TABUENA VS.

SANDIGANBAYAN
[G.R. NO. 103501-03; February 17, 1997]

TOPIC:
LIABILITY OF PUBLIC OFFICERS: Kinds of Duties
AUTHOR: KAYELYN LAT
NOTES: Petitioner acted in strict compliance with the
MARCOS Memorandum. The order emanated from
the Office of the President and bears the signature of
the President himself, the highest official of the land. It
carries with it the presumption that it was regularly
issued

NATURE OF THE CASE:
Separate petitions for review filed by Luis Tabuena and Adolfo Peralta of the Sandiganbayan decision as
well as Resolution, convicting them of malversation under Art. 217 of the Revised Penal Code

FACTS:

1. Then Pres. Ferdinand Marcos instructed Luis Tabuena, General Manager of the Manila International Airport
Authority (MIAA), over the phone to pay directly to the presidents office and in cash what the MIAA owes
the Phil. National Construction Corp.
2. The verbal instruction was reiterated in a Presidential memorandum.
3. In obedience to Pres. Marcos instruction, Tabuena, with the help of Gerardo Dabao and Adolfo Peralta, the
Asst. Gen. Mgr. and the Acting Finance Services Mgr. of MIAA, respectively, caused the release of P55M of
MIAA funds of three (3) withdrawals and delivered the money to Mrs. Fe Roa-Gimenez, private secretary of
Marcos.
- First: January 10, 1986 for 25M, following a letter signed by Tabuena and Dabao requesting the PNB
Extension office at the MIAA to issue a managers check for said amount payable to Tabuena; check
was encashed, however, at the PNB Villamor Branch; Dabao and Cashier counted the money, after
which, Tabuena took delivery thereof at Mrs. Gimenez office
- Second: similar with the 1
st
(also 25M made on Jan 16, 1986
- Third: made on Jan 31, 1986 for 5M; Peralta was Tabuenas co-signatory to the letter-request for a
managers check for this amount; Peralta accompanied Tabuena to the PNB Villamor branch as
Tabuena requested him to do the counting of 5M; loaded in Tabuenas car and delivered to Mrs.
Gimenez office

4. Gimenez issued a receipt for all the amounts she received from Tabuena. Later, it turned out that PNCC
never received the money.
- No PNCC receipt for the 55M was presented
- Senior Assistant VP and Corporate Comptroller of PNCC: no payments made by MIAA for the months of
January to June of 1986
- No vouchers prepared to support the disbursement of 55M
5. Petitioners claimed that:
- Acted in good faith
- Tabuena was merely complying with the MARCOS memorandum which ordered him to forward
immediately to the Office of the Pres 55M in cash as partial payment of MIAAs obligations to PNCC;
- Tabuena was of the belief that MIAA indeed had liabilities to PNCC
- Peralta shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta)
to help in the release of 5M
6. Sandiganbayan rejected their claim of good faith which led to their conviction
7. The case involves two (2) separate petitions for review by Luis Tabuena and Adolfo Peralta. They appeal
the Sandiganbayan decision convicting them of malversation of MIAA funds in the amount of P55M.
8. Further, petitioners claimed that they were charged with intentional malversation, as alleged in the amended
information, but it would appear that they were convicted for malversation with negligence. Hence, their
conviction of a crime different from that charged violated their constitutional right to be informed of the
accusation.

ISSUE(S):
(1) Whether or not the Sandiganbayan convicted them of a crime not charged in the amended information;
and
(2) Whether or not Tabuena and Peralta acted in good faith.
HELD: (1) NO; (2) YES
RATIO:
(1) No. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved.
(2) Yes. Tabuena acted in strict compliance with the MARCOS Memorandum. The order emanated from the
Office of the President and bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its
execution constrains one to act swiftly without question.
- Tabuena is therefore entitled to the justifying circumstance of Any person who acts in obedience to an
order issued by a superior for some lawful purpose. The subordinate-superior relationship between
Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to
another (PNCC)
- What is more significant to consider is that the MARCOS memorandum is patently legal (for on its face it
directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the 55M
was a due and demandable debt and that it was just a portion of a bigger liability to PNCC.
- There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did not
comply with certain auditing rules and regulations pointed out by the Sandiganbayan; however, this
deviation was inevitable under the circumstances Tabuena was in. He did not have luxury of time to
observe all auditing procedures of disbursement considering the fact that the MARCOS memorandum
enjoined his immediate compliance with the directive that he forward to the Presidents office the 55M in
cash. Since he was acting in good faith, his liability should only be administrative or civil in nature, and not
criminal.
- Nor is there proof that Tabuena profited from the scheme. No conspiracy was established between
Tabuena and the real embezzler/s of 55M

However, a more compelling reason for the ACQUITTAL is the violation of the accused's basic constitutional
right to due process. Records show that the Sandiganbayan actively took part in the questioning of a defense
witness and of the accused themselves. The questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation. Tabuena and Peralta may not have raised the issue as
an error, there is nevertheless no impediment for the court to consider such matter as additional basis for a
reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the
duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they
are made the subject of assignments of error or not.
The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and
Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. Time and
again the Court has declared that due process requires no less than the cold neutrality of an impartial judge.
That the judge must not only be impartial but must also appear to be impartial, to give added assurance to the
parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due
process.
HENCE, Luis Tabuena and Adolfo Peralta are acquitted of the crime of malversation.