Tabuena v. Sandiganbayan 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 MIAAs 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, Marcoss 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 didnt 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 MIAAs 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 Tabuenas 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 crimesbe 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 hes 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 executionObedienta 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 accuseds 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, nonissuance 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. Tabuenas 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 superiors 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).