THIRD DIVISION PEOPLE OF THEPHILIPPINES, Plaintiff-Appellee, G.R. No.

186418 Present:

Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The facts gathered from the records are as follows:

- versus

CARPIO MORALES,* J., On 17 June 2004, two separate informations were filed CHICO-NAZARIO, Acting Chairperson, before the RTC against appellant for illegal sale and possession NACHURA, LEONARDO-DE CASTRO, of shabu under Sections 5 and 11, Article II of Republic Act No. ABAD,*** JJ. 9165. The accusatory portion of the informations read: Promulgated: Criminal Case No. 23227-R The undersigned accuses ALFREDO LAZARO, JR. a.k.a JUN LAZARO y AQUINO for VIOLATION OF SECTION 5, ARTICLE II OF REPUBLIC ACT 9165 otherwise known as the COMPREHENSIVE Dangerous Drugs Act of 2002, committed as follows: That on June 15, 2004, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, x x x, and without authority of law, did then and there willfully, unlawfully and feloniously sell, distribute and/or deliver One (1) small heat sealed transparent plastic sachet containing Methamphetamine Hydrochloride known as Shabu in the amount of P3,000.00 [should be P300], weighing 0.05 gram to Poseur Buyer SPO1 Dennis G. Indunan, knowing fully well that said Methamphetamine Hydrochloride known as Shabu is a dangerous drug, in violation of the aforementioned provision of law.[3] Criminal Case No. 23229-R The undersigned accuses JUN LAZARO y AQUINO for VIOLATION OF SECTION 11, ARTICLE II OF REPUBLIC ACT 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002 committed as follows:

ALFREDO LAZARO, JR.a.k.a JUN LAZARO y AQUINO, Accused-Appellant.

October 16, 2009 x-------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

For review is the Decision[1] dated 18 July 2008 of the Court of Appeals in CA-G.R. CR-HC No. 02258 which affirmed with modification the Decision[2] dated 27 April 2006 of the Regional Trial Court (RTC), Branch 61, Baguio City, in Criminal Cases No. 23227-R, No. 23228-R and No. 23229-R, finding accused-appellant Alfredo Lazaro, Jr. a.k.a Jun Lazaro y Aquino guilty of illegal sale, possession and use of methamphetamine hydrochloride, popularly known as shabu, under Sections 5, 11, and 15, Article II of Republic

That on June 15, 2004, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused x x x, did then and there willfully, unlawfully and feloniously have in his possession and control One (1) small heat sealed transparent plastic sachet containing Methamphetamine Hydrochloride known as Shabu weighing 0.04 gram, a dangerous drug, without the corresponding license or prescription in violation of the aforecited provision of law.[4]

The prosecution presented as witnesses Police Senior Inspector Hordan T. Pacatiw, Senior Police Officer (SPO) 1 Dennis G. Indunan, SPO1 Emerson A. Lingbawan and PO3 Paulino A. Lubos, all of whom are members of the Philippine National Police and were assigned at the Criminal Investigation and Detection Group, AntiIllegal Drugs Team unit, Baguio City. Their testimonies, taken together, bear the following:

On 18 June 2004, an information was filed with the RTC against appellant for illegal use of shabu under Section 15, Article II of Republic Act No. 9165, thus: Criminal Case No. 23228-R The undersigned accuses JUN LAZARO for VIOLATION OF SECTION 15 [ARTICLE II] OF REPUBLIC ACT 9165 [otherwise known as the Comprehensive Dangerous Drugs Act of 2002], committed as follows: That on or about the 15 day of June, 2004, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously use Dangerous Drugs particularly Methamphetamine per the result of a Qualitative Examination conducted on the urine sample taken from him, in violation of the aforecited provision of law.[5]
th

On 15 June 2004, at about 12:30 p.m., an informant went to the Criminal Investigation and Detection Group (CIDG), Anti-Illegal Drugs Team unit (AIDT), Baguio City, and reported to PO3 Paulino Lubos (PO3 Lubos) the drug trafficking activities of appellant in Central Bakakeng, BaguioCity. PO3 Lubos relayed the

information to Police Senior Inspector Hordan T. Pacatiw (Inspector Pacatiw), head of AIDT, who in turn, referred the matter to Senior Superintendent Marvin V. Bolabola (Superintendent Bolabola), chief of CIDG, Baguio City, for appropriate action. Superintendent

Bolabola formed a team and planned a buy-bust operation. The team was composed of Inspector Pacatiw who would act as the team leader; SPO1 Dennis G. Indunan (SPO1 Indunan) as the poseur-buyer; PO3 Lubos as the seizing officer; and SPO1 Emerson A. Lingbawan (SPO1 Lingbawan) as the arresting officer.

Superintendent Bolabola handed SPO1 Indunan three One Hundred Subsequently, these cases were consolidated. When Peso (P100.00) bills to be utilized as buy-bust money. SPO1 Indunan marked the monies with DG-06-15-04. Thereafter, the team coordinated the planned buy-bust operation with the

arraigned on 28 June 2004, appellant, assisted by counsel de oficio, pleaded Not guilty to each of the charges.[6] Trial on the merits thereafter followed.

Philippine Drug Enforcement Agency (PDEA).

At around 2:30 p.m. of the same date, the team, together with the informant, went to appellants house at 181 Km. 3, Central Bakakeng, BaguioCity. Upon arriving thereat, the informant and SPO1 Indunan saw appellant standing at the balcony of the third floor of the three-storey house. The informant proceeded inside appellants house and talked with appellant at the balcony of the third floor, while SPO1 Indunan stood outside the house at a distance of 10 meters. The rest of the team positioned themselves outside appellants house at a distance of 25 meters. Later, the informant signaled SPO1 Indunan to approach him and appellant at the balcony of the third floor. Thereupon, the informant introduced SPO1 Indunan to appellant as user and buyer of shabu. The informant subsequently excused himself and left SPO1 Indunan and appellant. Appellant then asked SPO1 Indunan how much worth of shabu he would want to buy. SPO1 Indunan answered he would like to purchase three hundred pesos (P300.00) worth of shabu. Appellant knocked at the door of a room in the balcony and called a certain Bong. Bong is appellants brother whose full name is Ferdinand Bong Lazaro. A man opened the door and handed a green box to appellant. Appellant opened the green box, took a plastic sachet from it, handed the plastic sachet to SPO1 Indunan, and demanded payment from the latter. After examining the contents of the plastic sachet and believing that the same contained shabu, SPO1 Indunan gave the three marked one

The other members of the team rushed to the crime scene and identified themselves as police officers. Appellant tried to resist arrest but he was subdued by the team. Inspector Pacatiw then apprised appellant of his constitutional rights. Afterwards, SPO1 Indunan frisked and recovered from appellant the buy-bust money and the green box which contained another plastic sachet with white substance. SPO1 Indunan marked with DG-06-15-04 the plastic sachet containing white substance sold to him by appellant, as well as the plastic sachet with white substance found inside the green box.

Meanwhile, Inspector Pacatiw knocked at the door of a room on the balcony and called on Bong to open the door but to no avail. Inspector Pacatiw and some members of the team then forcibly opened the door. Although the team found no one inside the room, they, however, subsequently saw a man, whom they believed to be Bong, running down the basement of the house and exiting through its back door. The man then disappeared.

Thereafter, the team discovered and seized at the third floor of the house several drug paraphernalias. The team made a written inventory on said paraphernalias, as well as the plastic sachet sold by appellant to SPO1 Indunan and the plastic sachet recovered in appellants possession, in the presence of

hundred peso bills to appellant. At this juncture, SPO1 Indunan removed his sunglasses and placed it in his pocket as pre-arranged signal to the other members of the team.

representatives from media, the Department of Justice (DOJ) and the barangay. Said representatives signed the inventory document on the seized items. Inspector Pacatiw took custody of the said seized items.

The prosecution also adduced documentary and object The team immediately brought appellant, as well as the items seized, to the office of the CIDG, Baguio City. Thereupon, the team made a booking sheet, arrest report, a Joint Affidavit of Arrest and an Affidavit of Poseur-Buyer as regards the buy-bust operation. Superintendent Bolabola made a written request for physical examination of appellant to the PNP Benguet Provincial Crime Laboratory Office. After conducting a physical examination on appellant, Dr. Elizardo D. Daileg, medico-legal officer of the PNP Benguet Provincial Crime Laboratory Office, issued a medico-legal certificate attesting that no injuries were found on appellants body. Superintendent Bolabola also made separate written evidence to buttress the testimonies of its witnesses, to wit: (1) joint affidavit of the arresting officers signed by Inspector Pacatiw, SPO1 Lingbawan and PO3 Lubos (Exhibit A);[8] (2) affidavit of the poseur-buyer signed by SPO1 Indunan (Exhibit B);[9] (3) booking sheet and arrest report for appellant (Exhibit C);[10] (4) request to conduct laboratory examination on the two plastic sachets

recovered from appellant which was signed by Superintendent Bolabola;[11] (5) request for drug test on appellant signed by Superintendent Bolabola (Exhibit D);[12] (6) request for physical examination on appellant signed by Superintendent Bolabola (Exhibit E);[13] (7) medico-legal certificate signed by Dr. Daileg (Exhibit E-1);[14] (8) chemistry report on the drug test of appellant signed by Forensic Analyst Albon (Exhibit H);[15] (9) chemistry report on the content of plastic sachet sold by appellant to SPO1 Indunan and the content of the plastic sachet recovered from possession of appellant signed by Forensic Analyst Albon (Exhibit I);[16] (10) inquest disposition issued by the Office of the City Prosecutor, Baguio City (Exhibit J);[17] (11) written inventory on the items seized from appellant signed by representatives from the media, DOJ andbarangay (Exhibit M);[18] (12) coordination sheet with the PDEA (Exhibit N);[19] (13) receipt of the items seized from appellant signed by the members of the buy-bust team (Exhibit O); [20] (14) two plastic sachet containing shabu sold by and recovered from the possession of appellant (Exhibit K);[21] and (15) buy-bust money confiscated from appellant (Exhibit L).[22]

requests to the PNP Benguet Provincial Crime Laboratory Office for drug test on appellant and a laboratory examination on the plastic sachet containing white substance sold by appellant to SPO1 Indunan and the plastic sachet with white substance found in appellants possession. After conducting a laboratory examination on the urine sample taken from appellant, Police Officer 1 Juliet Valentin Albon, Forensic Analyst of the PNP Benguet Provincial Crime Laboratory Office (Forensic Analyst Albon), issued a report stating that appellant was positive for shabu. Likewise, after making laboratory tests, Forensic Analyst Albon issued a chemistry report certifying that the plastic sachet sold by appellant to SPO1 Indunan contained 0.05 gram of shabu while the plastic sachet recovered of shabu.[7] from appellants possession contained 0.04 gram

For its part, the defense proffered the testimonies of appellant and his father, namely Alfredo Lazaro, Sr. to refute the foregoing accusations. Appellant denied any liability and claimed he was framed.

and told him to contact Bong so that the latter may help him settle his case.

While

appellant

and

Jade

were

being

held

at

CIDG

office, Baguio City, a certain Rosita Salazar (Salazar), allegedly a Appellant testified that on 15 June 2004, between 2:00 p.m. to 3:00 p.m., he was sleeping in his room at the third floor of a three-storey house located at 181 Km. 3, Central Municipal Trial Court (MTC) Judge from Abra and Jades

grandmother, arrived and introduced herself to the policemen. The policemen ignored Salazar as the latter did not have any identification card. The policemen then brought appellant and Jade to the PNP Benguet Provincial Crime Laboratory Office where they were subjected to physical examination. Upon their return to the CIDG office, the policemen showed them three plastic sachets of shabu which would be used against them as evidence. Later, however, appellant learned that Jade was released by the policemen in exchange for a certain amount of money. During his detention in the CIDG office, he saw PO3 Lubos preparing the marked money. At that point, he realized that a case would be filed against him in court.

Bakakeng, Baguio City. He was roused from his sleep by the barking of dogs outside his house. He opened the door of his room and saw PO3 Lubos, Inspector Pacatiw, SPO1 Lingbawan, SPO1 Indunan and some members of the CIDG, Baguio City, namely Warren Lacangan, Jojo Unata and Jun Digula approaching. PO3 Lubos tried to hit him with the gun but he evaded it. Inspector Pacatiw hit him several times in the stomach with a gun. Said policemen kicked him several times causing him to fall on the floor. Thereafter, the policemen destroyed the door of his brothers (Ferdinand Bong Lazaro) room and entered therein. He was dragged inside the said room. Inspector Pacatiw, SPO1 Lingbawan and PO3 Lubos then took the laptop, diskman, Buddha coin bank and power tools inside the room. Subsequently, the policemen brought him to the second floor of the house where he saw Jade Salazar (Jade), the live-in partner of his brother, Renato

Appellant denied having sold to SPO1 Indunan one plastic sachet containing 0.05 gram of shabu on 15 June 2004. He claimed that it was impossible for the back-up members of the buy-bust team to have witnessed his alleged sale of shabu to SPO1 Indunan because there were big trees beside the three-storey house which blocked the view of persons on the ground looking up to the balcony of the third floor. He denied having received from Bong a green box during the alleged buy-bust and averred that Jade owned the green box.[23]

Lazaro. The policemen apprehended Jade, took the latters bag and a green box, and asked her the whereabouts of Bong. He and Jade were later brought to the CIDG office, Baguio City. Thereupon, the policemen took his wallet, demanded an amount of P200,000.00,

and was meted an imprisonment of twelve (12) years and one (1) Alfredo Lazaro, Sr., appellants father, testified that on 15 June 2004, at about 2:00 p.m., he was watching television inside his room at the third floor of the three-storey house situated at 181 Km. 3, Central Bakakeng, Baguio City. Later, he heard the barking of dogs outside the house. Curious, he opened the door of his room. He then saw PO3 Lubos and several policemen mauling appellant. Shocked, he uttered apay dayta? (Why is that?). PO3 Lubos and the policemen stopped beating appellant. As he was already experiencing chest pains, he returned to his room. Subsequently, he saw the policemen carrying a backpack and a plastic bag the contents of which belonged to Bong.[24] Appellant filed a Notice of Appeal on 12 August 2008.[26] Appellant appealed to the Court of Appeals. On 18 July 2008, the Court of Appeals promulgated its Decision partly granting the appeal. The appellate court affirmed the conviction of appellant in Criminal Cases No. 23227-R and No. 23229-R. However, it reversed the RTCs ruling in Criminal Case No. 23228-R by acquitting appellant in the said criminal case. day as minimum, to fifteen (15) years, as maximum. He was further ordered to pay a fine of P300,000.00.

The defense also submitted a written undertaking of Jade and a receipt of custody signed by Salazar in support of its contentions.[25]

In his Brief[27] and Supplemental Brief,[28] appellant assigned the following errors:

I. After trial, the RTC rendered a Decision convicting appellant in all of the criminal cases. In Criminal Case No. 23227-R, appellant was found guilty of violating Section 5 of Republic Act No. 9165 (illegal sale of shabu) was also and was sentenced to pay to a life fine II. THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSESS WHILE TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE; III. THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT;

imprisonment. He

ordered

of P500,000.00. On the other hand, in Criminal Case No. 23228-R, appellant was found guilty of violating Section 15 of Republic Act No. 9165 (illegal use of shabu) and was penalized with six months drug rehabilitation in a government center. With respect to Criminal Case No. 23229-R, appellant was found guilty of violating Section 11 of Republic Act No. 9165 (illegal possession of shabu)

THE TRIAL COURT ERRED IN DISREGARDING THE PROSECUTIONS FAILURE TO COMPLY WITH THE PROCEDURES LAID DOWN IN RA 9165.[29]

Q A

How many storeys is the house of the accused? About three (3), Sir. Where is the balcony where the man was standing? At the third floor, Sir. What happened next? The Informant told me to wait first and he would go ahead and talk to Jun, Sir. What happened next? After talking, the Informant signaled me to go near them, sir.

In the main, appellant argues that the prosecution failed to establish his guilt for illegal sale and possession of shabu.

Q A

To

secure

conviction

for illegal

sale of shabu,

the

Q A Q A xxxx Q A xxxx Q A Q A Q

following essential elements must be established: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and the payment thereof. In prosecutions for illegal sale ofshabu, what is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.[30] In the case at bar, the prosecution was able to establish, through testimonial, documentary and object

What happened next? The Informant signaled me to go near them, Sir.

evidence, the said elements.

SPO1 Indunan, the poseur-buyer, testified that appellant sold to him shabu during a legitimate buy-bust operation.[31] Per chemistry report of Forensic Analyst Albon, the substance,

What happened next? I was introduced to Jun as user and buyer of shabu, Sir. Were you introduced by name? No, Sir. What happened next? The Informant excused himself, Sir. And them?

weighing 0.05 gram, which was bought by SPO1 Indunan from appellant for P300.00, was examined and found to

be methamphetamine

hydrochloride or shabu. SPO1

Indunan

narrated the transaction with appellant as follows: Q A What happened next when you were already at the residence of the accused? When we were near the house, we saw a man standing at the balcony, Sir.

A Q

A Q A Q A Q A Q A Q A Q A Q

We talked with Jun and asked me how much will I buy, Sir. In what language or dialect? Tagalog, Sir. How? Magkano bang bibilhin mo and I said tatlong daan lang, Sir. What happened next? He knocked at the door and called out for Bong. Sir. What happened next? Bong opened the door and something a green box, Sir. handed Jun

And Jun opened the box and brought out one (1) plastic sachet and handed it to me and demanded for the payment, Sir. How? He said akina yong bayad, Sir. After he handed to you that sachet and asked for the payment what did you say also? I first examined the content and after believing that it was shabu, I handed the marked money, Sir.

Q A Q A

xxxx Q A Q A Q A xxxx PROS. CATRAL: Q The subject of your operation you already know him initially as Jun, did you eventually come to know his full name? Yes, Sir. What is his full name? Jun Aquino Lazaro, Sir. After that what happened next? After handling him the money, I gave the prearranged signal, Sir. What was your pre-arranged signal? By removing my sunglasses and placing it in my pocket, Sir. After you have happened next? made the signal what

How did you know that it was Bong? That is what I heard, Sir. Were you able to see the face of Bong during that time? Yes, Sir. After Bong had opened the door, what happened next? All this time you were beside Jun? Yes, Sir. What happened next after the green box was handed to Jun? The person told Jun eto na yong box, Sir. What happened next?

My back-up team rushed to where I am (sic), Sir.

A Q A Q

A Q A

Q A

If Jun Aquino Lazaro is in the courtroom would you be able to identify him? Yes, Sir.

Analyst Albon confirms that such plastic sachet found inside the green box contains 0.04 gram of shabu. The relevant portion of the testimony of SPO1 Indunan is as follows: Q A Q What happened next? After we controlled Jun we brought him to our office, Sir. Immediately? Yes, Sir. He was not searched at the area of operation? He was searched, Sir. Who searched him? I, Sir. What was the result of your search? I was able to find the marked money, Sir. Aside from the money what else did you recover from the person? The content of the box there is still one (1) sachet, Sir. If this sachet which you recovered from the accused will be shown to you again will you be able to identify it? Yes, Sir. How sure are you that you would be able to identify it? I placed my initials, Sir.

INTERPRETER: Witness pointed to a male person who gave his name as Jun Lazaro.[32]

Inspector

Pacatiw,

SPO1

Lingbawan

and

PO3

Lubos

corroborated the aforesaid testimony of SPO1 Indunan on relevant points.

A Q A

The prosecution adduced as its documentary and object evidence the transparent plastic sachet of shabu sold by appellant to SPO1 Indunan during the buy-bust operation, the chemistry report of Forensic Analyst Albon confirming that the plastic sachet sold by appellant to SPO1 Indunan contained 0.05 gram of shabu, and the marked money used during the buy-bust operation.

Q A Q A Q A Q

Parenthetically, in illegal possession of dangerous drugs, such as shabu, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.[33] All these elements have been established. SPO1 Indunan testified that after appellant sold to him shabu, he (SPO1 Indunan) and the members of the buy-bust team arrested appellant. He then frisked appellant and recovered from the latter a green box which contained plastic sachet with white granules. The chemistry report of Forensic

A Q A

I am showing to you another sachet, please tell us if this is the same sachet that you said that was confiscated? Yes, Sir. Please point to your initial? Yes, Sir. When did you place that? After the arrest of the accused, Sir.

have been affirmed by the appellate court, said findings are generally binding upon this Court.[35]

A Q A Q A

To rebut the overwhelming evidence for the prosecution, appellant interposed the defense of denial and frame-up. Appellant denied he soldshabu to SPO1 Indunan and he possessed a green box containing shabu during the buy-bust operation. He claimed that said green box was seized from Jade and that the arresting officers tried to extort money from him in exchange for his freedom.

PROS. CATRAL: The other sachet may we pray that this be marked as Exhibit K-1, your Honor. COURT: Mark it please.[34]

The defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions for violation of Dangerous Drugs Act. In order to prosper, the defenses

The testimonies of the prosecution witnesses regarding appellants illegal sale and possession of shabu are consistent with the documentary and object evidence submitted by the

of denial and frame-up must be proved with strong and convincing evidence.[36] In the cases before us, appellant failed to present sufficient evidence in support of his claims. Aside from his selfserving assertions, no plausible proof was presented to bolster his allegations.

prosecution.

The RTC and the Court of Appeals found the Both

testimonies of the prosecution witnesses to be credible.

courts also found no ill motive on their part to testify against appellant. It is true that appellant submitted a written undertaking of Jade and a receipt of custody signed by alleged Abra MTC Judge The rule is that the findings of the trial court on the credibility of witnesses are entitled to great respect because trial courts have the advantage of observing the demeanor of the witnesses as they testify. This is more true if such findings were affirmed by the appellate court. When the trial courts findings Salazar in support of his contentions that the green box was seized from Jade and that he was framed. Nonetheless, there was nothing in said documents which proved his defenses. In the said undertaking, Jade merely declares (1) that on 15 June 2004, at about 2:30 p.m., she was apprehended in the house of appellant by

the officers of the CIDG, Baguio City, for alleged violation of Republic Act No. 9165; (2) that she was informed of her constitutional rights by the CIDG officers; (3) that she was humanely treated by the CIDG officers during her investigation and that none of her personal property was taken or damaged by said officers; (4) that she had no complaint whatsoever against the CIDG officers; and (5) that she promised to appear if called upon in the investigation regarding said incident. On the other hand, the receipt of custody signed by Salazar merely states (1) that she received in good health the living person of Jade from the custody of CIDG, Baguio City; and (2) that she promised to present Jade for investigation as regards the incident if required by the proper authorities. Indeed, the above-cited documents merely describe the circumstances and conditions of Jade during and after the incident. There was no reference at all to appellants claim that the green box was seized from Jade and that he was framed.
[37]

be negated. When the police officers involved in the buy-bust operation have no motive to testify against the accused, the courts shall uphold the presumption that they have performed their duties regularly.[38]

Moreover, motive is not essential for conviction for a crime when there is no doubt as to the identity of the culprit, and that lack of motive for committing the crime does not preclude conviction for such crime when the crime and participation of the accused are definitely proved.[39] In the instant cases, SPO1 Indunan positively identified appellant as the one who sold to him shabu during the buy-bust operation. He also testified that he recovered shabu from appellants possession during said incident.

The defense presented appellants father, Alfredo Lazaro, Sr. to corroborate appellants version of the incident. Initially, it must be emphasized that the testimony of Alfredo Lazaro, Sr. should be received with caution he being the father of appellant.

Further, it should be noted that appellant has not filed a single complaint for frame-up or extortion against the buy-bust team. This inaction clearly betrays appellants claim of frameup.

[40]

Alfredo Lazaro, Sr. testified that upon opening the door of his he saw PO3 Lubos and some policemen beating

room,

appellant. He uttered apay dayta? (Why is that?), left the scene, and went back to his room. There was no testimony at all from him that he tried to restrain PO3 Lubos and the policemen from mauling

Appellant imputes ill motive on the part of the buy-bust team by asseverating that he had a previous quarrel with PO3 Lubos and that he knows some members of the buy-bust team. Withal, this allegation is uncorroborated and

appellant, or that he immediately called or sought the help of barangay officials or higher authorities. His court statement hardly inspires belief as it would be highly unnatural for a father not to react defensively or sought help if his child is being maltreated in his presence. In addition, the physical examination report on

unsubstantiated. Hence, the imputation of improper motive should

appellant states that no injuries were observed on appellants body immediately after his arrest. His testimony, therefore, deserves scant consideration.

inconsistency is also irrelevant to the elements of illegal possession of shabu. Besides, the inconsistency even bolsters the credibility of the prosecution witnesses as it erased any suspicion of a rehearsed testimony.[43]

Given the foregoing circumstances, the positive and credible testimonies of the prosecution witnesses prevail over the defenses of denial and frame-up of appellant. Anent the failure of the prosecution to present the testimony of the informant, it is well-settled that the testimony of an informant in drug-pushing cases is not essential for conviction Appellant tried to cast doubt on the credibility of the prosecution witnesses based on the following reasons: (1) there was inconsistency in the testimonies of the prosecution witnesses as to what language was used in apprising appellant of his constitutional rights; (2) the informant was not presented as witness during the trial; and (3) there was no buy-bust operation because appellant was merely instigated by the informant to sell shabu to SPOI Indunan.[41] As to the claim of instigation, where the police or its agent lures the accused into committing the offense in order to prosecute him and which is deemed contrary to public policy and considered an absolutory cause,[45] there is nothing in the records which clearly and convincingly shows that appellant was instigated by the informant to sell shabu to SPO1 Indunan. What is apparent therein is that the informant merely introduced SPO1 Indunan to appellant For a discrepancy or inconsistency in the testimony of a witness to serve as basis for acquittal, it must refer to the significant facts vital to the guilt or innocence of the accused for the crime charged. An inconsistency which has nothing to do with the elements of the crime cannot be a ground for the acquittal of the accused.[42] as a user and buyer of shabu and that the informant did not in any way allure or persuade appellant to sell shabu to SPO1 Indunan.
[46]

and may be dispensed if the poseur-buyer testified on the same.[44]

Also, after such introduction, it was appellant who hastily asked

SPO1 Indunan how much worth of shabu the latter would want to buy.[47] This obviously manifests that the idea to

sell shabu originated from appellant without any instigation from SPO1 Indunan or the informant. Indeed, what have transpired in the

The inconsistency cited by appellant refers to trivial matter and is clearly beyond the elements of illegal sale of shabu because it does not pertain to the actual buy-bust itself that crucial moment when appellant was caught selling shabu. Such

instant

case

was

legitimate

buy-bust

operation

and

not

instigation. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid means of arresting violators of the Dangerous Drugs Law. It is commonly employed by

police officers as an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.

Appellant further posits that the prosecution did not strictly comply with the procedures laid down in Section 21, Article II of Republic Act No. 9165 because: (1) although the written inventory of the seized items bore signatures of representatives from the DOJ, the media, and the barangay, only the representative from the media was named; (2) no pictures of the seized items were taken; (3) Forensic Analyst Albon did not testify with regard to her chemistry report on the subject drugs; (4) there were gaps in the chain of custody of the subject drugs because the officer who received the request for laboratory examination of the same did not testify, and the custodian of the subject drugs from the time they were examined up to their presentation in trial was not identified; and (5) the prosecution failed to show the condition of the subject drugs and the precautions taken in preserving their condition.[48]

grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, thepolice officers alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal. (Emphases supplied.)

Moreover, we have held in several cases[50] that noncompliance with Section 21, Article II of Republic Act No. 9165 is not fatal and will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.[51] In the present case, the integrity of the drugs seized from appellant was

It should be noted that appellant raised the buy-bust teams alleged non-compliance with Section 21, Article II of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day for him to do so. In People v. Sta. Maria[49] in which the very same issue was raised, we held: The law excuses non-compliance under justifiable grounds. However, whatever justifiable

preserved. The chain of custody of the drugs subject matter of the instant case was shown not to have been broken.

Records revealed that after SPO1 Indunan confiscated two transparent plastic sachets containing shabu from appellant, he marked each of the two sachets of shabu with DG-06-15-04 and turned them over to Superintendent Bolabola, who, in turn, handed

them to Inspector Pacatiw who brought the same to PO1 Guingahan of CIDG office, Baguio City. The latter then delivered the two plastic sachets each marked with DG-06-15-04 to the PNP Benguet Provincial Crime Laboratory Office for laboratory examination. The same two sachets were received by SPO1 Carino of PNP Benguet Provincial Crime Laboratory Office.[52] After a qualitative

appellant has been duly preserved and established by the prosecution.

The fact that Forensic Analyst Albon and the persons who had possession or custody of the subject drugs were not presented as witnesses to corroborate SPO1 Indunans testimony is of no moment. The prosecution dispensed with the testimony of Forensic Analyst Albon because the defense had already agreed in the substance of her testimony to be given during trial, to wit: (1) that she examined the subject drugs; (2) that she found them to be positive for shabu; and (3) that she prepared and issued a chemistry report pertaining to the subject drugs.

examination conducted on the contents of the two sachets each marked DG-06-15-04, Forensic Analyst Albon found them to positive for methamphetamine hydrochloride or shabu. Upon being weighed, the one plastic sachet sold by appellant to SPO1 Indunan was found to be containing 0.05 gram while the other plastic sachet found in appellants possession was determined to have 0.04 gram of shabu.

Further, not all people who came into contact with the When of shabu each the prosecution with presented the two SPO1 sachets Indunan seized drugs are required to testify in court. There is nothing in Republic Act No. 9165 or in any rule implementing the same that imposes such a requirement. As long as the chain of custody of the seized drug was clearly established not to have been broken and that the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness stand.
[54]

marked

DG-06-15-04,

positively identified them as the very same sachets he bought and recovered from appellant in the buy-bust operation. The two plastic sachets containing 0.05 and 0.04 gram

of shabu,respectively, each had the marking DG-06-15-04 as attested by Forensic Analyst Albon in her chemistry report. The existence, due execution, and genuineness of the said chemistry report, as well as the qualifications of Forensic Analyst Albon were admitted by the defense.[53] Further, SPO1 Indunan categorically declared during the trial that he put DG-06-15-04 marking on each of the two transparent plastic sachets of shabu recovered from appellant. Clearly, the identity of the drugs recovered from

In People v. Zeng Hua Dian,[55] we ruled: After a thorough review of the records of this case, we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation as witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witnesses by the prosecution is not

for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses.

R. Hence, the RTC and the Court of Appeals aptly sentenced appellant to imprisonment of 12 years and one day, as minimum, to 15 years, as maximum, and fined himP300,000.00, since said penalties are within the range of penalties prescribed by the

Since appellants violation of Sections 5 and 11, Article II of Republic Act No. 9165 were duly established by the prosecutions evidence, we shall now ascertain the penalties imposable on him.

aforequoted provision.

WHEREFORE, the Decision dated 18 July 2008 of the Court of Appeals in CA-G.R. CR-HC No. 02258 is hereby AFFIRMED in

Under Section 5, Article II of Republic Act No. 9165, the unauthorized sale of shabu, regardless of its quantity and purity, carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).

toto. SO ORDERED.

Pursuant, however, to the enactment of Republic Act No. 9346 entitled, An Act Prohibiting the Imposition of Death Penalty in the Philippines, only life imprisonment and fine shall be imposed. Thus, the RTC and the Court of Appeals were correct in imposing the penalty of life imprisonment and fine of P500,000.00 on appellant in Criminal Case No. 23227-R.

Section 11(3), Article II of Republic Act No. 9165 provides that illegal possession of less than five grams of shabu is penalized with imprisonment of twelve (12) years and one day to twenty (20) years, plus a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00).

Appellant was charged with and found to be guilty of illegal possession of 0.04 gram of shabu in Criminal Case No. 23229-

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

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION BELLOSILLO, J.:

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.

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.

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.

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.

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;

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 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 ill-gotten 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).

(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

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).

(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.

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 (The

Code 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.

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.

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.

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.

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.

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 absent such 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.

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,

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 -

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.

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;

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.

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:

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:

(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;

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

(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, 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;'

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.

(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."

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.

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.

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:"

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

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.

REP. ISIDRO: When we say combination, it seems that 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:

REP. GARCIA: Two.

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

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: 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. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. GARCIA: Yeah, because we say a series.

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. ISIDRO: Series. REP. GARCIA: That be referred to series, yeah. REP. GARCIA: Yeah, we include series. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

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.

SEN. TANADA: Two different. 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. ISIDRO: Two different acts.

REP. GARCIA: Series. One after the other eh di....

REP. GARCIA: For example, ha...

SEN. TANADA: So that would fall under the term series?

REP. ISIDRO: Now a series, meaning, repetition...

REP. GARCIA: Series, oo.

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

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.

REP. ISIDRO: So, it is not a combination?

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

REP. GARCIA: Yes.

THE PRESIDENT: Probably two or more would be....

REP. ISIDRO: When you say combination, two different?

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.

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 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.

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 public treasury, 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.

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-forvagueness" 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.

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 -

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 defectively phrased; 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.

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.

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]

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]

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.

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.

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]

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 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]

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 wellentrenched 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.

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before

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 Act for 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.

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).

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.

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.

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).

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.

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?

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 -

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 an enumeration 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?

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

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).

common sense. There would be no other explanation for a combination or series of

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.

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.

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 illgotten 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]

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.

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

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?

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

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.

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 -

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]

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.

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:

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.

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.

Indeed, 2 provides that 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]

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.

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?

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]

SENATOR TAADA: Yes, Mr. President . . .[34]

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.

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.

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

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.

G.R. No. 171776 Republic of the Philippines SUPREME COURT Manila CARMENCITA FONTANILLA-PAYABYAB, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. FIRST DIVISION DECISION G.R. No. 171359 July 18, 2012 VILLARAMA, JR., J.: BENJAMIN A. UMIPIG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. Before us are consolidated appeals by certiorari under Rule 45 of the 1997 Rules on Civil Procedure, as amended, assailing the January 4, 2006 Decision1 and January 30, 2006 and March 1, 2006Resolutions2 of the Sandiganbayan, Fourth Division finding petitioners Benjamin A. Umipig, Renato B. Palomo, Margie C. Mabitad and Carmencita Fontanilla-Payabyab guilty of violating Section 3(e) of Republic Act (R.A.) No. 3019, or the Anti-Graft and Corrupt Practices Act, as amended.

x-----------------------x

G.R. No. 171755 Factual Background RENA TO B. PALOMO and MARGIE C. MABITAD, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. The National Maritime Polytechnic (NMP) is an attached agency of the Department of Labor and Employment tasked to provide necessary training to seafarers in order to qualify them for employment.

x-----------------------x Sometime in 1995, NMP undertook an expansion program. A prefeasibility study conducted by the NMP identified Cavite as a

possible site for the expansion as Cavite is close to the employment market for seafarers. Thus, NMP dispatched a team to look for a site in Cavite, andasuitable location consisting of two parcels of land was found at Sta. Cruz de Malabon

Estate in Tanza, Cavite: Lots 1730-C and 1730-D, which are both covered by TCT No. T-97296-648 as part of a bigger parcel of land, Lot 1730.3

On November 10, 1995, Disbursement Voucher No. 101-9511-1114 was prepared for the P500,000 earnest money with Glenn B. Solis as claimant. Umipig, then NMP Administrative Officer, after receiving the disbursement voucher and its supporting documents, issued a memorandum on even date to Palomo enumerating the infirmities of the supporting documents attached, to wit:

Petitioner Palomo, then NMP Executive Director, presented for approval to the NMP Board of Trustees the two parcels of land they identified. On August 21, 1995, the Board approved the proposal in principle and authorized Palomo "to start negotiations for the acquisition of the site in

1. Contract to Sell dated January ___ 1995 for lot with TCT No. 97296 is between Eufrocina Sosa as Vendor and Nilda L. Ramos and six (6) others co-heir/vendor.

2. Yet the authority to sell dated November 8, 1995 was signed by Nilda I. Ramos (only) representing herself and her group.

Cavite and if necessary to pay the earnest money."4

Palomo thereafter began negotiations with Glenn Solis, a real estate broker, for the purchase of Lots 1730-C and 1730-D. Solis is the Attorney-in-Fact of the registered owners of said properties by virtue of a Special Power of Attorney (SPA) executed in his favor.

3. The authority to sell is not notarized (dated November 8, 1995) at P370.00/sq. meter while the offer to NMP dated October 11, 1995 is for P350.00/sq.m.

4. Tax declaration No. 3908 and 3907 for TCT No. T-16279 and T16356 are in the name of Eufrocina Raquero.

On November 9, 1995, Palomo,in a handwritten memorandum to petitioners Umipig, Fontanilla and Mabitad requested them to "cause the release of the sum of Five Hundred Thousand Pesos (P500,000) x x x [as] EARNEST MONEY for the purchase/acquisition of [a] 5-hectare lot for

5. Xerox copy of TCT No. "97267"? is illegible, hence, one can not establish its relevance to the voucher.

6. That the aforesaid documents are all photocopies/xerox, not certified as true xerox copies.1a\^/phi1 NMP extension to Luzonin favor of MR. GLEN[N] SOLIS, holder of authority documents of the lot ownersand thereby authorized to represent the owners on their behalf for this purpose."5

7. That the feasibility study being work out by the NEDA and the NMP for the expansion of NMP to Luzon, is yet to be submitted to the NMP Board of Trustees for approval.

8. The undersigned signs subject voucher with aforesaid infirmities with reservations and doubts as to its legality, in compliance with Management Memo. dated November 9, 1995 for us to release the voucher.6

On December 21, 1995, a Contract to Sell was executed between Palomo and Solis over Lots 1730-C and 1730-D with a combined area of 22,296 square meters and a total agreed purchase price ofP7,803,600 orP350 per square meter.Said Contract to Sell eventually ripened into a consummated sale (referred hereinafter as "the first purchase") as TCT No. T-93623611 for Lot 1730-C and TCT No. T-93623712 for Lot 1730-D are now registered in the name of NMP, such titles having been issued on November 21, 2000.

Umipig attached to the disbursement voucher his memorandum to Palomo when he signed Box A thereof. Petitioner FontanillaPayabyab, then Budget Officer, stamped the words "Fund Availability," and signed the voucher with note "Subject to clarification as per attached note of AO dated 11/10/95."Petitioner Mabitad, then NMP Chief Accountant, signed Box B of the voucher, and noted "as per findings of AO per attach[ed] memo, with reservations as to the legality of the transaction per observations by AOV."7 Palomo signed Box C as approving officer.8

The foregoing sale transaction("first purchase") covering Lots 1730C and 1730-D was the subject of Criminal Case No. 26512 filed in the Sandiganbayan against Umipig, Palomo and Mabitad on February 16, 2001. On August 6, 2004, the Sandiganbayans Fifth Division rendered a Decision13 acquitting all three accused of the charge of violation of Section 3 (e) of R.A. No. 3019.

In response to Umipigs memorandum, Palomo instructed him to clear up said infirmities and authorized him to arrange a travel to Manila with their Finance Officer/Accountant "to clear these acts once and for all." Palomo further added that "time is of the essence and they might lose out in this transaction" and that "the cost of the lot per square meter has been set at P350 from the beginning."9

On December 10, 1995, a P2,000,000 partial payment was released for the purchase of Lots 1730-C and 1730-D through Disbursement Voucher No. 101-9512-082,10 again with Solis as claimant. Umipig signed Box A but noted "Subj. to submission of legal requirements as previously indicated on November 10, 1995 Memorandum." Mabitad signed Box B and noted "w/ reservations as to the legality of the transactions." Palomo signed Box C as approving officer.

After consummating the first purchase, Palomo again negotiated with Solis for the purchase of two more parcels of land adjacent to the lots subject of the first purchase: Lot 1731 which was covered by TCT No. 1635614 and registered in the name of the late Eufrocina Raqueo, married to the late Leoncio Jimenez, and Lot 1732 covered by TCT No. 3581215 and registered in the name of the late Francisco Jimenez, son of Eufrocina Raqueo and Leoncio Jimenez. Solis this time was armed with two Special Power of Attorneys(SPAs): one dated April 15, 1996 appearing to have been executed by the Jimenez heirs, all residents of California, U.S.A., authorizing Teresita Jimenez-Trinidad to sell Lots 1731 and 1732 and to receive consideration;16 and another dated July 12, 1996 executed by Trinidad authorizing Solis to sell Lots 1731 and 1732 and to receive consideration.17

On August 1, 1996, Palomo and Solis executed a Contract to Sell18 over Lots 1731 and 1732. It specified a total purchase price of P11,517,100 to be paid as follows:

4.1 P6,910,260 down payment upon signing of the Contract to Sell.

4.2 Balance after fifteen (15) days upon receipt of approved Extrajudicial partition of Estate, location plan, reconstitution of owners copy and signing of Deed of Sale.19

On even date, Disbursement VoucherNo. 101-9608-78720 was prepared for the down payment of P6,910,260 with Solis as payee. Fontanilla-Payabyab stamped the words "FUND AVAILABILITY" and signed the voucher. Umipig signed Box A. Mabitad signed Box B, while Palomo signed Box C as approving officer.

The total payments made for the "second purchase" covering Lots 1731 and 1732 was P8,910,260.00, which is the subject of the present controversy. After receiving these payments, Solis disappeared and never showed up again at the NMP. Palomo even sent Solis three letters dated March 4, 1998,29 August 11, 1998,30 and September 30, 1998,31 to follow up the approved extra judicial partition of estate, location and/or subdivision plan, reconstitution of owners copy and signing of Deed of Absolute Sale. Under the Contract to Sell, the submission of said documents was made a condition for payment of the balance, being necessary for the transfer and registration of said properties in the name of NMP.

Also on August 1, 1996, a Request for Obligation of Allotments21 was prepared by Fontanilla-Payabyab for the P6,910,260 down payment. Mabitad certified "that unobligated allotments are available for the obligation" and affixed her signature thereon.On August 2, 1996, NMP issued Development Bank of the Philippines (DBP) Check No. 000158429522 in the amount of P6,910,260payableto Solis. The signatories to the check were Umipig23 and Palomo.24

As no reply was received from Solis,Palomo sought the assistance of the Office of the Solicitor General(OSG) and informed the latter of the inability to locate Solis. The OSG then inquired with the Philippine Consulate General in Los Angeles, California as to the genuineness and authenticity of the SPA that was executed by Urbano Jimenez, et al. authorizing Teresita

On December 27, 1996, Disbursement Voucher No. 101-9612-1524 was prepared for P3,303,600 with Solis as payee. Of said amount, P1,303,600 was for the full payment of the lots under the first purchase while the remaining P2,000,000 was partial payment of the balance for Lots 1731 and 1732.25 Fontanilla-Payabyab stamped the words "FUND AVAILABILITY" and signed the voucher. Umipig signed Box A. Mabitad signed Box B, while Palomo signed Box C as approving officer. On even date, NMP issued DBP Check No. 000175200526 in the amount of P3,303,600 payable to Solis. The signatories to the check were Umipig27 and Palomo.28

Trinidad to sell Lots 1731 and 1732. In a letter32 dated June 11, 1999, Vice Consul Bello stated that the SPA executed by Urbano Jimenez, et al. and shown to NMP was fake. According to Vice Consul Bello, when the Consulate searched its files for 1996, they found an SPA authorizing the sale of Lots 1731 and 1732 but it was not the same as the instrument given to NMP. The genuine SPA33 for said properties, bearing the same date, O.R. No., Service No., Document No. and Page No. but without wet seal, was executed by Gloria Potente, Marylu Lupisan and Susan Abundo authorizing Presbitero J.Velasco, Jr. as attorney-in-fact. The OSG reported the

Consulates findings to Palomo in a letter34 dated June 17, 1999.

On July 19, 1999, Palomo filed an Affidavit-Complaint35 against Solis before the Tacloban City Prosecutors Office for estafa through

falsification of public documents. Upon the request of the Tacloban City Prosecutors Office, the Commission on Audit (COA) conducted a special audit on the transactions subject of the complaint filed by Palomo.

Formis[re]presentation/conspiring with Mr. Glenn Solis by issuing a Special Power of Attorney to sell the above property without authority from the owner.

3. Mr. Renato B. Palomo Atty. Felix M. Basallaje Jr., State Auditor III of the COA and Resident Auditor at the NMP, set forth his findings in his Special Audit Report, to wit: Executive Director For entering into a contract to sell without authority from the NMP Board of Directors and by signing Box "C" approving of the voucher as payment.

1. Disbursement in the amount of P8,910,260.00 in favor of Mr. Glenn Solis for the purchase of two lots covered by TCT No. 16356 and TCT No. 35812 was not supported by a Torrens Title or such other document that title is vested in the government (NMP) in violation of Sec. 449 of GAAM Vol. I.36

4. Benjamin A. Umipig Administrative Officer For signing Box "A" in certifying the payment as lawful.

2. The contract to sell entered between NMP and Mr. Glenn Solis is tainted with irregularities the parties to the contract not being authorized as required in Sec. 5 of P.D. 1369 and pertinent provisions of the Civil Code of the Philippines.37

5. Margie C. Mabitad Chief Accountant For signing Box "B" certifying as to availability of funds, that expenditure are proper and supported by documents.

In the same report, the following persons were considered responsible for the subject transactions:

6. Carmencita Fontanilla 1. Mr. Glenn Solis For acting as vendor of the above subject property (TCT Nos. 16356 and 35812) without authority from the owner thereof; Budget Officer For signing in the voucher for fund control and in the ROA for requesting obligation of the above transactions.38

2. Ms. Teresita Jimenez - Trinidad

Atty. Basallaje thus made the following recommendations:

1. Disallow in audit all transaction[s] covering payments made to Mr. Glenn Solis under Voucher No. 101-9608-787 and Voucher No. 101-9612-1524 with a total amount of P8,910,260.00.

2. Require Mr. Glenn Solis and his principal, Teresita Jimenez Trinidad to restitute the amount received plus damages by filing a separate civil suit against the vendor.

3. Institute the filing of appropriate case against parties involved, if evidence warrants.39

After preliminary investigation, the Tacloban City Prosecutors Office issued a Resolution40 dated January 25, 2001 finding a prima facie case of malversation of public funds committed in conspiracy by Solis, Jimenez-Trinidad, Palomo, Fontanilla-Payabyab, Umipig and Mabitad. Upon review, the Deputy Ombudsman for the Visayas approved with modification the resolution of the Tacloban City Prosecutors Office and recommended instead the prosecution of petitioners for violation of Section 3(e) of R.A. No. 3019, as amended, or the Anti-Graft and Corrupt Practices Act and the filing of a separate Information for Falsification against Solis.41

public officers, being the Executive Director, Administrative Officer, Chief Accountant and Budget Officer, respectively, of the National Maritime Polytechnic, stationed at Cabalawan, Tacloban City, in such capacity committing the offense in relation to office, conniving, confederating and mutually helping with each other and with GLENN B. SOLIS and TERESITA JIMENEZ-TRINIDAD, private individuals, with deliberate intent, with manifest partiality, evident bad faith and/or gross inexcusable negligence, did then and there willfully, unlawfully and feloniously enter into a Contract to Sell with accused GLENN [B.] SOLIS, for the acquisition of two (2) parcels of land denominated as Lot Nos. 1731 and 1732 covered with Transfer Certificate of Title Nos. 16356 and 35812, located at Tanza, Cavite, with an area of 32,906 sq. meters more or less, for a consideration in the amount of EIGHT MILLION, NINE HUNDRED TEN THOUSAND, TWO HUNDRED SIXTY PESOS (P8,910,260.00), Philippine Currency, and consequently in payment thereof issued Development Bank of the

Philippines (DBP) Check Nos. 1584295 dated August 2, 1996, in the amount of SIX MILLION, NINE HUNDRED TEN THOUSAND, TWO HUNDRED SIXTY PESOS (P6,910,260.00) Philippine Currency and 1752005, dated December 27, 1996, in the amount of THREE MILLION,

On May 20, 2002,petitioners were charged with violation of Section 3(e),R.A. No. 3019,under the following Information:

THREE HUNDRED THREE THOUSAND, SIX HUNDRED PESOS, (P3,303,600.00) Philippine Currency, respectively, through Voucher Nos. 1019608-787 and 101-9612-1524, respectively, despite the absence of a copy of a Torrens Title of the land in the name of the National Maritime

That on or about the 1st day of August 1996, and for sometime prior or subsequent thereto, at Tacloban City, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court,

above named accused RENATO B. PALOMO, BENJAMIN A. UMIPIG, MARGIE C. MABITAD and CARMENCITA FONTANILLA-PAYABYAB,

Polytechnic (NMP) or any document showing that the title is already vested in the name of the government, as mandated under Section 449 of the Government Accounting and Auditing Manual, Volume I, and despite the lack of authority on the part of the accused GLENN B. SOLIS to sell the said lands not being the real or registered owner and the fictitious/falsified Special Power of Attorney allegedly

issued by accused TERESITA JIMENEZ-TRINIDAD, resulting to the non-acquisition of the land by the NMP, thus, accused public officers, in the course of the performance of their official functions had given unwarranted benefits to accused private individuals GLENN B. SOLIS and TERESITA JIMENEZ-TRINIDAD and to the damage and prejudice of the government particularly, the National Maritime Polytechnic in the amount aforestated.

CONTRARY TO LAW.42

Palomo and Mabitad were arraigned on July 22, 2002.43 Umipig and Fontanilla-Payabyab were arraigned on September 23, 200244 and January 20, 2004,45 respectively. They all pleaded not guilty. Solis and Jimenez-Trinidad remained at large.

Atty. Basallaje testified on the audit investigation which the COA Regional Director instructed him to conduct on NMP regarding the transaction involving Lots 1731 and 1732.He likewise identified the Special Audit Report he prepared after the investigation, as well as the documents he had evaluated-- only those documents which were attached to the endorsement letter from the COA Regional Director and those on file with him as resident auditor of NMP.48 He also testified that he informed the management of NMP regarding the audit only after it was terminated. He admitted that he did not read or ask for a copy of the minutes of the August 21, 1995 NMP Board of Trustees meeting which the NMP Management cites as the source of authority for entering the subject transaction. Atty. Basallaje opined that it was incumbent upon the NMP management to support their claim that proper authority existed so he did not ask for a copy.49

In the Sandiganbayans Pre-Trial Order46 dated January 20, 2004, all the parties agreed that the following factual and legal issues would be resolved in the case:

1. Whether or not the act of accused Executive Director Renato Palomo y Bermes in entering, in behalf of the NMP, into a Contract to Sell with accused Glenn Solis required prior authority and/or approval from the Board of Trustees of NMP; and,

2. Whether or not all of the accused conspired and violated Section 3(e) of R.A. 3019, as amended.47

At the trial, the prosecution presented two witnesses: Atty. Basallaje, Jr.and Emerita T. Gomez, State Auditor I, also of the COA.

Emerita Gomez testified that she was assigned at the NMP as auditor from the COA from November 17, 1985 until October 5, 2003. In the course of her duties, she recalled having received documents pertaining to the purchase of Lots 1731 and 1732. Said documents, which she identified in court, are: (1) Disbursement Voucher No. 101-9608-787 dated August 1, 1996 for partial payment to Glenn Solis of the amount of P6,910,260 to which a Request for Obligation of Allotments was attached; (2) a certified true copy of Check No. 0001584295 dated August 2, 1996 in the amount of P6,910,260 paid to the order of Glenn B. Solis; (3) Contract to Sell; (4) Special Power of Attorney executed by Teresita Jimenez-Trinidad in favor of Glenn Solis; (5) Special Power of Attorney purportedly executed by Urbano Jimenez, et al. in favor of Teresita Jimenez-Trinidad; (6) a certified true copy of Disbursement Voucher No. 101-9612-1524 dated December 27, 1996 for payment of parcels of land covered by TCT Nos. 16356 and 35812 in the amount of P3,303,600 to Glenn Solis; (7) a certified true copy of Check No. 001752005 dated December 27, 1996 in the amount of P3,303,600 paid to the order of Glenn Solis; (8) a letter dated June 11, 1999 by Vice Consul Bello addressed to Atty. Carlos Ortega, Assistant Solicitor

General; (9) TCT No. 16356 RT-1245 in the name of Eufrocina Raqueno; (10) TCT No. T-35812 in the name of Francisco Jimenez; and (11) Declaration of Real Property in the name of Eufrocina Raqueo.

Government Accounting and Auditing Manual, Volume I when he transacted with Solis over the lots purchased by NMP.51

Gomez said she was the one who supplied the documents to Atty. Basallaje when the latter conducted an audit investigation. Shewas also tasked toen code the Special Audit Report. Gomez likewise identified the signatures of petitioners Umipig, Fontanilla, Mabitad and Palomo appearing on the disbursement vouchers and checks she had previously identified, and claimed that she was familiar with their signatures.50

Petitioner Umipig testified on his duties as NMP Administrative Officer and the circumstances relating to the payments made in connection with the subject lots. He stated that by signing Disbursement Voucher No. 101-9612-1524 dated December 27, 1996, it means that the correct procedure was followed and the voucher was prepared, typed and supported by complete documents as required. He likewise admitted that before he signed the voucher, he presumed that everything was in order because said document had already passed through several offices.

On the other hand, petitioners testified on their respective defenses, as follows:

Petitioner Palomo related the circumstances surrounding the transaction involving Lots 1731 and 1732. He testified that his authority for the negotiation and payment of earnest money to Glenn Solis came from the Board of Trustees as reflected in the minutes of its August 21, 1995 meeting.

On cross-examination, Umipig said that he made objections, as evidenced by a memorandum,to the payments made for the first purchase but did not anymore object on the payments pertaining to the second purchase because the Board of Trustees already gave a go signal for their purchase. He also cited an alleged COA regulation stating that if the subordinate objects in writing, he will be exonerated if he is later proven correct.52

He also admitted that it was Solis who prepared the Contract to Sell and that he did not try to meet the owner of the property. When the titles were presented to them, they believed that on their face value, they were in order. Palomo also said that the adjoining lots were being sold forP1,000 to P2,000 per square meter while the selling price of the subject lots was onlyP350 per square meter. On cross-examination, Palomo admitted that none of the registered owners are signatories to the SPAs which Solis presented to him and that it was only when they could not anymore contact Solis, after the latter received the payments, that he panicked and tried to check if the documents shown to him were proper and authentic. He further disclosed that he did not consider Section 449 of the

Petitioner Mabitad, meanwhile testified on her duties and responsibilities as Accountant of NMP and identified several documents pertaining to the subject lots. She stated that when she signed Box B of the disbursement vouchers, she certified that funds are available for the purpose and the supporting documents duly certified in Box A are attached. Like Umipig, she also made reservations but she only expressed them in those vouchers pertaining to the first purchase. Mabitad cited Section 106 of the Government Auditing Code of the Philippines (P.D. No. 1445) which she claims relieves her from liability when she made her reservations. She also testified that her only participation in the subject transaction was to certify that the funds for it are available. She likewise stated that she did not make any notations in the disbursements for the second purchase because the first purchase

was successful and titles to the lots acquired have been registered in the name of NMP.53

Petitioner Fontanilla-Payabyab, for her part, testified on her duties and responsibilities as Budget Officer of NMP. She explained that as budget officer, she is not required to sign vouchers. She nonetheless signed Disbursement Voucher Nos. 101-9608-787 and 101-9612-1524 for her own purpose because she was the one who followed up the release of funds from the Department of Budget and Management (DBM) so she can track the available cash balance of NMP as it was her duty to follow up with the DBM the release of the agencys budget. She further clarified that her signature does not have the effect of validating or invalidating the voucher. She also claimed that even if she is Head of Finance, she cannot influence the decisions of her subordinates like Mabitad because they have specific jobs under the COA rules and under other laws.54

Since the Court did not acquire jurisdiction over the person of accused GLENN B. SOLIS and TERESITA JIMENEZ-TRINIDAD, let the cases against them be, in the meantime, archived, the same to be revived upon their arrest. Let an alias warrant of arrest be then issued against accused GLENN B. SOLIS and TERESITA JIMENEZTRINIDAD.

SO ORDERED.55

The Sandiganbayans Ruling

On January 4, 2006, the Fourth Division of the Sandiganbayan issued the assailed decision, the fallo of which reads:

In convicting petitioners, the Sandiganbayan ruled that the evidence on record clearly shows that petitioners acted with evident bad faith and gross inexcusable negligence in entering into the Contract to Sell dated August 1, 1996 with Solis and in disbursing the amount of P8,910,260 for the second purchase. Said court held that petitioners violated Section 449 of the Government Accounting and Auditing Manual since the Contract to Sell does not suffice to prove that title is vested in the Government and even contravenes the requirement that proof of title must support the vouchers.

ACCORDINGLY, accused RENATO B. PALOMO, BENJAMIN The Sandiganbayan faulted Palomo for breaking the law and acting with evident bad faith when he entered into a deal that gave no guarantee that ownership would be transferred to the Government and that such was obviously disadvantageous to the government. The other petitioners likewise violated the law when they signed the disbursement vouchers in the absence of any document that would prove ownership by the Government. The Sandiganbayan said petitioners cannot claim that they only followed the terms of the Contract to Sell because they also violated its provisions, the last disbursement voucher for P2,000,000 having been issued without legal basis. It pointed out that the Contract to Sell provided that a down payment of

A. UMIPIG, MARGIE A. MABITAD and CARMENCITA FONTANILLAPAYABYAB, are found guilty beyond reasonable doubt of having violated RA 3019, Sec. 3(e) and are sentenced to suffer the indeterminate penalty of SIX (6) YEARS AND ONE (1) MONTH AS MINIMUM AND NINE (9) YEARS AS MAXIMUM, perpetual disqualification from public office, and to indemnify jointly and severally the Government of the Republic of the Philippines in the amount of EIGHT MILLION NINE HUNDRED TEN THOUSAND AND TWO HUNDRED SIXTY PESOS (Php8,910,260).

P6,910,260 must be given upon its signing and the payment of the balance must be paid 15 days after receipt of several specified documents. Petitioners, however, released a portion of the balance even without receiving any of the said documents.

March 1, 2006. Umipigs motion for reconsideration was likewise denied under the Resolution dated January 30, 2006.

These consolidated petitions were filed by Umipig (G.R. No. 171359), Payabyab (G.R. No. 171776), Palomo and Mabitad (G.R. No. 171755).

The Sandiganbayan further noted that despite being apprised of Umipigs reservations on the legality of the transactions with Solis, petitioners deliberately proceeded to sign the disbursement vouchers and made possible the release of the money to Solis. Petitioners thus acted with gross inexcusable negligence when they did not verify the authenticity of the SPAs executed by Solis and Trinidad, and released the P2,000,000 for no valid reason.

Petitioners Arguments

The Sandiganbayan also ruled that the third element undue injury to the Government as well as giving unwarranted benefits to a private party was duly proven. Petitioners acts unmistakably resulted in the Governments loss of P8,910,260 when Solis disappeared after receiving said amount and also gave Solis unwarranted benefits.

Finally, the Sandiganbayan held that the facts established conspiracy among the petitioners because the unlawful disbursements could not have been made had they not affixed their signatures on the disbursement vouchers and checks. When petitioners thus signed the vouchers, they made it appear that disbursements were valid when, in fact, they were not. Since each of the petitioners contributed to attain the end goal, it can be concluded that their acts, taken collectively, satisfactorily prove the existence of conspiracy among them.

Petitioners question the application of Section 449 of the Government Accounting and Auditing Manual as said provision does not categorically say that disbursement vouchers for the acquisition of land may not be signed unless title to the land is already in the name of Republic of the Philippines, or unless there is another document showing that title is already vested in the Government. They argue that the provision rather contemplates a situation where the evidence of ownership comes after the purchase or when the transaction has been consummated. They likewise contend that even if they were not charged under the Government Accounting and Auditing Manual, it is the regulation on which the finding of guilt was based and upon which they were held to have acted with evident bad faith and gross inexcusable negligence.

The motions for reconsideration filed by Palomo, Payabyab and Mabitad were denied by the Sandiganbayan in its Resolution dated

Umipig, Palomo and Mabitad also assert that no law, rule or regulation requires them to exercise a higher degree of diligence other than that of a good father of the family. Umipig adds that while his failure to repeat his reservations might be construed as an omission of duties, such omission cannot by any stretch of imagination be construed as negligence characterized by "the want of even the slightest care," or "omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally ." He further contends that he treated the first purchase and the subject contract as one single transaction as both

were for one expansion program of the NMP and the lands subject of said acquisitions were contiguous. Thus, he did not see the need to repeat his written reservations. He also argues that there is no evidence that he and his co-petitioners acted in conspiracy as there was no proof of a chain of circumstances showing that each acted as a part of a complete whole.

release from the DBM. She insists that the disbursement could have been made even without her signature. She also questions the finding of gross negligence on her part since it was not within her competence to determine the legality or illegality of a transaction. Further, she argues that even assuming she was indeed negligent, such finding precludes a ruling of conspiracy since the latter requires intentional participation.

Palomo and Mabitad, meanwhile assert that the SPAs in favor of Solis and Trinidad appeared to be in order and Palomo had no reason to doubt their authenticity. Accordingly, Palomo cannot be considered negligent or in bad faith, and should instead be presumed to have acted in good faith in the performance of his official duty. As with Mabitad, it is argued that she signed the vouchers as Chief Accountant whose signature is required by Section 86 of the State Audit Code which concerns the certification of the proper accounting official of the agency concerned that the funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract is available for expenditure and account thereof, subject to verification by the auditor concerned. Thus in signing the voucher, she merely certified as to the availability of funds which is a ministerial duty on her part. She also cites Section 106 of the Government Auditing Code of the Philippines since she made a prior reservation on the vouchers pertaining to the first purchase. Palomo and Mabitad further submit that they have no prior knowledge of perceived infirmities contrary to what was found by the Sandiganbayan, pointing out that in Umipigs Memorandum, there was no mention that the SPAs could possibly be fake. They contend that it was the falsified SPAs that resulted in the filing of charges against them so the determination of conspiracy should revolve around the acts of falsification committed by Solis and Trinidad; hence, it was petitioners who were the victims of said conspirators.

Our Ruling

Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act, as amended, which reads:

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

Finally, Fontanilla-Payabyab reiterates that her signature on the subject vouchers was not a requirement for the disbursement as it was only a tracking or monitoring entry on the current cash position of NMP so that she can follow up the next cash allocation

(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.

xxxx

The essential elements of Section 3(e) of R.A.No. 3019, as amended, are as follows:

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.56

The second element provides the different modes by which the crime may be committed, that is, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence." There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.57 "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.58 "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes.59 "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.60 These three modes are distinct and different from each other. Proof of the existence of any of these modes would suffice.61

The Court finds it no longer necessary to discuss at length the first element as it is not disputed, having been stipulated by the parties during pre-trial that during the material time and date alleged in the Information, Palomo was the Executive Director, Umipig was the Administrative Officer, Mabitad was Chief Accountant and Fontanilla-Payabyab was the Budget Officer of NMP.The third element of undue injury to the Government is likewise a non-issue since it was likewise stipulated during pre-trial that after payments totaling P8,910,260 were made to Solis for the subject lots, the latter disappeared and the SPAs he showed to NMP were found to be fake. Clearly, this is a quantifiable loss for the Government since NMP was not able to acquire title over the subject lots. Thus, the controversy lies in the second element of the crime charged.

We sustain the Sandiganbayans finding of evident bad faith on the part of Palomo who had no authority to effect substantial payments -- P8,910,260.00 out of the total consideration of P11,517,100.00 -for the lots to be purchased by NMP. The Minutes of the NMP Board meeting of August 21, 1995, which was cited by Palomo, states:

The chairman after consulting the members of the board indicated that the presentation was approved in principle. The chairman indicated that Mr. Palomo is authorized to start negotiations for the acquisition of the site in Cavite and if necessary to pay the earnest money.62

Palomoacted with evident bad faithand gross inexcusable negligence;Umipig and Mabitad were grosslynegligent in the performance of their duties

Article 1482 of the Civil Code states that: "Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract." The

earnest money forms part of the consideration only if the sale is consummated upon full payment of the purchase price. Hence, there must first be a perfected contract of sale before we can speak of earnest money.63

Palomo requested for the release of down payment in the amount of P6,910,260.00 notwithstanding that no contract of sale had yet been consummated, as only a contract to sell was executed by the supposed attorney-in-fact of the vendors, Solis. As earlier mentioned, the Contract to Sell over Lots 1731 and 1732 stipulated that the balance of the total consideration is to be paid 15 days after receipt of the approved "extra-judicial partition of Estate, location plan, reconstitution of owners copy and signing of the Deed of Sale." This clearly indicates that the parties agreed to execute the contract of sale only after the full payment of the purchase price by the buyer and the corresponding submission by the seller of the documents necessary for the transfer of registration of the lots sold. We have held that where the vendor promises to execute a deed of absolute sale upon the completion by the vendee of the payment of the price, the contract is only a contract to sell. Such stipulation shows that the vendor reserved title to the subject property until full payment of the purchase price.64

Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.65 Mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable.66 Negligence consists in the disregard of some duty imposed by law; a failure to comply with some duty of care owed by one to another.67 Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose.68

Palomos bad faith was evident not only in the disbursement of substantial payment upon a mere contract to sell -- whereas the NMP Board granted him express authority only to start negotiations and pay earnest money if needed -- but also in the disbursement of P1,000,000.00 partial balance despite non-submission by Solis of the specified transfer documents.

As correctly observed by the Sandiganbayan, Palomo failed to give a satisfactory explanation on the matter during cross-examination, thus:

There being no perfected contract of sale, Palomo had no authority to effect substantial payments for the second purchase. That partial payments on the first purchase was similarly made upon a mere contract to sell, is of no moment; it must be noted that such contract to sell (first purchase) eventually ripened into a consummated sale and titles over Lots 1730-C and 1730-D have been actually transferred in the name of NMP. The second purchase transaction, however, was not consummated despite the unauthorized down payment of P6,910,260.00. Even worse, funds were disbursed to pay for the balance despite non-receipt of the specified transfer documents.

PROS. CORESIS

Q In the contract to sell which I have shown to you earlier it is stated here that the balance is to be paid fifteen (15) days upon receipt of the approved extra judicial partition of the estate, location plan, reconstitution of owners copy and signing of the deed of sale, do you confirm this?

A Yes, sir.

Q At the time that you paid the second payment which was amounting to P3 million and part of that was for the contract to sell, there was no deed of sale executed by Glenn B. Solis in favor of National Maritime Polytechnic, am I correct? On December 27 there was none?

deemed written and incorporated in every government contract, hence it is the contractual stipulations which must conform to and not contravene the law and not the other way around. By entering into a contract that does not guarantee the transfer of ownership to the Government, petitioner violated Sec. 449 of the Government Accounting and Auditing Manual (GAAM) which provides:

A I cannot recall.

Section 449. Purchase of land. Land purchased by agencies of the Government shall be evidenced by a Torrens Title drawn in the name of the Republic of the Philippines, or such other document satisfactory to the President of the Philippines that the title is vested in the Government.

Q You cannot recall because there was in fact none, am I correct? These titles and documents shall accompany the vouchers covering the purchase of land, after which they shall be forwarded to the Records Management and Archives Office.

A It could be, sir.

xxxx

Q And the balance is supposed to be paid 15 days upon receipt of the extra-judicial partition and the signing of the deed of sale, is that correct?

A Yes, sir.69 (Emphasis supplied.)

Palomo also committed gross inexcusable negligence in failing to protect the interest of the government in causing the release of substantial sums to Solis despite legal infirmities in the documents presented by the said broker. He cannot seek exoneration by arguing that he merely followed the stipulated terms of payment in the contract to sell. Applicable provisions of existing laws are

The above rule requires public officers authorized to transact with private landowners not only to ensure that lands to be purchased by Government are covered by a Torrens title, but also that the sellers are the registered owners or their duly authorized representatives. For otherwise, there can be no assurance that title would be vested in the Government by virtue of the purchase. Thus, while the provision does not require a title already issued in the name of the Government at the time of the actual purchase, accountable officers should, at the very least, exercise such reasonable diligence so that the titles and documents accompanying the vouchers are genuine and authentic, and the private parties to the contract had the legal right to transmit ownership of the land being bought by the Government. In accordance with sound accounting rules and practice therefore, it is mandatory for such purchase of land by the government agency or instrumentality to be evidenced by a Torrens title in the name of the Government, or such other document that is satisfactory to the President of the Philippines, to show that the title is vested in the Government.

Petitioners act of disbursing funds in the absence of documents sufficient to vest title in NMP, the government instrumentality buying the subject lots, failed to comply with the above statutory requirement. The authenticity of the SPAs supposedly showing the authority of the alleged attorney-in-fact, Jimenez-Trinidad, and the latters sub-agent, Solis, had not been properly verified. The purchase by NMP, which already made substantial or almost full payment of the price, was evidenced only by a contract to sell executed by Solis who was later discovered lacking authority to do so, the SPA in favor of Jimenez-Trinidad being a fake document.

We also concur with the Sandiganbayans finding that Umipig and Mabitad are guilty of gross inexcusable negligence in the performance of their duties.

The GAAM provides for the basic requirements applicable to all classes of disbursements that shall be complied with,71 to wit:

The settled rule is that, persons dealing with an assumed agent are bound at their peril, and if they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority.70 In this case, Palomo dealt with Solis who was a mere sub-agent of the alleged attorney-in-fact of the registered owners, a certain Jimenez-Trinidad, under an SPA which was notarized abroad. At the very least, therefore, Palomo should have exercised reasonable diligence by ascertaining such fact of agency and subagency, knowing that he is dealing with a mere broker and not the registered owners themselves who are residents of a foreign country. As noted by the Sandiganbayan, it took only a letter-query sent by the OSG to Consul Bello to verify the authenticity of the SPA document shown by Solis, purportedly executed by the registered owners in favor of Jimenez-Trinidad who in turn executed another SPA in favor of Solis. This was the prudent course for Palomo considering that in the first purchase transaction, Umipig had already noted legal infirmities in the documents presented by Solis. It must also be stressed that at the time Palomo transacted again with Solis for the second purchase in April 1996, the first purchase had not yet resulted in the transfer of title to NMP of Lots 1730-C and 1730-D which took place only later in the year 2000. As it turned out, the SPA for Jimenez-Trinidad presented by Solis was found to be fake. Palomo was indeed grossly negligent in failing to verify the authority of the alleged attorney-in-fact, JimenezTrinidad, and simply relied on the representations of Solis who was not directly authorized by the registered owners.

a) Certificate of Availability of Fund.Existence of lawful appropriation, the unexpended balance of which, free from other obligations, is sufficient to cover the expenditure, certified as available by an accounting officer or any other official required to accomplish the certificate.

Use of moneys appropriated solely for the specific purpose for which appropriated, and for no other, except when authorized by law or by a corresponding appropriating body.

b) Approval of claim or expenditure by head of office or his duly authorized representative.

c) Documents to establish validity of claim. Submission of documents and other evidences to establish the validity and correctness of the claim for payment.

d) Conformity of the expenditure to existing laws and regulations.

e) Proper accounting treatment.72

Pursuant to COA Circular No. 92-38973 dated November 3, 1992, Box A shall be signed by "the responsible Officer having direct supervision and knowledge of the facts of the transaction."74

authority granted by the NMP Board to Palomo should have impelled Umipig to be more prudent in the second purchase, as it might expose the government to even greater damage or loss if the expenditure is later proved to have no legal basis.

Umipig, as signatory to Box A of Disbursement Voucher Nos. 1019608-787 and 101-9612-1524 caused the release of P8,910,260 to Solis, certifying that "Expenses, Cash Advance necessary, lawful and incurred under his direct supervision." By making such certification, Umipig atteststo the transactions legality and regularity, which signifies that he had checked all the supporting documents before affixing his signature. If he had indeed exercised reasonable diligence, he should have known that Palomo exceeded the authority granted to him by the Board, and that the

As for Mabitad, she signed Box Battesting that "adequate available funds/budgetary allotment in the amount x x x; expenditure properly certified; supported by documents marked (x) per checklist x x x; account codes proper; previous cash advance liquidated/accounted for." Box B is accomplished by the Accountant or other equivalent officials in the government-owned or controlled corporation.75

SPAs presented by Solis needed further verification as to its authenticity since his authority to sell was given not by the registered owners themselves but by another person (JimenezTrinidad) claiming to be the attorney-in-fact of the owners.

Had Umipig made the proper inquiries, NMP would have discovered earlier that the SPA in favor of Jimenez-Trinidad was fake and the unlawful disbursement of the P8,910,260 would have been prevented. Such nonchalant stance of Umipig who admitted to have simply presumed everything to be in order in the second purchase and failed to scrutinize the documents presented by Solis in violation of the accounting rules including Sec. 449 of the GAAM, constitutes gross negligence. His reliance on the earlier written reservations/objections he submitted to Palomo during the first purchase will not excuse his negligent acts. The second purchase was a separate and distinct transaction from the first purchase, involving different parcels of land and registered owners. The infirmities he had already observed in the first purchase should have made Umipig more circumspect in giving his approval for the disbursements in the second purchase. Additionally, the limited

At the trial, Mabitad affirmed that her signature in Box B means that the expenditure is certified. She however admitted having merely relied on Umipigs certification that the transactions were legal. Mabitad further asserted that with respect to disbursement vouchers, her responsibilities are merely certifying that funds are available for the purpose and check if the supporting documents which were duly certified in Box A are attached to the voucher. But contrary to her statement suggesting that her act of signing the disbursement voucher was ministerial, as signatory to the said document she is not precluded from raising questions on the legality or regularity of the transaction involved, thus:

3. Document Checklist at the Back of the Voucher

The checklist at the back of the voucher enumerates the mandatory minimum supporting documents for the selected transactions.

It should be clear, however, that the submission of the supporting documents enumerated under each type of transaction does not

preclude reasonable questions on the funding, legality, regularity, necessity or economy of the expenditure or transaction. Such questions may be raised by any of the signatories to the voucher.

of payment under disbursement vouchers supported only by a contract to sell executed by a mere sub-agent, Umipig and Mabitag committed gross negligence resulting in the loss of millions of pesos paid to a bogus land broker. The Sandiganbayan therefore did not err in convicting them under Section 3 (e) of R.A. No. 3019.

The demand for additional documents or equivalents should be in writing. A blank space is provided for additional requirements, if any, and if authorized by any law or regulation. If the space is insufficient, separate check may be used and attached to the voucher.76 (Emphasis supplied.)

Umipig and Mabitad nevertheless tried to seek refuge in Sec. 106 of P.D. No. 1445 or the Government Auditing Code of the Philippines, which provides:

It bears stressing that Umipig and Mabitad are accountable officers, the nature of their accountability under the Government Auditing Code of the Philippines (P.D. No. 1445) was described as follows:

Accountable. (a) Having responsibility or liability for cash or other property held in trust or under some other relationship with another. (b) government accounting Personally liable for improper payments; said of a certifying or disbursing officer. (c) Requiring entry on the books of account; said of a transaction not yet recorded, often with reference to its timing. (d) Responsible.

Section 106.Liability for acts done by direction of superior officer. Noaccountable officer shall be relieved from liability by reason of his having acted under the direction of a superior officer in paying out, applying, or disposing of the funds or property with which he is chargeable, unless prior to that act, he notified the superior officer in writing of the illegality of the payment, application, or disposition. The officer directing any illegal payment or disposition of the funds or property shall be primarily liable for the loss, while the accountable officer who fails to serve the required notice shall be secondarily liable.

Accountable officer. An officer who, by reason of the duties of his office, is accountable for public funds or property.77 (Emphasis and underscoring supplied.)

As such accountable officers, Umipig and Mabitad are cognizant of the requirement in Sec. 449 of the GAAM that purchase of land shall be evidenced by titles or such document of transfer ofownership in favor of the government. The Court cannot uphold their own interpretation of said provision which would require evidence of title or transfer of ownership to Government merely for archiving and recording purposes, as the requirement is intended to protect the interest of the government. By approving the release

But as already explained, the written reservations made by Umipig and Mabitad were done only for the first purchase and not the second purchase subject of this case. There was clearly no written notice to Palomo regarding their questions on the legality of payments for the second purchase, either in the voucher itself or in a separate letter/memorandum. Umipigs defense that he had treated the first and second purchases as a single transaction and thus his previous written objections still stand, deserves scant consideration. His certification as the accountable officer having knowledge of facts of the subject transaction is required each time a disbursement voucher is processed. The reason is that an accountable officer is charged with due diligence to ensure that every expenditure is justified and followed the proper procedure.

The negligent acts of Palomo, Umipig and Mabitad thus rendered them personally liable for the loss incurred by the Government in the failed transaction, in accordance with Section 105 of P.D. No. 1445 which provides that "every officer accountable for government funds shall be liable for all losses resulting from the unlawful deposit, use, or application thereof and for all losses attributable to negligence in the keeping of the funds."

acquiescence or approval is not enough without a showing that the participation was intentional and with a view of furthering a common criminal design or purpose.80

Conspiracy Proven

In Alvizo v. Sandiganbayan,78 this Court said:

Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved. Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only. (Emphasis supplied.)

In this case, the evidence on record clearly supports the finding of conspiracy among petitioners Umipig, Mabitad and Palomo who all authorized the payments on the second purchase in utter disregard of the requirement in Section 449 of the GAAM, and with gross negligence in failing to ascertain the authority of Solis to sell the same. The damage or injury to the government would have been prevented, had Umipig, Mabitad and Palomo exercised reasonable diligence in transacting with Solis and examining the supporting documents before approving the disbursements in payment of the purchase price of Lots 1731 and 1732.Indeed, the fraudulent transaction would not have succeeded without the cooperation of all the petitioners whose signatures on the corresponding vouchers made possible the release of payments to Solis despite legal infirmities in the supporting documents he submitted.

Umipig and Mabitad deliberately disregarded the rules, the limited authority granted by the NMP Board to Palomo, and the fact that Solis had earlier submitted questionable documents in the first purchase. Umipig and Mabitad cannot justify their laxity in the second purchase simply because the first sale of Lots 1730-C and 1730-D was eventually consummated and titles thereto had been transferred to NMP. It must be noted that NMP secured titles to the said lots under the first purchase only in November 2000, long after Umipig and Mabitad gave their approval for subsequent disbursements for Lots 1731 and 1732 for which Solis submitted a fake SPA. Their participation thus went beyond mere knowledge and acquiescence to the illegal disbursements in the second purchase. Umipig and Mabitad even signed as instrumental witnesses in the Contract to Sell covering Lots 1731 and 1732.

Although a conspiracy may be deduced from the mode and manner by which the offense was perpetrated, it must, like the crime itself, be proven beyond reasonable doubt.79 Mere knowledge,

Umipig and Mabitad further authorized the release of partial balance in the amount of P1,000,000.00 also approved by Palomo,

notwithstanding that the required transfer documents were not submitted by Solis as stipulated in the Contract to Sell. Hence, aside from causing damage or injury to the Government, Umipig, Palomo and Mabitad also gave unwarranted benefits to Solis who -assuming he had the requisite authority from the owners to sell Lots 1731 and 1732 had no right to receive any portion of the balance until his submission of the required transfer documents to the buyer, NMP.

Fontanilla-Payabyab not liable under Sec. 3 (e) of R.A. No. 3019

The penalty for violation of Section 3(e) of R.A. No. 3019 is "imprisonment for not less than six years and one month nor more than fifteen years, and perpetual disqualification from public office. "Under the Indeterminate Sentence Law, if the offense is punishable by a special law, as in the present case, an indeterminate penalty shall be imposed on the accused, the maximum term of which shall not exceed the maximum fixed by the law, and the minimum not less than the minimum prescribed therein.

As to Fontanilla-Payabyab, her signature appears on the questioned vouchers above her name which was stamped on the vouchers together with the statement "FUND AVAILABILITY," and not in Boxes A, B or C. Such signature, however, neither validates nor invalidates the vouchers and this was not disputed by Mabitad who testified that Fontanilla-Payabyabs signature as budget officer on the disbursement vouchers is not considered part of standard operating procedure.

There being no aggravating and mitigating circumstances in this case, the Sandiganbayan correctly imposed the indeterminate prison term of six (6) years and one (1) month, as minimum, to ten (10) years and one (1) day, as maximum, with perpetual disqualification from public office.

Civil Liability

Although Fontanilla-Payabyab was the Head of Finance with Mabitad as one of her subordinates, the prosecution failed to establish that her responsibilities include reviewing her subordinates certifications in disbursement vouchers.As FontanillaPayabyabs signature on the voucher was a mere superfluity, it is unnecessary for this Court to make a determination of negligence on her part. Her purpose in doing so, i.e., to monitor the budget allocated and utilized/disbursed, is likewise immaterial considering that her act of signing the voucher did not directly cause the damage or injury. Consequently, there is no basis to hold her liable under Section 3 (e) of R.A. No. 3019.

An offense as a general rule causes two classes of injuries: the first is the social injury produced by the criminal act which is sought to be repaired through the imposition of the corresponding penalty, and the second is the personal injury caused to the victim of the crime, which injury is sought to be compensated through indemnity, which is civil in nature.81 Having caused injury or loss to the Government by their gross inexcusable negligence and evident bad faith, petitioners Palomo, Mabitad and Umipig are thus liable to restitute the amount of P8,910,260 that was paid to Solis.

Penalty for Violation of Section 3 (e), R.A. No. 3019

WHEREFORE, the Decisiondated January 4, 2006 and Resolutions dated January 30, 2006 and March 1, 2006 of the Sandiganbayan, Fourth Division in Criminal Case No. 27477 are hereby AFFIRMED with MODIFICATION. The conviction of petitioners Benjamin A.

Umipig, Margie C. Mabitad and Renato B. Palomo under Section 3 (e) of R.A. No. 3019 is UPHELD while the conviction of petitioner Carmencita Fontanilla-Payabyab is REVERSED as she is hereby ACQUITTED of the said charge.

With costs against petitioners Benjamin A. Umipig in G.R. No. 171359 and Renato B. Palomo and Margie C. Mabitad in G.R. No. 171755. Costs de ojicio in G.R. No. 171776.

SO ORDERED.

FIRST DIVISION

On November 25, 2003, an information was filed charging Manlangit with violating Section 5, Article II of RA 9165, as follows: chanrob1esvirtwallawlibrary

G.R. NO. 189806 : January 12, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, MANLANGIT y TRESBALLES, Accused-Appellant.

v. FRANCISCO

That on or about the 24th day of November 2003, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized by law, did then and there willfully and feloniously sell, give away, distribute and deliver zero point zero four (0.04) gram of Methylamphetamine Hydrochloride (shabu), which is a dangerous drug.3cralawredlaw

DECISION On December 11, 2003, another information was filed against Manlangit for breach of Sec. 15, Art. II of RA 9165, to wit: chanrob1esvirtwallawlibrary

VELASCO, JR., J.:

The Case

This is an appeal from the August 28, 2009 Decision1cralaw of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03273, which affirmed in toto the Decision dated July 12, 20072cralaw in Criminal Case Nos. 03-4735 and 03-4961 of the Regional Trial Court (RTC), Branch 64 in Makati City. The RTC found accused-appellant Francisco Manlangit y Tresballes guilty of drug-sale and drug-use penalized by Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

That sometime on or before or about the 24th day of November 2003, in the City of Makati, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law to use dangerous drugs, and having been arrested and found positive for use of Methylamphetamine, after a confirmatory test, did then and there willfully, unlawfully and feloniously use Methylamphetamine, a dangerous drug in violation of the said law.4cralawredlaw

During the arraignment for both cases, Manlangit pleaded not guilty. Afterwards, the cases were tried jointly.

The Facts At the trial of the case, the prosecution adduced evidence as follows: chanrob1esvirtwallawlibrary

On November 24, 2003, the Makati Anti-Drug Abuse Council (MADAC) Cluster 4 office received information from an informant that a certain "Negro" was selling prohibited drugs along Col. Santos Street at Brgy. South Cembo, Makati City. The MADAC thereafter coordinated with the Anti-Illegal Drugs Special Operations Task Force (AIDSTOF) and the Philippine Drug Enforcement Agency to conduct a joint MADAC-police buy-bust operation. A team was assembled composed of several members of the different offices, among which Police Officer 2 Virginio Costa was designated as the team leader, with MADAC operative Wilfredo Serrano as the poseur-buyer and Roberto Bayona as his back-up. The team prepared buy-bust money for the operation, marking two (2) one hundred peso (PhP 100) bills with the initials "AAM." chanroblesvirtualawlibrary

Manlangit denied that such buy-bust operation was conducted and claimed that the recovered shabu was not from him. He claimed that he was pointed out by a certain Eli Ballesteros to Serrano and Bayona. Thereafter, he was allegedly detained at the Barangay Hall of Brgy. Pitogo. There, he was allegedly interrogated by Serrano as to the location of the shabu and its proceeds, as well as the identity of the drug pushers in the area. He also claimed that whenever he answered that he did not know what Serrano was talking about, he was boxed in the chest. Later on, he said that he was brought to Camp Crame for drug testing.6cralawredlaw

On July 12, 2007, the RTC rendered a Decision, the dispositive portion of which reads: chanrob1esvirtwallawlibrary

Upon arrival on Col. Santos Street, Brgy. Cembo, Makati City, the team spotted Manlangit standing in front of his house. The informant approached Manlangit and convinced the latter that Serrano wanted to purchase shabu from him. Manlangit asked Serrano how much shabu he wanted, to which Serrano replied that he wanted two hundred pesos (PhP 200) worth of shabu. Manlangit went inside his house and later reappeared with a plastic sachet containing a white crystalline substance. Manlangit handed over the plastic sachet to Serrano who, in turn, gave Manlangit the marked money. Then Serrano gave the pre-arranged signal of lighting a cigarette to indicate to the rest of the team that the buybust operation had been consummated. Thus, the rest of the team approached Manlangit and proceeded to arrest him while informing him of constitutional rights and the reason for his arrest. The marked money was recovered from Manlangit's pocket. The plastic sachet was then marked with the initials "FTM" and sent to the Philippine National Police (PNP) crime laboratory in Camp Crame, Quezon City for analysis. The PNP crime laboratory identified the white crystalline substance as Methylamphetamine Hydrochloride in Chemistry Report No. D-1190-03. Manlangit was also brought to the PNP crime laboratory for a drug test, which yielded a positive result for use of Methylamphetamine Hydrochloride.5cralawredlaw

WHEREFORE, premises considered, judgment is hereby rendered as follows: chanrob1esvirtwallawlibrary

1) In Criminal Case No. 03-4735, finding accused Francisco Manlangit y Tresballes GUILTY BEYOND REASONABLE DOUBT of Violation of Section 5, Art II, RA 9165 (drug-sale) and sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of P500, 000.00. Said accused shall be given credit for the period of his preventive detention.

2) In Criminal Case No. 03-4735, 7cralaw finding accused Francisco Manlangit y Tresballes GUILTY BEYOND REASONABLE DOUBT of Violation of Section 15, Art II, RA 9165 (drug-use), and sentencing him to undergo rehabilitation for at least six (6) months in a government rehabilitation Center under the auspices of the Bureau of Correction subject to the provisions of Article VIII, RA 9165.

It is further ordered that the plastic sachet containing shabu, subject of Criminal Case No. 03-4735, be transmitted to the

Philippine Drug Enforcement Agency (PDEA) for the latter's appropriate action.

SO ORDERED.8cralawredlaw

accused-appellant's unsubstantiated allegations are insufficient to show that the witnesses for the prosecution were actuated by improper motive, in this case the members of the buy-bust team; thus, their testimonies are entitled to full faith and credit. After examining the testimonies of the witnesses, the CA found them credible and found no reason to disturb the RTC's findings. Finally, the CA found that chain of evidence was not broken.

From such Decision, Manlangit interposed an appeal with the CA. Hence, the instant appeal. In his Brief, accused-appellant Manlangit claimed that the prosecution failed to prove his guilt beyond reasonable doubt. To support such contention, accused-appellant claimed that there was no buy-bust operation conducted. He pointed out that he was not in the list of suspected drug pushers of MADAC or of the AIDSTOF. He further emphasized that the buy-bust operation was conducted without first conducting a surveillance or test buy to determine the veracity of the report made by the informant. He assailed the fact that despite knowledge of his identity and location, the buy-bust team failed to secure even a search warrant.

In a Manifestation (In lieu of Supplemental Brief) dated February 22, 2010, accused-appellant expressed his desire not to file a supplemental brief and reiterated the same arguments already presented before the trial and appellate courts.

The Issues

Accused-appellant also raised the issue that the buy-bust team failed to comply with the procedure for the custody and control of seized prohibited drugs under Sec. 21 of RA 9165. He argued that the presumption of regularity in the performance of official function was overturned by the officers' failure to follow the required procedure in the conduct of a buy-bust operation, as well as the procedure in the proper disposition, custody, and control of the subject specimen.

The issues, as raised in the Brief for the Accused-Appellant dated September 29, 2008, are: chanrob1esvirtwallawlibrary

1. The Court a quo gravely erred in convicting the accusedappellant despite the prosecution's failure to prove his built beyond reasonable doubt.9cralawredlaw

On August 28, 2009, the CA rendered the decision which affirmed the RTC's Decision dated July 12, 2007. It ruled that contrary to accused-appellant's contention, prior surveillance is not a prerequisite for the validity of a buy-bust operation. The case was a valid example of a warrantless arrest, accused-appellant having been caught in flagrante delicto. The CA further stated that

2. The Court a quo gravely erred in finding that the procedure for the custody and control of prohibited drugs was complied with.10cralawredlaw

The Ruling of the Court

The appeal is bereft of merit.

First Issue:

he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50, 000.00) to Two hundred thousand pesos (P200, 000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. (Emphasis supplied.)

Accused-appellant's guilt was proved beyond reasonable doubt People v. Macatingag11cralaw prescribed the requirements for the successful prosecution of the crime of illegal sale of dangerous drugs, as follows.

The first paragraph of Sec. 5 of RA 9165 punishes the act of selling dangerous drugs. It provides: chanrob1esvirtwallawlibrary

Section 5. Sale , Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500, 000.00) to Ten million pesos (P10, 000, 000.00) shall be imposed upon any person, who, unless authorized by law, shall sell , trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. (Emphasis supplied.)

The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.

While Sec. 15, RA 9165 states: chanrob1esvirtwallawlibrary

The pieces of evidence found in the records amply demonstrate that all the elements of the crimes charged were satisfied. The lower courts gave credence to the prosecution witnesses' testimonies, which established the guilt of accused-appellant for the crimes charged beyond reasonable doubt. The testimonies-particularly those of the police officers involved, which both the RTC and the CA found credible--are now beyond question. As the Court ruled in Aparis v. People:12cralawredlaw

Section 15. Use of Dangerous Drugs. A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time,

As to the question of credibility of the police officers who served as principal witnesses for the prosecution, settled is the rule that prosecutions involving illegal drugs depend largely on the credibility of the police officers who conducted the buy-bust

operation. It is a fundamental rule that findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no glaring errors; gross misapprehension of facts; or speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The reason for this is that the trial court is in a better position to decide the credibility of witnesses, having heard their testimonies and observed their deportment and manner of testifying during the trial. The rule finds an even more stringent application where said findings are sustained by the Court of Appeals, as in the present case.

Moreover, accused-appellant's defense of denial, without substantial evidence to support it, cannot overcome the presumption of regularity of the police officers' performance of official functions. Thus, the Court ruled in People v. Llamado:13cralawredlaw

Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. We have held that when time is of the essence, the police may dispense with the need for prior surveillance. In the instant case, having been accompanied by the informant to the person who was peddling the dangerous drugs, the policemen need not have conducted any prior surveillance before they undertook the buy-bust operation. 14cralaw (Emphasis supplied.)

In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime against the appellant, the presumption of regularity in the performance of official duty, as well as the findings of the trial court on the credibility of witnesses, shall prevail over appellant's self-serving and uncorroborated denial. (Emphasis supplied.)

Furthermore, accused-appellant's contention that the buy-bust team should have procured a search warrant for the validity of the buy-bust operation is misplaced. The Court had the occasion to address this issue in People v. Doria:15cralawredlaw

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit: chanrob1esvirtwallawlibrary

"Sec. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: chanrob1esvirtwallawlibrary

Contrary to accused-appellant's challenge to the validity of the buybust operation, the Court categorically stated in Quinicot v. People that a prior surveillance or test buy is not required for a valid buybust operation, as long as the operatives are accompanied by their informant, thus: chanrob1esvirtwallawlibrary

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; chanroblesvirtualawlibrary

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another." chanroblesvirtualawlibrary

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.

A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.

Second Issue:

The chain of custody of the seized drug was unbroken The Court reiterated such ruling in People v. Agulay:16cralawredlaw

Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellant's claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest, " in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit: chanrob1esvirtwallawlibrary

Accused-appellant contends that the arresting officers did not comply with the requirements for the handling of seized dangerous drugs as provided for under Sec. 21(1) of RA 9165: chanrob1esvirtwallawlibrary

Section 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: chanrob1esvirtwallawlibrary

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment .The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: chanrob1esvirtwallawlibrary

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (Emphasis supplied.)

officers be photographed "in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel." Rosialda argues that such failure to comply with the provision of the law is fatal to his conviction.

This contention is untenable.

The Court made the following enlightening disquisition on this matter in People v. Rivera: chanrob1esvirtwallawlibrary In particular, accused-appellant argues that: chanrob1esvirtwallawlibrary The procedure to be followed in the custody and handling of seized dangerous drugs is outlined in Section 21, paragraph 1, Article II of Republic Act No. 9165 which stipulates: chanrob1esvirtwallawlibrary

While the marking of the specimen was done in the place of incident by MADAC operative Soriano, the inventory of the item was done at Cluster 4. There was no photograph made of the plastic sachet in the presence of the accused, media, any elected local official, or the DOJ representatives, in clear violation of Section 21, R.A. No. 9165.17cralawredlaw

Based on such alleged failure of the buy-bust team to comply with the procedural requirements of Sec. 21, RA 9165, accusedappellant posits that he should, therefore, be acquitted. Such reasoning is flawed.

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

In People v. Rosialda, 18cralaw the Court addressed the issue of chain of custody of dangerous drugs, citing People v. Rivera, as follows: chanrob1esvirtwallawlibrary

The same is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, viz.: chanrob1esvirtwallawlibrary

Anent the second element, Rosialda raises the issue that there is a violation of Sec. 21, Art. II of RA 9165, particularly the requirement that the alleged dangerous drugs seized by the apprehending

(a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused

or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further, that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.

beyond doubt. The chain of custody requirement performs the function of ensuring that the integrity and evidentiary value of the seized items are preserved, so much so that unnecessary doubts as to the identity of the evidence are removed.

To be admissible, the prosecution must show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of the police officers and until it was tested in the laboratory to determine its composition up to the time it was offered in evidence. (Emphasis supplied.)

The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant's arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added that 'non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.' The same provision clearly states as well, that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved.

Here, accused-appellant does not question the unbroken chain of evidence. His only contention is that the buy-bust team did not inventory and photograph the specimen on site and in the presence of accused-appellant or his counsel, a representative from the media and the Department of Justice, and any elected public official. However, as ruled by the Court in Rosialda, as long as the chain of custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of RA 9165 was not faithfully observed, the guilt of the accused will not be affected.

And as aptly ruled by the CA, the chain of custody in the instant case was not broken as established by the facts proved during trial, thus: chanrob1esvirtwallawlibrary

This Court can no longer find out what justifiable reasons existed, if any, since the defense did not raise this issue during trial. Be that as it may, this Court has explained in People v. Del Monte that what is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. Thus, it is essential that the identity of the prohibited drug be established

Lastly, the contention of appellant, that the police officers failed to comply with the provisions of paragraph 1, Section 21 of R.A. No. 9165 for the proper procedure in the custody and disposition of the seized drugs, is untenable. Record shows that Serrano marked the confiscated sachet of shabu in the presence of appellant at the place of incident and was turned over properly to the investigating officer together with the marked buy-bust money. Afterwards, the confiscated plastic sachet suspected to be containing "shabu" was brought to the forensic chemist for examination. Likewise, the

members of the buy-bust team executed their "Pinagsanib na Salaysay sa Pag-aresto" immediately after the arrest and at the trial, Serrano positively identified the seized drugs. Indeed, the prosecution evidence had established the unbroken chain of custody of the seized drugs from the buy-bust team, to the investigating officer and to the forensic chemist. Thus, there is no doubt that the prohibited drug presented before the court a quo was the one seized from appellant and that indeed, he committed the crimes imputed against him.

WHEREFORE , the appeal is DENIED. TheCA'sAugust 28, 2009 Decision in CA-G.R. CR-H.C. No. 03273 is hereby AFFIRMEDIN TOTO.

No costs.

SO ORDERED.

RESOLUTION

YNARES-SANTIAGO, J.: HENRY T. GO, Petitioner, Present: This resolves the Motion for Reconsideration filed by petitioner of the Decision dated April 13, 2007. G.R. No. 172602

Ynares-Santiago, J. (Chairperson), - versus Azcuna, Chico-Nazario, and Garcia, JJ. THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents. September 3, 2007 In Luciano v. Estrella,[1] Justice J.B.L. Reyes opines that the act treated in Section 3(g) partakes of the nature of malum prohibitum; it is the commission of that act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated. An act which is declared Promulgated: The first element of the crime is that the accused must be a public officer who enters into a contract on behalf of the government. The philosophy behind this is that the public officer is duty bound to see to it that the interest of the government is duly protected. Thus, should the contract or transaction entered into by such public officer is manifestly or grossly disadvantageous to the governments interests, the public officer is held liable for violation of Section 3(g), whether or not this public officer profited or will profit thereby. Austria-Martinez, Petitioner, a private individual, stands charged with violation of Section 3(g) of Republic Act No. 3019, the clear terms of which punishes public officers who, on behalf of the government, enter into contracts or transactions manifestly and grossly disadvantageous to the government, whether or not the public officer profited or will profit thereby.

x ---------------------------------------------------------------------------------------- x

malum prohibitum, malice or criminal intent is completely immaterial.[2] Section 3(g), however, applies restrictively only to public officers entering into a contract on behalf of the government manifestly or grossly disadvantageous to the government.

The pronouncement in Luciano v. Estrella[3] is instructive:

Act No. 3019. In other words, notwithstanding the allegation of conspiracy to violate Section 3(g), the liability of private individuals who participated in the transaction must be established under the appropriate provision which is Section 4(b), for knowingly inducing or causing the public officers to commit Section 3(g) where criminal intent must necessarily be proved. This is in clear recognition that Section 3(g), a malum prohibitum, specifically applies to public officers only.

Second, herein respondent municipal officials were charged with violation of Republic Act 3019 under its Section 3(g), or specifically, for having entered, on behalf of the government, into a contract or transaction manifestly and grossly disadvantageous to the government. It is not at all difficult to see that to determine the culpability of the accused under such provision, it need only be established that the accused is a public officer; that he entered into a contract or transaction on behalf of the government; and that such a contract is grossly and manifestly disadvantageous to that government. In other words, the act treated thereunder partakes of the nature of malum prohibitum; x x x

The information in this case, reads:

The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR. and HENRY T. GO with violation of Sec. 3(g), R.A. No. 3019 committed as follows:

In Luciano v. Estrella, the private persons who were charged with conspiring and confederating together with the accused public officers to have unlawfully and feloniously, on behalf of the municipal government of Makati, Rizal, entered into a contract or transaction with the JEP Enterprises, were also charged with violation of Section 4(b) of Republic Act No. 3019, for knowingly inducing or causing the above-mentioned public officials and officers to enter into the aforementioned contract or transaction.

These private individuals were acquitted for insufficiency of evidence, which simply means that the criminal liability of the public officers for violation of Section 3(g) is separate and distinct from the liability of private persons under Section 4(b) of Republic

On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did then and there willfully, unlawfully and feloniously enter into an Amended and Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the event that the latter defaults specifically Article IV, Section 4.04 in relation to Article I, Section 1.06 of the ARCA which term is more beneficial to PIATCO and in violation of the BOT

law, and manifestly and grossly disadvantageous to the government of the Republic of the Philippines.

CONTRARY TO LAW.

From a cursory reading of the Information, it indubitably shows that all the elements enumerated for the violation of Section 3(g) relate to the public officer, not to the private individual, for as have been emphasized, Section 3(g) is a crime that can only be committed by public officers.

It is clear that sub-paragraph (g) is not included in the quoted portion of Section 3. There are indeed offenses punishable under the Revised Penal Code or other special laws where the mere allegation of conspiracy will suffice in order to validly charge the persons who connived in the commission of the offense. In Section 3(g), however, and other penal provisions, which can only be committed by a certain class of persons, an allegation of conspiracy to indict those which are clearly not within its purview, is deficient, as shown in Luciano v. Estrella where the public officers were convicted under Section 3(g) and yet the private parties therein were acquitted inspite of the allegation of conspiracy in the Information.

This brings to the fore the overstated point that Section 3(g), by its clear terms, can only be committed by public officers, for if it were otherwise, then the law itself would have clearly provided for it. Notably, even certain paragraphs of Section 3 of Republic Act No. 3019 provide for its application to private individuals, but not Section 3(g), thus:

In voting to grant the motion for reconsideration, I am not saying that petitioner is innocent or that he can no longer be prosecuted if indeed he is liable for any crime relating to his acts that led to the signing of the ARCA. As emphasized in my Dissenting Opinion dated April 13, 2007, Section 4 of Republic Act No. 3019 provides for the prohibition on private individuals, thus:

SEC. 3. Corrupt practices of public officers. xxx

xxxx

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the Government.

SEC. 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word close personal relation shall include close personal relationship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.

accounts to the Commission on Audit; and (4) fails to render an account for a period of two months.

It is well-settled that penal statutes are strictly construed against the State and liberally for the accused, so much so that the scope of a penal statute cannot be extended by good intention or by implication. The Information lumping petitioner with a public official for conspiracy to violate Section 3(g), is totally infirm. Section 3(g) can only be violated by a public officer. The acts for which private persons can be charged together with the public officials are enumerated in the last paragraph of Section 3 and Section 4, paragraphs (a) and (b) of Republic Act No. 3019. If warranted, petitioner Go should be charged for violation of Section 4(b) in relation to Section 3(g).

The Sandiganbayan acknowledged that Campomanes is not a public officer and applied Article 222 in relation to Article 218. Article 222 also involves failure to render an account not by a public officer, but by a private individual who has charge of any national, provincial or municipal funds, revenues or property. Notwithstanding the charge of conspiracy, petitioner Campomanes was made to answer not to Article 218, which pertains only to public officers, but to Article 222.

In my Dissent to the Decision dated April 13, 2007, reference was made to Articles 210 (Direct Bribery) and 212 (Corruption of Public Officials) of the Revised Penal Code. In Direct Bribery, the public officer agrees to perform an act either constituting or not constituting a crime, in consideration of any offer, promise, gift or present received by such officer. Only the public officer may be charged under and be held liable for Direct Bribery under Article 210, while the person who conspired with the public officer, who made the promise, offer or gave the gifts or presents, may be indicted only under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.

ACCORDINGLY, the Motion for Reconsideration is GRANTED and the Decision dated April 13, 2007 is REVERSED and SET ASIDE. The Resolutions of the Sandiganbayan in Criminal Case No. 28092 dated December 6, 2005 denying petitioners Motion to Quash and its March 24, 2006 Resolution denying petitioners Motion for Reconsideration are REVERSED and SET ASIDE. The Sandiganbayan is DIRECTED to DISMISS Criminal Case No. 28092 in so far as petitioner Henry T. Go is concerned.

SO ORDERED.

Another concrete example is Campomanes v. People.[4] Petitioner Campomanes, a private individual, was charged with conspiring with a public officer who failed to render account for public funds disbursed punishable under Article 218 of the Revised Penal Code, the elements of which are as follows: (1) the offender is a public officer; (2) he must be an accountable officer for public funds or property; (3) the offender is required by law to render

CHICO-NAZARIO, and NACHURA,* JJ.

Promulgated: JOSE M. GALARIO, Petitioner, July 10, 2007 x---------------------------- --------------------x

- versus DECISION

OFFICE OF THE OMBUDSMAN (Mindanao) and RUTH P. PIANO, Respondents.

CHICO-NAZARIO, J.:

G.R. No. 166797

Present:

YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,

Before Us is a Petition for Certiorari under Rule 65 of the 1997 Revised Rules of Court seeking the nullification of the (1) Resolution[1] of the Office of the Ombudsman for Mindanao (OMBMindanao) dated 26 November 2004 finding probable cause to indict Jose M. Galario, Jr. (petitioner) for violation of Section 3(f) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act); and (2) Order[2] of the same Office dated 7 January 2005 denying petitioners Motion for Reconsideration. In effect, petitioner, on injunction against the OMB-Mindanao, prays to prevent said Office from prosecuting him asserting that there is an abject absence of probable cause to hold him for trial.

This case originated from an affidavit-complaint filed by Ruth P. Piano (private respondent) against petitioner resulting in the institution of administrative and criminal investigations by the OMB-Mindanao, docketed as OMB-M-A-04-128-G and OMB-M-C-040282-G, respectively.

4. To turn-over all the documents & properties of the City Budget Office to Mr. Bartolome C. Barte as Budget Officer in an Acting capacity.[3]

The following facts are undisputed: Thus, petitioner created the position of City Liaison Officer to which he transferred private respondent with the task of studying and recommending how to improve the economic enterprises and the local revenue collection efforts of the city.

Petitioner was elected on his first term as City Mayor of Valencia City, Bukidnon, during the May 2001 local elections. Upon assumption of office, petitioner effected a reorganization and personnel audit of the local bureaucracy. He then issued two memoranda, both with subject heading TRANSFER OF ASSIGNMENT and dated 02 July 2001, addressed to private respondent. In the first memorandum, petitioner directed:

The second memorandum was of the same tenor as the first and was a substantial restoration thereof.

Effective upon receipt, you are relieved from your present position as the City Budget Officer and to perform functions as the City Liaison Officer to do the following task[s] to wit:

1. To coordinate with the City Mayor and Department of Budget and Management and with other Agencies/Functionaries for the facilitation and immediate release of our Internal Revenue Allotment (IRA) and other financial assistance for the different City projects.

Private respondent opposed the two memoranda and filed a complaint for Constructive Dismissal, Reinstatement to Former Position and Payment of Representation and Travel Allowance (RATA) with the Civil Service CommissionRegional Office X (CSCRegional Office). The CSC-Regional Office agreed with private respondent and by virtue of an Order dated 7 January 2002, mandated the reinstatement of private respondent to her former position as City Budget Officer, thus:

2. To undergo and submit a study on How to Improve the Citys Economic Enterprise/Revenue for the welfare of our people.

WHEREFORE, premises considered, instant appeal is hereby GRANTED. Accordingly, Mayor Galario is ordered to REINSTATE Ms. Piano to her previous position as City Budget Officer and to CAUSE THE PAYMENT OF her RATA from the time she was deprived of it until her reinstatement. x x x.[4]

3. To submit, keep the Local Chief Executive abreast of every transaction[s] relative hereto.

Petitioner then filed a Motion for Reconsideration of the foregoing Order which was denied by the CSC-Regional Office in another Order dated 18 February 2002. Petitioner, hence, appealed the Orders of the CSC-Regional Office dated 7 January 2002 and 18 February 2002 to the CSC-Main Office, which subsequently dismissed said appeal in Resolution No. 030096 dated 21 January 2003. In Resolution No. 030544 dated 5 May 2003, the CSC denied petitioners Motion for Reconsideration and affirmed CSC Resolution No. 03-0096 dated 21 January 2003[5]:

In Memorandum Order No. 07-65 dated 30 July 2003, petitioner directed private respondent to transfer office from the City Hall Main Building to the Sangguniang Kabataan Building.

WHEREFORE, the appeal of Valencia City Mayor Jose M. Galario, Jr. is hereby DISMISSED. Civil Service Commission Regional Office No. X Orders dated January 7, 2002 and February 18, 2002 declaring the Office of the Mayor Orders both dated July 2, 2001 null and void, stand. Accordingly, Ruth P. Piano is reinstated to her former position as City Budget Officer.[6]

Meanwhile, petitioner formally asked the opinion of the CSCRegional Office on whether or not he could legally prohibit private respondent from signing documents relating to the financial transactions of the city. In a letter dated 6 October 2003 addressed to petitioner, the CSC-Regional Office opined that considering that the Office of the Ombudsman had dismissed the administrative case against private respondent, there was no more legal impediment to her reinstatement as City Budget Officer as well as in the performance of her duties as such.[10]

Private respondent subsequently moved for the execution of CSC Resolution No. 030544 dated 5 May 2003 affirming CSC Resolution No. 030096 dated 21 January 2003.

Even before the CSC could act on private respondents motion for execution, petitioner issued Memorandum Order No. 07-55 dated 25 July 2003, ordering private respondent to be reinstated to her former position of City Budget Officer with the grant of benefits[7] appurtenant to the said position, supposedly in compliance with CSC Resolution No. 03-0096 dated 21 January 2003. Much later, however, petitioner, in another letter dated 28 July 2003,[8] instructed private respondent not to involve herself in the signing of documents relating to the citys financial transactions, citing her pending case[9] with the Office of the Ombudsman. The task was given to Mr. Bartolome Barte, who was authorized to sign For the City Budget Officer in the financial transactions of the city.

Thereafter, private respondent filed with the CSC a second Motion for Execution of its Resolution No. 030096 dated 21 January 2003, resulting in the issuance by the CSC of Resolution No. 040552 dated 17 May 2004 ordering petitioner to immediately reinstate private respondent as City Budget Officer. Petitioner, on the other hand, issued official letters on 24 June 2004 and 02 July 2004 announcing the vacancy of the Office of the City Budget Officer of Valencia City, prompting private respondent to file with the CSC a third Motion for Execution of CSC Resolution No. 030096 dated 21 January 2003 which ordered her immediate reinstatement as City Budget Officer.

The CSC, in Resolution No. 04-1003 dated 7 September 2004, directed petitioner to allow private respondent to perform all the duties of a City Budget Officer. The dispositive portion of said Resolution reads:

WHEREFORE, the Commission hereby directs Mayor Jose M. Galario, Jr. to allow Piano to perform all the duties relevant to the position of City Budget Officer and to allow her to hold office at the City Budget Office. Failure of Mayor Galario, Jr. to comply with the same would compel the Commission to cite him in contempt and file the appropriate charges with the Office of the Ombudsman.

WHEREFORE, premises considered, this Office finds probable cause to indict [herein petitioner] CITY MAYOR JOSE M. GALARIO, JR., GUILTY of violation of Section 3(f) of R.A. 3019, as amended.

The Civil Service Commission Regional Office No. X is directed to monitor the strict implementation and enforcement of this Resolution and to submit a report to the Commission within ten (10) days from receipt.[11]

Accordingly, let the corresponding information be filed in the Sandiganbayan.[12]

Still not satisfied with the latest Resolution of the CSC and petitioners purported non-compliance with the CSC Order to reinstate her as City Budget Officer, private respondent went before the OMB-Mindanao to charge petitioner administratively (OMB-M-A-04-128-G) and criminally (OMB-M-C-04-282-G) based on the following allegations:

Petitioner thereafter filed a Motion for Reconsideration praying for the setting aside of the aforestated OMB-Mindanao Resolution dated 26 November 2004. The OMB-Mindanao thereafter ruled, in its 7 January 2005 Order, that:

WHEREFORE, premises considered, the Motion for Reconsideration is hereby DENIED.

Oppression, grave misconduct, conduct prejudicial to the best interests of the government service, and violation of anti-graft and corrupt practices acts, causing undue injury to [herein private respondent], and refusing to act upon lawful order of the Civil Service Commission, to fully implement the Resolution of the Civil Service Commission, and violation of ethical standards required of government officials and employees, under RA6713.

The Resolution dated 26 November 2004 is hereby AFFIRMED.

Here now comes petitioner before this Court via a Petition for Certiorari under Rule 65 of the revised Rules of Court, raising the following arguments:

After a preliminary investigation and the submission of petitioners counter-affidavits and other evidence, the OMB-Mindanao issued a Resolution dated 26 November 2004 in OMB-M-C-04-0282-G, finding as follows -

I. THE OFFICE OF THE OMBUDSMAN-MINDANAO COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RESOLVED THAT PROBABLE CAUSE EXISTS TO HOLD PETITIONER LIABLE FOR VIOLATION OF SECTION 3(F) OF R.A. 3019, WHEN IN TRUTH AND IN FACT, THE

ELEMENTS OF THE SUBJECT CRIME DO NOT EXIST IN THIS CASE AND THAT THERE IS NO FACTUAL BASIS TO PROVE THE EXISTENCE OF THE ELEMENT OF FAVORING HIS OWN INTEREST OR GRANTING UNDUE ADVANTAGE IN FAVOR OF ANOTHER PARTY.

abuse of discretion when it ordered the filing of informations [sic] against petitioner for violation of R.A. 3019, despite the palpable absence of probable cause.[14]

II. THAT THE OFFICE OF THE OMBUDSMAN FOR MINDANAO COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT INSISTED THAT PETITIONER FAILED TO HEED THE CSC REINSTATEMENT ORDER OF 17 MARCH 2004[13] WHEN IN TRUTH AND IN FACT, THERE IS BOTH A LEGAL AND A PHYSICAL IMPOSSIBILITY TO COMPLY WITH THE SAME CONSIDERING THAT PRIVATE RESPONDENT WAS ALREADY REINSTATED TO HER POSITION AS EARLY AS 25 JULY 2003.

Petitioner posits that the OMB-Mindanao committed grave abuse of discretion amounting to lack or excess of jurisdiction when it found probable cause for the filing of an information against him for the violation of Section 3(f) of Republic Act No. 3019[15] since an important element of the offense was not established, particularly, that he was favoring his own interest or granting undue advantage in favor of another party.

III. THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AND FAILED TO ACCORD DUE PROCESS TO PETITIONER WHEN IT SUBSEQUENTLY FOUND HEREIN PETITIONER LIABLE UNDER SECTION 3(F) OF R.A. 3019 WHEN THERE IS NO FACTUAL ALLEGATION OF ANY OF THE ELEMENTS OF THE SAID OFFENSE IN THE COMPLAINT OF PRIVATE RESPONDENT AND MORE IMPORTANTLY, PETITIONER WAS NOT GIVEN ANY OPPORTUNITY TO RESPOND TO AND REFUTE SUCH CHARGE CONSIDERING THAT ONLY FACTS RELATING TO SECTION 3(E) WERE RAISED IN THE COMPLAINT-AFFIDAVIT.

Petitioner further alleges that he was deprived of due process because he was not given the opportunity to respond to and refute the charge against him considering that the offense referred to in the affidavit-complaint was for violation of Section 3(e),[16] and not Section 3(f), of Republic Act No. 3019.

As petitioner empathically stated in this Petition for Certiorari:

Moreover, petitioner further claims that while private respondent accused him of refusing to act within reasonable time on the Resolutions of the CSC directing private respondents full reinstatement as City Budget Officer, proof to support the allegation remains wanting. Petitioner reiterates that there was reinstatement of private respondent as early as 25 July 2003 and therefore, there already existed a legal and physical impossibility to execute CSC Resolution No. 041003 dated 17 September 2004. Hence, he argues that there is sufficient justification why he no longer ordered the reinstatement of private respondent.

[P]etitioner comes to the succor of the Honorable Supreme Court in order to restrain the respondents from prosecuting the case against petitioner before the Sandiganbayan and find that the Ombudsman acted without or in excess of its authority amounting to grave

On the other hand, the OMB-Mindanao, as represented by the Office of the Solicitor General (OSG), asserts that the allegations in the complaint-affidavit filed with the OMB-Mindanao

make a case for violation of Section 3(f) of Republic Act No. 3019. In its Comment, the OSG reasoned:

Petitioners offer to private respondent to retire from the service with payment of all her retirement benefits knowing fully well that private respondent was not yet available for retirement.

[W]hile it is true that private respondents complaint-affidavit does not contain any specific allegation to the effect that petitioner refused to implement CSC Resolution No. 030096 dated 21 January 2003 to favor his own interest or give due advantage to Mr. Bartolome Barte, a combined evaluation and analysis of the allegations in the complaint-affidavit would readily reveal otherwise. x x x.[17]

Petitioners act of declaring the position of City Budget Officer vacant after receiving CSCs Resolution No. 040552 dated 7 May 2004 for the execution of CSC Resolution No. 030096 dated 21 January 2003 which ordered petitioners reinstatement.

The OSG argues that private respondents complaintaffidavit narrates the acts of the petitioner of removing private respondent from her position as City Budget Officer in order to have total control of the Citys finances. Moreover, it maintains that the complaint-affidavit clearly alleged that petitioner banned private respondent from signing any document involving the Citys financial transactions to give undue advantage to Mr. Bartolome Barte who was thereafter authorized by petitioner to perform said tasks.

The OSG also avers that the petitioners purported reinstatement of the private respondent, but still barring her from signing the financial documents of the city without valid reasons, showed a sinister motive on the part of petitioner. The OSG called attention to the fact that private respondent was even ordered by the petitioner to transfer to an office without any support staff, table, secretary, and office facilities. Finally, the OSG contends that the transfer by petitioner of private respondent from City Budget Officer to City Liaison Officer, a non-existent position, was equal to constructive dismissal.

The OSG states that the allegations in the complaint-affidavit and the evidence on record, including petitioners neglect or refusal to fully implement the CSCs order to reinstate private respondent as City Budget Officer, were unjustified and such refusal qualifies as corrupt practice under Section 3(f) of Republic Act No. 3019. The complaint-affidavit filed by private-respondent reveals that petitioners refusal to heed the CSCs order of reinstatement was clearly intended to discriminate against private respondent based on petitioners subsequent acts including, but not limited to, the following:

The threshold issue involved, therefore, in the present petition is whether or not the OMB-Mindanao acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing (1) its Resolution dated 26 November 2004 finding probable cause against petitioner for violation of Section 3(f) of Republic Act No. 3019; and (2) an Order dated 7 January 2005 denying petitioners Motion for Reconsideration of its earlier Resolution.

In the determination of probable cause conducted by the investigating authority, a task which falls herein on the OMBMindanao since the criminal complaint was filed against a public official in relation to the performance of his official duties,[18]

probable cause does not require certainty of guilt for a crime. It is sufficient that based on the preliminary investigation conducted, it is believed that the act or omission complained of constitutes the offense charged. It has been clearly explained in several decisions by this Court, as in Raro v. Sandiganbayan,[19] that:

The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. x x x. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. (Italics supplied.)[21]

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.

Secondly, the allegations and evidence presented by petitioner failed to prove that the OMB-Mindanao acted in such a capricious and whimsical exercise of judgment in determining the existence of probable cause against him. As defined by this Court

Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of facts in the prosecutors mind as would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that it is so. x x x.[20]

In the instant petition, we do not perceive any grave abuse of discretion on the part of the OMB-Mindanao when it issued its Resolution dated 26 November 2004 and Order dated 7 January 2005 finding probable cause for the filing of an information against herein petitioner for violation of Section 3(f) of Republic Act No. 3019.

By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[22]

Firstly, a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

The OMB-Mindanao based the finding of probable cause on the various affidavits and memoranda and other evidence submitted to it by the parties during preliminary investigation. Petitioner and private respondent were both accorded the opportunity to present their sides and refute each others contentions. It bears to emphasize that the Resolution[23] dated 26 November 2004 of the OMB-Mindanao specifically referred to the following evidence which it took into consideration in its investigation:

Memorandum dated 2 July 2001 Memorandum dated 2 August 2001 Complaint for Constructive Dismissal, Reinstatement to Former Position and Payment of Representation and Travel Allowance Petitioners Counter-Affidavit Private Respondents Affidavit-Complaint Petitioners Answer to the Affidavit-Complaint Private Respondents Reply

Absent any grave abuse of discretion tainting it, the courts will not interfere with the Ombudsmans supervision and control over the preliminary investigation conducted by him. x x x.

x x x. It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it.[25]

That the OMB-Mindanao looked into the aforementioned documents submitted by BOTH parties before issuing its assailed Resolution strongly negates against any averments that it issued the same capriciously, whimsically, arbitrarily or in a despotic manner.

And thirdly, a finding of probable cause is a finding of fact which is generally not reviewable by this Court. Only where there is a clear case of grave abuse of this discretion will this Court interfere in the Ombudsman's findings of probable cause. As a general rule, the Court does not interfere with the Ombudsman's determination of the existence or absence of probable cause.

It is not sound practice to depart from the policy of noninterference in the Ombudsman's exercise of discretion to determine whether or not to file information against an accused. As cited in a long line of cases, this Court has pronounced that it cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. If it were otherwise, this Court will be clogged with an innumerable list of cases assailing investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, to determine if there is probable cause.

As the Court is not a trier of facts, it reposes immense respect to the factual determination and appreciation made by the Ombudsman. x x x.[24]

[T]he Court does not interfere with the Ombudsmans discretion in the finding of probable cause resulting in its investigations. The Ombudsmans findings are essentially factual in nature, and the Supreme Court is NOT a trier of facts.[26]

Unless it is shown that the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to lack or excess of jurisdiction, this Court will not interfere in the findings of probable

cause determined by the Ombudsman. The exercise of the Ombudsman of its constitutionally mandated investigatory and prosecutory powers shall, as a general rule, be left alone by this Court.

Now we move to the legal issue raised by petitioner as to whether he may be charged with violation of Section 3(f) of Republic Act No. 3019 when he was charged in the affidavit-complaint for another offense, Section 3(e) of the same Act.

(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 licences or permits or other concessions.

Petitioner contends that the OMB-Mindanao had no basis whatsoever when it ruled that the herein petitioner may be held liable under Section 3(f) of Republic Act No. 3019 when he refused to reinstate private respondent to favor his own interest or to give undue advantage in favor of Bartolome Barte. Petitioner alleges that the OMB-Mindanao arrived at such a sweeping conclusion when not even the private respondent had made the said allegations in her affidavit-complaint or any pleading. Petitioner argues that absent such allegations in the affidavit-complaint, there is simply no basis for the public respondent to declare that the herein petitioner may be held liable for violation of Section 3(f) of Republic Act No. 3019, as these allegations are essential to have a finding of probable cause of violation of Section 3(f).[27]

(f) 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 purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (Italics ours.)

Private respondents affidavit-complaint alleged the violation by petitioner of Section 3(e) of Republic Act No. 3019, but the Ombudsman, after preliminary investigation, ordered the filing of an information against petitioner for violation of Section 3(f) of Republic Act No. 3019 instead.

Pertinent provisions of Republic Act No. 3019, namely, Sections 3(e) and 3(f), are reproduced below: This Court spelled out in Sistoza v. Desierto[28] the following elements of the offense falling under Section 3(e) of Republic Act No. 3019:

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:

(a) The accused is a public officer or a private person charged in conspiracy with the former;

xxxx

(b) The public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public functions;

(c) That he or she causes undue injury to any party, whether the government or a private party;

(d) Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and

As a result, one of the elements constituting the offense under Section 3(e) of R.A. 3019, that the public officer caused any undue injury to any party, including the government, is missing. Accordingly, proof of the extent or quantum of damage is not essential, it being sufficient that the injury suffered or benefit received can be perceived to be substantial enough and not merely negligible. It is recognized that there was no proof of damage caused to the complainant since in fact she is now receiving her RATA.[29]

(e) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable neglect. Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. It is further required that any or all of these modalities ought to result in undue injury to a specified party.

Notably, private respondent and petitioner agree that petitioner was already receiving her RATA as private respondent did not controvert the fact of payment of her RATA.

While the OMB-Mindanao did not find probable cause to indict petitioner for violation of Section 3(e) of Republic Act No. 3019, it did find that there was probable cause to file an information against petitioner for violation of Section 3(f) of the same statute.

The OMB-Mindanao determined the absence of one element, thus, barring it from indicting petitioner for violation of Section 3(e) of Republic Act No. 3019. In its Resolution dated 26 November 2004, the OMB-Mindanao found:

A violation of Section 3(f) of Republic Act No. 3019 is committed when the following elements[30] exist:

a) The offender is a public officer; The complainant alleged that her representation and transportation allowance (RATA) was cut-off effective 01 August 2001, in favor of Bartolome C. Barte, acting as Officer-in-Charge and functioning as Budget Officer. However, the explanation of the respondent that complainant had been receiving the benefits corresponding to her position per Memorandum Order No. 0755 dated 25 July 2003 was not denied by the latter.

b) The said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him;

c) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and

d) Such failure to so act is "for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another.

Despite the Resolution of the Civil Service Commission, [petitioner] did not implement the same. Dilly-dallying its implementation, [petitioner] filed a Motion for Reconsideration questioning CSC Resolution No. 030096 dated 21 January 2003. Then, [petitioner] resorted to intimidating [private respondent] by threatening to file a case against the [private respondent], and in the alternative, offered and lured her to resign, with payment of all retirement benefits.

The OMB-Mindanao, in its Resolution dated 26 November 2004, justified its finding of probable cause to file an information against petitioner before the Sandiganbayan for violation of Section 3(f) of Republic Act No. 3019, as follows:

Consequently, the Civil Service Commission, on 5 May 2003, denied [petitioners] Motion for Reconsideration. Accordingly, Resolution No. 03-0096 dated 21 January 2003, of the Civil Service Commission, Quezon City thereby stands.

The real issue before us is one in which [herein private respondent] accuses [herein petitioner] Mayor Galario, Jr. of refusing to act within a reasonable time on the Order/Resolution of the Civil Service Commission directing the latter to fully reinstate the former to her position as Budget Officer.

Records would show that on 7 January 2002, the Civil Service Commission [Regional Office] issued an order directing [petitioner] to reinstate [private respondent] Piano to her previous position as Budget Officer and to cause the payment of her RATA. The Motion for Reconsideration filed by respondent Mayor was denied by the CSC, Region X, Cagayan de Oro City, on 18 February 2002. In a Resolution No. 030096 dated 21 January 2003, of the Civil Service Commission, Quezon City, the Appeal filed by [petitioner] was dismissed.

While [petitioner] reinstated [private respondent] as City Budget Officer on 21 May 2003, nevertheless, on 26 May 2003, [petitioner] relieved herein [private respondent] as City Budget Officer and instead designated the latter as City Cooperative Officer. Now, by virtue of the Motion for Execution filed by herein [private respondent] before the CSC, Region X, Cagayan de Oro City on 7 July 2003, the CSC issued again another Order directing [petitioner] to reinstate herein [private respondent]. On 25 July 2003, [petitioner] pretentiously reinstated [private respondent] as City Budget Officer but on 28 July 2003, he banned the [private respondent] from signing financial transactions of the local government unit. Instead, [petitioner] designated Bartolome Barte to sign all documents pertaining to the financial transactions of Valencia City while [private respondent] to act as Liaison Officer.

Consequently, [private respondent] filed a Motion to Implement CSC Resolution No. 030096 dated 21 January 2003, of the Civil Service Commission, Quezon City.

xxxx

Accordingly, it is apparent that CSC Resolution No. 040552, dated 17 May 2004, directed [petitioner] to immediately implement the said Resolution. But [petitioner] arbitrarily, arrogantly, and illegally defied the said Resolution to fully reinstate herein [private respondent] as Budget Officer of Valencia City, until now. [Petitioner] even recommended [private respondent] to the position of City Cooperative Officer just only to oust the latter in the City Hall. But [private respondent] did not accept. Not only that, by issuing letters dated June 29, 2004 and July 2, 2004, [petitioner] made it appear that the position of Budget Officer is vacant, thus, [private respondent] must apply thereto. Patently, [petitioner] has no intention of complying the said aforesaid Resolution. Undoubtedly, [petitioner] is making it hard for herein [private respondent] to reassume her position as Budget Officer.

a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor (the Ombudsman, in this case) sufficient latitude of discretion, not only in determining what will constitute sufficient evidence that will establish "probable cause" for the filing of information against a supposed offender, but as well as the proper offense to be charged against said offender depending again on the evidence submitted by the parties during the preliminary investigation.

Squarely in point is Avila v. Sandiganbayan and Ombudsman which stated thus:

By the foregoing acts, it is apparent that [petitioners] Manifestation of Compliance with the Order/Resolution of the Civil Service Commission is tantamount to non-compliance.

We find no merit in petitioner's contention that he was deprived of due process because the accusation in the information was for violation of Section 3(e), R. A. 3019, but the crime charged in the letter complaint subject of the preliminary investigation was for direct assault.

Accordingly, [petitioner] may be held liable under Section (f), R.A. 3019, by x x x refusing, after due demand or request, without sufficient justification, to act within a reasonable time on reinstating herein [private respondent] as Budget Officer, for the purpose of favoring his own interest or giving undue advantage in favor of Bartolome Barte.

In Enrile vs. Salazar, we ruled that there is "nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what was charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation."[32]

WHEREFORE, PREMISES CONSIDERED, this Office finds probable cause to indict [petitioner] guilty of violation of Section 3(f) of R.A. 3019, as amended.[31]

However, this power of the Ombudsman to determine probable cause and thus charge the proper information is subject to the requirements of due process, as embodied in the Constitution.

There is no reason for us to disturb the findings of the OMBMindanao as aforequoted. We reiterate that this Court has adopted

While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this Court is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987 Constitution.[33]

primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases. (Emphases supplied.)

Finally, it bears emphasizing once again the extent of the powers of the Ombudsman in the fulfillment of its constitutional mandate as protector of the people. Article XI, Section 13 of the 1987 Philippine Constitution, enumerates the powers, functions, and duties of the Office of the Ombudsman, among which is to:

(1) Investigate on its own, or on complaint by any person, 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.

It is clear from the foregoing constitutional and statutory provisions that the Ombudsman is given a plenary and unqualified authority with respect to its investigatory and prosecutory[34] power, subject only to the constitutional limitations, and its coverage cannot be limited to the allegations in any complaint-affidavit that may have been filed against a public officer. In fact, the Ombudsman may investigate and prosecute on its own, without need for a complaintaffidavit, for as long as the case falls within its jurisdiction. Hence, regardless of the allegations and accusations against the public officer in the affidavit-complaint, it still rests upon the Ombudsman to determine the proper crime or offense which can be charged against the public officer depending on the findings of the Ombudsman in the preliminary investigation.

The Ombudsman Act of 1989 (Republic Act No. 6770) likewise provides:

Sec 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:

WHEREFORE, premises considered, the instant Petition for Certiorari under Rule 65 of the Revised Rules of Court is hereby DISMISSED for lack of merit. The Resolution of the Office of the Ombudsman-Mindanao dated 26 November 2004 in OMB-M-C-040282-G finding probable cause against petitioner Jose M. Galario, Jr. for violation of Section 3(f) of Republic Act No. 3019 and the Order of the same Office dated 7 January 2005 denying petitioners Motion for Reconsideration are hereby AFFIRMED. Let the appropriate information be filed against the petitioner before the Sandiganbayan. Costs against petitioner.

(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

SO ORDERED.

CHICO-NAZARIO, and Acting Chairperson, PEOPLE OF THE PHILIPPINES, Petitioner, PERALTA, JJ.

Promulgated:

March 2, 2009 - versus x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION HERMENEGILDO DUMLAO y CASTILIANO and EMILIO LAO y GONZALES, Respondents. CHICO-NAZARIO, J.:

G.R. No. 168918

Present:

On appeal is the Resolution[1] of the Sandiganbayan in Criminal Case No. 16699 dated 14 July 2005 which granted the Motion to Dismiss/Quash of respondent Hermenegildo C. Dumlao and dismissed the case against him. The Sandiganbayan likewise ordered the case against respondent Emilio G. Lao archived. The dispositive portion of the resolution reads: WHEREFORE, finding the Motion to Dismiss/Quash filed by accused Hermenegildo C. Dumlao to be meritorious this case as against him is hereby ordered DISMISSED.

PUNO, C.J.,* QUISUMBING, J.,** CARPIO,***

The cash bond posted by him is hereby cancelled and accused Dumlao is allowed to withdraw the same from the Cashiers Office of this Court.

The hold departure order issued by this Court against herein accused Dumlao is lifted and set aside.

The Commissioner of the Bureau of Immigration and Deportation is ordered to cancel the name of accused Hermenegildo C. Dumlao from the Bureaus Hold Departure List.

there willfully, unlawfully and criminally enter into contract of lease-purchase with Emilio G. Lao, a private person whereby the GSIS agreed to sell to said Emilio G. Lao, a GSIS acquired property consisting of three parcels of land with an area of 821 square meters together with a 5-storey building situated at 1203 A. Mabini St., Ermita, Manila, known as the Government Counsel Centre for the sum of P2,000,000.00 with a down payment of P200,000.00 with the balance payable in fifteen years at 12% interest per annum compounded yearly, with a yearly amortization of P264,278.37 including principal and interest granting Emilio G. Lao the right to sub-lease the ground floor for his own account during the period of lease, from which he collected yearly rentals in excess of the yearly amortization which contract is manifestly and grossly disadvantageous to the government.[3]

This case as against Emilio Lao who is still at large is ordered archived.[2] When arraigned on 9 November 2004, respondent Dumlao, with the assistance of counsel de parte, pleaded not guilty to the offense charged.[4] As agreed upon by the prosecution and respondent Dumlao, a Joint Stipulation of Facts and Admission of Exhibits was submitted to the court on 10 January 2005.[5] On the basis thereof, the court issued on 19 January 2005 the following Pre-Trial Order:

On 19 July 1991, an Amended Information was filed before the Sandiganbayan charging respondents Dumlao and Lao, Aber P. Canlas, Jacobo C. Clave, Roman A. Cruz, Jr. and Fabian C. Ver with violation of Section 3(g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The case was docketed as Criminal Case No. 16699. The accusatory portion of the information reads:

PRE-TRIAL ORDER

That on or about May 10, 1982, or for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused Hermenegildo C. Dumlao, Aber Canlas, Jacobo C. Clave, Roman A. Cruz, Jr., and Fabian C. Ver, being then the members of the Board of Trustees of the Government Service Insurance System (GSIS) which is a government corporation and therefore all public officers, conspiring and confederating together and mutually helping one another, while in the performance of their official functions, did then and

The Prosecution and Accused Hermenegildo C. Dumlao, as assisted by counsel, submitted their JOINT STIPULATION OF FACTS AND ADMISSION OF EXHIBITS dated December 21, 2004, quoted hereunder:

I. STIPULATION OF FACTS

The Prosecution and Accused Dumlao jointly stipulate on the following:

should commence after the GSIS shall have renovated the building according to the specification of the OGCC;

1. That at the time material to this case, the following were members of the Board of Trustees of the Government Service Insurance System (GSIS):

5. That in accordance with the June 22, 1978 LeasePurchase Agreement, the 5-storey building was renovated. Thereafter, the OGCC occupied the same;

a. b. c. d. e. f. g.

Hermenegildo C. Dumlao Aber P. Canlas Jacobo C. Clave Roman A. Cruz Fabian C. Ver Leonilo M. Ocampo and Benjamin C. Morales;

6. That Ferdinand E. Marcos was, at all-times material hereto, the President of the Republic of the Philippines;

7. That then President was at all times material hereto, legislating through the issuance of Presidential Decrees, Executive Orders and the like;

8. That among the three Members of the Board who signed the Minutes only accused Dumlao was charged in this case;

2.

That Emilio Gonzales Lao is a private person;

9. That there are only seven (7) members of the Board of Trustees of the GSIS present during the board meeting held on April 23, 1982;

3. That GSIS was the owner of a property consisting of three (3) parcels of land with an area of 821 square meters, together with a 5-storey building situated as 1203 A. Mabini Street, Ermita, Manila known as the Government Counsel Centre;

4. That on June 22, 1978, the GSIS entered into a Lease-Purchase Agreement with the Republic of the Philippines through the Office of the Government Corporate Counsel (OGCC) involving the property described under paragraph 3 above, for a consideration of P1.5 million payable in equal yearly amortizations for a period of fifteen (15) years with zero interest. The period

10. Exhibit A and 1 entitled Agreement was signed by Luis A. Javellana, for and in behalf of the GSIS, Felipe S. Aldaa, for and [in] behalf of the Republic of the Philippines thru Government Corporate Counsel, and Emilio Gonzales Lao, as buyer.

II. DOCUMENTARY EVIDENCE

The Prosecution and Accused Dumlao admitted the authenticity and due execution of the following documentary evidence:

III. RESERVATION

EXHIBITS

The Prosecution and Accused Dumlao reserve the right to mark and offer in evidence the documents mentioned in their respective Pre-Trial Briefs, as well as to present the witnesses listed therein.

DESCRIPTION A (also Exhibit 1 for accused Dumlao IV. ISSUE

Whether or not accused Dumlao is liable for violation of Section 3(g), RA 3019.

The Agreement executed by and among the GSIS, the Republic of the Philippines, through OGCC and accused Emilio Gonzales Lao on May 10, 1982, consisting of 11 pages;

WHEREFORE, with the submission by the parties of their Joint Stipulation of Facts, the pre-trial is deemed terminated. Let the above-mentioned joint stipulation as recited in this pre-trial order bind the parties, limit the trial to matters not disposed of, and control the course of the proceedings in this case unless modified by the Court to prevent manifest injustice.[6]

B (also Exhibit 2 for accused Dumlao)

The pertinent portion, including the signature page, of Minutes of Meeting No. 14 of the GSIS Board of Trustees held on April 23, 1982, specifically containing item no. 326 regarding the approval of the proposed Agreement by and among the GSIS, the Republic of the Philippines through the OGCC and accused Emilio Gonzales Lao, consisting of 5 pages.

On 21 February 2005, respondent Dumlao filed a Motion to Dismiss/Quash on the ground that the facts charged do not constitute an offense.[7] He stated that the prosecutions main thrust against him was the alleged approval by the Government Service Insurance System (GSIS) Board of Trustees -- of which he was a member -- of the Lease-Purchase Agreement entered into by and among the GSIS, the Office of the Government Corporate Counsel (OGCC) and respondent Lao. He argued that the allegedly approved Board Resolution was not in fact approved by the GSIS Board of Trustees, contrary to the allegations in the information. Since the signatures of Fabian Ver, Roman Cruz, Aber Canlas and Jacobo Clave did not appear in the minutes of the meeting held on

23 April 1982, he said it was safe to conclude that these people did not participate in the alleged approval of the Lease-Purchase Agreement. This being the case, he maintained that there was no quorum of the board to approve the supposed resolution authorizing the sale of the GSIS property. There being no approval by the majority of the Board of Trustees, there can be no resolution approving the Lease-Purchase Agreement. The unapproved resolution, he added, proved his innocence. He further contended that the person to be charged should be Atty. Luis Javellana, who sold the subject property to respondent Lao without the proper authority. He likewise wondered why he alone was charged without including the other two signatories in the minutes of the meeting held on 23 April 1982.

On 2 September 2005, the People of the Philippines, represented by the Office of the Ombudsman, thru the Office of the Special Prosecutor, filed a petition for certiorari[9] under Rule 45 of the Rules of Court seeking the reversal and setting aside of the Sandiganbayan Resolution dismissing the case against respondent Dumlao. Petitioner raises the following issues:

On 14 July 2005, the Sandiganbayan issued the assailed resolution. It ruled:

I) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO DISMISS CRIMINAL CASE NO. 16699 AS AGAINST RESPONDENT DUMLAO AFTER THE PRE-TRIAL AND BEFORE THE PETITIONER COULD PRESENT ITS WITNESSES AND FORMALLY OFFER ITS EXHIBITS.

The Court finds the motion meritorious. The minutes of the meeting held on April 23, 1982 of the Board of Trustees of GSIS shows that the Board failed to approve the Lease-Purchase Agreement in question. As stipulated upon by both parties out of the seven (7) members of GSIS Board of Trustees only three (3) members signed the minutes, the others did not. In order to validly pass a resolution at least a majority of four (4) members of the Board of Trustees must sign and approve the same.

II) WHETHER OR NOT THE SIGNATURES OF THE MAJORITY OF THE GSIS BOARD OF TRUSTEES ARE NECESSARY ON THE MINUTES OF MEETING NO. 14 DATED 23 APRIL 1982 TO GIVE FORCE AND EFFECT TO RESOLUTION NO. 326 APPROVING THE PROPOSED AGREEMENT BY AND AMONG THE GSIS, THE OGCC AND RESPONDENT EMILIO LAO.

III) WHETHER OR NOT THE VALIDITY OF THE CONTRACT IS AN ESSENTIAL ELEMENT OF VIOLATION OF SECTION 3(G), RA 3019.

No amount of evidence can change the fact that Resolution dated April 23, 1982 was not validly passed by the Board of Trustees of GSIS since it was only signed by three (3) members of the Board. Thus, it never had the force and effect of a valid resolution and did not in effect approve the Lease and Purchase Agreement subject matter hereof. Therefore, the prosecution has no cause of action against herein movant-accused Hermenegildo C. Dumlao.[8]

IV) WHETHER OR NOT THE COURT A QUO ACTED IN ACCORDANCE WITH LAW AND JURISPRUDENCE WHEN IT RESOLVED TO ARCHIVE THE CASE AGAINST RESPONDENT LAO.

On the other hand, respondent Dumlao proffers the following grounds to support the dismissal of the case against him:

1. TO GIVE DUE COURSE TO THE OMBUDSMANS PETITION IS TO PLACE DUMLAO IN DOUBLE JEOPARDY, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS;

Respondent Dumlao was charged, he being one of the members of the GSIS Board of Trustees who allegedly approved the lease-purchase of the subject GSIS properties consisting of three parcels of land with an area of 821 square meters, together with a five-storey building, in favor of respondent Lao, which leasepurchase agreement was deemed by the Office of the Ombudsman to be grossly disadvantageous to the government.

2. THE SANDIGANBAYAN COULD NOT BE SAID TO HAVE GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION BECAUSE IT MERELY FOLLOWED THE RULE ON PRETRIAL AND DECIDED THE CASE ON THE BASIS OF THE FACTS STIPULATED IN THE PRE-TRIAL;

3. THE FACTS AS AGREE (SIC) BY THE PROSECUTION AND RESPONDENT DUMLAO IN THEIR PRE-TRIAL STIPULATION AND AS APPROVED BY THE SANDIGANBAYAN SHOWED THAT HE DID NOT COMMIT ANY CRIME; AND

A review of the Motion to Dismiss/Quash filed by respondent Dumlao reveals that the ground he invoked was that the facts charged do not constitute an offense. He contends that the alleged approved Board Resolution was not approved by the GSIS Board of Trustees, contrary to the allegation in the information. Since the signatures of four out of the seven members of the board did not appear in the minutes of the meeting held on 23 April 1982, there was no quorum present or no majority that approved the supposed resolution. This being the case, he asserts that there was no resolution adopted by the GSIS Board of Trustees approving the sale of the subject properties to respondent Lao.

4. CONTINUALLY PROSECUTING DUMLAO, TO THE EXCLUSION OF OTHER GSIS TRUSTEES, UNDER THE CIRCUMSTANCES OBTAINING, CONSTITUTES UNFAIR DISCRIMINATION AND VIOLATION OF HIS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW.[10]

Petitioner argues it was denied its right to due process when the court a quo dismissed the case against respondent Dumlao after pre-trial and before it could present its witnesses and formally offer its exhibits. The court a quo deprived it of the opportunity to prove its case that the Resolution dated 23 April 1982 was passed by the GSIS Board of Trustees and that the Lease-Purchase Agreement was grossly and manifestly disadvantageous to the government.

The Sandiganbayan, basing its resolution on the Pre-trial Stipulation entered into by the prosecution and respondent Dumlao, dismissed the case against the latter, since it found that the GSIS Board of Trustees failed to approve or validly pass the Lease-Purchase Agreement, because only three out of the seven members of the Board signed the minutes of the meeting held on 23 April 1982. It explained that, no amount of evidence can change the fact that the Resolution dated April 23, 1982 was not validly passed by the Board of Trustees of GSIS since it was only signed by three members of the Board. Thus, it never had the force and effect of a valid resolution and did not in effect approve the Lease and Purchase Agreement subject matter hereof. Therefore, the prosecution has no cause of action against herein movant-accused Hermenegildo C. Dumlao.

The ground raised by respondent Dumlao in his Motion to Quash/Dismiss is that the facts charged do not constitute an offense. The fundamental test in determining the sufficiency of the material averments of an information is whether the facts alleged therein, which are hypothetically admitted, would establish the essentials elements of the crime defined by law. Evidence aliunde, or matters extrinsic of the Information, are not be considered.[11]

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

The elements of the crime under Section 3(g) of Republic Act No. 3019 are as follows: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.[12]

(d) That the officer who filed the information had no authority to do so;

(e) form;

That it does not conform substantially to the prescribed

After examining the information, we find that the facts alleged therein, if hypothetically admitted, will prove all the elements of Section 3(g) as against respondent Dumlao.

(f) single

That more than one offense is charged except when a punishment for various offenses is prescribed by law;

It can be gathered from the resolution of the Sandiganbayan that it did consider the ground invoked by Dumlao (that the facts charged do not constitute an offense); otherwise, it could have denied respondent Dumlaos motion. From the reasoning given by the Sandiganbayan, it is clear that it dismissed the case because of insufficiency of evidence.

(g)

That the criminal action or liability has been extinguished;

(h) legal

That it contains averments which, if true, would constitute a excuse or justification; and

Insufficiency of evidence is not one of the grounds of a Motion to Quash. The grounds, as enumerated in Section 3, Rule 117 of the Revised Rules of Criminal Procedure, are as follows:

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.

(a)

That the facts charged do not constitute an offense;

Insufficiency of evidence is a ground for dismissal of an action only after the prosecution rests its case. Section 23, Rule 119 of the Revised Rules of Criminal Procedure provides:

GSIS Board of Trustees signed the minutes of the meeting of 23 April 1982.

Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

In the case under consideration, the Sandiganbayan dismissed the case against respondent for insufficiency of evidence, even without giving the prosecution the opportunity to present its evidence. In so doing, it violated the prosecutions right to due process. It deprived the prosecution of its opportunity to prosecute its case and to prove the accuseds culpability.

We agree with petitioner that the Sandiganbayan erred in equating the minutes of the meeting with the supposed resolution of the GSIS Board of Trustees. A resolution is distinct and different from the minutes of the meeting. A board resolution is a formal action by a corporate board of directors or other corporate body authorizing a particular act, transaction, or appointment.[13] It is ordinarily special and limited in its operation, applying usually to some single specific act or affair of the corporation; or to some specific person, situation or occasion.[14] On the other hand, minutes are a brief statement not only of what transpired at a meeting, usually of stockholders/members or directors/trustees, but also at a meeting of an executive committee. The minutes are usually kept in a book specially designed for that purpose, but they may also be kept in the form of memoranda or in any other manner in which they can be identified as minutes of a meeting.[15]

It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only did it not consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not raised by him, and not at the appropriate time. The dismissal was thus without basis and untimely.

On the second issue raised by petitioner, it maintains that the Sandiganbayan erred in equating, or confusing, the minutes of the meeting of 23 April 1982 with Resolution No. 326, which allegedly approved the lease-purchase agreement on the GSIS properties, entered into with respondent Lao. It argues that the Sandiganbayan incorrectly ruled that the Resolution dated 23 April 1982 regarding the lease-purchase of the GSIS properties was not approved, because only three out of the seven members of the

The Sandiganbayan concluded that since only three members out of seven signed the minutes of the meeting of 23 April 1982, the resolution approving the Lease-Purchase Agreement was not passed by the GSIS Board of Trustees. Such conclusion is erroneous. The non-signing by the majority of the members of the GSIS Board of Trustees of the said minutes does not necessarily mean that the supposed resolution was not approved by the board. The signing of the minutes by all the members of the board is not required. There is no provision in the Corporation Code of the Philippines[16] that requires that the minutes of the meeting should be signed by all the members of the board.

The proper custodian of the books, minutes and official records of a corporation is usually the corporate secretary. Being the custodian of corporate records, the corporate secretary has the duty to record and prepare the minutes of the meeting. The signature of the corporate secretary gives the minutes of the meeting probative

value and credibility.[17] In this case, Antonio Eduardo B. Nachura, [18] Deputy Corporate Secretary, recorded, prepared and certified the correctness of the minutes of the meeting of 23 April 1982; and the same was confirmed by Leonilo M. Ocampo, Chairman of the GSIS Board of Trustees. Said minutes contained the statement that the board approved the sale of the properties, subject matter of this case, to respondent Lao.

The minutes of the meeting of 23 April 1982 were prepared by the Deputy Corporate Secretary of the GSIS Board of Trustees. Having been made by a public officer, the minutes carry the presumption of regularity in the performance of his functions and duties. Moreover, the entries contained in the minutes are prima facie evidence of what actually took place during the meeting, pursuant to Section 44, Rule 130 of the Revised Rule on Evidence.[19] This being the case, the Sandiganbayan erred in dismissing the case, because there was evidence, at that time, when it dismissed the case against respondent Dumlao. The dismissal by the lower court of the case against respondent Dumlao was indeed premature. It should have given the prosecution the opportunity to fully present its case and to establish reasonable doubt on the alleged approval by the GSIS Board of Trustees of the lease-purchase of the GSIS properties.

In support of the dismissal of the case against him, respondent Dumlao contends that to give due course to the Ombudsmans petition would place him in double jeopardy, in violation of his constitutional rights. Respondent Dumlao asserts that all the elements of double jeopardy are present in the case at bar. Citing Heirs of Tito Rillorta v. Firme,[23] he added: [A]ssuming arguendo that the Sandiganbayan committed an error, whatever error may have been committed by the Sandiganbayan was merely an error of judgment and not of jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind of error that can no longer be rectified on appeal by the prosecution, no matter how obvious the error may be.

To raise the defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first.[24] The first jeopardy attaches attaches only (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.[25]

Petitioner likewise faults the Sandiganbayan for archiving the case against respondent Lao, arguing that since he had already been arraigned, it should have ordered the prosecution to adduce evidence against him.

We agree. However, said issue has already been mooted by the death of respondent Lao.[20] The death of an accused prior to final judgment terminates his criminal as well as civil liability based solely thereon.[21] Accordingly, the case against respondent Lao was dismissed.[22]

We do not agree. In the instant case, double jeopardy has not yet set in. The first jeopardy has not yet attached. There is no question that four of the five elements of legal jeopardy are present. However, we find the last element valid conviction, acquittal, dismissal or termination of the case wanting. As previously discussed, the Sandignabayan violated the prosecutions right to due process. The prosecution was deprived of its opportunity to prosecute its case and to prove the accuseds culpability. The dismissal was made in a capricious and whimsical manner. The trial court dismissed the case on a ground not invoked by the respondent. The Sandiganbayan dismissed the case for insufficiency of evidence, while the ground invoked by the respondent was that the facts charged did not constitute an

offense. The dismissal was clearly premature, because any dismissal based on insufficiency of evidence may only be made after the prosecution rests its case and not at any time before then. [26] A purely capricious dismissal of an information deprives the State of a fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void and cannot be the basis of double jeopardy.[27]

that time, to set the case for trial and to allow the prosecution to prove its case and to present all its witnesses and evidence.

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Where the denial of the fundamental right to due process is apparent, a decision in disregard of the right is void for lack of jurisdiction.[28] In the instant case, there was no error of judgment but a denial of due process resulting in loss of jurisdiction. Respondent Dumlao would not be placed in double jeopardy because, from the very beginning, the Sandiganbayan had acted without jurisdiction. Precisely, any ruling issued without jurisdiction is, in legal contemplation, necessarily null and void and does not exist.[29] Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that is, due process. In rendering the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a judgment which is void for lack of due process is equivalent to excess or lack of jurisdiction.[30] This being the case, the prosecution is allowed to appeal because it was not given its day in court.

Respondent Dumlao claims that the GSIS has not been prejudiced because it still owns the properties subject matter of this case. This Court cannot rule on this claim, the same being a factual issue and a defense he is raising. The appreciation of this claim is not proper in this forum and is better left to the trial court, since the Supreme Court is not a trier of facts.[31]

Respondent Dumlao maintains he was charged with conspiring with the other GSIS Board Members in approving the Lease-Purchase Agreement. However, of the seven members, two died, two were acquitted and the other two were not charged. He was left alone. He argues that since a conspiracy requires two or more persons agreeing to commit a crime, he can no longer be charged because he was left alone to face a charge of conspiracy.

As heretofore explained, the Sandiganbayan gravely abused its discretion amounting to lack of jurisdiction when it dismissed the case against respondent Dumlao based only on the stipulations made by the parties during pre-trial. The erroneous equation of the number of members who signed the minutes of the meeting with the number of members who approved the alleged resolution necessarily led to the Sandiganbayans faulty conclusion that there was no evidence showing that the GSIS Board of Trustees approved the alleged Lease-Purchase Agreement. As we have said, the minutes issued by the Depute Corporate Secretary were enough, at

His assumption that he can no longer be charged because he was left alone -- since the co-conspirators have either died, have been acquitted or were not charged -- is wrong. A conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime depends upon the joint act or intent of two or more person. Yet, it does not follow that one person cannot be convicted of conspiracy. As long as the acquittal or death of a co-conspirator does not remove the basis of a charge of conspiracy, one defendant may be found guilty of the offense.[32] In the case at bar, the absence or presence of conspiracy is again factual in nature and involves evidentiary matters. The same is better left ventilated before the trial court during trial, where the parties can adduce evidence to prove or disprove its presence.

Lastly, respondent Dumlao submits that his prosecution, to the exclusion of others, constitutes unfair discrimination and

violates his constitutional right to equal protection of the law. He says that the dismissal of the case against his co-accused Canlas and Clave were not appealed by the prosecution; and the two government officials who signed the Lease-Purchase Agreement, and the two other members (Ocampo and Morales) of the GSIS Board of Trustees who signed the minutes were not charged.

We are not convinced that respondent Dumlao was unfairly discriminated against and his constitutional right to equal protection violated. It must be remembered that the manner in which the prosecution of the case is handled is within the sound discretion of the prosecutor, and the non-inclusion of other guilty persons is irrelevant to the case against the accused.[33] We find that there was no clear and intentional discrimination in charging respondent Dumlao. A discriminatory purpose is never presumed. [34] It must be remembered that it was not solely respondent who was charged, but also five of the seven board members. If, indeed, there were discrimination, respondent Dumlao alone could have been charged. But this was not the case. Further, the fact that the dismissal of the case against his co-accused Canlas and Clave was not appealed is not sufficient to cry discrimination. This is likewise true for the non-inclusion of the two government officials who signed the Lease-Purchase Agreement and the other two board members. Mere speculation, unsupported by convincing evidence, cannot establish discrimination on the part of the prosecution and the denial to respondent of the equal protection of the laws.

laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of clear and intentional discrimination. Appellant has failed to show that, in charging appellant in court, that there was a clear and intentional discrimination on the part of the prosecuting officials.

The discretion of who to prosecute depends on the prosecutions sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. The presumption is that the prosecuting officers regularly performed their duties, and this presumption can be overcome only by proof to the contrary, not by mere speculation. Indeed, appellant has not presented any evidence to overcome this presumption. The mere allegation that appellant, a Cebuana, was charged with the commission of a crime, while a Zamboanguea, the guilty party in appellants eyes, was not, is insufficient to support a conclusion that the prosecution officers denied appellant equal protection of the laws.

In Santos v. People,[35] citing People v. Dela Piedra,[36] the Court explained:

There is also common sense practicality in sustaining appellants prosecution.

The prosecution of one guilty person while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection of the laws. Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the

While all persons accused of crime are to be treated on a basis of equality before the law, it does not follow that they are to be protected in the commission of crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others have murdered with impunity. The remedy for unequal enforcement of the law in such instances does not lie in the exoneration of the guilty at the expense of society x x x. Protection

of the law will be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right to demand protection of the law in the commission of a crime.

Likewise, [i]f the failure of prosecutors to enforce the criminal laws as to some persons should be converted into a defense for others charged with crime, the result would be that the trial of the district attorney for nonfeasance would become an issue in the trial of many persons charged with heinous crimes and the enforcement of law would suffer a complete breakdown. (Emphases ours.)

WHEREFORE, premises considered, the instant petition is GRANTED. The resolution of the Sandiganbayan in Criminal Case No. 16699 dated 14 July 2005 granting the Motion to Dismiss/Quash of respondent Hermenegildo C. Dumlao, is hereby REVERSED and SET ASIDE. The Sandiganbayan is forthwith DIRECTED to set the case for the reception of evidence for the prosecution.

As to respondent Emilio G. Lao, on account of his demise, the case against him is DISMISSED.

SO ORDERED.

JUANITO T. MERENCILLO, Petitioner, Present:

G.R. Nos. 142369-70

This petition for review[1] assails the June 18, 1999 decision[2] of the Sandiganbayan in A.R. Case Nos. 004-005 affirming[3] the omnibus decision[4] of the Regional Trial Court (RTC) of Tagbilaran City, Branch 47, in Criminal Case Nos. 9482-83 finding petitioner Juanito T. Merencillo guilty of violating Section 3(b) of RA 3019[5] and Article 210[6] of the Revised Penal Code.

The information charging petitioner for violation of Section 3(b) of RA 3019 in Criminal Case No. 9482 read: PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, - versus CORONA, AZCUNA and GARCIA, JJ. That, on or about the 28th day of September, 1995, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then a public official connected with the Bureau of Internal Revenue as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and with intent of personal gain, directly demand and extort from a certain Mrs. Maria Angeles Ramasola Cesar the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, in connection, in consideration and in exchange for the release of the certification of her payment of the capital gains tax for the land purchased by the Ramasola [Superstudio] Inc. from one Catherine Corpuz Enerio, a transaction wherein the aforesaid accused has to intervene in his official capacity, and to which the said Mrs. Maria Angeles Ramasola Cesar reluctantly agreed but upon prior consultation with the military authorities particularly the elements of the 702nd Criminal Investigation Command [CIC] who set up the accused for a possible entrapment resulting to (sic) his being caught in the act of receiving an envelope supposedly containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but consisting only of four (4) marked one hundred peso bills and the rest all bogus (paper) monies, to the damage and prejudice of the said Mrs. Maria Angeles Ramasola Cesar in particular and the public and the government in general in the amount to be proved during the trial of the case.

PEOPLE OF THE PHILIPPINES,* Respondent. Promulgated:

April 13, 2007

x------------------------------------------x

DECISION CORONA, J.:

Acts committed contrary to the provisions of Section 3(b) of [RA] 3019.[7]

Acts committed contrary to the provisions of Article 210 of the Revised Penal Code of the Philippines.[8]

On the other hand, the information for direct bribery penalized under Article 210 of the Revised Penal Code in Criminal Case No. 9483 charged:

Petitioner pleaded not guilty to both charges when arraigned. Thereafter trial ensued and the cases were tried jointly.

That, on or about the 28th day of September, 1995 in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then a public official connected with the performance of official duty as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and with intent of personal gain, demand, extort and agree to perform an act constituting a crime, an act which is in violation of the Anti-Graft and Corrupt Practices Act, that is that the certification for payment of the capital gains tax relative to the land purchased by the Ramasola Superstudio Incorporated from Catherine Corpus Enerio be released by him only upon payment of an additional under the table transaction in the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, which Mrs. Maria Angeles Ramasola Cesar reluctantly agreed, but upon prior consultation with the military authorities particularly the elements of the 702nd Criminal [Investigation] Command (CIC) who set up the accused for a possible entrapment resulting to (sic) his being caught in the act of receiving an envelope supposedly containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but, consisting only of four (4) marked one hundred pesos bills and the rest all bogus (paper) monies, an act performed by the accused in his official capacity as Group Supervising Examiner of the BIR, to the damage and prejudice of Mrs. Maria Angeles Ramasola Cesar in particular and the public and the government in general in the amount to be proved during the trial of the case.

THE FACTS ESTABLISHED BY THE PROSECUTION

In the morning of September 13, 1995, Lucit Estillore went to the Bureau of Internal Revenue (BIR) office in Tagbilaran City to ask for the computation of taxes due on the sale of real property to Ramasola Superstudio, Inc. and to apply for a certificate authorizing registration (CAR).[9] At the BIR office, she was entertained by revenue examiner Lourdes Fuentes who computed the documentary stamp tax (P37,500) and capital gains tax (P125,000) due on the transaction. The computation was approved by petitioner in his capacity as group supervisor. Estillore paid the taxes in the bank and returned to apply for a CAR. She submitted the application together with relevant documents to Fuentes for processing. Fuentes prepared the revenue audit reports and submitted them together with the application for the CAR to petitioner for preliminary approval. [The application was to be forwarded thereafter to the Revenue District Officer (RDO) for final approval.] Fuentes advised Estillore that the CAR would be released after seven days.

At around 10:00 a.m. of the same day, private complainant Maria Angeles Ramasola Cesar[10] (Cesar) received a call from Estillore. She was told that petitioner wanted to see her for some negotiation. She proceeded to petitioners office where the latter demanded P20,000 in exchange for the approval of the CAR. Cesar replied that she needed to confer with her two brothers who were her business associates.

each side of each of the two bundles to make it appear that the two bundles amounted to P10,000 each or a total of P20,000. After the serial numbers of the four one-hundred peso bills were recorded, the entrapment was set for September 28, 1995.

The following day, on September 14, 1995, Cesar received a call from petitioner who was following up his demand. Later that day, Cesar received another call from petitioner who told her that she could get the CAR after four or five days.

On the appointed day, Cesar called petitioner and pleaded for the release of the CAR as well as for the reduction of petitioners demand. Petitioner cautiously told Cesar not to talk about the matter on the phone and asked her to see him instead. Cesar went to petitioners office with the two bundles of bogus money inside a white envelope.

Cesar was able to return to the BIR only on September 20, 1995. When petitioner saw her, he repeated his demand for P20,000 although the CAR had in fact been signed by RDO Galahad Balagon the day before, on September 19, 1995, and was therefore ready for release. On Cesars inquiry, the releasing clerk, Susan Cabangon, informed Cesar that she (Cabangon) was still waiting for petitioners go signal to release the document. On September 22, 1995, Cesar visited RDO Balagon and complained about petitioners refusal to release the CAR unless his demand was met. RDO Balagon assured Cesar that he would look into her complaint. Subsequently, Cesar received a call from petitioner informing her that she could get the CAR but reminded her of his demand. He told her that he was willing to accept a lesser amount. It was at this point that Cesar decided to report the matter to the authorities. She sought the help of the Provincial Director of the Philippine National Police (PNP) in Bohol, Senior Superintendent Dionaid Baraguer.

Petitioner was entertaining a lady visitor when Cesar arrived. The members of the PNP entrapment team were already in petitioners office posing as civilians. On seeing Cesar, petitioner handed the CAR to her and, as she was signing the acknowledgment for the release of the CAR, he informed her that he was going down to the second floor. Cesar took this as a cue for her to follow.

The following day, Sr. Supt. Baraguer referred Cesars complaint to the chief of police of Tagbilaran City who coordinated with Cesar for the entrapment of petitioner. Cesar was instructed to prepare two bundles of bogus money by putting a one-hundred peso bill on

As petitioner left his office, he held the door open for Cesar to follow. On reaching the third floor lobby, petitioner uttered Here only. Cesar handed the envelope containing the two bundles of marked money to petitioner who, upon receiving it, asked Why is this thick? Before Cesar could answer, a member of the PNP entrapment team photographed petitioner holding the envelope. Petitioner panicked, hid the envelope behind his back and turned towards the window at the back of the BIR building. On seeing that the window was closed, he turned around towards the open window facing the street. He threw the envelope towards the window but it hit the ceiling instead, bounced and fell to the first floor of the BIR building.[11] The PNP entrapment team then introduced themselves to petitioner and invited him to go with them to their headquarters.

Charges were filed against petitioner. During the trial, petitioners evidence consisted of nothing more than a general denial of the charges against him. He claimed that he never asked for money and that the allegations of demand for money existed only in Cesars mind after she was told that there was a misclassification of the asset and additional taxes had to be paid. He was surprised when policemen suddenly arrested him as soon as Cesar handed him a white envelope the contents of which he suspected to be money.

the amount of Five Thousand (P5,000.00) Pesos. Costs shall also be taxed against the accused.

CONTRARY TO LAW.[12]

After trial, the RTC found petitioner guilty as charged. The dispositive portion of the decision read:

Petitioner appealed the RTC decision to the Sandiganbayan. The Sandiganbayan, however, denied the appeal and affirmed the RTC decision with modification reducing the penalty of imprisonment for violation of Section 3(b) of RA 3019 to an indeterminate sentence of six years and one month of prision mayor, as minimum, to ten years of prision mayor, as maximum.[13] Thus, this petition.

WHEREFORE, premises considered, the Court finds the accused Juanito T. Merencillo, guilty beyond reasonable doubt as principal by direct participation, defined and penalized by Section 3(b) of [RA] 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and sentences him to suffer the indeterminate penalty of imprisonment for eight (8) years and one (1) month as minimum to fifteen (15) years as maximum, there being aggravating circumstances considered under Section 3(e) and Section (f) of [RA] 3019 in relation to Article 14(1) and (11) of the [RPC] in the sense that the offender have taken advantage of his public position, and that the crime was committed in consideration of a price or promise, without any mitigating or extenuating circumstances to neutralize or offset any of the aggravating circumstances, with perpetual disqualification from public office, and the Court further finds the accused guilty beyond reasonable doubt as principal by direct participation, for the crime of Direct Bribery defined and penalized by Article 210 of the Revised Penal Code and sentences him to suffer the indeterminate penalty of four (4) years and one (1) day as minimum to eight (8) years of prision mayor as maximum and a fine of Sixty Thousand (P60,000.00) Pesos, all as mandated by law. The accused Juanito T. Merencillo likewise is ordered to indemnify private complainant [Cesar] to pay moral damages in the amount of P50,000.00 and attorneys fees in

Petitioner basically raises two points: (1) the Sandiganbayans refusal to believe his evidence over that of the prosecutions and (2) the Sandiganbayans failure to recognize that he was placed in double jeopardy.

Petitioner faults the Sandiganbayan for affirming the RTC decision and disregarding his evidence. He claims that, had the RTC and the Sandiganbayan not ignored the inconsistencies in the testimonies of the prosecutions witnesses,[14] he would have been acquitted. He also asserts that he was placed twice in jeopardy when he was prosecuted for violation of Section 3(b) of RA 3019 and for direct bribery.

Petitioner is wrong.

TRIAL COURTS EVALUATION OF EVIDENCE WILL NOT BE DISTURBED

Both the RTC and the Sandiganbayan found the testimonies of the prosecutions witnesses (that petitioner demanded and received money from private complainant Cesar for the release of the CAR) sufficient and credible enough to sustain conviction.

prosecution, cross-examination by the defense as well as during clarificatory questioning by the trial judge himself.[20] Between the trial judge and this Court, the former was concededly in a better position to determine whether or not a witness was telling the truth.[21] Based on the records, we find no reason to disagree with the trial courts assessment and to discredit the prosecutions witnesses.

This notwithstanding, petitioner now asks this Court to review the entire evidence anew, re-evaluate the credibility of witnesses and make another factual determination of the case a course of action clearly improper given the nature of the instant petition.[15] Questions of fact cannot generally be raised for the consideration of this Court.

Contrary to petitioners contention, the RTC and the Sandiganbayan considered the alleged inconsistencies in the testimonies of the prosecution witnesses. Both courts, however, ruled that the inconsistencies referred only to minor details that did not detract from the truth of the prosecutions testimonial evidence. We agree.

The calibration of evidence and the relative weight thereof belongs to the appellate court.[16] Its findings and conclusions cannot be set aside by this Court unless there is no evidence on record to support them.[17] In this case, however, the findings of fact of the Sandiganbayan, affirming the factual findings of the RTC, were amply supported by evidence and the conclusions therein were not against the law and jurisprudence. There is no reason to disturb the congruent findings of the trial and appellate courts.

Witnesses testifying on the same event do not have to be consistent in each and every detail. Differences in the recollection of the event are inevitable and inconsequential variances are commonly regarded as signs of truth instead of falsehood. Inconsistencies in the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity or the weight of their testimony.[22] In fact, such minor flaws may even enhance the worth of a testimony for they guard against memorized falsities.[23]

Moreover, findings and conclusions of the trial court on the credibility of witnesses enjoy the respect of appellate courts because trial courts have the distinct advantage of observing the demeanor of witnesses as they testify.[18] In the absence of any arbitrariness in the trial courts findings and evaluation of evidence tending to show that it overlooked certain material facts and circumstances, its findings and evaluation of evidence should be respected on review.[19] The presiding judge of the trial court had the opportunity to actually observe the conduct and demeanor of the witnesses on the witness stand on direct examination by the

Minor discrepancies or inconsistencies do not impair the essential integrity of the prosecutions evidence as a whole or reflect on the witnesses honesty.[24] The test is whether the testimonies agree on essential facts and whether the respective versions corroborate and substantially coincide with each other so as to make a consistent and coherent whole.[25] Thus, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime cannot be successfully invoked as grounds for acquittal.[26]

The RTC and the Sandiganbayan correctly ruled that the inconsistencies pointed out by petitioner were neither material nor relevant to the elements of the offenses for which he was charged. For instance, whether or not it was petitioner himself who handed the CAR to private respondent was immaterial. The fact was that petitioner demanded and received money in consideration for the issuance of the CAR.

PETITIONER WAS NOT PLACED IN DOUBLE JEOPARDY

The rule against double jeopardy prohibits twice placing a person in jeopardy of punishment for the same offense.[28] The test is whether one offense is identical with the other or is an attempt to commit it or a frustration thereof; or whether one offense necessarily includes or is necessarily included in the other, as provided in Section 7 of Rule 117 of the Rules of Court.[29] An offense charged necessarily includes that which is proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter; and an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.[30]

Section 3 of RA 3019 begins with the following statement:

A comparison of the elements of the crime of direct bribery defined and punished under Article 210 of the Revised Penal Code and those of violation of Section 3(b) of RA 3019 shows that there is neither identity nor necessary inclusion between the two offenses.

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

Section 3(b) of RA 3019 provides:

xxx

xxx

xxx (emphasis supplied)

Sec. 3. 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 unlawful:

xxx One may therefore be charged with violation of RA 3019 in addition to a felony under the Revised Penal Code for the same delictual act, that is, either concurrently or subsequent to being charged with a felony under the Revised Penal Code.[27] There is no double jeopardy if a person is charged simultaneously or successively for violation of Section 3 of RA 3019 and the Revised Penal Code.

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

(2) the offender accepts an offer or promise or receives a gift or present by himself or through another;

The elements of the crime penalized under Section 3(b) of RA 3019 are: (1) the offender is a public officer;

(3) such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do and

(2) he requested or received a gift, present, share, percentage or benefit;

(4) the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. [32]

(3) he made the request or receipt on behalf of the offender or any other person;

(4) the request or receipt was made in connection with a contract or transaction with the government and

(5) he has the right to intervene, in an official capacity under the law, in connection with a contract or transaction has the right to intervene.[31]

On the other hand, direct bribery has the following essential elements:

(1)

the offender is a public officer;

Clearly, the violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do.

Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two separate and distinct offenses. No double jeopardy attached since there was a variance between the elements of the offenses charged.[33] The constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one. [34]

WHEREFORE, the petition is hereby DENIED. The June 18, 1999 decision of the Sandiganbayan in A.R. Case Nos. 004-005 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

SECOND DIVISION [G.R. No. 148862. August 11, 2005]

RUBIN TAD-Y y BABOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CALLEJO, SR., J.:

Engineers Office, Bacolod City, with corrupt intent and motivated with pecuniary interest for themselves, did, then and there willfully, unlawfully and feloniously receive and accept marked money in the amount of Four Thousand (P4,000.00) Pesos from Julio Encabo, electrical contractor and duly-authorized representative of Mildred Wong, offended party and owner of Atrium Building located at Gonzaga Street, Bacolod City, in an entrapment operation conducted by the PNP Criminal Investigation Service Command at Andres Bakeshop, Bacolod City, which amount was earlier solicited by said accused from the offended party in exchange for the signing/approval of permit for building occupancy of the building owned by the offended party, the signing/approval of said building permit is in connection with the performance of the official duties of said accused as engineers in the Office of the City Engineer, Bacolod City, in violation of the aforementioned law.

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 24162 affirming, on appeal, the Decision[2] of the Regional Trial Court (RTC) of Bacolod City, Branch 49, in People v. Rubin Tad-y, et al., Criminal Case No. 9819401. The RTC ruling had affirmed the decision of the Municipal Trial Court in Cities (MTCC) in Criminal Case No. 57216 finding the petitioner guilty of direct bribery.

Acts contrary to law.[3]

The Antecedents

Velez and Tad-y were also charged with violation of Section 3(c) of Republic Act No. 3019[4] in an Information filed with the RTC, docketed as Criminal Case No. 17186. This case was raffled to Branch 44 of the RTC of Bacolod City.

Engineer Rubin Tad-y, Structural Analyst and Engineer Nestor Velez, Building Inspector, both of the Office of the City Engineer (OCE), Bacolod City, were charged with direct bribery under Article 210 of the Revised Penal Code in an Information filed on July 26, 1995 with the MTCC of Bacolod City, docketed as Criminal Case No. 57216. The accusatory portion of the Information for direct bribery reads:

The Case for the People[5]

That on or about the 24th day of July 1995, in the City of Bacolod, Philippines and within the jurisdiction of this Honorable Court, the herein accused, public officers, being then engineers at the City

The prosecution presented Julio Encabo, a licensed master electrician and electrical contractor, who testified that Mildred Wong contracted his services for the construction of her 6-storey Atrium building along Gonzaga Street, in front of the Central Market in Bacolod City.[6] On February 16, 1994, the Office of the City Engineer/Building Official issued Building Permit No. 0694509798[7] for the construction of the building. The construction of the building was finished by April 25, 1995.[8]

Between 1:30 and 2:00 p.m. of even date, Encabo arrived at the OCE to arrange the conduct of final building inspections, and, thereafter, the signing of the corresponding certificates. Rene Cornel, Jose Sotecinal, Ephraim Hechanova, Jose Mari Sales, Mateo Tuvida and Rubin Tad-y, were the OCE officers-in-charge of the various aspects[9] of the building construction. If all went well, the Building Official would then sign the certificate of occupancy, conformably with the provisions of the National Building Code (Presidential Decree No. 1096).

Nonetheless, on July 6, 1995, Encabo reported the matter to the Criminal Investigation Section (CIS) of the Philippine National Police (PNP) in Bacolod City, and signed a complaint sheet[12] against Tad-y for extortion. Police officer Alexander Muoz was then ordered to conduct an investigation on the complaint.

Encabo had the certificates of final inspection and occupancy form typed by an OCE secretary. However, Tad-y, Encabos compadre, approached the latter and dissuaded him from processing the certificates of final inspection and occupancy on the building since he (Tad-y) was the one responsible for it; also, Mildred Wong still had an unpaid balance of P4,000.00 for his services. When Encabo told Tad-y that collecting the amount from Wong would be problematic, Tad-y replied, [Its] up [to] you.

Muoz decided to conduct entrapment operations against Tad-y. He asked Encabo to procure P4,000.00, consisting of forty (40) pieces of P100.00 bills for the purpose.[13] Encabo complied. Muoz listed the serial numbers of the bills and placed his initials AM on the right lower corner of each bill.[14] The PNP Crime Laboratory in Bacolod City applied ultraviolet powder on the bills.[15] The money was placed in a white envelope,[16] and the envelope was turned over to Encabo for the entrapment.[17] The police officers and Encabo had agreed that the police officers would position themselves within the vicinity of the Andres Bakeshop, and after giving the envelope to Tad-y, Encabo would place his eyeglasses in front of his shirt collar to indicate that Tad-y had already received the money.[18]

Shortly thereafter, some of the officers at the OCE, including Tad-y and Tuvida, conducted their final inspection of the building. During the first week of May 1995, Encabo and Tad-y had an altercation and in his anger, Tad-y squeezed Encabos neck in the presence of the latters wife.[10] Thus, the relations between Tad-y and Encabo became strained.

After two aborted attempts,[19] Encabo informed Muoz by telephone that he and Tad-y would inspect the building at about 3:00 p.m. on July 24, 1995, and that Tad-y would sign the certificate of final inspection afterwards.[20] Police officers Eriberto Castaeda and Muoz, along with civilian agents, proceeded to Gonzaga Street and positioned themselves as planned.[21]

In the meantime, other officers of the OCE made their respective final inspections during the months of May to June 1995, and signed the respective certificates of final inspection for the building. Tad-y did not make his final inspection, and refused to do so unless the money he had demanded was given to him.[11] Encabo even sought the aid of the City Mayor but did not tell the latter that Tad-y was demanding money because he did not want to place the latter in a bad light.

Encabo and Tad-y, accompanied by OCE building inspector Engr. Nestor Velez, arrived at the building at about 5:00 p.m. on July 24, 1995. Encabo brought with him the envelope[22] containing the forty P100.00 bills and the certificate of final inspection bearing the signatures of all the other OCE officers concerned, which Tad-y was to sign after the inspection of the building. Tad-y was then wearing his orange OCE bowling team t-shirt. Encabo and Tad-y inspected

the building together for about ten to twenty minutes. Velez, on his own, made a separate inspection of the building. After the inspection, Encabo, Tad-y and Velez agreed to have a snack and proceeded to the Andres Bakeshop at the ground floor of the Atrium Building along Gonzaga Street.[23] Velez and Tad-y walked side by side while Encabo followed.[24] By then, Muoz, Castaeda and the other police officers were already in the vicinity to await Encabos signal.

Forensic Chemist Rea Villavicencio conducted the examination and prepared an Initial Laboratory Report,[37] stating that Rubin B. Tad-y was positive for the presence of yellow ultraviolet powder on his right arm. Villavicencio, likewise, prepared a sketch[38] depicting the body of Tad-y, and showing that his right forearm was positive for ultraviolet powder.

On cross-examination, Encabo admitted that Velez was not aware of everything.[39] Inside the bakeshop, Encabo brought out the certificate of final inspection, which Tad-y forthwith signed.[25] Encabo then gave the envelope containing the forty P100.00 bills to Tad-y. The latter asked Encabo, What is it for? Encabo replied that it was the money Tad-y had been waiting for.[26] Tad-y opened the envelope and saw its contents.[27] He asked Encabo if it was dangerous for him to receive the envelope, and the latter answered that it was not.[28] Instead of putting the envelope in his pocket, Tad-y handed the same to Velez under the table. Velez asked Tad-y what it was, and Tad-y told Velez to just keep it.[29] Thereafter, Tad-y and Velez, followed by Encabo, exited from the bakeshop. Encabo then removed his eyeglasses and placed it on his shirt collar, the signal that Tad-y had received the money.[30] The police officers then accosted Velez and Tad-y, and asked the latter where the white envelope was. Tad-y denied that he received the envelope. Encabo told the police officers that Velez had the envelope.[31] When asked where the envelope was, Velez brought it out from the right pocket of his pants.[32] Muoz told Velez to open the envelope and inspected its contents. Velez did as he was told, and saw that the envelope contained P100.00 bills.[33] Tad-y and Velez were arrested and brought to the CIS Headquarters, PNP Crime Laboratory.[34] Tad-ys shirt was turned over by the accosting officers. Castaeda also turned over to the PNP Crime Laboratory the white envelope and its contents, with a request[35] for the PNP Crime Laboratory to test Velez and Tad-y for ultraviolet powder and the latters shirt to be tested.[36]

Edgar Occea, the Chief of the Inspection Division, later affixed his signature on the certificate of final inspection bearing Tad-ys signature.[40] The City Building Official approved and issued the certificate of occupancy on July 27, 1995.[41]

The Case for the Accused Tad-y

Accused Tad-y denied demanding and receiving P4,000.00 from Encabo in consideration for the conduct of the building inspection, and his signature on the certificate of inspection and the certificate of occupancy. He insists that under P.D. No. 1096, he is not authorized to sign and issue a certificate of occupancy. He testified that in the afternoon of April 25, 1995, Encabo arrived at the OCE requesting that the appropriate officials inspect the 6-storey Atrium building preparatory to the issuance of a certificate of final inspection.[42] The next day, he, Tuvida, Tordesillas, Baja and Danoy conducted the building inspection.[43] They discovered that only four floors were completed.[44] Encabo agreed to inspect the building at 3:00 p.m. of July 24, 1995, which, at Encabos request, was reset to 4:30 p.m.[45] He and Engr. Velez conducted the inspection of the building on that day and found some defects in the construction of the building.

After the inspection, Tad-y left Velez and Encabo behind as he was going to a bowling tournament, but, as he was crossing Gonzaga Street, Velez and Encabo called him and invited him to join them for a snack at Andres Bakeshop.[46] He agreed because he was hungry. He and Encabo were seated beside each other at the table in the bakeshop, while Velez was seated at the opposite side.[47] While taking their snacks, Encabo brought out the certificate of final inspection bearing the signatures of the other officers of the OCE who had inspected the building. Tad-y affixed his signature above his typewritten name with the notation see back page for structural requisites at the dorsal portion of the document. Appearing at the dorsal portion of the certificate is Tad-ys handwritten notation: Please Post the Allowable Load on [conspicuous] places especially [in the] area to be used as storage.[48] Before then, he inquired from Encabo where the other requisite certificates of final inspection, plumbing, Fire Safety Inspection and logbook were, and Encabo replied that he brought the requisite certificates with him gesturing to his portfolio. Encabo assured him that all the requirements were in his portfolio.[49] With Encabos assurance, he then affixed his signature in the certificate of final inspection.[50]

but he parried the arm of the policeman with his right forearm and refused to touch it.[52] They were then brought to the PNP headquarters where they were tested for ultraviolet powder.

Encabo filed a complaint against him because on four (4) prior occasions, he refused to sign the certificate of final inspection of a house owned by a certain Nelson Seores, as well as the application for a building permit of Joey Yao, unless the latter paid a 100% surcharge for deficiencies.[53] Seores and Yao were the principals of Encabo. In the evening of April 25, 1995, after he, Tuvida, Baja and Tordesillas had their initial inspections of the building, they had dinner at the Tasty Treat. When he was about to pay the bill for their food and drinks, Encabo insisted that he would pay the said bill. This infuriated him, and he squeezed Encabos chin with his hand.[54]

Jimmy Gonzales, a newspaper vendor, corroborated the testimony of the accused that someone forced Velez to hand over the opened envelope to Tad-y,[55] but that Tad-y parried the attempt and refused to receive the envelope.[56]

Momentarily, Encabo told him that he had another document, and forthwith handed a white envelope to him. Believing that the envelope contained the requisite certificate of final inspection signed by the other officers in the OCE, he received the envelope and, without opening it, immediately handed it over to Velez who would examine its contents. He then left the bakeshop with Velez ahead of him, followed by Encabo. He was crossing Gonzaga Street on his way to the bowling tournament when he was arrested by policemen, who asked him where the white envelope he had earlier received from Encabo was. He told them that the envelope was with Velez.[51]

Tad-y marked and offered in evidence the transcript of stenographic notes[57] taken during the trial of September 25, 1995 in Criminal Case No. 17186.

The Case For the Accused Nestor Velez

Tad-y then saw Velez being held by a policeman, and that the envelope was already opened. A policeman forced Velez to go near him. Another policeman forced him (Tad-y) to touch the envelope,

Nestor Velez denied the charge. He corroborated the testimony of Tad-y and declared that he was appointed as building inspector of the OCE only on March 16, 1995.[58] When he and Tad-y inspected the building in the afternoon of July 24, 1995, they did so separately. After the inspection, Tad-y told him and Encabo that he was going ahead because he was going to play bowling.[59] When

Encabo invited him and Tad-y for a snack, Tad-y reluctantly agreed. [60]

1995.[65] He then affixed his signature on the certificate of final inspection.[66]

Momentarily, Encabo brought out the certificate of final inspection and handed it to Tad-y for the latters signature. However, Tad-y told Encabo that he would note the deficiencies of the building. Tad-y then signed the certificate after being assured by Encabo that he had all the other certificates. Tad-y gave Velez the envelope and told him to keep it because he was going to a bowling game.[61] Velez received the envelope and put it inside the right pocket of his pants, thinking that it contained the requisite final safety inspection certificate and other certificates.[62]

Venancio Baja testified that he had been in charge of the Electrical Division of the OCE since 1990. He was the assistant of Jose Sotecinal, the Chief Electrical Engineer. He inspected the Atrium building on April 25, 1995 and found it incomplete. He again inspected the building and found it in accord with the plans. He then signed the certificate of final inspection only in the first week of June 1995.[67]

On his way from the bakeshop, he and Tad-y were arrested by policemen. He opened the white envelope as the policemen ordered, and saw money inside. He was forced to approach Tad-y, and another policeman forced the latter to touch the money contained in the envelope. Tad-y resisted.

On September 28, 1998, the MTC rendered judgment convicting Tad-y of direct bribery defined and penalized under Article 210 of the Revised Penal Code. Velez was acquitted of the charges. The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

Edgar Occea testified that he signed the original and duplicate copies of the certificate of final inspection with the requisite certificates of the other officers appended thereto. The City Engineer/City Building Official signed the Certificate of Occupancy on July 27, 1995. The original copy of the certificate of final inspection and occupancy was then released to Wong, while the duplicate was retained by the OCE.[63]

1. Accused Engineer Nestor Velez is hereby ACQUITTED of the crime of violation of Article 210 of the Revised Penal Code on the ground that it is the finding of this Court that he was innocent of the crime charged;

Mateo Tuvida testified that he was the engineer in charge of the Mechanical Section of the OCE of Bacolod City since February 1975. [64] On April 25, 1995, he, Baja, Tad-y, Cornel and Yolando Ilog inspected the building at the Gonzaga side of the street and found that it was already complete but that the structure along Cuadra Street was still incomplete. He found the mechanical aspect of the building completed when he inspected it in the first week of June

2. Accused Engineer Ruben Tad-y is hereby pronounced GUILTY BEYOND REASONABLE DOUBT of Violation of Paragraph 2 of Article 210 of the Revised Penal Code and is hereby sentenced to suffer imprisonment of 2 years and 4 months, as minimum, to 3 years, as maximum, in the absence of any mitigating or aggravating circumstances, in accordance with the mandatory provisions of the Indeterminate Sentence Law, and, to pay the fine in the amount of P8,000.00 pesos.

3. Accused Ruben Tad-y, in case of his insolvency to pay the fine, shall suffer a subsidiary penalty of imprisonment at the rate of one day for each 8 pesos and shall remain in confinement until his fine is satisfied. However, his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of day shall be counted against the prisoner, in accordance with Article 39 of the Revised Penal Code; and

(4) months of Arresto Mayor, as minimum, to one (1) year, eight (8) months and twenty- one (21) days of Prision Correccional, as maximum, and for him to pay the cost.

SO ORDERED.[69]

4. Accused Ruben Tad-y is also hereby ordered to suffer the penalty of special temporary disqualification and is hereby ordered to be deprived of his right to hold office and employment in the City Engineers Office, as well as for holding similar offices or employments either perpetually or during the term of his sentence in accordance with paragraph 4 of Article 210, in relation to Article 31, paragraphs 1 and 2 of the Revised Penal Code.

The RTC denied Tad-ys motion for reconsideration. However, the RTC agreed with Tad-ys contention that what the latter signed was a certificate of final inspection and not a certificate of occupancy.

In a parallel development, the RTC rendered judgment on May 18, 2001 in Criminal Case No. 17186, acquitting Tad-y and Velez of the charge.[70]

SO ORDERED.[68]

The MTC gave full credence and probative weight to Encabos testimony, ruling that Tad-y demanded and received P4,000.00 from Encabo on July 24, 1995 in consideration for his signing a certificate of occupancy. It further ruled that the accused signed the said certificate on the said date.

The accused, now the petitioner, filed a petition for review of the decision of the RTC. The CA rendered judgment on February 2, 2001 affirming the RTC decision in toto.[71] Upon the denial of the motion for reconsideration of the said decision, the petitioner filed his petition for review on certiorari with this Court.

Tad-y appealed the decision to the RTC, which rendered judgment on September 13, 1999, affirming the decision of the MTC with modification as to the penalty imposed. The fallo of the decision reads:

The threshold issue raised by the petitioner is factual whether the prosecution adduced proof beyond reasonable doubt of his guilt for direct bribery under the second paragraph of Article 210 of the Revised Penal Code.

WHEREFORE, the judgment of the trial court is hereby affirmed except for the modifications that the accused Ruben Tad-y y Babors sentence should consist of an indeterminate penalty of four

The petitioner avers that under the Information, and as held by the courts a quo, he was charged with direct bribery under the second paragraph of Article 210 of the Revised Penal Code, for soliciting and receiving P4,000.00 on July 24, 1995 from Mildred Wong, through Encabo, in consideration for his signing/approval of the

certificate of occupancy of the Atrium Building, and that he signed said certificate on said date.

The petitioner maintains that he did not sign a certificate of occupancy. He posits that a certificate of occupancy is signed by the city building official, and that he has nothing to do with the execution of such certificate. Hence, he is not criminally liable for direct bribery, one of the essential elements for the crime being that the act which he agreed to do or execute is connected to the performance of his official duties.

the certificate of final inspection bearing all the signatures of the officers in the OCE, except his.[73] He claims that the respondent failed to prove beyond reasonable doubt that he knew of the contents of the white envelope. He, in fact, believed that the envelope contained the requisite certificates of inspection. Moreover, he did not open the envelope and instead passed it over to Velez for verification, as he was on his way to a bowling game.

The petitioner assails the credibility and probative weight of Encabos testimony. He avers that Encabo had an axe to grind against him because, on prior occasions, he had denied the applications for building permit filed by his principals due to structural deficiencies in the buildings.

The petitioner further contends that the respondent even failed to adduce in evidence the white envelope he received from Encabo, or prove that the said white envelope was what he actually received from Encabo. He posits that there is no probable cause for his and Velezs warrantless arrest; hence, any evidence confiscated by the policemen from them is inadmissible in evidence.

The petitioner further insists that he did not demand, nor could have demanded the amount of P4,000.00 on April 25, 1995, or thereafter, because as of the said date, the Atrium building had not yet been completed. The petitioner avers that Encabos claim that he demanded P4,000.00 for the signing the certificate of final inspection is belied by the fact that he indicated the deficiencies of the building at the dorsal portion of the certificate. It was only in the first week of June 1995 that Baja and Tuvida made their final inspection and signed the certificate of final inspection.[72] Even Encabo admitted that the petitioner refused to sign the said certificate because as of July 24, 1995, there had been no final inspection of the building, and not because he was demanding P4,000.00 from Encabo.

The respondent, through the Office of the Solicitor General (OSG), avers that it adduced proof beyond reasonable doubt of the petitioners guilt for direct bribery. It insists that the petitioner failed to prove that Encabo had any ulterior motive to falsely charge and testify against him. The OSG points that the testimony of Encabo is honest and straightforward; hence, entitled to full probative weight. It is hard to believe, the OSG avers, that the petitioner would accept the envelope without knowing its contents. The petitioner demanded and received from Encabo the P4,000.00 contained in a white envelope in consideration of his signing the certificate of occupancy.

The OSG avers that the petitioners signing of the certificate of occupancy was his duty as the engineer in charge of the structural design in the City Engineers Office of Bacolod City. The OSG notes that the petitioner was found positive for ultraviolet powder.

The petitioner posits that the case for the prosecution was enfeebled by its failure to adduce in evidence the certificate of final inspection he signed on July 24, 1995. It adduced in evidence only

The Ruling of the Court

The petition is meritorious.

accomplished, the officer shall suffer the penalties of prision correccional in its medium period and a fine of not less than twice the value of such gift.

Rule 45 of the Rules of Court provides that only questions of fact may be raised in this Court on a petition for review on certiorari. The reason is that the Court is not a trier of facts. However, the rule is subject to several exceptions. The Court may delve into and resolve factual issues in those cases where the findings of the trial court and the CA are absurd, contrary to the evidence on record, impossible, capricious or arbitrary, or based on a misappreciation of facts.[74]

If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period and a fine not less than three times the value of the gift.

In this case, the Court is convinced that the findings of the MTC, the RTC and the CA, on the substantial matters at hand, are absurd and arbitrary, and contrary to the evidence on record.

In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification.

Article 210 of the Revised Penal Code provides:

The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties.

Art. 210. Direct Bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prison mayor in its minimum and medium periods and a fine of not less than three times the value of the gift, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed.

Direct bribery has the following essential elements:

1.

the offender is a public officer;

2. the offender accepts an offer or promise or receives a gift or present by himself or through another;

If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been

3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not

constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and

sufficient if he received the money afterwards in pursuance of a prior arrangement or agreement.[80]

4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. [75]

Indisputably, the petitioner is a public officer under Article 203 of the Revised Penal Code.[81] There is no allegation in the Information that the issuance of the certificate of occupancy is a crime or is unjust.

The prosecution is mandated to prove, beyond reasonable doubt, the essential elements of the felony and that the petitioner is the perpetrator thereof.[76]

The Court agrees with the petitioners contention that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt.

Official duties include any action authorized. It is sufficient if the officer has the official power, ability or apparent ability to bring about or contribute to the desired end. The acts referred to in the law, which the offender agrees to perform or execute, must be ultimately related to or linked with the performance of his official duties. It is sufficient if his actions, affected by the payment of the bribe, are parts of any established procedure consistent with the authority of the government agency.[77] However, where the act is entirely outside of the official functions of the officer to whom the money is offered, the offense is not bribery.[78]

The MTC convicted the petitioner of direct bribery on its finding that the petitioner demanded P4,000.00 from Wong, through Encabo, in consideration of signing a certificate of occupancy, and that on July 24, 1995, the petitioner received the said amount from Encabo and signed the said certificate for the Atrium building. The CA affirmed the said findings of the MTC in its decision, thus:

The agreement between the public officer and the bribe-giver may be express or implied. Such agreement may be proved by direct or circumstantial evidence. Proof of such an agreement may rest upon relevant and competent circumstantial evidence. To hold, otherwise, would allow the culprit to escape liability with winks and nods even when the evidence as a whole proves that there has been a meeting of the minds to exchange official duties for money. [79]

It is not necessary that the money is received by the offender before or at the time he agreed to perform or execute an act. It is

All the elements above are present in the case at bench. Petitioner Ruben Tad-y was an employee at the City Engineers Office of Bacolod City. That petitioner-accused accepted the amount of P4,000.00 which he demanded from Julio Encabo, a representative of Mildred Wong who will secure a certificate of occupancy for the building of the latter and handed it over to his subordinate Nestor Velez, petitioners co-accused, on April 24, 1995 at Andre Bakeshop. And in consideration of the amount thus given, petitioner would sign the certificate of occupancy, which is his duty as engineer in charge of structural designs at the City Engineers Office of Bacolod City. It must be added that petitioner signed the certificate of occupancy, the original of which was kept at the records section of the City Engineers Office, after receiving the envelope containing P4,000.00. [82]

However, there is no iota of competent and credible evidence to support these findings. There is no evidence on record that the petitioner and Encabo met on April 24, 1995. In fact, it was only on April 25, 1995 that Encabo arrived at the OCE to make arrangements for the final inspection of the building by the officers concerned, the signing of the certificate of inspection by said officers, and the signing of the certificate of occupancy by the building official.

A- This certificate of Final Inspection where he is the one who never affixed his signature.

Q- When you gave the Certificate of Final Inspection, he signed it?

A-

Yes, Sir.[83]

There is also no dispute that what was signed by the petitioner, on July 24, 1995, following his final inspection of the building, was the certificate of final inspection and not a certificate of occupancy of the building. Thus, Encabo testified:

It was only on July 27, 1995, after the petitioner had signed the certificate of final inspection on July 24, 1995, that the city building official approved and issued the certificate of occupancy for the building.[84]

Q- But in (sic) July 24, 1995 when you mentioned that they inspected again the building?

A-

Yes, Sir.

There is also no credible evidence on record that the petitioner demanded P4,000.00 from Wong, through Encabo, in exchange for the signing of the certificate of occupancy. Indeed, it is incredible that the petitioner would demand the said amount as a precondition to his signing a certificate, considering that, under Section 309 of P.D. No. 1096,[85] the authority to sign said certificate is vested specifically on the building official, and not on the petitioner:

Q- And after inspection you went down to Andre Bakeshop which is the ground floor of the Atrium Building. What happened there at Andre Bakeshop?

Section 309. Certificate of Occupancy

A-

I gave him the papers and let him sign the necessary papers.

Q- What necessary papers are you referring to?

No building or structure shall be used or occupied and no change in the existing use or occupancy classification of a building or structure or portion thereof shall be made until the Building Official has issued a Certificate of Occupancy therefor as provided in this Code.

A Certificate of Occupancy shall be issued by the Building Official within thirty (30) days if after final inspection and submittal of a Certificate of Completion referred to in the preceding section, it is found that the building or structure complies with the provisions of this Code.

17186, Encabo declared that the petitioner refused to sign a certificate of inspection on April 25, 1995 unless the P4,000.00 he demanded was paid.[87] However, Encabo gave a completely different story to the CIS when he gave his sworn statement; he claimed that, on April 25, 1995, the petitioner demanded P4,000.00 in consideration for his signature on the certificate of occupancy. [88]

The Certificate of Occupancy shall be posted or displayed in a conspicuous place on the premises and shall not be removed except upon order of the Building Official.

The non-issuance, suspension and revocation of Certificates of Occupancy and the procedure for appeal therefrom shall be governed in so far as applicable, by the provisions of Section 306 and 307 of this Code.[86]

When he testified in Criminal Case No. 17186, Encabo admitted that the petitioner did not demand P4,000.00 as a precondition to his final inspection of the building and his signing of the certificate of final inspection. The petitioner refused to sign a certificate of final inspection for the sole reason that he had not yet conducted the required final inspection.

Atty. Sorbito: Calibrating the testimony of Encabo, the prosecution sought to prove that the petitioner agreed to conduct a final inspection of the building and sign a certificate of final inspection upon the receipt of P4,000.00.

On April 25, 1995, when you went there accused Ruben Tad-y refused to sign?

However, the testimony of Encabo is not entitled to full probative weight since it is evasive and chameleonic, enfeebled by frontal inconsistencies on substantial matters which the trial court and the CA ignored.

WITNESS:

Yes, Sir.

In the court a quo, Encabo testified, on direct examination, that on April 25, 1995, the petitioner dissuaded him from following up and seeing the approval for the certificate of occupancy because Wong failed to pay the P4,000.00, the balance due for the petitioners services in securing the building permit. However, Encabo also claimed that the petitioner agreed to conduct a final inspection of the building and sign a certificate of final inspection if the money was given to the latter. When he testified in Criminal Case No.

ATTY. SORBITO:

You mean to say Mr. Encabo that even without final inspection any of the signatories to the occupancy permit can affixed (sic) their signatures without inspection?

WITNESS:

In short, Ruben Tad-y did not ask for anything because only there in (sic) no inspection was (sic) made?

They have to inspect.

WITNESS:

ATTY. SORBITO:

Yes, Sir.[89]

So when Ruben Tad-y refused to sign the permit on April 25, 1995, its because there was no final inspection made yet?

WITNESS:

Encabo could not have asked the petitioner or any of the officers in the OCE for that matter to sign the certificate of occupancy because only the building official has the authority to sign the same. Moreover, the city building official could not have signed the certificate because no final inspection of the building had been conducted, and no certificate of final inspection had been signed by the OCE officers.

Yes, Sir.

ATTY. SORBITO:

It is not because there was no money or P4,000.00?

WITNESS:

Encabos claim that the petitioner agreed to make a final inspection of the building if he was paid P4,000.00 is belied by his testimony in the court a quo, that, during the second week of May 1995, the petitioner and the other officers of the OCE conducted an inspection of the building.[90] Encabo did not give any centavo to the petitioner on that occasion. However, the petitioner and Encabo had a quarrel in the course of which the petitioner tried, in anger, to squeeze Encabos neck.[91] As testified to by the petitioner, Encabo insisted on paying for the food and drinks consumed by him and the other OCE officers after their inspection of the building, despite the petitioners insistence that he should pay for the bill:

No, Sir. Q You have also mentioned about that incident whether you were antagonized by Mr. Encabo which you said you have squeezed his chain (sic) with your hands, where was that establishment?

ATTY. SORBITO:

A At the second floor of Tasty Treat at Araneta Street, Bacolod City.

Who pay (sic) for the bills?

And you were drinking beer with Mr. Encabo during that time?

When I arrived they were already drinking.

A That is (sic)where the trouble began because after I have consumed two (2) bottles of beer, he asked the bills with the intention of paying it because there is among the group are (sic) my relatives and it was my purpose to pay.[92]

And you also started to drink beer?

Yes, Sir.

Encabo testified that he sought the help of the City Mayor for the petitioner to conduct the final inspection of the building, but did not inform the Mayor that the petitioner had demanded P4,000.00 in consideration for his inspection of the building. He claimed that the petitioner was his compadre and he did not want to put him in a bad light:

Q And how many bottles have you consumed, if you can still recall?

ATTY. SERFINO:

Two bottles.

Q- When you went to the City Mayor, you are yet thinking that you will go to the CIS?

Q And it was even Mr. Encabo who paid the bill for the drinking spree?

A-

I have already reported that.

ATTY. SORBITO:

Q- What is your reason of not telling the mayor that Ruben Tad-y demanded money?

Misleading, your Honor. A- Being the government employee and he is my kumpare, I do not want to cause very bad occasion.[93]

COURT:

Encabo projected himself as solicitous and protective of the petitioners well-being and the maintenance of the communitys regard to his compadre, the petitioner. However, when asked why he had to complain to the CIS and thus placed the petitioner in jeopardy for prosecution of an offense, Encabo replied that he did so because the petitioner had mauled him:

Q Please answer me, you are definitely sure that it was on April 25, 1995?

Yes, the inspection.

Now, you have already gone to the CIS, as you said, is it not?

When you said yes, it was not on that date?

Yes, Sir.

A The date is (sic) April 25, 1995 is not exactly the date of inspection.

Q And, you have already reported to the CIS that supposed demand from you?

Q In what month after April 25, 1995 when you inspected the building but prior to October 25, 1995?

Well, he is (sic) trying to maul me.[94]

A It was October or September, somewhat like that. That September or October I cannot pinpoint the exact date because I dont have the record of that.[95]

What is so disconcerting is that Encabo claimed that even months after the city building official had already issued the certificate of occupancy to Wong on July 27, 1995, the petitioner still conducted inspections of the building, along with the other officers, in September and October 1995:

Q So, you are now certain you have not inspected the building and several other officials of the City Engineers Office in the afternoon of April 25, 1995, when you went to the office?

It is incredible that the petitioner and the other officers would continue with their inspections of the building even months after the issuance of the certificate of occupancy, and when the petitioner had already been charged with direct bribery in the MTC. Indeed, on September 21, 1995, Encabo was already testifying in Criminal Case No. 17186 for the prosecution against the petitioner.

The prosecution cannot find solace in the entrapment operations conducted by the CIS and the aftermath thereof. A We do the inspection together with the accused and others during and after April 25 and October 1995.

First. The petitioner brought along Engineer Nestor Velez, a building inspector in the OCE, on his final inspection of the building after which they had a snack with Encabo. If, as claimed by Encabo, the petitioner expected to receive P4,000.00 from him, as bribe, it would be contrary to human experience to bring another person along (in this case, Velez) to witness the receipt of the envelope containing the money. Moreover, the Andre Bakeshop is a public place where people enter to make purchases. Indeed, this Court in Formilleza v. Sandiganbayan,[96] declared

Third. When Encabo handed the envelope to the petitioner, the latter inquired what the envelope was for. The petitioner opened the envelope in full view of Velez and saw its contents. He handed the envelope to Velez instead of putting it into his pocket, even after Encabo had assured the petitioner that it was not dangerous for the latter to receive it. It is incredible that, as claimed by Encabo, the petitioner handed over the envelope to Velez under the table.

However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were present around the table in the canteen with the petitioner and Mrs. Mutia when the latter allegedly handed the money to the petitioner. There were other persons in the premises like the PC agents whose identities petitioner possibly did not know. Under the circumstances and in such a public place it is not probable that petitioner would have the nerve to accept bribe money from Mrs. Mutia even under the table. If the petitioner knew and was prepared to accept the money from Mrs. Mutia at the canteen, the petitioner would not have invited her officemate Mrs. Sevilla to join them. Mrs. Sevilla stated she did not see the alleged passing of the money. She could not have seen the money as it was passed on under the table or when, as petitioner said, it was quickly placed in her hand when she stood up. What Mrs. Sevilla is sure of is that when they were about to leave the canteen, two (2) men approached petitioner, one of whom took pictures, and the petitioner shouted at Mrs. Mutia, What are you trying to do to me? The reaction of petitioner is far from one with a guilty conscience.

Such facts and circumstances show that the petitioner had no intention to accept the money and consider it his own; they negate the prosecutions contention that the petitioner demanded and expected to receive P4,000.00 as bribe money. Indeed, this Court ruled in Formilleza

The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal Code is that the public officer concerned must have accepted the gift material consideration. There must be a clear intention on the part of the public officer to take the gift so offered and consider the same as his own property from then on, such as putting away the gift for safekeeping or pocketing the same. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to lead the court to conclude that the crime of indirect bribery has been committed. To hold otherwise will encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift, money or other property.[97]

Second. The petitioner walked ahead of Velez and Encabo out of the Atrium building after the final inspection, and was on his way to the bowling tournament. However, he joined Encabo and Velez for a snack only because Encabo had invited him. Such behavior on the part of the petitioner is inconsistent with one who expected to receive P4,000.00 from Encabo after his final inspection of the building.

The foregoing ruling of this Court applies not only to charges of indirect bribery but also to direct bribery. The respondents contention that the petitioner handed the envelope to Velez under the table is belied by the testimonies of the petitioner and Velez.

Fourth. The police officers even forced the petitioner to incriminate himself by forcing him to touch the contents of the envelope, but the petitioner managed to parry the attempt with his right arm. Thus, Velez testified:

A When I turned my head, he told me that I am (sic) under arrest.

What happened outside the bakeshop?

What else?

A When we went out of the Atrium building, because we plan to left (sic) the place separately or to part ways.

A After hearing that, I asked him what sins (sic) have we committed?

Q You mean to say that Engr. Tad-y was going to his own direction and you to another direction and Mr. Encabo to a different direction?

What did he say?

A A Yes. Q Q Were you able to do that? A A When I was already at the middle of Gonzaga Street, somebody took hold of my arm, almost my shoulder.

He was trying to search on my trousers.

Did he show any warrant or authority for him to do that?

Never.

No warrant of arrest or search warrant?

Then what happened?

No.

I was shocked or surprised, somebody took hold of my arm.

So, what did he find in your trousers?

Did he say anything?

A While he was searching me, I was asking him, what money and he asked me, where is that envelope you received, while he was holding me, its in your pocket, get it. So, I get (sic) it because he was holding me in my hand and at the same time squeezing it.

Q And after you have (sic) involuntarily taken that envelope from your pocket, what did they do?

What arm?

A When he was squeezing my hand, I was able to get the money and they brought me to Engr. Tad-y.

A At first, it was my left hand that he was searching, he was able to took (sic) hold of my right arm as it is used to be the one to pick the particular envelope.

How far was Engr. Tad-y when they brought you there?

A Q So, how actually sure were you, when you get (sic) the envelope from your pocket?

Maybe ten to fifteen meters.

Q And when you were already near Engr. Tad-y, did you notice what was happening to Engr. Tad-y? A It appears that myself because he was doing it by squeezing my hand. A When I was there going toward Engr. Tad-y, I saw one person holding his hands. COURT: Q Q About what part of your pocket? A When I was near Engr. Tad-y, they let me open that particular envelope. When you were near him, what happened next?

COURT INTERPRETER:

At this juncture, the witness is pointing at the right side of his pocket.

Q Who was handling that particular envelope towards Engr. Tady?

ATTY. SERFINO:

A Its myself holding it while he was holding me towards Engr. Tad-y.

A it.

When he found out that the content is money, he did not hold

Q You mean the very hand he was holding, squeezing, its also the hand holding the envelope?

What did he do?

Yes.

A He tried not to receive it but he was forced by one arresting officer.

Was it [the] left or right hand?

What else took place at that stage on that day?

At first left, when he pulled me it was already his right hand.

A When they were not able to force Engr. Tad-y to take hold of the money, they tried to stop a taxi.[98]

What happened when you were near Engr. Tad-y? The testimony of the petitioner on this matter reads:

A When I have already opened the envelope and when they saw the content of that envelope, the money, they try (sic) to pull that so that Engr. Tad-y will receive the money from me.

Q Now, what happened after you saw that there was another person holding your co-accused?

Q How did you open that envelope in that stage, was it already opened or did you have to exert some efforts to open?

A They were searching him in order to have the white envelope out.

I opened it because it was closed.

So, did you see any envelope after that?

Did Engr. Tad-y received (sic), take hold of that money?

Yes, Sir.

How did you see it or how did you happen to see it?

Q When you were still inside the bakeshop, will you please inform the Hon. Court if the envelope was already opened or not?

A Because he let Mr. Velez open his pocket and have it left opened.

Not yet.

And then what happened?

Q The prosecution witness, Julio Encabo here testified that inside the bakeshop, after he handed to you the envelope, you opened it and peeped inside the envelope, is this true?

A When the said envelope was already opened he hold (sic) Mr. Velez and pulled Mr. Velez towards me. A Q Were they able to come near you? Q A Yes, Sir. A It will be subject of the evidence in the Police Laboratory. It was only shown that there was fluorescent powder. Q Now, while your co-accused was already near you, what transpired among you? (Witness, at this juncture is pointing to his right arm.) A A person of small size holding the hands of Mr. Velez holding the white envelope because he wants that I will hold the white envelope. Why do you say that it is a big lie? It is a big lie.

You are referring to Exhibit 4-A?

A Q Go ahead.

Yes, Sir.

ATTY. SERFINO: A It was already opened and he wanted me to hold the white envelope.

I would like to manifest, your Honor that on Exhibit 4, there is nothing there that indicates that there was any powder marks in the hands of this accused.

ATTY. SERFINO:

Q Q Now, what else happened when your co-accused was already near you?

From that stage, what else happened?

A They tried to let the hands of Nestor come towards me but I was trying to move away.

A Since they cannot do the thing of letting the hands of Nestor Velez go near me, it was the person who picked the white envelope and tried to give it to me, but I was trying to parry it. (Witness is pointing to his right forearm.)

Q Q On the basis of what you saw, if you know what was the reason that (sic) they were trying to let you hold the envelope?

Thereafter, what happened?

A (Witness, at this juncture is trying to hold the left hand at his waist.) I do not know whether it was a camera or a gun. ASST. CITY PROSECUTOR CENTENO: Q Asking for a conclusion, your Honor. He said to me, relax ka lang, you might be fell (sic) down. COURT: Q Sustained. A COURT: Q Reform. A I stayed calm but I was afraid of them. How did that incident in front of that street came to close? I do not know but he speak (sic) in Tagalog. Was he a Tagalog? What else happened?

Q After you relaxed because of your fear, is there anything else that took place?

A They stopped a taxi and then pulled me to ride in the taxi together with the co-accused, Nestor Velez.[99]

The testimonies of Velez and the petitioner were corroborated by the Initial Laboratory Report of Forensic Chemist Rea Villavicencio that the petitioners right arm tested positive for ultraviolet powder. The Report and Sketch drawn by Villavicencio did not show that any of the fingers of the petitioner were positive for ultraviolet powder.

In sum then, the Court rules that the prosecution failed to prove the guilt of petitioner Rubin Tad-y of the crime charged. Consequently, the Petition is GRANTED. The decisions of the Municipal Trial Court in Cities, the Regional Trial Court and the Court of Appeals are REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime charged in the Information.

SO ORDERED.