CASE DIGEST ON TABUENA v.

SANDIGANBAYAN [121 SCRA 389 (1983)]

November 10, 2010

Facts:
? In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986,
President Marcos allegedly commanded petitioner Tabuena, in his capacity as General
Manager of the Manila International Airport Authority (MIAA), “to pay immediately the
Philippine National Construction Corporation, thru this Office (Office of the President),
the sum P55M in cash as partial payment of MIAA’s account with said company
mentioned in a Memorandum of (Trade and Industry) Minister Robert Ongpin to this
Office dated Jan. 7,1985…” Tabuena withdrew the sum of 55M on three separate
occasions (25M, 25M, 5M – with Adolfo Peralta) and delivered them to Gimenez,
Marcos’s private secretary.
? It is without dispute that Tabuena did not follow the normal procedures in
withdrawal and delivery of the money (no disbursement slips and paid in cold cash).
? Tabuena was only issued a receipt after the third delivery and it did not mention
anything about the purpose of the receipt or the money being used to pay PNCC, but
merely acknowledged that Gimenez had received the sum of 55M from Tabuena on
three occasions. Furthermore, there was no receipt from the PNCC recognizing
payment of debt.
? Prosecution: there were no standing obligations in favor of the PNCC at the time
of disbursement of 55M. PNCC said themselves that they didn’t receive the P55M.
? Tabuena claimed that he was only complying with the direct order of Marcos
(plus the Marcos memorandum which contained same order) to immediately forward to
the office of the President, 55M in cash, as partial payment of MIAA’s obligations to
PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short,
that Tabuena acted in good faith.
? Sandiganbayan rejected Tabuena’s claim of good faith and found him guilty of
malversation by negligence, hence this case.
Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation
(or if because of the justifying circumstance of following the orders of his superior, in
good faith, he would not be criminally liable, but merely civilly liable)?
Held: Tabuena is merely civilly liable. The very fact that he was merely following the
orders of his superior is a justifying circumstance.
Ratio:
1. On the point raised by Tabuena that he cannot be charged with intentional
malversation and be convicted by malversation by negligence, the Court ruled that the
dolo and culpa of the offense is only a modality in the perpetration of the felony. The
same felony is still there and conviction thereof is proper.
2. On the defense of good faith: it is a valid defense against malversation because
it would negate criminal intent. To constitute a crime, the act must, except in certain
crimes…be accompanied by criminal intent or such negligence or indifference to duty or
to consequences as is equivalent to criminal intent The maxim actus non facit reum, nisi
mens sit rea – a crime is not commited if the mind of the person performing the act
complained of is innocent (malversation cases: US v. Catolico, US v. Elvina).
3. The Court, based on the evidence presented, found that Tabuena had no other
choice but to actually follow the order stated in the Marcos Memorandum, because, as
president of the Philippines, indubitably the head of governmental agencies such as the
MIAA and PNCC, Marcos is undeniably the superior of Tabuena.
4. Tabuena entitled to the justifying circumstance of “any person who acts in
obedience to an order issued by a superior for some lawful purpose” because he is only
acting in good faith, faithfully and efficiently carrying out orders from the highest official
in the land. Moreover, there was nothing in the Marcos Memorandum that may invite
suspicion – there was no question about the lawfulness of the order contained in such a
memorandum. Tabuena had reason to believe that the 55M was indeed part of a due
and demandable debt, a portion of a bigger liability to PNCC (existence of such debts
determined from testimonies). So even if the order was illegal and Tabuena was not
aware of the illegality, he would not be liable because there would only be a mistake of
fact committed in good faith.
5. Tabuena followed the memorandum to the letter, paying immediately the PNCC,
through this office (office of the president) the sum of 55M. Tabuena had reasonable
ground to believe that the President was entitled to receive the money because as Chief
Executive, Marcos exercised supervision and control over governmental agencies (good
faith in the payment of public funds relieves a public officer from the crime of
malversation).
6. While even Tabuena admitted that procedures were ignored and that the
disbursement was unusual, he is found to be excused from such because the Marcos
Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other hand, while this
allows for the negation of criminal intent, as Tabuena acted in good faith, he would still
be civilly liable (but he’s not criminally liable anymore, escaping the harsher penalties)
(see page 362).
7. There is no showing that Tabuena had anything to do with the creation of the
Marcos Memorandum – that even if the real purpose behind the memorandum was to
get 55M from public funds, it is clear that he did and would not profit from such and that
he did not have anything to do with the creation of the memorandum.
8. Tabuena case is a case concerning obedience in good faith of a duly executed
order. The order/memorandum came from the Office of the President and bears the
signature of the president himself, in effect allowing for the presumption that such order
was regularly issued and patently legal. Furthermore, the wording of the memorandum
expressed a certain urgency to its execution—Obedienta est legis essential (act swiftly
without question).
9. Main Ratio: Furthermore, the Court itself raises the contention that the case
involves a violation of the accused’s right to due process in the sense that it was
obvious that the Sandiganbayan was overzealous in its attempt to convict parties
involved – as seen in the volume of questions asked, and the manner the same were
posed (cross examinations characteristic of confrontation, probing and insinuation). To
quote Justice Cruz, “Respect for the Constitution is more important that securing a
conviction based on a violation of the rights of the accused.” Sandiganbayan was
obviously biased, denying Tabuena and parties involves the requirement of the cold
neutrality of an impartial judge. As a consequence of such violation of due process, the
order of Sandiganbayan was found void. Note that this defense was not raised by
Tabuena.
Voting:
? Four concurred (Narvasa, Vitug, Kapunan, Mendoza)
? Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban)
? Justice Hermosisima took no part as he was a signatory to the SB decision
? Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the majority
opinion but they reserve their right to change their vote should a similar case with the
same facts arise.)
Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the
proposition that any public official who blindly follows orders of their superior. Thus, this
case is not authoritative on Art. 11(6).
Decision: Tabuena and Peralta acquitted.
Davide, dissenting: Davide disagrees with majority that all the requisites of the sixth
justifying circumstance in art 11 of the RPC were present The sixth circumstance of the
said article implies 3 things: a) that the order was issued by a superior; b) such order
must be for some lawful purpose and; c) means used by subordinate to carry out said
order must be lawful. According to Davide, facts show that the debt was only 34.5M so
order of Marcos had excess of 20.5M – said order then had no factual or legal basis and
unlawful.
Romero, dissenting: He also believes that not all requisites were present to warrant a
justifying circumstance as Tabuena, by his own admission, did not follow standard
operating procedures (no vouchers, no approval by Commission on Audit, non-issuance
of a receipt in 1st 2 deliveries, non-issuance of receipt by PNCC, delivery to office of
Gimenez [not office in Malacanang], a stranger to contract between PNCC and MIAA).
The entire process, done with haste and with a total disregard of appropriate auditing
requirements was not based on normal procedure. Tabuena’s rank does not excuse him
from ignoring such.
Puno, dissenting: He concentrates on the case involving a mistake in fact, citing the Ah
CHong case among others, and discussing article 3 in some detail -saying that mistake
in fact should not excuse the accused from incurring liability. It was also clear from the
facts that it took one month for Tabuena to comply with order (starting from the time
Marcos called him up by phone – to which the memorandum containing the same
orders followed a week later), which is more than enough time to comply with
procedure. He also adds that if there was not enough time, Tabuena should have asked
for more time or at least communicated such problems to the president. Moreover, to
acquit the petitioners imply that people believe that the president is always right, that he
or she can do no wrong – that the president is above and beyond the law.
Panganiban, dissenting: He is of the same view as Romero, Davide and Puno but also
raises some points: the defense of obedience to a superior’s order is already obsolete,
as determined by the Tribunal in Nuremberg, in its judgment against Nazi war criminals
who put up the defense that they were merely following orders. The tribunal said that
the true test did not lie with the existence of an order but whether a moral choice was in
fact, possible. To allow this defense to hold in the Tabuena case sets a dangerous
precedent in the country because it would deprive the Courts the moral authority to
convict any subordinate because he or she was “merely following the orders of the his
or her superior (allowing the same doctrine to be invoked in similar criminal cases
before the SC and even in the inferior courts who have no choice but to follow the
doctrines set by the SC).