[G.R. NO.

172602 : September 3, 2007]

HENRY T. GO, Petitioner, v. THE FIFTH DIVISION,

SANDIGANBAYAN and THE OFFICE OF THE SPECIAL
PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents.

RESOLUTION

YNARES-SANTIAGO, J.:

This resolves the Motion for Reconsideration filed by petitioner of

the Decision dated April 13, 2007.

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.

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 government's interests, the public officer
is held liable for violation of Section 3(g), whether or not this
public officer profited or will profit thereby.

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
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. Estrella3 is instructive:

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

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
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.

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:

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.

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:

SEC. 3. Corrupt practices of public officers. - xxx

xxx

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.

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.

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. 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.

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).

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.

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 accounts to

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

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.

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 petitioner's Motion to Quash
and its March 24, 2006 Resolution denying petitioner's 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.

Austria-Martinez, J., Chairperson, Azcuna, Chico-Nazario, Garcia,

JJ., concur.