cruz-Calamba Road. 2nd IBRD Project at Binangonan, Rizal, while the accused, Arturo A. Mejorada is in the discharge of his official and/or administrative functions and after said claim was approved and the corresponding PNB Check No. SN 5625748 was issued and encashed in the amount of P7,200.00 given only P1,000.00 to claimant (Isagani de Leon), appropriating, applying and converting to themselves the amount of P6,200.00, thereby causing damage and prejudice to Isagani de Leon and the government in the aforementioned amount of P6,200.00. Contrary to law. Except for the date of the commission of the offense, the name of the aggrieved private party, the PNB Check number, the amount involved and the number or John Does, the seven other informations are verbatim repetitions of the above. The facts are found by the respondent Sandiganbayan are as follows: Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of Public Works on March 16, 1947, and then as right-of-way agent in the Office of the Highway District Engineer, Pasig, Metro Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent, his main duty was to negotiate with property owners affected by highway constructions or improvements for the purpose of compensating them for the damages incurred by said owners. Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos, Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog, Binangonan, Rizal. Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of said highway. In the process, Mejorada required the claimants to sign blank copies of the "Sworn Statement on the Correct and Fair Market Value of Real Properties" and "Agreement to Demolish, Remove and Reconstruct improvements" pertinent to their claims. The claimants complied without bothering to find out what the documents were all about as they were only interested in the payment of damages. In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the claimants were made to appear very much higher than the actual value claimed by them. Likewise, the said "Agreements to Demolish" reflected the value of the improvements as per assessor" which on the average was only P2,000.00 lower than the value declared by the owners in their sworn statements. The value as per assessor was, in turn, supported by the Declarations of Real Property in the names of the claimants containing an assessed value exactly the same as that stated in the Agreements to Demolish "as per assessor", except the claims of De la Cruz and Aran where there is only a difference of P400.00 and P200.00,

37 respectively. It turned out, however, that said Declarations of Property are not really intended for the claimants as they were registered in the names of other persons, thus showing that they were all falsified. A few months after processing the claims, accused accompanied the claimants to the Office of the Highway District Engineer at the provincial capitol of Pasig, Metro Manila, to receive payments and personally assisted the claimants in signing the vouchers and encashing the checks by certifying as to their Identities and guaranteeing payment. Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which was parked nearby where they were divested of the amounts paid to them leaving only the sum of P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left, explaining to them that there were many who would share in said amounts. All the claimants were helpless to complaint because they were afraid of the accused and his armed companion. The claimants, through the assistance of counsel, filed their complaints with the Provincial Fiscal's Office of Pasig, Metro Manila, narrating in their supporting sworn statements what they later testified to in court. Five issues are raised in this petition to review the decision of the Sandiganbayan: I. Whether or not the essential elements constituting the offense penalized by section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act have been clearly and convincingly proven by the prosecution; II. Whether or not the Sandiganbayan is a court of competent jurisdiction duly constituted in accordance with Pres. Dec. No. 1606; III. Whether or not the penalty imposed upon the petitioner is excessive and contrary to the three-fold rule as provided for by Article 70 of the Revised Penal Code; IV. Whether or not there is a variance between the offense charged in the information and the offense proved; V. Whether or not the conclusion drawn from the record of the Sandiganbayan in arriving at a verdict of conviction of petitioner is correct is a question of law which this Honorable Court is authorized to pass upon. I. Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally defective in that it failed to allege the essential ingredients or elements constituting the offense penalized by Section 3(e) of Rep. Act No. 3019. The section under which the accused-petitioner was charged 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. xxx

xxx

xxx

(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. Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e). First, that the accused must be a public officer charged with the duty of granting licenses or permits or other concessions. Petitioner contends that inasmuch as he is not charged with the duty of granting licenses, permits or other concessions, then he is not the officer contemplated by Section 3 (e). Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers 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 (e) is intended to make clear the inclusion of officers and employees of officers 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. The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations did not fail to allege.

38 Second, that such public officer caused undue injury to any party, including the Government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions. Petitioner denies that there was injury or damage caused the Government because the payments were allegedly made on the basis of a document solely made by the Highway District Engineer to which petitioner had no hand in preparing. The fact, however, is that the government suffered undue injury as a result of the petitioner's having inflated the true claims of complainants which became the basis of the report submitted by the Highway District Engineer to the Regional Director of the Department of Highways and which eventually became the basis of payment. His contention that he had no participation is belied by the fact that as a right-of-way-agent, his duty was precisely to negotiate with property owners who are affected by highway constructions for the purpose of compensating them. On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of their claims and receiving payment in an amount even lower than the actual damage they incurred. They were deprived of the just compensation to which they are entitled. Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was done through manifest, partiality, evident bad faith or gross inexcusable negligence. Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and the government must have been caused by the public officer in the discharge of his official, administrative or judicial functions and inasmuch as when the damage was caused to the complainants, he was no longer discharging his official administrative functions, therefore, he is not liable for the offense charged. The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of his position as a right-of-way-agent by making the claimants sign the aforementioned agreements to demolish and sworn statements which contained falsified declarations of the value of the improvements and lots. There was evident bad faith on the part of the petitioner when he inflated the values of the true claims and when he divested the claimants of a large share of the amounts due them. In view of the above holding. We also dispose of the fourth issue which relates to the allegation that petitioner cannot be convicted for a violation of the Anti-Graft Law because the evidence adduced by the prosecution is not the violation of Section 3 (e) but the crime of robbery. Contrary to the petitioner averment. We find no variance between the offense charged in the information and the offense proved. The prosecution was able to establish through the corroborating testimonies of the witnesses presented how through evident bad faith, petitioner caused damage to the claimants and the Government. The manner by which the petitioner divested the private parties of the compensation they received was part of' the scheme which commenced when the petitioner approached the claimants and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of the Pasig-Sta. Cruz-Calamba Road. The evidence presented by the prosecution clearly establish a violation of Section 3(e). II. The petitioner also assails the competency of the Sandiganbayan to hear and decide this case. He argues that before the Sandiganbayan could legally function as a judicial body, at least two (2) divisions, or majority of the justices shall have been duly constituted and appointed. We previously ruled on this matter in the case of De Guzman v. People (G.R. No. 54288, December 15, 1982, 119 SCRA 337). In that case, the petitioner De Guzman questioned the authority of the Sandiganbayan to hear and decide his case on the same ground that herein petitioner assails its jurisdiction. The Court upheld the authority of the Sandiganbayan saying that: Although the Sandiganbayan is composed of a Presiding Justice, and eight Associate Justices, it does not mean that it cannot validly function without all of the Divisions constituted. Section 3 of P.D. 1606 provides that the "Sandiganbayan shall sit in three divisions of three justices each" while Section 5 thereof provides that the unanimous vote of three justices of a division shall be necessary for the pronouncement of a judgment. Thus the Sandiganbayan functions in Divisions of three Justices each and each Division functions independently of the other. As long as a division has been duly constituted it is a judicial body whose pronouncements are binding as judgments of the Sandiganbayan. The judgment convicting petitioner was a unanimous Decision of the First Division duly constituted. It thus met the requirement for the pronouncement of a judgment as required by Section 5 of P.D. 1606 supra. III. The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals fifty-six (56) years and eight (8) days of imprisonment. Petitioner impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed forty (40) years.

39 Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal Code. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed (People v. Escares, 102 Phil. 677 [1957]). Article 70 speaks of "service" of sentence, "duration" of penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about the "imposition of penalty". It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum of which is forty years. The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations filed against the accused-petitioner. As We pointed out in the case of People v. Peralta, (No. L-19069, October 29, 1968, 25 SCRA 759, 783784): ... Even without the authority provided by Article 70, courts can still impose as many penalties as there are separate and distinct offenses committed, since for every individual crime committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which the latter, thru the courts of justice, has the power to impose the appropriate penal sanctions. In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and unusual (See Veniegas v. People, G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792). We deem it unnecessary to pass upon the fifth issue raised in view of the foregoing discussion. WHEREFORE, the petition is denied for lack of merit. SO ORDERED.

40 [G.R. No. 124067. March 27, 1998] PERLA

A. SEGOVIA, REYNALDO C. SANTIAGO and WINIFREDO SM. PANGILINAN, petitioners vs. The SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES, and the PRESIDENT of the NATIONAL POWER CORPORATION, respondents. DECISION

NARVASA, C.J.: The special civil action of certiorari and prohibition at bar seeks nullification of two (2) Resolutions of the Second Division of the Sandiganbayan issued in Criminal Case No. 21711 -- in which petitioners are prosecuted for violation of the Anti-Graft and Corrupt Practices Act : Republic Act No. 3019, as amended. The resolution assailed are: 1) that dated February 1, 1996, which ordered petitioners preventive suspension for ninety (90) days in accordance with Section 13 of said R.A 3019; and 2) that dated February 23, 1996, which denied petitioners motion for reconsideration of the suspension order. The primary issue raised is whether it is mandatory or discretionary for the Sandiganbayan to place under preventive suspension public officers who stand accused before it, pursuant to said Section 13 of the law. Section 13 reads: Sec. 13 Suspension and Loss of benefits. -- Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or propertty, whether as a simple or as a complex offense in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. ** ** It is petitioners' submission that preventive suspension under this section rest in the sound discretion of the Sandiganbayan despite the ostensibly mandatory language of the statute, and that that discretion was gravely abused by the Sandiganbayan, or it exceeded its jurisdiction, when it decreed their suspension. Petitioners -- Perla Segovia, Reynaldo Santiago, and Winifredo SM Pangilinan -- all hold regular executive positions in the National Power Corporation (NPC). They -- together with two other officers who have since resigned from the NPC, namely: Gilberto A. Pastoral and Cecilia D. Vales -- were designated by the NPC Board to compose the Contracts Committee for said NPCs Mindanao Grid LDC & SCADA/EMS System Operation Control Center and Facilities Project. The Contracts Committee thus constituted conducted the prequalification and bidding procedures for the project. The lowest and second lowest bidders were the Joint Venture of INPHASE and T & D, and Urban Consolidated Constructors, Inc., respectively. The Technical Task Force on Bid Evaluation of the NPC reviewed all the bids submitted and recommended approval of the results. The contracts Committee, however, declared the lowest bidder (Joint Venture) disqualified after verification from the Philippines Contractors Accredition Board that that group, as well as the second lowest bidder (Urban) had been downgraded, thereby rending both ineligible as bidders. The Contracts Committee also stated that since a review of relevant factors disclosed that the other bids had exceeded the Approved Agency Estimates and the Allowable Government Estimates for Options A and B of the Project, it was was needful for the NPC Board to declare a failure of bidding and direct a re-bidding. The recommendation was unanimously approved by the NPC Board; but for reasons not appearing on record (and, in any event, not relevant to the inquiry), the project was eventually cancelled. Obviously feeling aggrieved by the turn of events, Urban filed a complaint with the Office of the Ombudsman against the Chairman and Members of the Board of Directors of NPC; the Chairman (Gilberto Pascual) and Members of the NPC Contracts Awards Committee; the Chairman (Perla Segovia) of the Pre-Qualification Bids & Awards Committee; the Manager (Cecilia D. Vales) of the Contracts Management Office, and two others.[1] Urban alleged that before the bidding, Joint Venture had been disqualified, but the Contracts Committee, without basis and in order to favor it, reconsidered its disqualification and thus enabled it to take part in the bidding and in fact to submit the lowest bid; that the NPC was already poised to award the contract to Joint Venture but because Urban protested, it was compelled to "post-disqualify" the former; however, intead of awarding the contract for the project to Urban as the second lowest bidder, the Committee and the NPC Board declared a failure of bidding and ultimately cancelled the project.These acts, it is claimed, constituted a violation of the Anti-Graft and Corrupt Practices Act. A preliminary investigation was conducted by the Ombudsmans Office after which Graft Investigation Officer A.A. Amante submitted a Resolution dated August 2, 1994[2]recommending, among others, that: 1) petitioners Perla Segovia, Reynaldo Santiago, Winifredo SM Pangilinan, as well as Gilberto Pastoral and Cecilia Vales be charged with a violation of Section 3 (e) of RA 3019 of having in one way or the other extended undue advantage to Joint Venture through manifest partiality, evident bad faith and gross inexcusable negligence; and 2) the NPC President, NPC charman and Members of the Board of Directors be cleared of the ** complaint as their official actuation of sustaining a failure of bidding and the consequent re-bidding is supported by factual and legal basis.

41 Assistant Ombudsman Abelardo L. Aportadera, Jr., favorably endorsed the recommendation which was eventually approved on December 6, 1994 by Hon. Conrado M. Vasquez, then the Ombudsman. [3] An information was accordingly filed with the Sandiganbayan against petitioners Segovia, Santiago, and Pangilinan, as well as Pastoral and Vales, docketed as Criminal Case No. 21711. They were charged with infringement of Section 3 (e) of RA 3019: i,e., causing undue injury to any party, including the Government, or giving any party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial function through manifest partiality, evident bad faithy or gross inexcusable negligence. Petioners sought and obtained a reinvestigation of their case but gained no benefit thereby. For although the reinvestigating officer made a recommendation on March 7, 1995 that the information against petitioners be withdrawn -- because the prima facie case had already been overthrown, considering that, as it now stands, the evidence at hand cannot stand judicial scrunity[4] -- and that recommendation met with the aprroval of the Special Prosecutor, it was ultimately turned down by the chief Special Prosecutor[5] on April 18, 1995, and on April 20, 1995, by the Ombudsman himself. [6] The case thus proceeded in the Sandiganbayan. The accused were arraigned and entered pleas of not guilty; and a pretrial was held which resulted in stipulation of facts embodied in an order dated January 11, 1996.[7] Earlier, the People had filed a Motion to Suspend Accused Pendente Lite dated October 24, 1995, invoking Section 13 of RA 3019., as amended, and relevant jurisprudence, and alleging that the information/s is /are valid. [8] Petitioner opposed the motion.[9] In their pleading dated November 28, 1995, the theorized that the explicit terms of the law notwithstanding, their suspension was not mandatory in the premises. They claimed that the admissions at the pre-trial show that the transactions in question resulted in no unwarranted benefits, advantage or preference, or injury, to anyone; that two of the five accused were no longer employees of the NPC; that two of the five accused were no longer employees of the NPC; that the positions that Segovia, Pangilinan and Santiago continued to occupy in the NPC were quite sentitive and had no relation to prequalification of contractors, biddings or awards -- which was an additional function temporarily assigned to them and for which the received no compensation at all -- and their suspension might cause delay of vital projects of the NPC; and that under the circumstances obtaining, they were in no position to tamper with any evidence. Petitioners opposition was overruled. On January 31, 1996 the Sandiganbayan[10] handed down its Resolution suspending them for a period of ninety (90) days. [11] The Sandiganbayan held that the suspension was mandated under the law upon a finding that a proper preliminary investigation had been conducted , the information was valid, and the accused were charged with any of the crimes specified in the law; and stressed that its authority and power to suspend the accused had been repeatedly upheld in several precedents. It subsequently denied petitioners motion for reconsideration dated February 14, 1996, (c)onsidering the paucity of the(ir) arguments ** and in the light of the mass of jurisprudence involving the power and authority of this Court to issue orders for preventive suspension of the accused **. [12] Petitioners would now have this Court strike down these resolution because supposedly rendered in excess of jurisdiction or with grave abuse of discretion. The court will not do so. In no sense may the challeged resolutions be stigmatized as so clearly capricious, whimsical, oppressive, egregiously erroneous or wanting in logic as to call for invalidation by the extraordinary writ of certiorari. On the contrary, in promulgating those resolution, the Sandiganbayan did but adhere to the clear command of the law and what it calls a mass of jurispudence emanating from this Court, sustaining its authority to decree suspension of public officials and employees indicted before it. Indeed, that the theory of discretionary suspension should still be advocated to this late date, despite the mass of jurisprudence relevant to the issue, it little short of amazing, bordering on contumacious disregard of the solemn magisterial pronouncements of the Highest court of the land. Republic Act no. 3019 was enacted by Congress more than 37 years ago, on August 17, 1960, becoming effective on the same date. The law was later amended by Republic Act No. 3047, Presidential Decree 677 and Presidential Decree No. 1288. The last amendment -- to Section 13 thereof -- was introduced by Batas Pambansa Bilang 195, approved on March 16, 1972. The validity of Section 13, R.A. 3019, as amended -- treating of the suspension pendente lite of an accused public officer -- may no longer be put at issue, having been repeatedly upheld by this Court. As early as 1984, in Bayot v. Sandiganbayan,[13] the Court held by this Court. As suspension was not penal in character but merely a preventive measure before final judgement; hence, the suspension of a public officer charged with one of the crimes listed in the amending law, committed before said amendment, does not violate the constitutional provision against an ex post facto law. The purpose of suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with documentary evidence, or from committing further acts of malfeasance while in office.[14] Substantially to the same effect was the Courts holding in 1991, in Gonzaga v. Sandiganbayan,[15] that preventive suspension is not violative suspension remains entitled to the constitutional presumption of innocence since his culpability must still be established. The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension lies in the court in which the criminal charge is filed; once a case is filed in court, all other acts connected with the discharge of court functions -including preventive suspension -- should be aknowledged as within the competence of the court that has taken cognizance thereof, no violation of the doctrine of separation of powers being perceivable in that acknowledgment. [16] The provision of suspension pendente lite applies to all persons indicated upon a valid information under Act, whether they be appointive or elective officials; or permenent or temporary employees, or pertaining to the career or non-career service.[17] It appears to a Public High School Principal;[18] a Municipal Mayor;[19] a Governor;[20] a Congressman;[21] a Department of Science

42 and Technology (DOST) non-career Project Manager;[22] a Commissioner of the Presidential Commission on Good Government (PCGG).[23] The term office in Section 13 of the law applies to any office in relation to which he is charged. [24] It is mandatory for the court to place under preventive suspension a public officer accused before it.[25] Imposition of suspension, however, is not automatic or self-operative. A precondition therefor is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and farreaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for speedy determination of the issues involved in the case. [26] The purpose of the pre-suspension hearing is basically to detrmine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity.27 The accused should be given adequate oppurtunity to challege the validity or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. 28 But once a proper determination of the validity of the Information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension of the accused official on the pretext that the order denying the latters motion to quash is pending review before the appellate courts.29 However, the preventive suspension may not be of indefinite duration or for an unreasonable length of time; it would be constitutionally proscribed otherwise as it raises, at the very least, questions of denial of due process and equal protection of the laws.30 The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days in consonance with Presidential Decree No. 807 (the Civil Service Decree), noew Section 52 of the Administrative Code of 1987.31 While petitioners concede that this Court has almost consistently ruled that the preventive suspension contemplated in Section 13 of RA 3019 is mandantory in character, they nonetheless urge the Court to consider their case an exception because of the peculiar circumstances thereof. They assert that the evils sought to be avoidedby seperating a public official from the scene of his alleged misfeasance while the same is being investigated 32 -- e.g., to preclude the abuse of the prerogative of ** (his) office, such as through intimidation of witnesses, 33 or the tampering with documentary evidence -- will not occur in the present situation where: 1. The Project has been cancelled. 2. (Their) ** official duties no longer pertain, in any manner, to the prequalification of contractors dealing with the NPC. Neither are they now involved in any bidding for or awarding of contracts, ** it (being) emphasized (in this connection) that they were merely designated as ad hoc members of the Committee without additional compensation for their additional duties. 3. All the relevant documentary evidence had been submitted either to the Ombudsman or the Honorable Sandiganbayan. They conclude that their preventive suspension at this point would actually be purposeless, as there is no more need for precautionary measures against their abuse of the prerogatives of their office. The arguments are not new. They have been advanced and rejected in earlier cases. They will again be so rejected in this case. The Courts pronouncements in Bolastig v. Sandiganbayan, supra., 34 are germane: Our holding that, upon the filing of a valid information charging violation of Republic Act No. 30 19, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioners other contention that since the trial in the Sandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioner would intimidate prosecutions witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, ** to prevent the accused from committing further acts of malfeasance while in office. Bolastig also disposes of the other contention that vital projects of NPC may be delayed by their preventive suspension, viz.:35 Finally, the fact that petitioners preventive suspension may deprive the people of Samar of the services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. (The Local Government Code of 1991, sec. 46[a]) Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, (Art. VI, sec. 16[3]) thus rejecting the view expressed in one case (Alejandrino v. Quezon. 46 Phil. 83, 96 [1924]) that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constitutents are deprived of reprensation. The firmly entrenched doctrine is that under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the information in a pre-suspension hearing conducted for that purpose. In Socrates v. Sandiganbayan, et al.,36 decided fairly recently, the Court again expatiated on the mandatory character of suspension pendente lite under Section 13 of R.A. No. 3019 and the nature of the pre-suspension hearing.

43 This Court has ruled that under Section 13 of the anti-graft law, the suspension of a public officer is mandatory after the validity of the information has been upheld in a pre-suspension hearing conducted for that purpose. This pre-suspension hearing is conducted to determine basically the validity of the information, from which the Court can have a basis to either suspend the accused and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismissed the case, or correct any part of the proceeding which impairs its validity. That hearing may be treated in the same manner as a challenge to the validity of the information by way of a motion to quash (See People vs. Albano, etc., et. al., L-45376-77, July 28, 1988, 163 SCRA 511) In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187), we have set out the guidelines to be followed by the lower courts in the exercise of the power of suspension under Section 13 of the law, to wit: (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section 13 of said Act, it may be briefly stated that upon the filing of such information, the trial court should issue an order with proper notice requiring the accused officer to show cause at a specific date of hearing why he shoud not be ordered suspended from office pursuant to the cited mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an order of suspension or the accused in turn files a motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no longer be necessary. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information, and thereafter hand down its ruling, issuing the corresponding order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. (d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the validity of the criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary investigation, the act for which he stands charged do not constitute a violation of the provisions of Republic Act No. 3019 or of bribery provisions of the Revised Penal Code which would warrant his mandatory suspension from office under Section 13 of the Act, or he may present a motion to quash the information on any of the grounds provided in the Rule 117 of the Rules of Court. The mandatory suspension decreed by the act upon determination of the pendency in court or crimianl prosecution for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits. With the aforequoted jurisrudential authority as the basis, it is evident that upon a proper determination of the validity of the information, it bacomes mandatory for the court to immmediately issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for interpretation. It is not within the courts discretion to hold in abeyance the suspension of the accused officer on the pretext that the order denying the motion to quash is pending review before the appellate courts. Its discretion lies only during the pre-suspension hearing where it is required to ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the filling of the information against him, (2) the acts for which he was charged constitute a violation of the provisions of Republic Act. No. 3019 or of the provisions of title 7, Book II of the revised Penal Code, or (3) the information against him can be quashed, under any of the grounds provided in Section 2, Rules 117 of the Rules of Court. (People vs. Albana, etc., at al. Supra, fn. 26) Once the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter of course. There are no ifs and buts about it. This is because a preventive suspension is not penalty. It is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. In view of this latter provisions, the accused elective public officer does not stand to be prejudiced by the immediate enforcement of the suspension order in the event that the information is subsequently declared null and void on appeal and the case dismissed as against him. Taking into consideration the public policy involved in preventively suspending a public officer charged under a valid information, the protection of public interest will definitely have to prevail over the private interest of the accused. (Bayot vs. Sandiganbayan, et al., G.R. Nos. 61776-61861, March 23, 1984, 128 SCRA 383) To further emphasize the ministerial duty of the court under Section 13 of Republic Act No. 3019, it is said that the court trying the case has neither discretion nor duty to determine whether or not a preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue commiting malfeasance in office. The presumption is that unless the accused is suspended, he may frustrate his prosecution or commit further acts of malfeasance or do both, in same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court. The Court is satisfied that the Second Division of the Sandiganbayan, after upholding the validity of the information against petitioners, correctly ordered their preventive suspension from any public office for period of ninety (90) days. As was stressed in Libanan v. Sandiganbayan

37

** When the statute is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory **, and there are no ifs and buts about it. WHEREFORE, the petition in this case is hereby DISMISSED for lack of merit. Cost against petitioners.

44 SO ORDERED. G.R. No. 175457

July 6, 2011

RUPERTO A. AMBIL, JR., Petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 175482 ALEXANDRINO R. APELADO, SR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. 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 Decision3 promulgated on September 16, 2005 and Resolution4 dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter5 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 6dated 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 Information9 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 Memorandum10 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 Ambil’s 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 Adalim’s transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalim’s sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held.

45 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 Denial14 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 Adalim’s lawyers that he directed the transfer of Adalim’s 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 mayor’s 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. White’s 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 Adalim’s 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 latter’s capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governor’s 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 Adalim’s transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalim’s life but relied simply on the advice of Adalim’s 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: I WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONER’S CASE BEFORE THE SANDIGANBAYAN. II

46 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. V 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 QUO’S 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.

47 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

48 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 x31 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. 697532 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 governmentwithin 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

49 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 governor’s 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 it38 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 communication40 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 petitioner’s 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.

50 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. Sandiganbayan42 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 parlance46 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 mayor’s 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 Adalim’s safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatan’s 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 Adalim’s 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.

51 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. 51Only the first requisite is present in this case. While the order for Adalim’s 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.1avvphi1 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.

52 G.R. No. 109266 December 2, 1993 MIRIAM DEFENSOR SANTIAGO, petitioner, vs. HON. JUSTICE FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF THE PHILIPPINES, respondents. QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside: (a) the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Francis Garchitorena of the Sandiganbayan, disqualified from acting in said criminal case; and (b) the Resolution of said court promulgated on March 14, 1993, which deemed as "filed" the 32 Amended Informations against petitioner (Rollo, pp. 2-35 and pp. 36-94). On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of the Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, allegedly committed by her favoring "unqualified" aliens with the benefits of the Alien Legalization Program (Rollo, p. 36). On May 24, 1991, petitioner filed with us a petition for certiorari and prohibition, docketed as G.R. No. 99289-99290 (Santiago v. Vasquez, 205 SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 on the ground that said case was intended solely to harass her as she was then a presidential candidate. She alleged that this was in violation of Section 10, Article IX-C of the Constitution which provides that "(b)ona fide candidates for any public office shall be free from any form of harassment and discrimination." The petition was dismissed on January 13, 1992. On October 16, 1992, petitioner filed a motion for inhibition of Presiding Justice Garchitorena, which motion was set for hearing on November 13, 1992 at 8:00 A.M. (Rollo, pp. 38-41). On October 27, 1992, the Sandiganbayan (First Division), of which Presiding Justice Garchitorena is a member, set the criminal case for arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42) On November 6, 1992, petitioner moved to defer the arraignment on the grounds that there was a pending motion for inhibition, and that petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-44). On November 9, 1992, the Sandiganbayan (First Division) denied the motion to defer the arraignment (Rollo, p. 45). On November 10, 1992, petitioner filed a motion for a bill of particulars (Rollo, pp. 47-48). The motion stated that while the information alleged that petitioner had approved the application or legalization of "aliens" and gave them indirect benefits and advantages it lacked a list of the favored aliens. According to petitioner, unless she was furnished with the names and identities of the aliens, she could not properly plead and prepare for trial. On November 12, 1992 and upon motion of petitioner in G.R. No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we directed the Sandiganbayan (First Division) to reset the arraignment to a later date and to dispose of the two incidents pending before it (Re: disqualification of Presiding Justice Garchitorena and the motion for the bill of particulars). At the hearing on November 13, 1992 on the motion for a bill of particulars, the prosecution stated categorically that they would file only one amended information against petitioner. However, on December 8, 1992, the prosecution filed a motion to admit the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402; Rollo, pp. 61-126). On March 3, 1993, Presiding Justice Garchitorena issued the questioned Resolution dated March 11, 1993, denying the motion for his disqualification (Rollo, pp. 151-164). On March 14, 1993, the Sandiganbayan (First Division) promulgated a resolution, admitting the 32 Amended Informations and ordering petitioner to post the corresponding bail bonds within ten days from notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended Informations was set for April 12, 1993 at 8:00 A.M. (Rollo, p. 186). Hence, the filing of the instant petition.

53 Acting on the petition for the issuance of a restraining order, we issued the Resolution dated March 25, 1993, ordering Presiding Justice Garchitorena "to CEASE and DESIST from sitting in the case until the question of his disqualification is finally resolved by this Court and from enforcing the resolution dated March 11, 1993, ordering petitioner to post bail bonds for the 32 Amended Informations and from proceeding with the arraignment on April 12, 1993" (Rollo, p. 194). Re: Disqualification of the Sandiganbayan Presiding Justice The petition for disqualification of Presiding Justice Garchitorena is based on the publication of is letter in the July 29, 1992 issue of the Philippine Star, which to petitioner "prejudged" the validity of the information filed against her. Petitioner claims that Presiding Justice Garchitorena "cannot be expected to change the conclusions he has subconsciously drawn in his public statements . . . when he sits in judgment on the merits of the case . . ." (Rollo, pp. 16-17). The letter in question was written in response to an item in Teodoro Benigno's column in the July 22, 1992 issue of the Philippine Star, criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-departure order against petitioner. Benigno wrote that said order reflected a "perverse morality" of the Sandiganbayan and the lack of "legal morality" of its Presiding Justice, thus: I cannot, for example accept the legal morality of Sandiganbayan Justice Francis Garchitorena who would stop Miriam Defensor Santiago from going abroad for a Harvard scholarship because of graft charges against her. Some of the most perfidious Filipinos I know have come and gone, left and returned to these shores without Mr. Garchitorena kicking any kind of rumpus. Compared to the peccadilloes of this country's outstanding felons, what Miriam is accused of is kindergarten stuff. The Sandiganbayan Supremo got a lot of headlines for stopping Miriam but I contend this is the kind of perverse morality we can do without (Rollo, p. 156). The portion of the letter of Presiding Justice Garchitorena, which petitioner finds objectionable, reads as follows: (c) Mrs. Santiago has never informed any court where her cases are pending of her intention to travel, whether the Regional Trial Court where she is charged with soliciting donations from people transacting with her office at Immigration or before the Sandiganbayan where she is charged with having favored unqualified aliens with the benefits of the Alien Legalization Program nor even the Supreme Court where her petition is still pending (Rollo, p. 158). In particular, petitioner considered as prejudgment the statement of Presiding Justice Garchitorena that petitioner had been charged before the Sandiganbayan "with having favored unqualified aliens with the benefits of the Alien Legalization Program." The statement complained of was just a restatement of the Information filed against petitioner in Criminal Case No. 16698 in connection with which the hold-departure order was issued. Said Information specified the act constituting the offense charged, thus: That on or about October 17, 1988, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Miriam Defensor-Santiago, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality, did then and there willfully, unlawfully and criminally approve the application for legalization of aliens who arrived in the Philippines after January 1, 1984 in violation of Executive Order No. 324 dated April 13, 1988 which does not allow the legalization of the same, thereby causing undue injury to the government and giving unwarranted benefits and advantages to said aliens in the discharge of the official and administrative functions of said accused (Rollo, p. 36). It appears that petitioner tried to leave the country without first securing the permission of the Sandiganbayan, prompting it to issue the hold-departure order which Benigno viewed as uncalled for. The letter of Presiding Justice Garchitorena, written in defense of the dignity and integrity of the Sandiganbayan, merely stated that all persons facing criminal charges in court, with no exception, have to secure permission to leave the country. Nowhere in the letter is the merit of the charge against petitioner ever touched. Certainly, there would have been no occasion for the letter had Benigno not written his diatribe, unfair at that, against the Sandiganbayan. Notwithstanding petitioner's misgiving, it should be taken into consideration that the Sandiganbayan sits in three divisions with three justices in each division. Unanimity among the three members is mandatory for arriving at any decision of a division (P.D. No. 1606, Sec. 5). The collegiate character of the Sandiganbayan thus renders baseless petitioner's fear of prejudice and bias on the part of Presiding Justice Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ). Re: Claim of denial of due process

54 Petitioner cannot complain that her constitutional rights to due process were violated by reason of the delay in the termination of the preliminary investigation. According to her, while the offense was allegedly committed "on or before October 17, 1988", the information was filed only on May 9, 1991 and the amended informations on December 8, 1992 (Rollo, p. 14). Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to petitioner's case. In Tatad, there indeed was an unexplained inaction on the part of the public prosecutors inspite of the simplicity of the legal and factual issues involved therein. In the case at bench, there was a continuum of the investigatory process but it got snarled because of the complexity of the issues involved. The act complained of in the original information came to the attention of the Ombudsman only when it was first reported in the January 10, 1989 issue of the Manila Standard. Immediately thereafter, the investigatory process was set in motion. The investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of petitioner herself the investigation was first assigned to Special Prosecutor Gualberto dela Llana but on request of petitioner herself the investigation was re-assigned to the Office of the Deputy Ombudsman for Luzon. The case was handled by a panel of four prosecutors, who submitted a draft resolution for the filing of the charges on March 29, 1990. The draft resolution had to undergo the hierarchy of review, normal for a draft resolution with a dissenting vote, until it reached the Ombudsman in March 1991. We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 9928999290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of delay in the preliminary investigation and the filing of the information against her in those petitions. a piece-meal presentation of issues, like the splitting of causes of action, is self-defeating. Petitioner next claims that the Amended Informations did not charge any offense punishable under Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of spouses and unmarried, minor children of "qualified aliens" even though they had arrived in the Philippines after December 31, 1983. she concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31). In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People v. Supnad, 7 SCRA 603 [1963] ). Therefore, petitioner admitted hypothetically in her motion that: (1) She was a public officer; (2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1, 1984; (3) Those aliens were disqualified; (4) She was cognizant of such fact; and (5) She acted in "evident bad faith and manifest partiality in the execution of her official functions." The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019. The claims that the acts complained of were indeed authorized under Executive Order No. 324, that petitioner merely followed in good faith the policy adopted by the Board of Commissioners and that the aliens were spouses or unmarried minor children of persons qualified for legalization of stay, are matters of defense which she can establish at the trial. Anent petitioner's claim that the Amended Informations did not allege that she had caused "undue injury to any party, including the Government," there are two ways of violating Section 3 (e) of R.A. No. 3019. These are: (a) by causing undue injury to any party, including the Government; and (b) by giving any private party any unwarranted benefit, advantage or preference. In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held: The use of the distinctive term "or" connotes that either act qualifies as a violation of Section 3 (a). In other words the act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of the offense of "causing any undue injury to any party" as claimed by petitioners although there may be instances where both elements concur. Re: Delito continuado Be that as it may, our attention was attracted by the allegation in the petition that the public prosecutors filed 32 Amended Informations against petitioner, after manifesting to the Sandiganbayan that they would only file one amended information (Rollo, pp. 6-61). We also noted that petitioner questioned in her opposition to the motion to admit the 32 Amended Informations, the splitting of the original information (Rollo, pp. 127-129). In the furtherance of justice, we therefore proceed to inquire deeper into the validity of said plant, which petitioner failed to pursue with vigor in her petition.

55 We find that, technically, there was only one crime that was committed in petitioner's case, and hence, there should only be one information to be file against her. The 32 Amended Informations charge what is known as delito continuado or "continued crime" and sometimes referred to as "continuous crime." In fairness to the Ombudsman's Office of the Special Prosecutor, it should be borne in mind that the concept of delito continuado has been a vexing problem in Criminal Law — difficult as it is to define and more difficult to apply. According to Cuello Calon, for delito continuado to exist there should be a plurality of acts performed during a period of time; unity of penal provision violated; and unity of criminal intent or purpose, which means that two or more violations of the same penal provisions are united in one and same instant or resolution leading to the perpetration of the same criminal purpose or aim (II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.). According to Guevarra, in appearance, a delito continuado consists of several crimes but in reality there is only one crime in the mind of the perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102; Penal Science and Philippine Criminal Law, p. 152). Padilla views such offense as consisting of a series of acts arising from one criminal intent or resolution (Criminal Law, 1988 ed. pp. 53-54). Applying the concept of delito continuado, we treated as constituting only one offense the following cases: (1) The theft of 13 cows belonging to two different owners committed by the accused at the same time and at the same period of time (People v. Tumlos, 67 Phil. 320 [1939] ). (2) The theft of six roosters belonging to two different owners from the same coop and at the same period of time (People v. Jaranillo, 55 SCRA 563 [1974] ). (3) The theft of two roosters in the same place and on the same occasion (People v. De Leon, 49 Phil. 437 [1926] ). (4) The illegal charging of fees for services rendered by a lawyer every time he collects veteran's benefits on behalf of a client, who agreed that the attorney's fees shall be paid out of said benefits (People v. Sabbun, 10 SCRA 156 [1964] ). The collection of the legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse (People v. Lawas, 97 Phil. 975 [1955] ). On the other hand, we declined to apply the concept to the following cases: (1) Two estafa cases, one of which was committed during the period from January 19 to December 1955 and the other from January 1956 to July 1956 (People v. Dichupa, 113 Phil. 306 [1961] ). The said acts were committed on two different occasions. (2) Several malversations committed in May, June and July, 1936, and falsifications to conceal said offenses committed in August and October 1936. The malversations and falsifications "were not the result of only one purpose or of only one resolution to embezzle and falsify . . ." (People v. Cid, 66 Phil. 354 [1938] ). (3) Two estafa cases, one committed in December 1963 involving the failure of the collector to turn over the installments for a radio and the other in June 1964 involving the pocketing of the installments for a sewing machine (People v. Ledesma, 73 SCRA 77 [1976] ). (4) 75 estafa cases committed by the conversion by the agent of collections from customers of the employer made on different dates (Gamboa v. Court of Appeals, 68 SCRA 308 [1975]). The concept of delito continuado, although an outcry of the Spanish Penal Code, has been applied to crimes penalized under special laws, e.g. violation of R.A. No. 145 penalizing the charging of fees for services rendered following up claims for war veteran's benefits (People v. Sabbun, 10 SCRA 156 [1964] ).

56 Under Article 10 of the Revised Penal Code, the Code shall be supplementary to special laws, unless the latter provide the contrary. Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity to crimes punished under special laws. The question of whether a series of criminal acts over a period of time creates a single offense or separate offenses has troubled also American Criminal Law and perplexed American courts as shown by the several theories that have evolved in theft cases. The trend in theft cases is to follow the so-called "single larceny" doctrine, that is, the taking of several things, whether belonging to the same or different owners, at the same time and place constitutes but one larceny. Many courts have abandoned the "separate larceny doctrine," under which there is a distinct larceny as to the property of each victim. Also abandoned was the doctrine that the government has the discretion to prosecute the accused or one offense or for as many distinct offenses as there are victims (annotation, 37 ALR 3rd 1407, 1410-1414). The American courts following the "single larceny" rule, look at the commission of the different criminal acts as but one continuous act involving the same "transaction" or as done on the same "occasion" (State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81 Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539). An American court held that a contrary rule would violate the constitutional guarantee against putting a man in jeopardy twice for the same offense (Annotation, 28 ALR 2d 1179). Another court observed that the doctrine is a humane rule, since if a separate charge could be filed for each act, the accused may be sentenced to the penitentiary for the rest of his life (Annotation, 28 ALR 2d 1179). In the case at bench, the original information charged petitioner with performing a single criminal act — that of her approving the application for legalization of aliens not qualified under the law to enjoy such privilege. The original information also averred that the criminal act : (i) committed by petitioner was in violation of a law — Executive Order No. 324 dated April 13, 1988, (ii) caused an undue injury to one offended party, the Government, and (iii) was done on a single day, i.e., on or about October 17, 1988. The 32 Amended Informations reproduced verbatim the allegation of the original information, except that instead of the word "aliens" in the original information each amended information states the name of the individual whose stay was legalized. At the hearing of the motion for a bill of particulars, the public prosecutors manifested that they would file only one amended information embodying the legalization of stay of the 32 aliens. As stated in the Order dated November 12, 1992 of the Sandiganbayan (First Division): On the matter of the Bill of Particulars, the prosecution has conceded categorically that the accusation against Miriam Defensor Santiago consists of one violation of the law represented by the approval of the applications of 32 foreign nationals for availment (sic) of the Alien Legalization Program. In this respect, and responding directly to the concerns of the accused through counsel, the prosecution is categorical that there will not be 32 accusations but only one . . . (Rollo, p. 59). The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the application or the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document. Likewise, the public prosecutors manifested at the hearing the motion for a bill of particulars that the Government suffered a single harm or injury. The Sandiganbayan in its Order dated November 13, 1992 stated as follows: . . . Equally, the prosecution has stated that insofar as the damage and prejudice to the government is concerned, the same is represented not only by the very fact of the violation of the law itself but because of the adverse effect on the stability and security of the country in granting citizenship to those not qualified (Rollo, p. 59). WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No. 16698 of the Sandiganbayan (First Division) is AFFIRMED and its Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED in the sense that the Office of the Special Prosecutor of the Office of the Ombudsman is directed to consolidate the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402) into one information charging only one offense under the original case number, i.e., No. 16698. The temporary restraining order issued by this Court on March 25, 1993 is LIFTED insofar as to the disqualification of Presiding Justice Francis Garchitorena is concerned. SO ORDERED.

57 [G.R. No. 148560. November 19, 2001] JOSEPH

EJERCITO ESTRADA, petitioner, PHILIPPINES, respondents.

vs. SANDIGANBAYAN

(Third

Division)

and

PEOPLE

OF

THE

DECISION BELLOSILLO, J.: JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total

58 value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all illgotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (TheCode of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused."On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. [3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absentsuch a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts,conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

59 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,

60 COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;[6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident that the legislature intended a technical or special legal meaning to those words.[8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

61 REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts.So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the publictreasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan [9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow

62 to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. [10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectivelyphrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."[14] A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." [18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."[19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."[21] Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. [22] It constitutes a departure from the case and controversy requirement of

63 the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. [23] But, as the U.S. Supreme Court pointed out in Younger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged. [27] In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x 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, x x x(Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

64 The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. [29] The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is anenumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder.

65 JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32] We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder. [33] However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34] Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown.

66 Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." [35] Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36] The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over.Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED.

67 [G.R. No. 148468. January 28, 2003] ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents.

[G.R. No. 148769. January 28, 2003] EDWARD S. SERAPIO, petitioner, vs. HONORABLE PHILIPPINES, respondents.

SANDIGANBAYAN

and

PEOPLE

OF

THE

[G.R. No. 149116. January 28, 2003] EDWARD S. SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. DECISION CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose Jinggoy P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis Chavit Singson through the latters assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundations treasurer who later deposited it in the Foundations account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known as jueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits.The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic of the Philippines.One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE

68 FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDERED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW.[1] On April 5, 2001, petitioner obtained a copy of the Ombudsmans Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.[2] Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accuseds Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio. [3] On April 10, 2001, the Ombudsman issued an order denying petitioners motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.[4] In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner. [5] When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.[6] For his part, petitioners co-accused Jose Jinggoy Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioners Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heard before petitioners arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558 filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioners petition for bail on May 21 to 25, 2001.

69 On May 17, 2001, four days before the hearing on petitioners petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioners) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioners petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecutions pending motions as well as petitioners motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioners April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his co-accused for trial.[7] Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.[8] However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.[9] On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioners motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling. [10] By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioners motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioners guilt of plunder, that he be granted provisional liberty on bail after due proceedings. [11] Meanwhile, on June 28, 2001, Jose Jinggoy Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioners motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution. [12] The motion to fix bail filed by Jose Jinggoy Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayans rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose Jinggoy Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayans Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution.

Re: G.R. No. 148769

70 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIOS MOTION TO QUASH NOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER. A. The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B. The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C. The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute ill-gotten wealth as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE.[13] Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; [14] Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a combination or series of overt or criminal acts constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege a pattern of criminal acts. He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite combination or series of acts for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada on several occasions does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information. [15] The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense. [16] Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense. [17] The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient. [18] In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder through any or a combination or a series of overt or criminal acts or similar schemes or means. And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose Jinggoy Estrada vs. Sandiganbayan (Third Division), et al.,[19] we held that the word series is synonymous with the clause on several instances; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word combination contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law and that:

71 x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x.[20] It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.[21] The Court also ruled in Jose Jinggoy Estrada vs. Sandiganbayan[22] that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them. [23] Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all. [24] Petitioner asserts that he is charged under the amended Information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from malversation of public funds, the law also uses the generic terms misappropriation, conversion or misuse of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.[25] This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his coaccused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed.

Re: G.R. No. 149116

Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that: GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIOS URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS

72 NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO.[26] Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.[27] Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 1998[28] and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.[29] More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.[30] Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute illgotten wealth as defined in Section 1(d) of R.A. No. 7080; [31] (2) there is no evidence linking him to the collection and receipt of jueteng money;[32] (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.[33] Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,[34] and hence he should be spared from the inconvenience, burden and expense of a public trial.[35] Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. [36]Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest. [37] He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.[38] The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioners omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused, and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.[39] The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioners omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsmans joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed. [40] The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.[41] This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsmans discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan[42], the Court ruled: x x x. In the performance of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish probable cause for filing of information against the supposed offender. In Cruz, Jr. vs. People,[43] the Court ruled thus:

73 Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari. Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively.Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioners motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose Jinggoy Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe. a.k.a.Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas. [44] Likewise, in its Resolution dated May 31, 2001 of petitioners omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused. [45] It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsmans Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsmans resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsmans resolution may be granted. [46] It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.[47] The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.[48] If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. [49] As the Court held in Webb vs. De Leon, [a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.[50] Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.[51] The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary. Certiorari will not lie to invalidate the Sandiganbayans resolution denying petitioners motion for reinvestigation since there is nothing to substantiate petitioners claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.[52] The ruling in Rolito Go vs. Court of Appeals[53] that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence.Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counteraffidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment. [54] In sum then, the petition is dismissed.

74 Re: G.R. No. 148468

As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately. [55] Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman. [56] Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,[57] and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.[58] Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.[59] The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.[60] Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accuseds flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned. [61] The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecutions evidence before he pleads guilty for purposes of penalty reduction. [62] Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioners case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar. [63] The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender.[64] An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals, [65] this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial courts imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. [66] However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. [67] The Courts pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.[68] It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned.Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be authorized under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail.

75 With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed. [69] He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.[70] The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court. [71] Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.[72] As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.[73] On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.[74] An accused may file a motion to quash the Information, as a general rule, before arraignment. [75] These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic. We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose Jinggoy Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution. [76] For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as coconspirators in the crime of plunder.[77] In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding.[78] There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth. [79] It must be borne in mind that in Ocampo vs. Bernabe,[80] this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination

76 and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioners petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose Jinggoy Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling. [81] Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioners petition for bail and the trial of the former President, the latter will have the right to crossexamine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioners bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatise Constitutional Limitations, thus: For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime. [82] While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, [83] the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved without unnecessary delay,[84] only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose Jinggoy Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioners petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioners petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioners allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan. [85] They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 21-25, 2001.[86] They argue further that bail is not a matter of right in capital offenses. [87] In support thereof, they cite Article III, Sec 13 of the Constitution, which states that All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law.The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[88] The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable.No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonement, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4. Bail, a matter of right, exception.All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment. [89] Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the

77 court.[90] Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.[91] Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.[92] The prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose.[93] When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.[94] In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioners claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioners application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioners application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.[95] Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;[96] Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose Jinggoy Estrada and Edward Serapio, dated May 8, 2001;[97] Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;[98] and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001. [99]

78 The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1) excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis Chavit Singson, filed by Joseph Estrada; Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada; Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapios hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada;

79 Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.[100] Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application.[101] The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:[102] When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal.[103] Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecutions refusal to present evidence and by the Sandiganbayans refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched a seemingly endless barrage of obstructive and dilatory moves to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioners arraignment before the commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioners motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies. [104] He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.[105] Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioners right to bail.[106] He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy of habeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,[107] where the Court held that habeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary. [108] However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, [109] the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.[110] As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so. [111] In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action due to its ability to cut through barriers of form and procedural mazes. [112] Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid, [113] and even though the persons praying for its issuance were not completely deprived of their liberty.[114] The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule that habeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same [115] applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile[116] that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioners application for bail has yet to commence. As stated earlier, the delay in the hearing of petitioners petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate remedy for asserting ones right to bail.[117] It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing

80 to grant bail,[118] or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayans resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1. In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2. In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex L of the petition, ordering a joint hearing of petitioners petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED.

81 G.R. No. 71581 March 21, 1990 CARMEN LABATAGOS, petitioner, vs. HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. PADILLA, J.: This is a petition for review on certiorari of the decision of the Sandiganbayan (Third Division) * in Criminal Case No. 4799, finding the petitioner guilty beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, par. 4 of the Revised Penal Code. From January 1978 to December 1980, petitioner Carmen Labatagos was the cashier and collecting officer of the Mindanao State University MSU General Santos City. She filed a leave of absence for the months of March, April and May 1978 and did not discharge her duties for the said period. On 1 October 1980, Francisco T. Rivera, under Commission on Audit (COA) General Order No. 8022-117 (Exh. C) was designated leader of a team to conduct the examination of the cash and accounts of the petitioner. When the team conducted the examination, the petitioner did not have any cash in her posssession, so she was asked to produce all her records, books of collection, copies of official receipts and remittance advices and her monthly reports of collections. Based on the official receipts and the record of remittances for the period from January to August 1978, the audit examination disclosed that the petitioner collected the total amount of P113,205.58 (Exhs. A-1 and A-2) and made a total remittance to the Development Bank of the Philippines (DBP), the depository bank of the university, in the amount of P78,868.69, leaving an unremitted amount of P34,336.19. On the basis of similar official receipts and record of remittances, the audit examination further disclosed that for the period from January 1979 to June 6, 1980, the petitioner made a total collection of P327,982.00 (Exhs. B, B-1, and B-1-a) and remitted to the DBP the total amount of P256,606.25 (Exhs. B-2 and B-2-a) incurring a shortage of P71,365.75. The petitioner signed without exception both Reports of Examination (Exhs. A and B) as well as their supporting summaries. Thereafter, Francisco T. Rivera submitted his report on the examination to the Chairman, Commission on Audit, through the Regional Director, COA, Region IX (Exhs. A-4 and B-4). Subsequently, Rivera prepared the letters of demand corresponding to the two (2) audit reports (Exhs. A-3 and B-3) and served them personally on the petitioner who signed both letters. Despite the demand letters, the petitioner did not submit any explanation of her shortages. Hence, on 27 October 1981, the Tanodbayan filed with the Sandiganbayan an information charging petitioner with the crime of Malversation of Public Funds, committed as follows: That between the periods January 1978 to August 17, 1978, and January 1, 1979 to June 6, 1980, in General Santos City, Philippines, the said accused a public officer being then the Cashier and Collecting Officer of the Mindanao State University, General Santos Unit, General Santos City, who, by reason of the duties of her office was charged with the duty of collecting school dues and tuition fees of the students of said school, and of remitting to, or depositing with, the school's depository bank, the Development Bank of the Philippines, General Santos City branch, all money collections by way of school dues and tuition fees she collected as Cashier and Collecting Officer, was responsible and accountable for the funds collected and received by her, by reason of her position as Collecting Officer, did wilfully, unlawfully, feloniously and fraudulently, and with grave abuse of confidence, misappropriate, and embezzle the total sum of ONE HUNDRED FIVE THOUSAND SEVEN HUNDRED ELEVEN AND 94/100 P105,711.94), Philippine Currency, out of her collection of P441,187.58, during the aforesaid period, which sum of P105,711.94 she appropriated and converted to her own personal use and benefit, to the damage and prejudice of the Republic of the Philippines in said amount. 1 During the trial, petitioner in her defense claimed that she signed the audit reports on the understanding that her shortage would amount to only P2,000.00; that she could not be held accountable for the collections for March, April and May 1978 because she was on maternity leave; and that several disbursements in the total amount of P49,417.12 were not credited in her favor by the auditors. She claimed further that she should not be held accountable for the alleged misappropriations between the months of January 1978 and August 1978 in the amount of P34,336.19 because those who appropriated the amounts were her superiors and that the amounts taken were properly receipted but that the receipts were lost.

82 Respondent Sandiganbayan, however, did not give weight nor credence to her defense. Hence, as previously stated, petitioner was found guilty beyond reasonable doubt of the crime of malversation of public funds. The petitioner then filed the instant petition, and alleged the following reasons why the petition should be granted; (1) that respondent court made manifestly mistaken inferences and misapprehended the significance of the evidence which resulted in the erroneous decision rendered in the case; and (2) that respondent court erred in finding the petitioner guilty of the crime charged when there is ample evidence submitted showing that she did not put the missing funds to her personal use. The petition is devoid of merit. The only issue to be resolved in this case is whether or not the guilt of the petitioner has been proved beyond reasonable doubt. The established facts show that respondent court did not err in convicting petitioner for the crime of malversation. As held by said court: There is no merit in the accused's defense. Her claim that she signed the audit report and statement of collections and deposits prepared by the audit team of Francisco Rivera on the understanding that her shortage was only P2,000.00 is belied by the figures clearly reflected on the said documents. Exhibit A, the audit report which she signed without exception, shows that she incurred a shortage of P34,336.19 for the period from January to August 1978; while Exhibit A-1, the statement of her collections and deposits for the same period which she certified as correct, indicates the same amount of P34,336.19 as her shortage. Mrs. Ester Guanzon, the prosecution's rebuttal witness, confirmed that she assisted the accused in the collection of fees; that the accused filed application for maternity leave in March 1978 but continued reporting for work during that month; that the accused did not report for work in April 1978; and that she (Guanzon) was the one assigned to collect the fees in her stead. Miss Guanzon, however, explained that she turned over all her collections to the accused during all the times that she was assisting her in collecting the fees; and that even in April 1978 when the accused was physically absent from office, she also turned over her collections to the accused ill the latters house with the duplicate copies of the receipts she issued which the accused signed after satisfying herself that the amounts I turned over tallied with the receipts. There is color of truth to Mrs. Guanzon's explanation. All the collections for the months of March and April 1978 are fully accounted for they are itemized in the reports of collection, (Exhs. F and G) and shown to have been duly remitted in the remittance advices for those months. (Exhs. F-1 to F-5; G-1 and G-2). The auditor was correct in refusing to credit the accused with the three (3) different amounts mentioned in her letter of October 22, 1980. (Exh. 5) The first sum, P7,140.20, purporting to be refunds of tuition fees to students granted tuition privilages is hot supported by any official authorization for such refunds by the University authorities. Besides, the supposed list of students who were recipients of the refunds (Exh. 10) is incompetent evidence being a mere xerox copy uncertified as a true copy of an existing original. The second sum, P4,494.80 was purportedly spent for the cost of uniforms of the school and basketball balls. P2,100.00 in all (Exhs. 6 and 6-A), and the balance taken by Alikhan Marohombsar and Auditor Casan, (Exh. 6-B). The third amount, P6,702.12, was supposedly covered by vouchers submitted to the Auditor's office through Rosa Cabiguin. (Exh. 12-K) Again, the auditor did not err in not crediting the aforesaid sums to the accused's accountability. The P2,100.00 cost of uniforms and balls, unsupported by a duly accomplished and approved voucher, was not a valid disbursement. And since the alleged vouchers for P6,792.12 were not presented in evidence nor was any effort exerted to compel their production in court by subpoena duces tecum, the same was properly refused to be deduced from the incurred shortage of the accused. All the other sums allegedly taken from the accused by Director Osop, Alikhan Marohombsar and Auditor Casan totalling P31,070.00. (Exhs. 12, 12-A, etc., 13-A and 14-A), supported as they are by mere pieces of paper, despite the admission by Director Osop of having signed some of them (Exhs. 12-A, 12-D, 12-E and 12-I) were not valid disbursements. Granting that the amounts reflected in the chits were really secured by the persons who signed them, the responsibility to account for them still rests in the accused accountable officer. Malversation consists not only ill misappropriation or converting public funds or property to one's personal use but also by knowingly allowing others to make use of or misappropriate them. 2 WHEREFORE, there being no reversible error in the questioned decision of respondent court and the issues raised in this petition being essentially factual, the petition for review is DENIED and the appealed decision is AFFIRMED. SO ORDERED.

83 G.R. No. L-59670 February 15, 1990 LEONARDO N. ESTEPA, petitioner, vs. SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. Braulio R.G. Tansinsin for petitioner. FELICIANO, J.: Petitioner Leonardo N. Estepa seeks to set aside the decision of the Sandiganbayan in Case No. 3658 convicting him of the crime of malversation of public funds through negligence and sentencing him to an indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum. Petitioner Leonardo N. Estepa was charged in an information which read: That on or about January 24, 1980, in the City of Manila, Metro Manila, Philippines, and within the jurisdiction of this Court, said accused, being then Senior Paymaster, Treasurer's Office, City Hall, Manila, and as such is a public officer accountable for the funds received by him by reason of his said position and charged with the duty of diligently safeguarding or looking after the funds placed under his custody, did then and there with great carelessness and unjustifiable negligence, fail to exercise that duty without counting the money during the individual distribution and segregation of said funds at the General Cashier's Room, before assuming total physical control thereof thereby allowing and permitting an unknown man to take, steal, misappropriate and embezzle to his personal use and benefit the amount of FIFTY THOUSAND (P50,000.00) PESOS, Philippine Currency, from the said cashier's room, as in fact that unknown person did take, steal, misappropriate, and embezzle the said amount to the damage and prejudice of the government in the aforesaid sum. CONTRARY TO LAW. 1 Upon arraignment, Estepa pleaded not guilty. After trial, the Sandiganbayan rendered a decision convicting Estepa of the crime charged, the dispositive portion of which read: WHEREFORE, the Court finds Leonardo N. Estepa guilty beyond reasonable doubt as principal of malversation, defined and penalized under paragraph 4, Article 217 of the Revised Penal Code, and there being no aggravating nor mitigating circumstance in the commission of the offense, he is hereby sentenced to suffer an indeterminate penalty of Ten (10) Years and One (1) Day of prision mayor, as minimum; to Eighteen (18) Years, Eight (8) Months and One (1) Day of reclusion temporal, as maximum; to pay a fine of Fifty Thousand (P50,000.00) Pesos, without subsidiary imprisonment in case of insolvency; to suffer the penalty of perpetual special disqualification, to indemnify the City of Manila/National Government the amount of Fifty Thousand (P50,000.00) Pesos and to pay the costs. His motion for reconsideration having been denied, Estepa filed the present Petition for Review. The Petition was given due course and the parties required to file briefs. In his brief, 2 petitioner Estepa assigns the following errors: I. Respondent court gravely erred in convicting petitioner of the came of malversation through negligence although the facts charged in the information do not constitute an offense or crime. II. Respondent court gravely erred in convicting petitioner to the crime of malversation through negligence although the prosecution has never proven beyond doubt that he possessed the allegedly lost money of P50,000.00 which is the material ingredient of the crime charged. III. Respondent court gravely erred in convicting petitioner of the crime of malversation through negligence by citing his other alleged negligent acts which were not alleged in the information, contrary to the due process clause of the 1973 Constitution. IV. Respondent court gravely erred in convicting petitioner of the crime of malversation instead of filing malversation charges against his superiors whose gross negligence really caused the loss of that amount. V. Respondent court gravely erred in convicting petitioner, because Justice Guerrero decided the criminal case against him contrary to Section 2 of Rule V of the Rules of Sandiganbayan, which prohibits the

84 preparation of a decision by a court member who has never attended any session thereof as long as the other members are still with said court. From the record, the facts of the case may be collated as follows: In the morning of 24 January 1980, Leonardo N. Estepa, then a senior paymaster of the Cash Division of the City Treasurer's Office of the City of Manila, together with nine (9) other paymasters and Cesar R. Marcelo, their Supervising Paymaster, went to the Philippine National Bank ("PNB") to encash checks amounting to P7,640,000.00 representing the cash advances then being requisitioned by the ten (10) Paymasters. It turned out, however, that the cash value of those checks was not available at the PNB. Hence, the personnel from the City Treasurer's Office, among them Estepa, accompanied by some officials of the PNB, proceeded to the Central Bank. In the presence of Marcelo, and the ten (10) paymasters, P7,640,000.00 in cash was counted out 3 and placed inside two (2) duffel bags which, after being properly sealed, were loaded inside an armored car and immediately transported to and deposited in the central vault of the City Treasurer's Office of the City of Manila. Mr. Marcelo testified that there was a power "brownout" at about 1:00 to 2:00 p.m. on that day and the central vault, where they customarily distribute the cash advances was dark; that he decided with the concurrence of Atty. Kempis, the head of the Cash Division, to distribute the cash to the paymasters at the latter's Kempis room which was well-lighted by the rays of the sun coming in through a side window. 4 Marcelo stated that in order to deter third persons from entering that room during the distribution, the door was closed and a guard was posted outside the room by the door. 5 In the presence of Atty. Kempis and the ten (10) paymasters, Marcelo opened the two (2) duffel bags and again counted out the amount of P7,640,000.00. 6 The bills were segregated and bundled in denominations of P100.00s, P50.00s, P20.00s and P10.00s up to the last coin, and placed on a big chaise lounge and on a table inside Atty. Kempis' room. Some of the paymasters were assigned to take charge of the bundles of money, one paymaster for each denomination; however, Estepa was not one of those so assigned. As each paymaster was called, each paymaster in charge of a denomination handed to the requisitioner the number of bundles of that denomination corresponding to the amount being requisitioned. Thus, one at a time, the paymasters were called and given the amounts they had requisitioned. When Estepa's turn came, Mr. Marcelo asked the paymasters in charge of the bundles of differing denominations to hand to Estepa the amount of P850,000.00. After all the ten (10) paymasters had gotten their money and while all of them were still inside that room, Mr. Marcelo, as was his usual practice, in a loud voice asked them in Pilipino if everything was fine. No complaint or protest was made by anyone of them, including Estepa, and all left the room uneventfully. 7 However, ten (10) minutes later, Estepa reported to Mr. Marcelo that the amount of P50,000.00 was missing from his cash advance. The latter immediately summoned back all ten (10) paymasters and with the help of the Assistant Cashier, counted once again the money just delivered to each of the ten (1) paymasters. It turned out that the amount received by each of them, except Estepa, was correct. Pacita Sison, an examiner from the Commission on Audit testified that on 25 January 1980? she had examined Estepa's cash and accounts which showed that the latter's account was short by P50,000.00. Thereupon, she reduced her finding into writing which document was signed by Estepa. 8 Estepa, upon receipt of a formal letter from the City of Manila demanding the amount of P50,000.00, submitted a written explanation denying his liability therefor. He alleged that he had only received the total amount of P800,000.00 — and that the loss of the amount of P50,000.00 occurred before that sum was delivered to him. Estepa also executed on 5 February 1980 a sworn statement to that effect. Unconvinced, the Legal Office of the City of Manila filed a complaint against Estepa with the Tanodbayan. In turn, the Tanodbayan, after conducting a preliminary investigation, filed an information in the Sandiganbayan charging petitioner with the crime of malversation through negligence. Petitioner's first contention is that the facts alleged in the information did not constitute an offense since there can be no crime of malversation of public funds through mere failure to count the money. His second contention is that the prosecution had not established that he had in fact received the total amount of P850,000.00 and that therefore he should not be answerable for the loss of the P50,000.00. Lastly, he claims that he had not been negligent. We consider petitioner's first argument to be without merit. We think that petitioner's view of the information is a very narrow and carping one. It will be seen that the information charged him with having carelessly and negligently allowed an unknown person to steal or misappropriate the amount of P50,000.00; that he had failed to exercise his duty as a public officer accountable for public funds received by him and that he had failed to count the money turned over to him at the General Cashier's Room. The crime of malversation of public funds is defined under Article 217 of the Revised Penal Code in the following terms: ART. 217. Malversation of public funds or property. — Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment ornegligence, shall permit any other person to take such public funds or property, wholly or partially,or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

85 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceed the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060.) Turning to the second contention of Estepa, we consider that it was proven beyond reasonable doubt that the amount of P850,000.00 had in fact been distributed to petitioner Estepa. The total amount of P7,640,000.00 was counted out by Mr. Marcelo, Supervising Paymaster, before the actual distribution to the ten (10) paymasters of the amounts respectively requisitioned by them. After petitioner Estepa had reported that P50,000.00 was lost or missing from the cash advance, Mr. Marcelo rounded up all the ten (10) paymasters and counted once again the money distributed to and held by each of the ten (10) paymasters. This recount showed that none of the nine (9) other paymasters had received an amount in excess of the amount requisitioned by each. In other words, in the recount after Estapa had reported his loss, the total amount of P7,590,000.00 was accounted for (P7,640,000 - P50,000.00). The loss reported by Estepa occurred after turnover to him of the entire amount of P850,000.00. The explanation offered by Estepa of the loss of P50,000.00 was summarized by the Sandiganbayan in the following terms: In exculpation, accused narrated, inter alia, what transpired inside the room of Atty. Kempis during the partitioning of the money to the ten paymasters. According to him, the room of Atty. Kempis was closed to the public. Together with the other paymasters, accused witnessed the opening of the two duffel bags and counting of the money by Mr. Marcelo. There was no complaint of shortage. He placed them on one side of a sofa which was three meters away. Because some of the paymasters were already going out and accused was afraid that the public might enter the office of Atty. Kempis, accused decided to bring the money with smaller denominations to the table of Pangilinan which was three to four meters away leaving the bigger denomination at the sofa. He did this because accused could not carry the whole amount. By then, there were some people inside the office of Atty. Kempis and the latter was seated at his table. Thereupon, he brought the bundles of bigger denominations (P100s and P50s) directly to his cage and then returned for the bundles of smaller denominations. After counting the money inside his cage, he discovered that one bundle of P50.00 bills worth P50,000.00 was missing. He searched inside his cage looking at the floor where the bundle could have dropped because it was dark. After about ten minutes of futile search he reported the loss to Atty. Kempis. The Sandiganbayan, addressing the question of whether or not petitioner Estepa had been negligent in the handling of the money that he, along with the other nine (9) paymasters had received from the Supervising Paymaster, analyzed the foregoing explanation of petitioner Estepa in the following manner: There is no gainsaying that accused was present when the money which were to be withdrawn from the depository bank, was counted at the Central Bank. There was no shortage. Before his eyes, the entire amount was placed inside two duffel bags which were sealed and subsequently deposited in the central vault of the City Treasurer's Office, Manila. When these two duffel bags were opened, accused as well as the other requisitioning paymasters were present. Again, Mr. Marcelo counted the money. No shortage. Thereupon, each paymaster received the amount he requisitioned. In the case of the accused, the total sum corresponding to his name was P850,000.00. It was at this moment when Mr. Marcelo asked the paymasters if they had received the correct amount by directing the question, "Ayos na ba kayo diyan?" No one answered including accused. This is one phase of his negligence. If he had not yet fully counted the money he received, accused should have voiced himself out. Instead, he let the occasion pass in silence giving the impression that the money he had received was in accordance with the amount due him. His fault is not only limited to such inaction. By his own account, people were starting to enter the room of Atty. Kempis. Yet, he left the bundles of bigger denominations at the sofa without even asking somebody to

86 watch for them and proceeded to the table of Mr. Pangilinan where he left the money of smaller denominations. From the sketch (see Exh. E) of the City Treasurer's Office submitted by the accused, it is clear that the table of Mr. Pangilinan was outside the room of Atty. Kempis. The danger to the money left at the sofa was real. Again, he left the same bundles this time at Ms cage with nobody to watch them when he returned for the bundles of smaller denominations at the table of Mr. Pangilinan. Accused admitted that at that time, Eufrocinio Mendoza who shared the same cage with him, was not inside the cage. Prudence should have cautioned accused to wait for Mendoza before returning for the smaller denominations. Certainly, it was foolhardy to leave bundles of money of high denominations of Pl00 or P50 with no one to guard for them even only for a fleeting moment. In short, accused's inexcusable negligence consisted of the following: (1) failure to check-and re-check the denominations by him before the paymasters dispersed, (2) not sounding off that he was not absolutely certain of the amount received when Mr. Marcelo asked the paymasters, "Ayos na ba kayo diyan?" (3) failure to ask Atty. Kempis or any other person to watch over the money of bigger denominations at his cage before he returned to the table of Mr. Pangilinan for the smaller denominations. Had he not been remiss on these, there would have been no opportunity for an unknown hand to surreptitiously get hold of the money. (Emphasis supplied) After careful examination of the records of this case, including the detailed testimony of the witnesses, we find no reason to depart from the conclusion reached by the Sandiganbayan that petitioner had indeed been negligent in the handling of the funds which had been turned over to him. In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he did not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable public officer may be convicted for malversation even if there is no direct evidence of personal misappropriation, where he has not been able to explain satisfactorily the absence of the public funds involved. 9 Under Article 217 of the Revised Penal Code, there is prima facie evidence of malversation where the accountable public officer fails to have duly forthcoming any public funds with which he is chargeable upon demand by duly authorized officer. As this Court has pointed out, this presumption juris tantum is founded upon human experience. 10 In the present case, petitioner was neither able to produce the missing amount of P50,000.00 nor adequately to explain his failure to produce that amount. Petitioner's explanation leaves one thoroughly dissatisfied. If one took petitioner's explanation seriously and literally, the mysterious, unseen third person could have picked up the missing bundle of P50.00 bills either (1) from the sofa inside the room of Atty. Kempis where he had left the bundles of large denomination bills, without asking anyone to keep an eye on them while he left the room; or (2) from petitioner's cage outside Atty. Kempis' room where he left the bundles of large denomination bills, again without anyone being left in charge thereof, while he went back to Mr. Pangilinan's desk (also outside Atty. Kempis' room) to retrieve the bundles of small denomination bills he had previously deposited on top of said desk without, once more, getting some one to watch those bundles. Petitioner's self-confessed coming and going from — sofa to Pangilinan's desk; back to sofa and then to his cage; and back to Pangilinan's desk and finally to his cage — created at least two (2) clear opportunities for the invisible third person to pick up the missing P50,000.00. Clearly, petitioner was very relaxed and casual in the handling of the bundles of money entrusted to him. Petitioner in fact tried to exculpate himself by suggesting that it was his superiors — Atty. Kempis and Mr. Marcelo who had been negligent and whose negligence had really caused the loss of P50,000.00. We are unable to take seriously petitioner's claim that because the superiors had not waited for restoration of electric power in the office of the City Treasurer of Manila before proceeding with the distribution of the P7,640,000.00, his superiors should be held responsible for the loss. Concededly, it had not been customary to distribute funds in a room other than the central vault. However, the distribution was done in the room of Atty. Kempis which, petitioner Estepa had admitted, was sufficiently lighted by sunlight coming through one of the windows. Moreover, as already pointed out, except for Mr. Marcelo, Atty. Kempis, and the ten (10) paymasters and the person guarding the entrance of the room, no other persons had been allowed to enter the room until after all the ten (10) paymasters had received the correct amount requisitioned by them. Finally, since no one had asserted otherwise when Mr. Marcelo had asked the group if everyone had been served, as it were, he had no reason to suppose that petitioner then had not yet ascertained (as he now claims) whether he had received the frill P850,000.00. Finally, petitioner argues that the ponente, Associate Justice Buenaventura J. Guerrero had no authority to write the decision in Case No. 3658 because he was not a member of the First Division of the Sandiganbayan when that case was heard. Section 3, Rule V of the Sandiganbayan reads: Sec. 3. Assignment of Cases Permanent. — Cases assigned to a division of the Sandiganbayan in accordance with these rules shall remain with said division notwithstanding changes in the composition thereof and all matters raised therein shall be deemed to be submitted for consideration and adjudication by any and all of the Justices who are members of the division aforesaid at the time said matters are taken

87 up, irrespective of whether they were or were not members of the division at the time the case was first assigned thereto; Provided, however, that only such Justices who are members of the division at the time a case is submitted for decision shall take part in the consideration and adjudication of said case, unless any such member thereafter ceases to be a member of the Sandiganbayan for any reason whatsoever in which case any Justice chosen to fill the vacancy in accordance with the manner provided in Section 2, Rule III, of these Rules shall participate in the consideration and adjudication of said case; Provided, lastly that the Sandiganbayan en banc may, for special or compelling reasons, transfer cases from one division thereof to another. (Emphasis supplied.) Under the foregoing Section, any member of a Division of the Sandiganbayan who is such at the time a case is submitted for decision may take part in the consideration and adjudication of that case. In the instant case, we therefore agree with the Solicitor General that since Justice Guerrero was a member of the First Division of the Sandiganbayan at the time the case was submitted for decision, there was no legal objection to his writing the decision for the Division. WHEREFORE, the Petition for Review is DENIED for lack of merit and the Decision of the First Division of the Sandiganbayan dated 15 December 1981 is hereby AFFIRMED. SO ORDERED.

88 G.R. No. 102356 February 9, 1993 CALINICO B. ILOGON, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. Florecita V. Bilbes for petitioner. The Solicitor General for public respondents.

CAMPOS, JR., J.: This is a petition for review on certiorari of the Decision * of the Sandiganbayan in Criminal Case No. 9776 entitled "People of the Philippines vs. Calinico B. Ilogon", dated May 14, 1991 finding petitioner guilty of the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code and sentencing him to the indeterminate penalty of from ten (10) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum, with the accessory penalties of the law; to suffer the penalty of perpetual special disqualification; and to pay a fine in the sum of P118,003.10, an amount equal to the amount malversed, with costs. Petitioner Calinico B. Ilogon was the acting Postmaster of the Bureau of Posts in Cagayan de Oro City from July, 1978 to January, 1986. He likewise performed the task of accepting payments, making collections and effecting disbursement as there was no cashier employed during the period of his incumbency. He was adept at this work because, before his designation as Acting Postmaster he was, as a matter of fact, a duly-appointed cashier. On September 19, 1983, Commission on Audit Auditors Robin S. Aban and Alfonso A. Gala conducted an examination of the cash and accounts of petitioner covering the period from September 8, 1983 to September 13, 1988. The examination showed that the petitioner incurred a shortage in his accounts amounting to P118,871.29 itemized in the following manner: Accountability: Balance shown by your cashbook on September 12, 1983 certified correct by you and verified by us P171,999.42 Credits to Accountability: Deduct: Cash, checks, and treasury warrants P 40,116.13 cash items allowed 13,012.00 P 53,128.13 ————— ————— Shortage P 118,871.291 ========= The amount of shortage was later reduced to P118,003.10. This shortage represents the following: 1. Vales P 8,846.00 2. Cash shortage (paid vouchers) already reimbursed and/or paid and received by you P 48,028.58

89 3. Cash items disallowed (paid vouchers) already reimbursed and/or paid and received by individual creditors P 5,787.97 4. Cash items disallowed (paid vouchers) amount disallowed by the Regional Office P 31,036.85 5. Cash items disallowed (paid vouchers) amount still payable non-budgetry expenses as certified by the accountant P 19,555.84 6. Actual shortage P 4,747.86 ————— P 118,003.102 ========= On November 27, 1984, petitioner was charged with the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code in an Information3 which reads as follows: That on or about September 13, 1983 or prior and subsequent thereto, in Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Tribunal, the said accused, a public officer, being the Acting Postmaster of the Bureau of Posts of the said City, and as such accountable for the public funds collected and received by reason of his position, did then and there, wilfully, unlawfully and feloniously, and with grave abuse of confidence misappropriate, misapply and embezzle for his own personal use and benefit from the said funds, the total sum of ONE HUNDRED EIGHTEEN THOUSAND AND THREE PESOS AND TEN CENTAVOS (P118,003.10) Philippine Currency, to the damage and prejudice of the government. CONTRARY TO LAW. Before the Sandiganbayan, herein petitioner put up the following defense: 1. In respect to the shortage of P8,846.00, Item 1 in the auditor's letter of demand, the amount represents vales (cash advances) granted to postal employees of Cagayan de Oro City in payment of salaries or wages which the accused paid out to them, even before the period for which they were supposed to be paid. He received reimbursement checks on the 20th or 25th September, 1983 in payment thereof, but he remitted these payments to the Land Bank of the Philippines only on October 17, 1983, per Official Receipt Number 312164. . . . 2. As regards that category of shortage amounting to P48,028.58, the accused claims that this amount represents the aggregate of the cash advances to salaries of the Regional Director, Postal Inspector, and postal employees of Davao, Iloilo and other places who were assigned in Cagayan de Oro City. The accused did not have these amounts on hand when his cash and account were audited on September 13, 1983, because the reimbursements for the said cash advances were not yet in his possession. If they were, the amounts given were less than the amounts stated in the voucher, consisting, therefore, of partial liquidations. In case of a partial liquidation, he would simply annotate the partial payment in the voucher. He would not enter partial payments in the cash book. 3. Respecting that category of shortage amounting to P5,787.97, the accused explained that this shortage constituted cash advances to postal employees. While reimbursement checks had already been paid to the employees involved by the Regional Office of the Bureau of Posts, these employees had negotiated or encashed their reimbursement checks without turning over the proceeds thereof to the accused Acting Postmaster. The accused claims that the shortage had later been paid through a remittance he made in the Sum of P20,438.60, Exhibit "14", and in the amount of P65,000.00, Exhibit "10" xxx xxx xxx

90 Finally, as regards the cash shortage of P4,747.86, the accused admitted the fact that he did not actually have this amount of cash when, during the audit, he was told to present all his cash on hand. It is his claim that all the while, this amount had in fact been in the possession of his teller. While he forgot to tell the auditors that the cash was actually with the teller, he remitted this amount to the Land Bank on September 19, 1983, as evidenced by Official Receipt No. 31176, Exhibit "11".4 After trial, the respondent Sandiganbayan found petitioner guilty beyond reasonable doubt of the crime charged. Hence, this appeal. Petitioner would try to evade the application of Article 217 of the Revised Penal Code by arguing that he never misappropriated the amount of P118,003.10 for his own personal use as the bulk of it was given as cash advances to his coemployees. He pleads: . . . the act of petitioner in giving out vales and/or cash advances should not be condemned or be considered as a criminal act but should instead be lauded not only because the same was done purely for humanitarian reasons and that is to alleviate the plight of his co-employees during those hard times when the salaries of lowly government employees were very much below the ordinary level of subsistence and his desire to see to it that the public interest will not be jeopardized, . . ., but also because this has been the undisturbed practice in their office since time immemorial, even before the accused's incumbency . . . . 5 Petitioner's argument fails to persuade Us. In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received public funds and that he did not have them in his possession when demand therefor was made. There is even no need of direct evidence of personal misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same.6 In this case, petitioner was the official custodian of the missing funds. He himself admitted the shortage of P118,003.10 in his cash and accounts as Acting Postmaster but could not give a satisfactory explanation for the same. he would invoke what he calls "humanitarian reasons" as the justification for the said shortage. But, like the accused Cabello v. Sandiganbayan,7 petitioner herein knows that his granting of "chits" and "vales" which constituted the bulk of the shortage was a violation of the postal rules and regulations. Such practice, it was held in Cabello, is also prohibited by Memoramdum Circular No. 570, dated June 29, 1968, of the General Auditing Office. This Court went further to state that "giving vales" is proscribed under Presidential Decree No. 1445, otherwise known as the Government Auditing Code of the Philippines, specifically Section 69 thereof, which provides that postmasters are only allowed to use their collections to pay money orders, telegraphic transfers and withdrawals from the proper depository bank whenever their cash advances for the purpose are exhausted."8 The fact that petitioner did not personally use the missing funds is not a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, "the fact that (the) immediate superiors of the accused (petitioner herein) have acquiesced to the practice of giving out cash advances for convenience did not legalize the disbursements". The fact also that petitioner fully settled the amount of P188,003.10 later is of no moment. The return of funds malversed is not a defense. It is neither an exempting circumstance nor a ground for extinguishing the accused's criminal liability. At best, it is a mitigating circumstance.9 In the light of the above finding and under the plain language of the applicable laws, We hold that the evidence was sufficient to sustain the verdict finding the petitioner guilty of the crime charged. The judgment of the Sandiganbayan is hereby AFFIRMED and the petition is DISMISSED. SO ORDERED.

91 [G.R. No. 116033. February 26, 1997] ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, BATAUSA, respondents.

PEOPLE

OF

THE PHILIPPINES and

JOSE C.

DECISION PANGANIBAN, J.: Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a public officer and therefore subject to the graft courts jurisdiction as a consequence of such designation by the BIR? These are the main questions in the instant petition for review of respondent Sandiganbayans Decision [1] in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and property, and Resolution[2] dated June 20, 1994, denying his motion for new trial or reconsideration thereof.

The Facts Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling dirt and ore. [3] His services were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the formers premises.[4] From this set of circumstances arose the present controversy. x x x It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his authorized representative of Revenue Region 10, Butuan City commanding the latter to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by accused Azarcon on June 17, 1985.[5] Petitioner Azarcon, in signing the Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue, assumed the undertakings specified in the receipt the contents of which are reproduced as follows: (I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the following described goods, articles, and things: Kind of property Motor number Chassis No. Number of CXL Color Owned By

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Isuzu dump truck E120-229598 SPZU50-1772440 6 Blue Mr. Jaime Ancla

the same having been this day seized and left in (my) possession pending investigation by the Commissioner of Internal Revenue or his duly authorized representative. (I) further promise that (I) will faithfully keep, preserve, and, to the best of (my) ability, protect said goods, articles, and things seized from defacement, demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter or remove or dispose of the same in any manner without the express authority of the Commissioner of Internal Revenue; and that (I) will produce and deliver all of said goods, articles, and things upon the order of any court of the Philippines, or upon demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of Internal Revenue. [6] Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIRs Regional Director for Revenue Region 10 B, Butuan City stating that x x x while I have made representations to retain possession of the property and signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his operations with us. This is evidenced by the fact that sometime in August, 1985 he surreptitiously withdrew his equipment from my custody. x x x In this connection, may I therefore formally inform you that it is my desire to immediately relinquish whatever responsibilities I have over the above-mentioned property by virtue of the receipt I have signed. This cancellation shall take effect immediately. x x x .[7] Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP concession. By the time the order to bar the trucks exit was given, however, it was too late.[8]

92 Regional Director Batausa responded in a letter dated May 27, 1986, to wit: An analysis of the documents executed by you reveals that while you are (sic) in possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which you have signed, obliged and committed to surrender and transfer to this office. Your failure therefore, to observe said provisions does not relieve you of your responsibility. [9] Thereafter, the Sandiganbayan found that On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of the surreptitious taking of the dump truck and that Ancla was renting out the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation of the Philippines, the same company which engaged petitioners earth moving services), Mangagoy, Surigao del Sur. She also suggested that if the report were true, a warrant of garnishment be reissued against Mr. Cueva for whatever amount of rental is due from Ancla until such time as the latters tax liabilities shall be deemed satisfied. x x x However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calos report. [10] Provincial Fiscal Pretextato Montenegro forwarded the records of the complaint x x x to the Office of the Tanodbayan on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado Vasquez. [11] Along with his co-accused Jaime Ancla, petitioner Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following Information[12]filed on January 12, 1990, by Special Prosecution Officer Victor Pascual: That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private individual but who, in his capacity as depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to be such under the authority of the Bureau of Internal Revenue, has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and there wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority, consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability. CONTRARY TO LAW. The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code. [13] The Sandiganbayan granted the motion for reinvestigation on May 22, 1991.[14] After the reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the withdrawal of the information[15] but was overruled by the Ombudsman.[16] A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a public officer. [17] On May 18, 1992, the Sandiganbayan denied the motion.[18] When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file demurrer to evidence which was denied on November 16, 1992, for being without merit. [19] The petitioner then commenced and finished presenting his evidence on February 15, 1993.

The Respondent Courts Decision On March 8, 1994, respondent Sandiganbayan[20] rendered a Decision,[21] the dispositive portion of which reads: WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt as principal of Malversation of Public Funds defined and penalized under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case of insolvency; to suffer special perpetual disqualification; and, to pay the costs.

93 Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court up to this date, let this case be archived as against him without prejudice to its revival in the event of his arrest or voluntary submission to the jurisdiction of this Court. SO ORDERED. Petitioner, through new counsel,[22] filed a motion for new trial or reconsideration on March 23, 1994, which was denied by the Sandiganbayan in its Resolution[23] dated December 2, 1994. Hence, this petition.

The Issues The petitioner submits the following reasons for the reversal of the Sandiganbayans assailed Decision and Resolution: I. The Sandiganbayan does not have jurisdiction over crimes committed solely by private individuals. II. In any event, even assuming arguendo that the appointment of a private individual as a custodian or a depositary of distrained property is sufficient to convert such individual into a public officer, the petitioner cannot still be considered a public officer because: [A] There is no provision in the National Internal Revenue Code which authorizes the Bureau of Internal Revenue to constitute private individuals as depositaries of distrained properties. [B] His appointment as a depositary was not by virtue of a direct provision of law, or by election or by appointment by a competent authority. III. No proof was presented during trial to prove that the distrained vehicle was actually owned by the accused Jaime Ancla; consequently, the governments right to the subject property has not been established. IV. The procedure provided for in the National Internal Revenue Code concerning the disposition of distrained property was not followed by the B.I.R., hence the distraint of personal property belonging to Jaime C. Ancla and found allegedly to be in the possession of the petitioner is therefore invalid. V. The B.I.R. has only itself to blame for not promptly selling the distrained property of accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime C. Ancla to the Bureau.[24] In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the controversy. Corollary to this is the question of whether petitioner can be considered a public officer by reason of his being designated by the Bureau of Internal Revenue as a depositary of distrained property.

The Courts Ruling The petition is meritorious.

Jurisdiction of the Sandiganbayan

It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into.[25] Furthermore, the jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied.[26] And for this purpose in criminal cases, the jurisdiction of a court is determined by the law at the time of commencement of the action.[27] In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that: SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:

94 (a) Exclusive original jurisdiction in all cases involving: (1) 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 of the Revised Penal Code; (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court. xxxxxxxxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees. x x x x x x x x x. The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction.

Azarcon: A Public Officer or A Private Individual?

The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayans jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC determines who are public officers: Who are public officers. -- For the purpose of applying the provisions of this and the preceding titles of the book, any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer. Thus, (to) be a public officer, one must be -(1) Taking part in the performance of public functions in the government, or Performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and (2) That his authority to take part in the performance of public functions or to perform public duties must be -a. by direct provision of the law, or b. by popular election, or c. by appointment by competent authority.[28] Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. The next logical query is whether petitioners designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. [29] We answer in the negative. The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime Ancla, and in requiring the petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively designated petitioner a depositary and, hence, citing U.S. vs. Rastrollo,[30] a public officer.[31] This is based on the theory that

95 (t)he power to designate a private person who has actual possession of a distrained property as a depository of distrained property is necessarily implied in the BIRs power to place the property of a delinquent tax payer (sic) in distraint as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National Internal Revenue Code, (NIRC) x x x. [32] We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIRs administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by petitioner Azarcon. In the cited case, it was clearly within the scope of that courts jurisdiction and judicial power to constitute the judicial deposit and give the depositary a character equivalent to that of a public official. [33] However, in the instant case, while the BIR had authority to require petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer. It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative agencies exercise only that power delegated to them as defined either in the Constitution or in legislation or in both.[34] Thus, although the appointing power is the exclusive prerogative of the President, x x x [35] the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that conferred expressly or by necessary or fair implication in its enabling act. Hence, (a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. [36] Corollarily, implied powers are those which are necessarily included in, and are therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental thereto.[37] For to so extend the statutory grant of power would be an encroachment on powers expressly lodged in Congress by our Constitution.[38] It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring any person to preserve a distrained property, thus: xxxxxxxxx The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having possession or control of such property to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the express authority of the Commissioner. xxxxxxxxx However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIRs power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. The prosecution argues that Article 222 of the Revised Penal Code x x x defines the individuals covered by the term officers under Article 217[39] x x x of the same Code.[40] And accordingly, since Azarcon became a depository of the truck seized by the BIR he also became a public officer who can be prosecuted under Article 217 x x x. [41] The Court is not persuaded. Article 222 of the RPC reads: Officers included in the preceding provisions. -- The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice. [42] This is particularly observed in the interpretation of penal statutes which must be construed with such strictness as to carefully safeguard the rights of the defendant x x x.[43] The language of the foregoing provision is clear. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers.Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer. After a thorough review of the case at bench, the Court thus finds petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayans taking cognizance of this case is of no moment since (j)urisdiction cannot be conferred by x x x erroneous belief of the court that it had jurisdiction. [44] As aptly and correctly stated by the petitioner in his memorandum: From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction.[45] WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs.

96 SO ORDERED.

G.R. No. L-58652 May 20, 1988 ALFREDO RODILLAS Y BONDOC, petitioner vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. Santiago R. Robinol for petitioner. The Solicitor General for respondents.

GUTIERREZ, JR., J.: This is a petition brought by Alfredo Rodillas y Bondoc asking for the reversal of a decision of the Sandiganbayan which found him guilty beyond reasonable doubt of the crime of Infidelity in the Custody of Prisoner Thru Negligence (Art. 224, RPC). The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered finding accused Alfredo Rodillas y Bondoc GUILTY beyond reasonable doubt as principal in the crime of Evasion through Negligence, as defined and penalized under Article 224 of the Revised Penal Code, and there being no modifying circumstance to consider, hereby sentences him to suffer the straight penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor, to suffer eight (8) years and one (1) day of temporary special disqualification and to pay the costs of this action. SO ORDERED. (Rollo, p. 30) Petitioner Rodillas was charged with having committed the said crime in an information which reads as follows: That on or about the 27th day of March, 1980, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, said accused, being then a policeman duly appointed and qualified as such, hence a public officer, specially charged with the duty of keeping under his custody and vigilance and of conducting and delivery from the City Jail, Caloocan City to the Court of First Instance, Branch XXXIV, Caloocan City and return, one Zenaida Sacris Andres, a detention prisoner being tried for violation of Section 4, R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, under Crim. Case No. C-12888, did then and there with great carelessness and unjustifiable negligence, allow and permit said Zenaida Sacris Andres to have snacks and enter the comfort room at the second floor of the Genato Building, Rizal Avenue, Caloocan City after the hearing of said case, v,,ithout first ascertaining for himself whether said comfort room is safe and without any egress by which the said detention prisoner could escape, thereby enabling said Zenaida Sacris Andres, to run away and escape thru the window inside the comfort room, as in fact she did run away and escape from the custody of said accused. CONTRARY TO LAW. (Rollo, p. 6) The prosecution's evidence upon which the court based its finding of guilt is summarized as follows: ... accused herein is a Patrolman of the Integrated National Police Force of Caloocan City and assigned with the jail section thereof. On March 27, 1980, when he reported for work, he was directed by his superior, Corporal Victor Victoriano, officer-in-charge in assigning police officers to escort prisoners, to escort Zenaida Sacris deadline Andres, a detention prisoner, before the sala of Judge Bernardo Pardo of the Court of First Instance, Br.XXXIV, located at the Genato Building, Caloocan City, to face trial for an alleged Violation of the Dangerous Drugs Act of 1972, as the policewoman officer who was supposed to escort the said detainee was then sick. He and the detainee proceeded to the court building and arrived thereat between 8:30 and 9:00 o'clock in the morning. while waiting for the arrival of the judge at the courtroom, Pat. Orlando Andres, who happened to be in the court and a relative of the husband of said detention prisoner Zenaida, approached the accused and requested the latter if he could permit Zenaida to talk to her husband. The accused consented and Zenaida Andres had a short talk with her husband. After a short while, the presiding judge deferred the decision against her because of a new Presidential Decree revising some provisions regarding violations of the Dangerous Drugs Act.

97 After the court had already adjourned, the husband of Zenaida requested the accused to allow them to have lunch as they were already very hungry. He consented to the request and they proceeded to the canteen located at the mezzanine floor of the court building (Exhibit 1).<äre||anº•1àw> He took a seat beside Zenaida and Pat. Andres while the relatives of said detainee were seated at a separate table. While eating, the husband of Zenaida asked him if he could accompany his wife to the comfort room as she was not feeling well and felt like defecating. The accused accompanied Zenaida and a lady companion to the ladies' comfort room located at the second floor of the building (Exibit 2). Zenaida and her lady companion entered the comfort room, while he stood guard along the alley near the ladies' comfort room facing the door thereof (Exhibit 5). Not long after, the lady companion of Zenaida came out of the comfort room and told him that she was going to buy sanitary napkins for Zenaida as the latter was then bleeding and had a menstruation and could not go out of the comfort room. After ten minutes elapsed without the lady companion of Zenaida coming back, the accused became suspicious and entered the comfort room. To his surprise, he found Zenaida no longer inside the comfort room. He noticed that the window of said comfort room was not provided with window grills. He tried to peep out of the window by stepping on the flush tank which is just about 3 feet from the window and noticed that outside of the window there was a concrete eave extending down to the ground floor of the building which he presumed that Zenaida might have used as a passage in escaping (Exhibits 2-A, 3 and 4 to 4-C). He immediately went out to look for the escapee inside the building with the help of Pat. Andres but they were not able to see her. Pat. Andres advised him to go to Zenaida's house as she might be there, which home is located at Bagong Barrio, Caloocan City. Pat. Andres having told him that the husband of the escapee is from Rizal, Nueva Ecija, the accused borrowed the car of his brother-in-law and proceeded to said town. Upon arrival thereat, they contacted the relatives of Zenaida and asked for information as to her whereabouts, but they answered in the negative. They went back to Caloocan City and went again directly to Bagong Barrio to the house of Zenaida, arriving thereat at around 8:00 o'clock in the evening. While at the residence of Zenaida, Cpl. Victoriano arrived and the accused related to him about the escape of Zenaida. He formally reported the matter of his superior officer at the City Jail Capt. Leonardo Zamora. The accused declared further that as a jailer, he never had any training nor lecture by his superiors regarding the manner of delivering prisoners. However, he admitted that he did not inspect first the comfort room before he allowed Zenaida to enter because there were many females going in and out of said comfort room, and that he did not promptly report the escape earlier because they were then pressed for time to intercept Zenaida at the highway. (Rollo, pp. 18-21). The petitioner assigns the following errors: I WHETHER PETITIONER'S CONVICTION BY THE SANDIGANBAYAN BASED ONLY ON HIS ADMISSIONS WITHOUT THE PROSECUTION HAVING PRESENTED EVIDENCE TO PROVE HIS NEGLIGENCE WILL LIE. II WHETHER THE ACTS OF PETITIONER COULD BE QUALIFIED AS DEFINITE LAXITY AMOUNTING TO DELIBERATE NON-PERFORMANCE OF DUTY TO SUSTAIN HIS CONVICTION. (Brief for the petitioner, p. 5) In essence, the sole question to be resolved in the case at bar is whether, under the foregoing facts and circumstances, the respondent Sandiganbayan committed a reversible error in holding the petitioner guilty of infidelity in the custody of a prisoner through negligence penalized under Art. 224 of the Revised Penal Code. The petitioner specifically alleges that his conviction by the Sandiganbayan was based merely on his admissions without the prosecution presenting evidence to prove his negligence. Sec. 22, Rule 130 of the Rules of Court states that "the act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. The admissions and declarations in open court of a person charged with a crime are admissible against him. (See U.S. v. Ching Po, 23 Phil. 578). The records show that the elements of the crime for which the petitioner was convicted are present. Article 224 of the Revised Penal Code states: ART. 224. Evasion through negligence. If the evasion of the prisoner shall have taken place through the negligence of the officer charged with the conveyance or custody of the escaping prisoner, said officer shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period and temporary special disqualification.

98 The elements of the crime under the abovementioned article are: a) that the offender is a public officer; b) that he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; and c) that such prisoner escapes through his negligence (See Reyes, L.B., Revised Penal Code, Book II, 1977 ed., p. 407). There is no question that the petitioner is a public officer. Neither is there any dispute as to the fact that he was charged with the custody of a prisoner who was being tried for a violation of the Dangerous Drugs Act of 1972. The only disputed issue is the petitioner's negligence resulting in the escape of detention prisoner Zenaida Andres. The negligence referred to in the Revised Penal Code is such definite laxity as all but amounts to a deliberate non-performance of duty on the part of the guard (Id., p. 408). It is evident from the records that the petitioner acted negligently and beyond the scope of his authority when he permitted his charge to create the situation which led to her escape. The petitioner contends that human considerations compelled him to grant Zenaida Andres requests to take lunch and to go to the comfort room to relieve herself. As a police officer who was charged with the duty to return the prisoner directly to jail, the deviation from his duty was clearly a violation of the regulations. In the first place, it was improper for the petitioner to take lunch with the prisoner and her family when he was supposed to bring his charge to the jail. He even allowed the prisoner and her husband to talk to each other at the request of a co-officer. It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure to undertake these precautions will make his act one of definite laxity or negligence amounting to deliberate non-performance of duty. His tolerance of arrangements whereby the prisoner and her companions could plan and make good her escape should have aroused the suspicion of a person of ordinary prudence. The request for lunch and the consequent delay was an opportunity for the prisoner to learn of a plan or to carry out an earlier plan by which she could escape. The plan was in fact carried out with the help of the lady who accompanied his prisoner inside the comfort room. The use of a toilet is one of the most familiar and common place methods of escape. It is inconceivable that a police officer should fall for this trick. The arrangement with a lady friend should have aroused the petitioner's suspicion because the only pretext given by the petitioner was that she was going to answer the call of nature. It was, therefore, unnecessary for her to be accompanied by anyone especially by someone who was not urgently in need of a toilet if the purpose was merely to relieve herself. Despite this, the petitioner allowed the two to enter the comfort room without first establishing for himself that there was no window or door allowing the possibility of escape. He even allowed the prisoner's companion to leave the premises with the excuse that the prisoner was having her monthly period and that there was a need to buy sanitary napkins. And he patiently waited for more than ten minutes for the companion to return. This was patent negligence and incredible naivette on the part of the police officer. Contrary to what the petitioner claims, the escape was not a confluence of facts and,circumstances which were not foreseen and were not unnatural in the course of things. Not only should they have been foreseen but they should have been guarded against. Considering that the city jail was only a kilometer away and it was only 11:30 a.m., it would not have been inhuman for the petitioner to deny the prisoner's request to first take lunch. Neither would it have been inhuman if he cleared the toilet of female occupants and checked all possible exists first and if he did not allow the lady companion to go with Zenaida Andres to the comfort room. These human considerations, however, are immaterial because the fact remains that as a police officer, he should have exercised utmost diligence in the performance of his duty. The supposed confluence of facts does not alter his liability. That he was not trained in escorting women prisoners is likewise unacceptable as there are no hard and fast rules of conduct under all conceivable situations for police officers acting as guards. However, they are expected to use prudence, diligence, and common sense. That Judge Pardo did not immediately pronounce judgment so the petitioner could have immediately brought Zenaida back to jail is inconsequential. In the first place, the escape would not have materialized had he immediately escorted her back to jail after the hearing. That he cannot follow the prisoner inside the comfort room because it would create a commotion, he being a male, is a lame excuse. There is nothing wrong in asking the ladies for permission so he could check the comfort room first to insure that the prisoner cannot escape. The fact that the building is made of concrete and the outside windows covered with grills should not make a police officer complacent especially because well-planned escapes are not uncommon. Escapes are, in fact, even presumed so much so that two (2) guards are usually assigned to a prisoner. (Tsn, August 4, 1981, p. 40) There appears to have been no genuine effort on the part of the petitioner to recapture the escapee. Instead of promptly reporting the matter so that an alarm could immediately be sent out to all police agencies and expert procedures followed, he allegedly tried to look for her in the latter's house in Caloocan and failing in this, proceeded to Nueva Ecija. It was only later in the evening that he formally reported the matter to his superior. This even gave the escapee greater opportunity to make good her escape because the chances of her being recaptured became much less. Such action requires concerted police effort, not a one-man job which petitioner should have been or was probably aware of.

99 The petitioner further contends that he cannot be convicted because there was no connivance between him and the prisoner. In support of his claim, he cites the case of Alberto v. dela Cruz, (98 SCRA 406). The citation, however, is erroneous. It creates the impression that for one to be held liable under Art. 224, there must be a showing that he first connived with the prisoner. This was not the ruling in said case. Conniving or consenting to evasion is a distinct crime under Art. 223 of the Revised Penal Code. The petitioner here is not being charged with conniving under Art. 223 but for evasion through negligence under Art. 224 of the same Code. It is, therefore, not necessary that connivance be proven to hold him liable for the crime of infidelity in the custody of prisoners. We quote the Solicitor General that the Sandiganbayan's observation regarding escaped prisoners is relevant and timely. The Court stated: It is high time that the courts should take strict measures against law officers to whom have been entrusted the custody and detention of prisoners, whether detention prisoners or prisoners serving sentence. Laxity and negligence in the performance of their duties resulting in the mysterious escapes of notorious criminals have become common news items, involving as it does the suspicion that monetary considerations may have entered into the arrangements which led to the successful escape of such notorious criminals even from military custody. No quarters should be extended to such kind of law officers who, deliberately or otherwise, fail to live up to the standard required of their duties, thus directly contributing not only to the clogging of judicial dockets but also to the inevitable deterioration of peace and order. (Brief for Respondents, pp. 17-18) WHEREFORE, the petition is hereby DISMISSED. The questioned decision of the Sandiganbayan is AFFIRMED. SO ORDERED.