ZENON R. PEREZ, G.R. No.

164763
Petitioner,

supposed to have on hand the total amount of P94,116.36,

PEOPLE OF THE PHILIPPINES

and SANDIGANBAYAN,
Respondents. February 12, 2008

A separate demand letter[8] dated January 4, 1989 requiring the

instead of the P21,331.79, incurring a shortage of P72,784.57.

production of the missing funds was sent and received by

petitioner on January 5, 1989.

DOCTRINE: There is no law, jurisprudence or rule

Petitioner explained that part of the money was used to

which mandates that an employee should be assisted by

counsel

in

an

administrative

case. On

the

contrary,

jurisprudence is in unison in saying that assistance of

counsel is not indispensable in administrative proceedings.

pay for the loan of his late brother, another portion was spent for
the food of his family, and the rest for his medicine.

Jan 13, 1989 -Mandin recommended the filing of the

appropriate criminal case against petitioner to the

x-------------------------------------------------x
Facts

Provincial Auditor. An administrative case was filed against

him two days ago.

April 17, 1989, has fully remitted the amount of

Dec 1988- an audit team headed by Auditor I Mandin,

P72,784.57.

Provincial Auditors Office, Bohol conducted a cash

Later, petitioner was charged before the Sandiganbayan

examination on the account of petitioner, who was then the

acting municipal treasurer of Tubigon, Bohol.

with malversation of public funds.

Perez claimed that his First Answer was prepared without
the assistance of counsel and that it was done when he was sick,

Petitioner was absent so he was apprised of the audit thru

a radio message.

suffering from Diabetes. He revoked this and filed a second one,

vehemently denying the shortage. That the cash was in the

The following day, the audit team found P21,331.79 in the

custody of his accountable personnel at the time of the audit

safe of petitioner .Based on the said audit, petitioner was

examination and when he received it, he turned it over

convicted of
malversation (Art
217, RPC)

immediately, fully restoring the amount. He rested his case

on October 20, 1990
The Sandiganbayan pronounced him guilty on September 24,

The

2003.
On January 13, 2004, petitioner filed a motion for

acts

punished

are: (1) appropriating public

as

funds

or

property,

reconsideration[23] which the prosecution opposed on January 28,

(2) taking or misappropriating the

2004.[24] Petitioner replied[25] to the opposition. On August 6, 2004,

through abandonment or negligence, permitting any other person

petitioners motion was denied with finality.

to

take

such

public

funds

same,

malversation

or

(3) consenting,

property,

and

or

(4)

being otherwise guilty of the misappropriation or malversation of

Issue

such funds or property.[28]

I. W/N
THE HON.
SANDIGANBAYAN
BY
UNDULY AND UNREASONABLY DELAYING
THE DECISION OF THE CASE FOR OVER
THIRTEEN (13) YEARS VIOLATED THE
PETITIONERS
RIGHT
TO
SPEEDY
DISPOSITION OF HIS CASE AND DUE
PROCESS.

There are four elements that must concur in order that one
may be found guilty of the crime. They are:
(a) That the offender be a public officer;

II. THE LAW RELIED UPON IN CONVICTING THE

PETITIONER AND THE
SENTENCE
IMPOSED
IS
CRUEL AND THEREFORE
VIOLATES
SECTION
19
OF
ARTICLE III (BILL OF RIGHTS) OF THE
CONSTITUTION.

(b) That he had the custody or control of funds or

property by reason of the duties of his office;

Held: Before addressing petitioners twin assignment of errors,

(d) That
he
has
appropriated,
took
or
misappropriated or consented or, through
abandonment or negligence, permitted another
person to take them.[29]

we first tackle the propriety of petitioners conviction for

malversation of public funds.
I. Petitioner was
correctly

(c) That those funds or property involved were

public funds or property for which he is
accountable; and

All elements are present.In malversation, all that is

necessary to prove is that the defendant received in his

weight because it was executed without the assistance of

counsel.

possession public funds; that he could not account for them and

There is no law, jurisprudence or rule which mandates

did not have them in his possession; and that he could not give a

that an employee should be assisted by counsel in an

reasonable excuse for its disappearance. An accountable public

administrative case. On the contrary, jurisprudence is in

officer may be convicted of malversation even if there is no direct

unison

evidence of misappropriation and the only evidence is shortage in

indispensable in administrative proceedings.

his accounts which

he

has not

been able

to

in

saying

that assistance

of

counsel

is

not

explain

The right to counsel, which cannot be waived unless the

satisfactorily.It is a prima facie presumption and rebuttable. The

waiver is in writing and in the presence of counsel, is a right

accountable officer may overcome the presumption by proof to

afforded a suspect or accused during custodial investigation. It is

the contrary. If he adduces evidence showing that, in fact, he has

not an absolute right and may be invoked or rejected in a criminal

not put said funds or property to personal use, then that

proceeding and, with more reason, in an administrative inquiry.[37]

presumption is at end and the prima facie case is destroyed.

Petitioner was not able to present any credible evidence to

The right to counsel is not imperative in administrative

rebut the presumption that he malversed the missing funds in his

investigations because such inquiries are conducted merely to

custody or control.

determine whether there are facts that merit disciplinary

Admission in his First answer filed at the Office of

measures against erring public officers and employees, with the

Provincial Treasurer in the administrative case filed

purpose of maintaining the dignity of government service.

against him 30k loan (his house and lot is collateral

-

with PNB), 10k toxic goiter, 32k food and clothing.

Second answer : Only changed his story to
exonerate himself

The assistance of lawyers, while desirable, is not

indispensable. The legal profession was not engrafted in the due
process clause such that without the participation of its members,

It

is

contended

that

petitioners

first

Answer

of February 22, 1989 should not have been given probative

the safeguard is deemed ignored or violated. The ordinary citizen

is not that helpless that he cannot validly act at all except only
with a lawyer at his side.

Two rigid approaches on speedy trial as ways of

eliminating some of the uncertainty which courts experience
protecting the right.

Petitioners first Answer may be taken against him, as he

executed it in the course of the administrative proceedings

fixed-time

period which

holds

the

view

that

the

below. This is pursuant to Rule 130, Section 26 of the Rules of

Constitution requires a criminal defendant to be offered a

Court which provides that the act, declaration or omission of a

trial within a specified time period.

party as to a relevant fact may be given against him.

rejected because there is no constitutional basis for

holding that the speedy trial can be quantified into a

Extrajudicial statements are as a rule,

admissible as against their respective declarants,
pursuant to the rule that the act, declaration or
omission of a party as to a relevant fact may be
given against him. This is based upon the
presumption that no man would declare anything
against himself, unless such declarations were true.

specific number of days or months

demand-waiver rule which provides that a defendant

waives any consideration of his right to speedy trial for any
period prior to which he has not demanded trial. A prior

II. There is no violation

of the rights to a
speedy disposition
of the case and to
due process of
law.

demand is a necessary condition.

-rejected because aside from the fact that it is inconsistent

with this Courts pronouncements on waiver of constitutional
rights,[51] it is insensitive to a right which we have deemed

Petitioners claim of violation of his right to a speedy

fundamental.

disposition of his case must also fail.

The 1987 Constitution[44] guarantees the right of an
accused to speedy trial.

The

Court

went

on

to

adopt

middle

ground:

the balancing test, in which the conduct of both the prosecution

and defendant are weighed.

A balancing test necessarily compels

courts to approach speedy trial cases on an ad
hoc basis. We can do little more than identify some
of the factors which courts should assess in
determining whether a particular defendant has
been deprived of his right. Though some might
express them in different ways, we identify four
such factors:
-Length of delay
- the reason for the delay
- the defendants assertion of his right
-prejudice to the defendant.
-

The Court went on to adopt a middle ground:

the balancing test, in which the conduct of both
the prosecution and defendant are weighed. Mr.
Justice Powell, ponente, explained the concept,
thus:
A balancing test necessarily compels
courts to approach speedy trial cases on
an ad hoc basis. We can do little more
than identify some of the factors which
courts should assess in determining
whether a particular defendant has been
deprived of his right. Though some might
express them in different ways, we
identify four such factors: Length of delay,
the reason for the delay, the defendants
assertion of his right, and prejudice to the
defendant.
The length of the delay is to some extent
a triggering mechanism. Until there is
some delay which is presumptively
prejudicial, there is no necessity for
inquiry into the other factors that go into
the balance. Nevertheless, because of

the imprecision of the right to speedy trial,

the length of delay that will provoke such
an inquiry is necessarily dependent upon
the peculiar circumstances of the
case. To take but one example, the delay
that can be tolerated for an ordinary
street crime is considerably less than for
a serious, complex conspiracy charge.
-

Closely related to length of delay is the

reason the government assigns
to justify the delay. Here, too, different
weights should be assigned to different
reasons. A deliberate attempt to delay the
trial in order to hamper the defense
should be weighted heavily against the
government. A more neutral reason such
as negligence or overcrowded courts
should be weighted less heavily but
nevertheless should be considered since
the ultimate responsibility for such
circumstances must rest with the
government rather than with the
defendant. Finally, a valid reason, such
as a missing witness, should serve to
justify appropriate delay. We have already
discussed the third factor, the defendants
responsibility to assert his right. Whether
and how a defendant asserts his right is
closely related to the other factors we
have mentioned. The strength of his
efforts will be affected by the length of the
delay, to some extent by the reason for
the delay, and most particularly by the
personal prejudice, which is not always
readily identifiable, that he experiences.
The more serious the deprivation, the
more
likely a defendant is to
complain. The defendants assertion of his

speedy trial right, then, is entitled to

strong evidentiary weight in determining
whether the defendant is being deprived
of the right. We emphasize that failure to
assert the right will make it difficult for a
defendant to prove that he was denied a
speedy trial.
-

A fourth factor is prejudice to the

defendant. Prejudice, of course, should
be assessed in the light of the interests of
defendants which the speedy trial right
was designed to protect. This Court has
identified three such interests: (i) to
prevent
oppressive
pretrial
incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit
the possibility that the defense will be
impaired. Of these, the most serious is
the last, because the inability of a
defendant adequately to prepare his case
skews the fairness of the entire system. If
witnesses die or disappear during a
delay, the prejudice is obvious. There is
also prejudice if defense witnesses are
unable to recall accurately events of the
distant past. Loss of memory, however, is
not always reflected in the record
because what has been forgotten can
rarely
be
shown.[18] (Underscoring
supplied)

The determination of whether the delays are of said

More important than the absence of serious

prejudice, petitioner himself did not want a speedy
disposition

of his case.

Petitioner was

duly

represented by counsel de parte in all stages of the

proceedings before the Sandiganbayan. From the
moment his case was deemed submitted for
decision up to the time he was found guilty by the
Sandiganbayan, however, petitioner has not filed a
single motion or manifestation which could be
construed even remotely as an indication that he
wanted his case to be dispatched without delay.
Petitioner has clearly slept on his right.
Currit

tempus

contra

decides

et

sui

juris

contempores: Time runs against the slothful and those who

neglect their rights.
III. The law relied upon
in
convicting
petitioner is not
cruel and unusual.
It does not violate
Section
19,
Article III of the Bill
of Rights.

nature is relative and cannot be based on a mere

mathematical reckoning of time.

In his last ditch effort to exculpate himself, petitioner

argues that the penalty meted for the crime of malversation of

public funds that ha[ve] been replenished, remitted and/or

returned

to

the

government

is

cruel

and

therefore

unconstitutional, as government has not suffered any damage. [80]

The argument is specious on two grounds:

First. What is punished by the crime of malversation is the
act of a public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the
same, or shall take and misappropriate or shall consent, or
through abandonment or negligence shall permit any other
person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation
of such funds or property.[81]

Payment or reimbursement is not a defense for

exoneration in malversation; it may only be considered as a

mitigating circumstance. This is because damage is not an

element of malversation.

Second. There is strong presumption of constitutionality

accorded to statutes.

It is established doctrine that a statute should be

construed whenever possible in harmony with, rather than in
violation of, the Constitution.[82] The presumption is that the
legislature intended to enact a valid, sensible and just law and
one which operates no further than may be necessary to
effectuate the specific purpose of the law.[83] It is presumed that
the legislature has acted within its constitutional powers. So, it is
the generally accepted rule that every statute, or regularly
accepted act, is, or will be, or should be, presumed to be valid
and constitutional.[84]