Jurisprudence-RA 3019

G.R. Nos.
170339, 170398-403 : March 9, 2010

ROLANDO
E.
SISON, Petitioner, v. PEOPLE
PHILIPPINES, Respondent.
OF
THE
DECISION
CORONA, J.:
The requirements of the law on government procurements should never be
taken for granted because grave consequences await those who violate
them.
Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental
Mindoro, a fourth-class municipality,1ca from July 1, 1992 to June 2ca 30,
1995, while Rigoberto de Jesus was the municipal treasurer. On July 18, 1994,
state auditor Elsa E. Pajayon conducted a post-audit investigation which
revealed that during petitioners incumbency, no public bidding was
conducted for the purchase of a Toyota Land Cruiser, 119 bags of Fortune
cement, an electric generator set, certain construction materials, two Desert
Dueler tires, and a computer and its accessories. Pajayon also found out that
there were irregularities in the documents supporting the acquisitions.
Thus, on June 4, 1998, petitioner and de Jesus were indicted before the
Sandiganbayan in seven separate Informations 3cafor seven counts of
violation of Section 3(e) of Republic Act (RA) 3019.4ca
On June 24, 1999, petitioner pleaded not guilty to all the Informations.
Accused de Jesus has remained at large.
Trial on the merits ensued. Pajayon was the lone witness for the prosecution.
She narrated the States version of the facts as above stated. The prosecution
thereafter rested its case and formally offered its exhibits.
When it was the turn of the defense to present evidence, petitioner was
called to the witness stand where he admitted that indeed, no public bidding
was conducted insofar as the purchases he was being accused of were
concerned. When asked how the purchases were made, he answered that
they were done through personal canvass. When prodded why personal
canvass was the method used, he retorted that no public bidding could be
conducted because all the dealers of the items were based in Manila. It was
therefore useless to invite bidders since nobody would bid anyway. The
defense thereafter rested its case and formally offered its exhibits.
On November 14, 2005, the Sandiganbayan found petitioner guilty as

charged.5ca As such, he was meted in each Information an imprisonment
term ranging from six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding public office. The
Sandiganbayan also ordered that an alias warrant of arrest be issued against
accused de Jesus.
Petitioner appealed6ca to this Court, praying for an acquittal because his
guilt was allegedly not proven beyond reasonable doubt.
We dismiss the appeal.
Non-Compliance with the Requirements of Personal Canvass
RA 71607ca explicitly provides that, as a rule, "acquisitions of supplies by
local government units shall be through competitive bidding." 8ca By way of
exception, no bidding is required in the following instances:
(1) personal canvass of responsible merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or exclusive distributors and
(5) purchase from other government entities.9ca
Since personal canvass (the method availed of by petitioner) is an exception
to the rule requiring public bidding, Section 367 of RA 7160 provides for
limitations on the resort to this mode of procurement:
Sec. 367. Procurement through Personal Canvass.Upon approval by the
Committee on Awards, procurement of supplies may be affected after
personal canvass of at least three (3) responsible suppliers in the locality by
a committee of three (3) composed of the local general services officer or the
municipal or barangay treasurer, as the case may be, the local accountant,
and the head of office or department for whose use the supplies are being
procured. The award shall be decided by the Committee on Awards.
Purchases under this Section shall not exceed the amounts specified
hereunder for all items in any one (1) month for each local government unit:
xxx
Municipalities:
First Class
First
Class
One hundred fifty thousand pesos (P150,000.00)
Second and
Third
Class
Forty thousand pesos (P40,000.00)
Fourth Class and Below
Twenty thousand pesos (P20,000.00) (emphasis

supplied)
In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.There shall be in every province,
city or municipality a Committee on Awards to decide the winning bids and
questions of awards on procurement and disposal of property.
The Committee on Awards shall be composed of the local chief executive as
chairman, the local treasurer, the local accountant, the local budget officer,
the local general services officer, and the head of office or department for
whose use the supplies are being procured, as members. In case a head of
office or department would sit in a dual capacity a member of
the sanggunian elected from among its members shall sit as a
member. The Committee on Awards at the barangay level shall be
the sangguniang barangay. No national official shall sit as member of the
Committee on Awards. (emphasis supplied)
Note that the law repeatedly uses the word "shall" to emphasize the
mandatory nature of its provisions.
This Court is not a trier of facts. The resolution of factual issues is a function
exercised by lower courts, whose findings on these matters are received with
respect and are in fact binding on the Court except only where it is shown
that the case falls under the accepted exceptions. 10ca Petitioner failed to
establish that his case falls under those exceptions. Hence, we have no other
option but to uphold the Sandiganbayans factual findings.
Insofar as the purchase of the Toyota Land Cruiser 11ca is concerned, the
Sandiganbayan found that the personal canvass was effected solely by
petitioner, without the participation of the municipal accountant and
petitioners co-accused de Jesus, the municipal treasurer. Worse, there was no
showing that that the award was decided by the Committee on Awards. Only
an abstract of canvass supported the award, signed by petitioner and de
Jesus, without the required signatures of the municipal accountant and
budget officer.
To reiterate, RA 7160 requires that where the head of the office or

department requesting the requisition sits in a dual capacity, the
participation of a Sanggunian member (elected from among the members of
the Sanggunian) is necessary. Petitioner clearly disregarded this requirement
because, in all the purchases made, he signed in a dual capacityas chairman
and member (representing the head of office for whose use the supplies
were being procured). That is strictly prohibited. None of the regular
members of the Committee on Awards may sit in a dual capacity. Where any
of the regular members is the requisitioning party, a special member from
the Sanggunian is required. The prohibition is meant to check or prevent
conflict of interest as well as to protect the use of the procurement process
and the public funds for irregular or unlawful purchases.
The same flaws attended the procurement of 119 bags of Fortune
cement,12ca electric power generator set,13ca various construction
materials,14ca two Desert Dueler tires15ca and a computer and its
accessories.16ca
With the kind of items purchased by petitioner, he also clearly spent more
than P20,000or beyond the threshold amount per month allowed by Section
367 of RA 7160 as far as purchases through personal canvass by fourth-class
municipalities (like Calintaan) are concerned.
Violation of Section 3(e) of RA 3019
Section 3(e) of RA 3019 provides:
Section 3. Corrupt practices of public officersIn addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official,
administrative or judicial functions through manifest impartiality,
evident bad faith or gross inexcusable negligence. xxx. (emphasis
supplied)
To be found guilty under said provision, the following elements must
concur:
(1) the offender is a public officer;
(2) the act was done in the discharge of the public officers official,
administrative or judicial functions;
(3) the act was done through manifest partiality, evident bad faith, or
gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party, including the
Government, or gave
any
unwarranted
benefits,
advantage
or
preference.17ca (emphasis supplied)
It is undisputed that the first two elements are present in the case at bar. The
only question left is whether the third and fourth elements are
likewise present. We hold that they are.
The third element of Section 3 (e) of RA 3019 may be committed in
three ways, i.e., through manifest partiality, evident bad faith or gross
inexcusable negligence. Proof of any of these three in connection with the
prohibited acts mentioned in Section 3(e) of RA 3019 is enough to
convict.18ca
Explaining what "partiality," "bad faith" and "gross negligence" mean, we
held:
"Partiality" is synonymous with "bias" which "excites a disposition to see
and report matters as they are wished for rather than as they are." "Bad
faith does not simply connote bad judgment or negligence; it imputes
a dishonest purpose or some moral obliquity and conscious doing of a
wrong; a breach of sworn duty through some motive or intent or ill
will; it partakes of the nature of fraud." "Gross negligence has been so
defined as negligence characterized by the want of even slight care, acting
or omitting to act in a situation where there is a duty to act, not
inadvertently but wilfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. It is
the omission of that care which even inattentive and thoughtless men never
fail to take on their own property." 19ca (citations omitted)
In the instant case, petitioner was grossly negligent in all the purchases
that were made under his watch. Petitioners admission that the canvass
sheets sent out by de Jesus to the suppliers already contained his
signatures because he pre-signed these forms20ca only proved his
utter disregard of the consequences of his actions. Petitioner also
admitted that he knew the provisions of RA 7160 on personal canvass but he
did not follow the law because he was merely following the practice of
his predecessors.21ca This was an admission of a mindless disregard for
the law in a tradition of illegality. This is totally unacceptable, considering
that as municipal mayor, petitioner ought to implement the law to the letter.
As local chief executive, he should have been the first to follow the law and
see to it that it was followed by his constituency. Sadly, however, he was the
first to break it.
Petitioner should have complied with the requirements laid down by RA 7160
on personal canvass, no matter how strict they may have been. Dura lex sed
lex. The law is difficult but it is the law. These requirements are not empty
words but were specifically crafted to ensure transparency in the acquisition
of government supplies, especially since no public bidding is involved in
personal canvass. Truly, the requirement that the canvass and awarding of
supplies be made by a collegial body assures the general public that
despotic, irregular or unlawful transactions do not occur. It also guarantees
that no personal preference is given to any supplier and that the government
is given the best possible price for its procurements.
The fourth element is likewise present. While it is true that the
prosecution was not able to prove any undue injury to the government as a
result of the purchases, it should be noted that there are two ways by which
Section 3(e) of RA 3019 may be violated the first, by causing undue
injury to any party, including the government, or the second, by giving
any private party any unwarranted benefit, advantage or
preference. Although neither mode constitutes a distinct offense, 22ca an
accused may be charged under either mode or both.23ca The use of the
disjunctive "or" connotes that the two modes need not be present at the
same time. In other words, the presence of one would suffice for
conviction.24ca
Aside from the allegation of undue injury to the government, petitioner was
also charged with having given unwarranted benefit, advantage or
preference to private suppliers.25ca Under the second mode, damage is not
required. The word "unwarranted" means lacking adequate or official
support; unjustified; unauthorized26ca or without justification or adequate
reason.27ca "Advantage" means a more favorable or improved position or
condition; benefit, profit or gain of any kind; benefit from some
course of action.28ca "Preference" signifies priority or higher evaluation
or desirability; choice or estimation above another.
In order to be found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another, in the
exercise of his official, administrative or judicial functions. Petitioner did just
that. The fact that he repeatedly failed to follow the requirements of RA 7160
on personal canvass proves that unwarranted benefit, advantage or
preference was given to the winning suppliers. These suppliers were awarded
the procurement contract without the benefit of a fair system in determining
the best possible price for the government. The private suppliers, which were
all personally chosen by respondent, were able to profit from the
transactions without showing proof that their prices were the most beneficial
to the government. For that, petitioner must now face the consequences of
his acts.
Propriety of the Penalty
Any person guilty of violating Section 3 (e) of RA 3019 is punishable with
imprisonment for not less than six years and one month nor more than
fifteen years and perpetual disqualification from public office. 30ca Thus, the
penalty imposed by the Sandiganbayan which is an imprisonment term
ranging from six years and one month as minimum to ten years as maximum
and perpetual disqualification from holding public office for each count of the
offense, is in accord with law.
WHEREFORE, the petition is hereby DENIED. Petitioner Rolando E. Sison is
hereby found guilty of seven counts of violation of Section 3(e) of RA 3019.
As such, he is hereby sentenced for each count of the offense with
imprisonment of six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding public office.
Costs against petitioner.
SO ORDERED.
REPUBLIC ACT NO. 3019

ANTI-GRAFT AND CORRUPT PRACTICES ACT
Sec. 3. Corrupt practices of public officers. - In

addition to acts or omissions of public officers already
penalized by existing law, the following shall
constitute corrupt practices of any public officer and
(e) Causing any undue injury to any party, including
the Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial

functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or
request, without sufficient justification, to act within a
reasonable time on any matter pending before him for
the purpose of obtaining, directly or indirectly, from
any person interested in the matter some pecuniary or
material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in
favor of or discriminating against any other interested
party.
G.R. Nos. 168951& 169000, July 17, 2013

DR.
ROGER
R.
POSADAS
DAYCO, Petitioners, v. SANDIGANBAYAN
PHILIPPINES, Respondents.
AND
AND
DR.
ROLANDO
PEOPLE
OF
P.
THE
DECISION
VILLARAMA, JR., J.:
Petitioners assail their conviction for Violation of Section 3(e) of Republic Act (R.A.) No.
3019 (The Anti-Graft and Corrupt Practices Act) and Section 7(b)of R.A. No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and Employees) under
Decision1 dated June 28, 2005 of the Sandiganbayan in Crim. Case Nos. 25465-66.
The Facts
Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in Relativity Physics graduate
from the University of Pittsburgh, is a longtime professor and former Dean of the
College of Science at the University of the Philippines-Diliman Campus (UP Diliman).
He was appointed by the Board of Regents (BOR) of the University of the Philippines
System as UP Diliman Chancellor for a three-year term starting November 1, 1993 and
ending
October
31,
1996.
During his term as Chancellor, Dr. Posadas is one of the leading figures in the emerging
inter-disciplinary field of technology management in the Philippines.Upon the
recommendation of the UP Diliman Task Force on Science and Technology Assessment,
Management and Planning composed of deans and professors from the various colleges
in UP Diliman, the BOR on February 23, 1995 approved the establishment of the
Technology Management Center (TMC) under the direct supervision of the Office of the
Chancellor, UP Diliman.When the TMC became operational in June 1995, the Task Force
on Science and Technology Assessment, Management and Planning wrote then UP
President Dr. Emil Q. Javier, nominating Dr. Posadas for the position of TMC Director. For
undisclosed reason, Dr. Posadas declined the nomination and instead he (Dr. Posadas)
designated Prof. Jose Tabbada of the College of Public Administration as Acting Director
of
TMC.
On July 26, 1995, Dr. Posadas submitted to the National Economic and Development
Authority (NEDA) an Application for Funding of his proposed project entitled
Institutionalization of Technology Management at the University of the Philippines in
Diliman (TMC Project). The TMC Project, to be funded by a grant from the Canadian
International Development Agency (CIDA), aimed to design and develop ten new
graduate courses in technology management for the diploma, masters and doctoral
programs
to
be
offered
by
TMC. 2
On September 18, 1995, a Memorandum of Agreement3 (MOA) was executed between
Dr. Posadas, on behalf of UP-Diliman, and the Philippine Institute for Development
Studies (PIDS) as the Local Executing Agency of the Policy, Training and Technical
Assistance Facility (PTTAF) of CIDA. Under the MOA, CIDA shall provide the funding for
the total project cost (P5,442,400.00), with the NEDA as the designated PTTAF Project
Implement or for the Government of the Philippines, while UPDiliman shall direct,
manage and implement all activities under the approved project with counterpart
funding
in
the
amount
of
P4,228,524.00.
In a letter dated July 30, 1995, the President of Hua Qiao University in Fujian Province,
China invited Dr. Posadas and a delegation from UP Diliman to visit on October 30 to
November 6, 1995. On October 5, 1995, then Senior Deputy Executive Secretary
Leonardo A. Quisumbing (retired Member of this Court) issued the Authority to Travel
for the UP Diliman delegation headed by Dr. Posadas. Among those who joined the
delegation were Dr. Amaryllis Torres and Dr. Rosario Yu, UPDilimans Vice-Chancellor for
Academic Affairs and Vice-Chancellor for Student Affairs, respectively.4Under
Administrative Order (AO) No. 95-170 dated October 24, 1995, Dr. Posadas designated
petitioner Dr. Rolando P. Dayco (Dr. Dayco), Vice-Chancellor for Administrative Affairs,
as Officer-In-Charge (OIC) of UP Diliman effective October 30, 1995 until November 6,
1995. This was followed by AO No. 95-170-A dated October 27, 1995, which amended
the previous order by extending the OIC designation of Dr. Dayco to November 7,
1995.5
On November 7, 1995, Dr. Dayco appointed Dr. Posadas as Project Director of UP TMC
effective September 18, 1995 up to September 17, 1996.In another undated Contract
for Consultancy Services signed by Dr. Dayco, Dr. Posadas was hired as Consultant for
the TMC Project for the same period.6As evidenced by disbursement vouchers and
admitted by Dr. Posadas, the latter received his honoraria (P30,000.00 per month)
and consultancy fees (totaling P100,000.00) as Project Director and Consultant of the
TMC Project until May 1996 when the Commission on Audit (COA) raised questions on
the
legality
of
the
said
fees.7
In August 1996, payment of the subject honoraria and fees was suspended by COA
Resident Auditor Romeo J. Pulido who noted the following deficiencies:
cralavvonline lawlibrary
1. Honoraria were in excess of the rates provided for under the National
Compensation Circular No. 73, dated March 1, 1996, x x x.
2. Legal basis for designating the incumbent Chancellor as Project Director by the
Officer-In-Charge (OIC), considering that the latter can assume the post only in
the absence of the former. An OIC cannot validly designate since the authority
to designate/appoint is among the functions of the Chancellor which cannot be
delegated as provided in the University Charter. Moreover, the authority to
appoint can never be delegated since it involves discretion.
3. On the assumption that the designation of the Chancellor as Project Director and
Consultant is valid, collecting the remuneration for both positions amount to
double compensation which is contrary to existing auditing rules and
regulations.8
In a Memorandum9 dated September 16, 1996, UPs Chief Legal Officer Marichu C.
Lambino addressed the foregoing concerns of COA Auditor Pulido.Atty. Lambino stated
that (a) the compensation received by Dr. Posadas are in the nature of consultancy fees
and hence expressly exempted by Department of Budget and Management
(DBM)National Compensation Circular (NCC) No. 75 dated March 11, 1995; (b) the
TMC Project, being a training program, is likewise exempted from the coverage of NEDA
Guidelines on the Procurement of Consulting Services for Government Projects; and (c)
under Civil Service Commission (CSC) Memorandum Circular (MC) No. 43, series of
1993 Streamlining and Deregulating Human Resource Development Functions UP is
authorized, without prior approval from the CSC, to determine the rates of honorarium
for government personnel participating as resource persons, coordinator, and facilitator,
in training programs. On the issue of double compensation, Atty. Lambino pointed out
that Dr. Posadas was appointed Project Director because of managerial expertise, and
his skills in supervising personnel who are involved in an academic undertaking, and as
Consultant because of his expertise in technology management. Finding these
explanations/justifications acceptable, Auditor Pulido lifted the notices of suspension in
September
1997.
However, even before the issuance of the suspension notices, then UP President Dr.
Emil Q. Javier, ordered an investigation on the basis of an administrative complaint filed
by Mrs. Ofelia L. Del Mundo, a staff of the University Library who was detailed at the
TMC as its Administrative Officer. On July 24, 1996, President Javier created a FactFinding Committee to gather, review and evaluate pertinent documents regarding
certain transactions of the TMC.10 After the conduct of a preliminary investigation and
finding a prima facie case against the petitioners, President Javier issued the formal
charges11 for Grave Misconduct and Abuse of Authority. Pursuant to the Universitys
Rules and Regulations on the Discipline of Faculty Members and Employees approved
at the 704th Meeting of the Board of Regents on January 11, 1963,12 an Administrative
Disciplinary Tribunal (ADT) was constituted, chaired by Atty. Arturo E. Balbastro, a
faculty
member
of
the
UP
College
of
Law.
On August 21, 1998, the ADT submitted its Report 13 (ADT Case 96-001) to President
Javier. The ADT found petitioners guilty of serious or grave misconduct and
recommended the penalty of dismissal in accordance with CSC Memorandum Circular
No. 30, series of 1989, as well as Article 250 of the University Code. The Report
likewise stated that the acts of petitioners for which they were held administratively
liable may warrant prosecution under Section 3(h) and (i) of R.A. No. 3019. Under the
Order14 dated August 25, 1998 signed by President Javier, petitioners were dismissed
from
the
service.
On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity as General Counsel
of UP formally endorsed the findings and recommendations of the ADT to the
Ombudsman.15
The
case
was
docketed
as
OMB-0-98-1843.
Meanwhile, the BOR at its 1126 th meeting on November 26, 1998, resolved petitioners
appeal in ADT Case 96-001, as follows:
1. The Board affirmed the ADT decision finding the respondents guilty of grave
misconduct and imposed on them the penalty of forced resignation with the
accessory penalties defined in the Omnibus Rules Implementing Book V of
Executive Order 292 and other Pertinent Civil Service Laws i.e., cancellation of
eligibility, forfeiture of all leave credits and retirement benefits, and
disqualification from government service for one year.
2. If after one year they should reapply to the University, they must render an
apology to the University and their reappointments will be subject to Board
approval.
3. The respondents are permanently disqualified from holding any administrative
position in the University.
4. The decision takes effect immediately.16
Satisfied with the BORs action, petitioners caused the withdrawal of their appeal before
the
CSC.17
On June 9, 1999, the Evaluation and Preliminary Investigation Bureau of the Office of
Ombudsman recommended the dismissal of the charges against petitioners for
insufficiency of evidence. However, said recommendation was disapproved by then
Ombudsman Aniano A. Desierto who ordered that petitioners be indicted for violation of
Section 3(e) of R.A. No. 3019 and Section 7(b) in relation to Section 11 of R.A. No.
6713.18
The corresponding Informations19were thus filed against the petitioners before the
Sandiganbayan (Criminal Case Nos. 25465-66), as follow:
cralavvonlinelawlibrary
Criminal
Case
No.
25465
That on or about 7 November 1995, or sometime prior or subsequent thereto, in

Quezon City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being
then the Chancellor and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said
university and Officer-In-Charge of the Office of the Chancellor, committing the crime
herein charged in relation to, while in the performance and taking advantage of their
official and administrative functions,and conspiring and confederating with and mutually
helping each other, did then and there willfully, unlawfully and criminally give
unwarranted benefits, privilege or advantage to accused POSADAS, when accused
DAYCO appointed or designated accused POSADAS as a Project Director of the lone
project, Institutionalization of the Management of Technology at U.P. Diliman, of the
Technology Management Center (TMC) of the Office of the Chancellor, U.P. Diliman,
which enabled or caused the disbursement and payment of monthly salary of
P30,000.00 of accused POSADAS, duly received by the latter, for the period 18
September 1995 to 17 September 1996, with accused POSADAS also receiving his
salaries as Chancellor and faculty member of U.P. Diliman during this period, and both
accused knowing fully well that the appointment of accused POSADAS was beyond the
power or authority of accused DAYCO as an OIC and likewise violative of the law, rules
and regulations against multiple positions, double compensation and retroactivity of
appointment, thereby causing undue injury to the Government in the amount
of PESOS: THREE HUNDRED SIXTY THOUSAND (P360,000.00), to the damage and
prejudice
of
the
Government.
CONTRARY
Criminal
TO
Case
LAW.
No.
25466
That on or about 7 November 1995, or sometime prior or subsequent thereto, in

Quezon City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being
then the Chancellor and a faculty member of the University of the Philippines-Diliman
Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said
university and Officer-In-Charge of the Office of the Chancellor, committing the crime
herein charged in relation to, while in the performance and taking advantage of their
official and administrative functions, and conspiring and confederating with and
mutually helping each other, did then and there willfully, unlawfully and criminally
engage in the unauthorized private practice of accused POSADASs profession as a
technology manager, when accused DAYCO appointed or designated accused POSADAS
as a consultant to the project, Institutionalization of the Management of Technology at
U.P. Diliman, of the Technology Management Center (TMC) of the Office of the
Chancellor, U.P. Diliman, which enabled or caused the disbursement and payment of
consultancy fees in the amount of P100,000.00 to accused POSADAS, duly received by
the latter, with respondent POSADAS also receiving his salaries as Chancellor and
faculty member of U.P. Diliman, and both accused knowing fully well that the
appointment to and acceptance of the position of consultant by respondent POSADAS

was without authority from the latters superior(s) or the U.P. Board of Regents, to the
damage
and
prejudice
of
the
Government
service.
CONTRARY TO LAW.
Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 and May 28, 2001,
respectively, both pleading not guilty to the charges against them. 20
Ruling of the Sandiganbayan
After due proceedings, the Sandiganbayan rendered its Decision 21 dated June 28, 2005,
the decretal portion of which reads:
ACCORDINGLY, this Court finds both accused Roger R. Posadas and Rolando P.
DaycoGUILTY beyond reasonable doubt of violating Section 3(e) of RA 3019 and
Section 7(b) of RA 6713 and are sentenced to suffer the following penalties:
For violation of Section 3(e) of RA 3019: accused Posadas and Dayco are sentenced to
suffer in prison the indeterminate penalty of nine (9) years and one day as minimum
and twelve (12) years as maximum, with the accessory penalty of perpetual
disqualification from public office. Both accused are directed to jointly and severally
indemnify the Government of the Republic of the Philippines the amount of THREE
HUNDRED
THIRTY
SIX
THOUSAND
PESOS
(P336,000.00).
For violation of Section 7(b) of RA 6713: accused Posadas and Dayco are sentenced to
suffer in prison the maximum penalty of five (5) years and disqualification to hold
public
office.
SO ORDERED.22
The Sandiganbayan held that the evidence supports a finding of evident bad faith on
the part of petitioners who, knowing very well the limitations of Dr. Daycos power as
OIC, effected the appointment of Dr. Posadas as TMC Project Director and Consultant.
These limitations are based on the nature of the power to appoint which is merely
delegated to the Chancellor by the BOR, Section 204 of the Government Accounting and
Auditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of appointments.
The Sandiganbayan concluded that petitioners acts caused undue injury to the
Government with the receipt by Dr. Posadas of salaries and consultancy fees.
Petitioners contention that the Government did not suffer loss or damage since the
funding for the TMC Project came from CIDA was rejected by the Sandiganbayan which
stated that from the moment UP received the CIDA funds intended for the TMC Project,
said funds became impressed with public attributes or character, as in fact it was
subjected
to
the
control
of
UP
and
audited
by
the
COA.
The Sandiganbayan likewise found no merit in petitioners claim that they were just
victims of university politicsas they were staunch critics of President Javier. Petitioners
adduced documentary and testimonial evidence to show that Ms. Del Mundos filing of a
complaint against petitioners was triggered by the fact that it was Dr. Posadas who
ordered an administrative investigation against her and recalled her to the University
Library, which incident led to the resignation of Prof. Tabbada from TMC. However, the
Sandiganbayan stressed that regardless of the reason for the filing of the cases against
petitioners at the university level, these cases would not have come into being if no law
has
been
violated
in
the
first
place.
Petitioners filed a motion for reconsideration but it was denied due course for the
reason that it has not been set for hearing as required by the rules, hence the
motion ispro
forma.
In this petition for certiorari, petitioners allege grave abuse of discretion and blatant
violation of their constitutionally guaranteed right to due process.
The Issues
The Court is asked to resolve whether the Sandiganbayan committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction: (1) in denying petitioners
motion for reconsideration on the ground that it was not set for hearing; and (2) in
convicting petitioners of Violation of Section 3(e) of R.A. No. 3019 and Section 7(b) of
R.A. No. 6713 on the basis of facts not supported by evidence and on inapplicable rules
and principles.
Petitioners Arguments
Petitioners argue that the July 19, 2005 Resolution denying their motion for
reconsideration is not only baseless, but capricious, arbitrary and most unjust because
the Revised Internal Rules of theSandiganbayan does not require that the motion for
reconsideration be set for hearing.
They cite the case of Alvarez v.
Sandiganbayan23 where this Court ruled that motions for reconsideration of decisions or
final orders of the Sandiganbayan are not governed by Rule 15 of the Rules of Court, as
these may be filed within 15 days from promulgation or notice of the judgment or final
order upon the grounds, in the form and subject to the requirements, for motions for
new trial in criminal cases under Rule 121 of the Rules of Court.
On the charges of graft, petitioners assert that they did not act with bad faith, manifest
partiality or gross inexcusable negligence. They reiterate that Dr. Daycos designation as
OIC Chancellor was adjusted for one day merely to accommodate the change in the
official travel schedule of Dr. Posadas to China. The appointment of Dr. Posadas as TMC
Project Director and Consultant was a valid appointment and was made retroactive for
no other reason than to synchronize the activities relative to the TMC Project with the
project schedule as approved by the funding agency. The power of appointment was
within the power of the Chancellor to delegate to the OIC Chancellor, it not being
expressly prohibited by the University rules. Such practice, in fact, is not an unusual
occurrence
in
UP.
Petitioners also contend that no injury was caused to the government because the TMC
Project budget came from foreign funds, hence not an expense incurred by the
Government and neither did UP incur any expense in relation to the said project, its
counterpart funding was not in the form of money.Consequently, there can be no
conviction under the law in the absence of real or actual damage suffered.
On the honoraria and fees received by Dr. Posadas as Project Director and Consultant,
petitioners insist they cannot be held liable for double compensation because these
were given for separate services rendered by Dr. Posadas. As opined by the UP Chief
Legal Officer, the compensation were in the nature of consultancy fees being received
by UP personnel in their capacity as private persons for services to a project outside of
their official time, hence it is not covered by the DBM NCC No. 75. Moreover,
petitioners stress that Dr. Posadas did not receive any unwarranted benefit, advantage
or preference in his appointment as TMC Project Director and Consultant. Dr. Posadas
possesses the superior qualifications and expertise in the field of technology
management necessary to ensure that the project was a success. In fact, his
colleagues were expecting him to head the TMC Project and did not oppose his
appointment.
As to the charge of unauthorized outside employment, petitioners point out that the
University rules do not require clearance from the UP President to engage in
consultancy work and the same rules do not prohibit him from performing consultancy
work for a project such as TMC. Therefore, Dr. Posadas appointment as TMC Project
Director
and
Consultant
were
not
prohibited
outside
employment.
Petitioners reiterate theiruniversity politics defense, claiming that President Javier at
the time chose to champion Del Mundos complaint motivated by vengeance and spite
against two of his staunch critics. Thus, despite knowledge of the opinion of the UP
Chief Legal Officer clearing petitioners of any wrongdoing, President Javier
underhandedly caused the filing of administrative charges in the ADT.
Petitioners further submit that the complainant before the Ombudsman, Atty. Carmelita
Yadao, was incompetent as she had no personal knowledge of the contents thereof,
which were merely narrated or reported to her in her capacity as General Counsel of UP
at that time. The letter-complaint should not have been given due course as it was
based on pure hearsay and its main proponent suffered from conflicting interests
because she had earlier endorsed the MOA which included the compensation package
for
TMC
Project
Director
and
Consultant.
Finally, petitioners deny having acted in conspiracy as there was no evidence to prove
it. The only assumed fact considered by the Sandiganbayan is based on its erroneous
hypothesis the alleged act of extending the period of OIC Chancellor for one day to
accommodate Dr. Posadas. Dr. Dayco did not even gain anything from his designation of
Dr. Posadas. Thus, in the absence of clear and convincing proof, petitioners cannot be
held liable as conspirators.
Our Ruling
The
petition
Notice
Reconsideration
Contrary
to
has
of
petitioners
no
Hearingin
Is
stance,
the 2002
Motions
Revised
Internal
merit.
for
Mandatory
Rules
of
the
Sandiganbayan requires a motion for reconsideration to be set for hearing, as it

provides under Rule VII:
SECTION 1. Motion Day. - Except for motions which may be acted upon ex parte, all
motions shall be scheduled for hearings on a Friday, or if that day is a non-working
holiday,
on
the
next
working
day.
Motions
requiring
immediate
action
may
be
acted
upon
on
shorter
notice.
In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997 Rules of Civil
Procedure, as amended, on Motions shall apply. (Emphasis supplied.)
Under the Rules of Sandiganbayan, effective January 10, 1979, a petition for
reconsideration of a judgment or final order may be filed upon the grounds, in the form
and subject to the requirements, for motions for new trial in criminal cases under Rule
121 of the Rules of Court. 24 In the case ofAlvarezv. Sandiganbayan25 decided in 1991,
the Court upheld the Sandiganbayan in not considering the failure of the movant to fix
the place, date and time of the hearing of his motion a substantial defect, for instead of
giving the motion a short shrift, it set the incident for hearing, and even granted the
prosecution ten days from [notice] within which to oppose/comment. The Court noted
what was then the practice of the Sandigabayan itself, rather than the movant, to
determine the date and time of hearings of motions. The peculiar circumstances of said
case heavilyweighed in favor of relaxation of the rules, with the Courts finding that the
evidence presented against the petitioner does not fulfill the test of moral certainty and
may not be deemed sufficient to support a conviction. Hence, the Court was not
prepared to declare that [petitioners] omission to set his motion for hearing is so
grievous an error as to foreclose the award to him of the relief to which he is otherwise
entitled.
In any event, the mandatory setting for hearing a motion for reconsideration to reverse
or modify a judgment or final order of the Sandiganbayan is already settled. This Court
categorically ruled in the recent case of Flores v. People26
Flores filed a motion for the reconsideration. As the motion did not contain any notice of
hearing, the Prosecution filed its Motion to Expunge from the Records Accuseds Motion
for
Reconsideration.
In its Resolution, dated November 29, 2007, the Sandiganbayan denied the motion for
being a mere scrap of paper as it did not contain a notice of hearing and disposed as
follows:
WHEREFORE, in view of the foregoing, the Motion for Reconsideration of accused
Flores is considered pro forma which did not toll the running of the period to appeal,
and thus, the assailed judgment of this Court has become FINAL and EXECUTORY.
SO
ORDERED.
xxxx
Flores claims that the outright denial of his motion for reconsideration by the
Sandiganbayan on a mere technicality amounts to a violation of his right to due
process. The dismissal rendered final and executory the assailed decision which was
replete with baseless conjectures and conclusions that were contrary to the evidence on
record. He points out that a relaxation of procedural rules is justified by the merits of
this case as the facts, viewed from the proper and objective perspective, indubitably
demonstrate
self-defense
on
his
part.
Flores argues that he fully complied with the requirements of Section2 of Rule 37 and
Section 4 of Rule 121 of the Rules of Court when the motion itself was served upon the
prosecution and the latter, in fact,admitted receiving a copy. For Flores, such judicial
admission amounts to giving due notice of the motion which is the intent behind the
said rules. He further argues that a hearing on a motion for reconsideration is not
necessary as no further proceeding, such as a hearing, is required under Section 3 of
Rule
121.
Flores
argument
fails
to
persuade
this
Court.
Section 5, Rule 15 of the Rules of Court reads:

SECTION 5. Notice of hearing. The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later
than ten (10) days after the filing of the motion.
Section 2, Rule 37 provides:
SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. The
motion shall be made in writing stating the ground or grounds therefore, a written
notice of which shall be served by the movant on the adverse party.
xxxx
A pro forma motion for new trial or reconsideration shall not toll the reglementary
period
of
appeal.
Section 4, Rule 121 states:
SEC. 4. Form of motion and notice to the prosecutor. The motion for a new trial or
reconsideration shall be in writing and shall state the grounds on which it is based. x x
x. Notice of the motion for new trial or reconsideration shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec.2 of Rule 37
and Sec. 4 of Rule 121 should be read in conjunction with Sec.5 of Rule 15 of
the Rules of Court. Basic is the rule that every motion must be set for hearing by the
movant except for those motions which the court may act upon without prejudice to the
rights of the adverse party. The notice of hearing must be addressed to all parties
and must specify the time and date of the hearing, with proof of service.
This Court has indeed held, time and again, that under Sections 4 and5 of Rule 15
of the Rules of Court, the requirement is mandatory. Failure to comply with
the requirement renders the motion defective. As a rule, a motion without a
notice of hearing is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading.
In this case, as Flores committed a procedural lapse in failing to include a notice of
hearing, his motion was a worthless piece of paper with no legal effect whatsoever.
Thus, his motion was properly dismissed by the Sandiganbayan.27 (Emphasis supplied.)
We thus find no grave abuse of discretion committed by the Sandiganbayan when it
denied due course to petitioners motion for reconsideration on the ground that it has
not been set for hearing as required by the rules and the same is deemed pro forma.
Violation
of
Section
3(e)of
R.A.
No.
3019
The essential elements of the crime defined in Section 3(e) of R.A. No. 3019, otherwise
known as The Anti-Graft and Corrupt Practices Act, are:
1. The accused must be a public officer discharging administrative, judicial or

official functions;
chanroble svirtualawlibrary
2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and
3. That his action caused any undue injury to any party, including the government,
or giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions.28
There is no question regarding the presence of the first requisite considering that at the
time the subject appointments were made, both petitioners were faculty members and
holding administrative positions in UP Diliman. What petitioners dispute is the
existence
of
the
second
and
third
requisites.
In Criminal Case No. 25465, the information charged that petitioners willfully,
unlawfully and criminally gave unwarranted benefits to Dr. Posadas in appointing him as
TMC Project Director, in violation of the prohibition against multiple positions and the
rule on non-retroactivity of appointments, thereby causing undue injury to the
Government.
In Cabrera v. Sandiganbayan,29 this Court explained that there are two (2) ways by
which a public official violates Section 3(e) of R.A. No. 3019 in the performance of his
functions, namely: (a) by causing undue injury to any party, including the Government;
or (b) by giving any private party any unwarranted benefits, advantage or preference.
The accused may be charged under either mode or under both. Moreover, in Quibal v.
Sandiganbayan,30 the Court held that the use of the disjunctive termor connotes that
either act qualifies as a violation of Section 3(e) of R.A. No. 3019. 31 Here, petitioners
were
charged
with
committing
the
offense
under
both
modes.
Upon the entire evidence on record, the Sandiganbayan was convinced that petitioners
were guilty of causing undue injury to the Government. In Llorente, Jr. v.
Sandiganbayan,32 this Court said that to hold a person liable for causing undue injury
under Section 3(e), the concurrence of the following elements must be established
beyond reasonable doubt by the prosecution:
(1) that the accused is a public officer or a private person charged in conspiracy with
the
former;
chanroblesvirtualawlibrary
(2) that said public officer commits the prohibited acts during the performance of his or
her
official
duties
or
in
relation
to
his
or
her
public
positions;
(3) that he or she causes undue injury to any party, whether the government or a
private
party;
and
(4) that the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence.
We sustain the decision of the Sandiganbayan holding petitioners liable for causing
undue injury to the Government in appointing Dr. Posadas as TMC Project Director with
evident
bad
faith.
Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of the nature of fraud. 33It
contemplates a state of mind affirmatively operating with furtive design or some motive
of self interest or ill will for ulterior purposes. 34 Evident bad faith connotes a manifest
deliberate intent on the part of the accused to do wrong or cause damage. 35
In Pecho v. Sandiganbayan,36 the Court en banc defined injury as any wrong or
damage done to another, either in his person, or in his rights, reputation or property;
the invasion of any legally protected interests of another. It must be more than
necessary or are excessive, improper or illegal. It is required that the undue injury
caused by the positive or passive acts of the accused be quantifiable and demonstrable
and proven to the point of moral certainty.37 Undue means illegal, immoral, unlawful,
void
of
equity
and
moderations.38
In this case, that petitioners acted in evident bad faith was duly established by the
evidence. We recall that the MOA was executed on September 18, 1995 and became
effective upon the signature of the parties. 39 Between that date and the China trip
scheduled in the first week of November (the invitation was dated July 30, 1995), Dr.
Posadas could have already appointed the Project Director and Consultant as indeed the
retroactive appointment was even justified by them because supposedly project
activities have already started by September 18, 1995. And yet, he waited until the
China trip so that in his absence the designated OIC Chancellor, Dr. Dayco, would be the
one to issue the appointment. Apparently, Dr. Posadas appointment by Dr. Dayco in an
OIC capacity was pre-conceived. Prof. Jose Tabbada testified that when he was
summoned by Dr. Posadas to his office, the latter asked him how he (Posadas) could be
appointed TMC Project Director. He then suggested that Dr. Dayco as OIC Chancellor
can appoint him to the position and even drafted the memo for this purpose. He
admitted that he gave such advice with some reservations but it turned out to have
been
pursued
by
petitioners.40
However, the Sandiganbayan ruled that the delegated authority of the OIC Chancellor
has
limitations
and
did
not
include
the
power
to
appoint.
Section 204 of the Government Accounting and Auditing Manual (Volume I on
Government Auditing Rules and Regulations) provides:
Sec. 204. Appointment issued by an officer-in-charge. -- A person designated in an

acting capacity may be differentiated from one who is designated merely as an Officer-
in-Charge (OIC). In the latter case, the OIC enjoys limited powers which, are confined
to functions of administration and ensuring that the office continues its usual activities.
The OIC may not be deemed to possess the power to appoint employees as the same
involves the exercise of discretion which is beyond the power of an OIC (CSC Res.
1692, Oct. 20, 1978).
To prove the alleged practice in the University of an OIC appointing a Chancellor to a
certain position, petitioners presented copies of temporary appointment papers issued
by OIC Chancellor Paz G. Ramos to former Chancellor Ernesto G. Tabujara who was
appointed Consultant-In-Charge of the Campus Planning, Development and
Maintenance Office, UP Diliman with P2,000.00 monthly honorarium effective January
1, 1986 to December 31, 1986. It must be noted, however, that the said appointment
was made by the OIC by authority of the Board of Regents and these were actually
approved and signed by then Secretary of the University, Prof. Martin V. Gregorio, while
the renewal appointment was approved by Secretary of the University Prof. Emerlinda
R. Roman. Both Gregorio and Roman signed the Notification of Approval of Temporary
Appointment.41
Petitioners nonetheless argue that the appointments made by Dr. Dayco were valid on
the basis of Section 9(a) of the Resolution of the BOR reorganizing UP into the UP
System adopted at its 828th meeting on December 21, 1972, as amended at its
863rd meeting on July 31, 1975. Under said resolution, the BOR authorized the
Chancellor of an autonomous university of the UP System to delegate his functions and
responsibilities which have been assigned or delegated to him by the BOR, unless
instructed otherwise by the BOR. It also enumerated those functions that may not be
delegated, among which is:
B. Functions That May Not Be Delegated

xxxx
f.
Authority to approve the following appointments
(1) those covered in II, C, 1, and e of the Presidents Memorandum Circular No. 30
dated
August
28,
1975;
and
(2) those covered in II, C, 4, a through c of the aforecited memorandum circular of the
President;
x
x
x
x42
MC No. 30 dated August 28, 1975 issued by former UP President Onofre D. Corpuz
provided for Operating Guidelines on Appointments and Related Personnel Transactions
in the University System, which specifically delineated the authority to appoint of
university
officials.
The pertinent provisions of said MC No. 30 read:
C. Delegated
Authority
of
the
Chancellor
to
Appoint
1.
The Chancellor of an autonomous University approves appointments to the
following positions:
a. directors or heads and assistant directors or assistant heads of

units supervised by or attached to principal units, except those
whose starting salaries are equal to or higher than that of
associate professor;
b. program
or project
directors;
xxxx
5. The Chancellor approves the appointment of personnel, regardless of rank or salary
range, incidental to employment in research projects, study and training programs and
other programs or projects undertaken in collaboration with, or with the support
of, public or private institutions or persons.
TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:
Appointment as used in II, C, 5 above includes all types of appointment and

personnel action pertaining to appointment, except transfer to permanency of
faculty members. (Emphasis supplied.)
According to petitioners, since appointments falling under II, C, 5 was not specifically
mentioned in the enumeration of those functions of the Chancellor that may not be
delegated, it follows that such appointments may be validly delegated, as in this case,
the appointments issued by OIC Chancellor Dayco to Dr. Posadas as TMC Project
Director and Consultant. Moreover, it is argued that in the BOR Resolution itself, the
designated OIC Chancellor was granted full powers:
E. Extent of Authority of One Appointed in an Acting/Officer-in-Charge Capacity

One appointed/designated, in an acting or officer-in-charge capacity, to the office of
chancellor shall discharge all the functions of the position unless instructed otherwise by
the regular incumbent, and in any case, subject to the latters instructions, to the
policies of the Board of Regents and to the provisions of D hereinabove and of F herein
below;provided, that all the functions of the position as used in and for purposes of
this resolution shall be construed as inclusive of all the functions assigned to the
position by competent University authority and all such functions as usually pertain, or
are inherent, to the position although not expressly assigned thereto by competent
University authority.
Petitioners
argument
fails
to
persuade.
It must be emphasized that the subject appointments involve not an ordinary personnel
or faculty member but the Chancellor himself who was also vested with administrative
supervision over the institution implementing the TMC Project, TMC. Note that while II,
C, 5 in MC No. 30 speaks of personnel, regardless of rank or salary range, incidental to
employment, the same could not possibly refer to the Chancellor himself. This is
evident from the exception provided in II, B, 1where it is the President himself who
approves the appointment, viz:
B.
Delegated Authority of the President to Appoint
1. The President approves the appointment of officers and employees (including

faculty members if there are any) who are not included in or covered by the
enumerations in II, A above and of those who are covered in II, C, 5 below who
are:
a.
in or
directly
under
the
Office
of
the
President;
or
b.
in
University-wide
units;
or
c. in other offices or units, academic or non-academic, that are not part of any
autonomous
University;
to the same extent and under the same conditions stipulated in II, C below for the
delegated authority of the Chancellor of an autonomous University to appoint.
TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:
Appointment as used in II, B, 1 above includes all types of appointmentand

personnel action pertaining to appointment, except transfer to permanency of faculty
members. (Emphasis supplied.)
Considering that it is the Chancellor himself who is being appointed to a project covered
in II, C, 5, the BOR resolution on the authority of the Chancellor to delegate his
functions may not be invoked because the situation is covered by II, B, 1, the
Chancellor being directly under the administrative supervision of the UP President as
the Chief Executive Officer of the University. The Chancellor, on the other hand, is the
executive officer and the head of the faculty of the Constituent University, who likewise
performs other functions that the BOR or the President may delegate to her/him. This
is clearly indicated in the organizational structure of the UP Diliman, sourced from
the Faculty
Manual
of
the
University
of
the
Philippines
Diliman 43:
(see
flowchart
Decision
G.R.
Nos.
168951&
169000
page
18.)
Thus, even granting that the subject appointments in UP Diliman, an autonomous

educational institution, are not covered by Section 204 of the Government Accounting
and Auditing Manual, they are still invalid and illegal, because the delegated authority
to appoint in this case, involving as it does the Chancellor himself, pertains to the
President of the University. Indeed, the Chancellor cannot exercise the delegated
authority to appoint in the situations covered by II, C, 5 when he himself is the
appointee. The designated OIC likewise had no authority to make the appointment.
As to the prohibition on government officials and employees, whether elected or
appointed, from holding any other office or position in the government, this is contained
in Section 7, Article IX-B of the 1987 Constitution, which provides:
Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government, or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. (Emphasis supplied.)
The prohibition on dual employment and double compensation in the government

service is further specified under Sections 1 and 2, Rule XVIII of the Omnibus Rules
Implementing Book V of E.O. No. 292,44 as follows:
Sec. 1. No appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations with original charters or their
subsidiaries, unless otherwise allowed by law or by the primary functions of his
position.
Sec. 2. No elective or appointive public officer or employee shall receive additional,
double, or indirect compensation, unless specifically authorized by law, xxx.
Under Section 2(d), Rule III of the Revised Omnibus Rules on Appointments and Other
Personnel Actions,45 appointments of personnel under Foreign-assisted projects shall be
issued and approved as coterminous with the project. The MOA itself provides that the
services of the contractual personnel of the University for the Project shall be
discontinued upon its completion or termination. The appointment of Dr. Posadas as
TMC Project Director falls within the prohibition against holding of multiple positions
since there is no distinction in Section 7, Article IX-B as to the employment status, i.e.,
whether permanent, temporary or coterminous. Petitioners failed to cite any law to
justify Dr. Posadas holding of concurrent positions as Chancellor and TMC Project
Director.
Another legal infirmity in the appointment of Dr. Posadas as TMC Project Director is the
fact that it was made retroactive, in violation of CSC MC No. 38, Series of 1993, the
Omnibus Guidelines on Appointments and Other Personnel Actions. Section II, 5 B (7)
thereof reads:
7.
Effectivity
of
Appointment
a. The effectivity of an appointment shall be the date of actual assumption by the

appointee but not earlier than the date of issuance of the appointment, which is the
date
of
signing
by
the
appointing
authority.
b. No appointment shall be made effective earlier than the date of issuance, except in
the case of change of status in view of qualifying in written examination, the effectivity
of which is the date of release of the result of the examination. However, the issuance
of such appointments shall be within the period of the temporary appointment or
provided
the
temporary
appointment
has
not
yet
expired.
xxxx
Petitioners assert that appointment as TMC Project Director is not covered by the above
rule because it is in the nature of consultancy which is no longer required to be
submitted
to
the
CSC.
A perusal of the duties and responsibilities of the TMC Project Director reveals that the
latter is tasked to perform the following:
Provide overall direction to the Project;
Exercise supervision over Project personnel, including the visiting

experts;
Approve the recruitment of personnel, disbursement of Project

funds, and changes in the Project activities and schedule;
Coordinate with other persons, agencies and institutions involved

in technology management;
Perform such other functions as may be necessary to ensure the

efficient, orderly and effective management and timely completion
of the Project.46
The foregoing duties and responsibilities are not susceptible of partial performance or
division into parts as would justify its classification into lump sum work. Neither are
these advisory in nature as would make it fall under the scope of a consultancy
service.47 The status of Dr. Posadas employment as TMC Project Director is a
coterminous one. Under civil service rules, appointments of personnel under foreignassisted projects shall be issued and approved as coterminous with the project, 48 that
is, they are considered employees for the duration of the project, in which case, the
name of the project and its completion date shall be indicated in the appointment. 49
This status of employment is to be distinguished from contract of services which covers
lump sum work or services such as janitorial, security or consultancy services, whose
appointments
need
not
be
submitted
to
the
CSC
for
approval.
We also find no merit in petitioners argument that the element of injury caused to the
Government is lacking since the budget for TMC Project came from a foreign source and
hence no public funds are involved. Under the MOA, UP shall be principally
accountable for the project funds which shall be released to and properly managed by
it to ensure the attainment of the Projects objectives. Clearly, these funds are in the
nature of trust fund which is defined by Presidential Decree No. 1445 as fund that
officially comes in the possession of an agency of the government or of a public officer
as trustee, agent or administrator, or that is received for the fulfillment of some
obligation.50 A trust fund may be utilized only for the specific purpose for which the
trust was created or the funds received.51 The Sandiganbayan thus correctly held that
the funds received for the TMC Project were impressed with public attributes or
character
from
the
time
it
came
into
UPs
possession.
The disbursement and payment of the P30,000.00 monthly salary as TMC Project
Director to Dr. Posadas was improper, in view of his invalid appointment. Said amount
represents the actual injury to the Government.The third requisite of Section 3(e) of
R.A. No. 3019, therefore, was sufficiently established by the prosecution.
Violation
of
Section
7(b),R.A.
No.
6713
In Criminal Case No. 25466, the charge involves the private practice of profession
prohibited under Section 7(b) of R.A. No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees, by appointing Dr.
Posadas as Consultant of the TMC Project. Said provision reads:
SEC. 7. Prohibited Acts and Transactions. In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the
following shall constitute prohibited acts and transactions of any public official and
employee
and
are
hereby
declared
to
be
unlawful:
(b) Outside employment and other activities related thereto. Public officials and
employees
during
their
incumbency
shall
not:
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to conflict with
their
official
functions;
or
xxxx
Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a contract for
consultancy services is not covered by Civil Service Law, rules and regulations because
the said position is not found in the index of position titles approved by DBM.
Accordingly, it does not need the approval of the CSC. 52CSC MC No. 38, series of 1993
expressly provides that consultancy services are not considered government service
forretirement purposes. A consultant is defined as one who provides professional
advice on matters within the field of his special knowledge or training. There is no
employer-employee relationship in the engagement of a consultant but that of clientprofessional
relationship.53
Consultancy is deemed private practice of profession. Under CSC Resolution
02126454 dated September 27, 2002, accepting a consultancy job under a part-time
status is subject to the following conditions:
1. It must not violate the rule against holding multiple positions;

2. The employee/officer must obtain permission or authority from
his/her head of agency as the same constitutes private practice of
profession;
3. The consultancy job must not conflict or tend to conflict with
his/her official functions; and
4. It must not affect the effective performance of his/her duty.
In convicting petitioners, the Sandiganbayan cited Article 250 of the University Code,
which provides:
Art. 250. No member of the academic staff, officer or employee of the University
shall, without permission from the President or the Chancellor, as the case may
be, practice any profession or manage personally any private enterprise which in any
way may be affected by the functions of his office, nor shall he be directly financially
interested in any contract with the University unless permitted by the Board. Violation
of this provision shall be punishable by reprimand, suspension, or dismissal from the
service. (Emphasis supplied.)
Since Dr. Posadas and Dr. Dayco entered into the contract for consultancy services for
the TMC Project without prior permission from the University President, the
Sandiganbayan ruled that they violated Section 7(b) of R.A. No. 6713.
Petitioners contend that the section of the University Code cited by the Sandiganbayan
had already been superseded by the guidelines on outside activities promulgated by the
BOR at its 1031st Meeting on June 28, 1990. Thus, in the Faculty Manual of the
University of the Philippines Diliman while the consultancy at TMC Project falls under
the coverage of outside activities, prior authorization by the University President is no
longer required. The pertinent provisions of the manual read:
10.3 Guidelines on Outside Activities [1031st BOR meeting, June 28, 1990]
10.3.1 Coverage
Outside activities of University personnel shall include: limited practice of profession,
management of private enterprises, outside consultancy, secondment, teaching in other
educational or training institutions with which the University has a Memorandum of
Agreement, as well as research and other activities or projects under the auspices of
outside agencies which are not considered integral functions of the University. Such
activities shall not be considered part of the regular workload of the personnel
concerned.
10.3.2 Prior
Authorization
No member of the University personnel shall engage in outside activities without prior
authorization from the Chancellor, upon endorsement by the Dean, Director, or head of
office
concerned,
subject
to
the
exigencies
of
the
service.
x
10.3.5
Penalties
Violation of any of the rules on outside activities shall be ground for disciplinary action.
The immediate superior of the faculty/staff member shall immediately submit a report
on any violation of the rules to the Office of the Chancellor, through channels.
Disciplinary action on any faculty/staff member may be imposed, but only in accordance
with
the
law,
and
after
due
process.
10.3.6 Types
xxxx
c. Limited/private practice of profession
Permission to engage in private practice of the profession of faculty members may be
granted only if such private practice may enhance their usefulness to the University or
improve
their
efficiency. [Art.
252]
The privilege of private practice, when granted, shall be for a definite period of one (1)
year, renewable at the discretion of the Chancellor for one-year periods, and under such
conditions as may be prescribed by him/her regarding the nature of the work, the time
of performance, and other circumstances. [Art. 253; amended at BOR meetings: 839 th,
Nov.
29,
1973;
1031st,
June
28,
1990]
The limited practice of ones profession shall be governed by the following guidelines:
1) No member of the academic staff, officer or employee of the University shall,

without prior permission from the Chancellor, practice any profession or manage
personally any private enterprise which in any way may be affected by the functions of
her/his office; nor shall s/he be directly financially interested in any contract with the
University unless permitted by the Board. Violation of this provision shall be
punishable byreprimand, suspension, or dismissal from the service. [Art. 250;
amended
at
1031stBOR
meeting,
June
28,
1990]
2) Permission to engage in private practice of profession may granted provided that
such practice:
is NOT ADVERSE to the interests of the University;
shall NOT be conducted on official time;
will improve the persons efficiency and usefulness to the

University; and
shall be subject to such other requirements as may be

imposed by law or University rules and regulations.
(Emphasis supplied.)
Notwithstanding the supposed amendment of the rule on limited practice of profession

as contained in Article 250 of the University Code, we sustain the Sandiganbayan in
holding that petitioners should have obtained prior permission from the University
President for the contract for consultancy services in the TMC Project. As with our
conclusion on the issue of authority to appoint the TMC Project Director, considering
that it is the Chancellor himself who was engaged as TMC Project Consultant, the
contract for consultancy services of Dr. Posadas should have been authorized by the
University President as the chief executive officer of the UP System. To hold otherwise
is to leave the matter of determining the criteria or conditions for allowing the private
practice of profession provided in the University rules entirely to Dr. Posadas himself as
then UP Diliman Chancellor. Consistent with the Civil Service rules that prior
authorization by the head of the agency or institution must be sought by the
government officer or employee who desires to accept a consultancy job, it is no less
than the University President who should have given permission to Dr. Posadas, the
latter
being
directly
under
his
administrative
supervision.
Upon the established facts and applicable law and jurisprudence, we hold that no grave
abuse of discretion was committed by the Sandiganbayan in convicting petitioners for
violation
of
Section
7(b)
of
R.A.
No.
6713.
Conspiracy
A conspiracy is proved by evidence of actual cooperation; of acts indicative of an
agreement, a common purpose or design, a concerted action or concurrence of
sentiments to commit the felony and actually pursue it. 55For the accused to be held as
conspirators, it is not necessary to show that two or more persons met together and
entered into an explicit agreement setting out the details of an unlawful scheme or the
details by which an illegal objective is to be carried out. Therefore, if it is proved that
two or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their acts, though apparently independent,
were in fact connected and cooperative, indicating a closeness of personal association
and a concurrence of sentiment, then a conspiracy may be inferred though no actual
meeting
among
them
to
concert
means
is
proved. 56
The Sandiganbayans finding of conspiracy rests on firm factual support. Although Dr.
Dayco tried to downplay his participation, stating that he did not benefit from the
subject appointments and that there were many other appointment papers he had
signed in the absence of Dr. Posadas, it is clear as daylight that he had a principal and
indispensable role in effecting the said appointments. To stress the point, the
Sandiganbayan quoted the relevant portions of the Report submitted by the ADT, as
follows:
It would be the height of naivet to assume that before making the two (2)
appointments of respondent Posadas as Director of the TMC Project and as Consultant
to the TMC, respondent Dayco did not, in any manner, confer with respondent Posadas
about the matter. To believe the claim of respondent Posadas that he just saw his
appointment papers at his desk when he came back from his trip is to tax human
credulity
too
much.
Under the said circumstances, the natural course of events necessarily points to
connivance between respondent Posadas and respondent Dayco in the making of the
questioned
appointments.
Despite the claim of respondent Posadas that he just saw the appointment papers on
his desk when he returned from his trip, the admitted fact is that respondent Dayco
made those appointments for respondent Posadas and the latter acted upon the same
favourably as he (respondent Posadas) collected the compensation therein (Exhibits :E
and E-1). In fact, as Chancellor, respondent Posadas approved his own Disbursement
Voucher for payment from the coffers of the University, covering his honoraria and
consultancy fees as Project Director for the TMC Project and as consultant to the TMC,
respectively (Exhibit E-2).57
WHEREFORE, the petition is DISMISSED. The Decision dated June 28, 2005 of the
Sandiganbayan in Criminal Cases Nos. 25465-66 is herebyAFFIRMED and UPHELD.
With
costs
against
the
petitioners.
SO ORDERED.
G.R. No. 188066, October 22, 2014

OFFICE OF THE OMBUDSMAN, Petitioner, v. CYNTHIA E. CABEROY, Respondent.
DECISION
REYES, J.:
This is a petition for review1 under Rule 45 of the Rules of Court of the Decision 2 dated
November 21, 2008 and Resolution3 dated May 14, 2009 of the Court of Appeals (CA) in
CA-G.R. SP No. 03498, which reversed and set aside the Consolidated Decision 4 dated
June 30, 2005 of the Office of the Ombudsman-Visayas (Ombudsman) and absolved
respondent Cynthia E. Caberoy (Caberoy) of any administrative liability.
Caberoy is the principal of Ramon Avancena National High School (RANHS) in Arevalo,
Iloilo City. She was charged with Oppression and Violation of Section 3(e) and (f) of
Republic Act (R.A.) No. 3019 or the "Anti-Graft and Corrupt Practices Act" by Angeles O.
Tuares (Tuares) for allegedly withholding her salary for the month of June 2002. The
case was docketed as OMB-V-A-03-0239-E. Said case was consolidated with OMB-V-A03-0572-I, which was a complaint filed by Tuares against Ida B. Endonila, Erlinda G.
Gencaya,
Clarissa
G.
Zamora
and
Victoria
T.
Calunsod.
Caberoy denied the charge against her, alleging, among others, that the payrolls of
June 1 to 15, 2002 and June 16 to 30, 2002 show that Tuares received her salary as
shown
by
her
signatures
on
lines
no.
11
of
the
payrolls. 5
cralawred
In the Consolidated Decision dated June 30, 2005 rendered by the Ombudsman,
Caberoy was found guilty of Oppression and was meted out the penalty of dismissal
from service. The dispositive portion of the consolidated decision provides:
chanRoble svirtualLawlibrary
WHEREFORE, premises considered, respondent CYNTHIA E. CABEROY, Principal II,

Ramon Avancena National High School, (RANHS), Arevalo, Iloilo City, is hereby
foundGUILTY of OPPRESSION and is hereby meted the penalty of DISMISSAL
FROM THE SERVICE WITH CANCELLATION OF CIVIL SERVICE ELIGIBILITY,
FORFEITURE OF EARNED LEAVE CREDITS AND RETIREMENT BENEFITS, AND
DISQUALIFICATION FROM REEMPLOYMENT IN THE GOVERNMENT SERVICE. On

the other hand, respondents IDA B. ENDONILA, Schools Division Superintendent,
ERLINDA G. GENCAYA, Asst. Schools Division Superintendent, CLARISSA G. ZAMORA,
Administrative Officer III, all three of the Division of Iloilo City, DepEd Region VI, Iloilo
City, and VICTORIA T. CALUNSOD, Officer-In-Charge/Secondary School Head Teacher
III, Ramon Avancena National High School, (RANHS) Arevalo, Iloilo City, are found NOT
GUILTY of the same offense and/or violating Sec. 3 (f) of R.A. 3019 and thus these
cases are consideredDISMISSED as far as they are concerned. Furthermore, on the
administrative
aspect
of
the
counter-allegation
of Perjury against
herein
complainant ANGELES O. TUARES, Ramon Avancena National High School, Arevalo,
Iloilo
City,
the
same
is
likewiseDISMISSED,
for
lack
of
merit.
SO DECIDED.6
Caberoy filed a joint motion for reconsideration, which was denied by the Ombudsman
in
its
Order
dated
September
19,
2006. 7
cralawre d
The Ombudsman found that Tuares was not paid any amount in June 2002 because of
her failure to submit her clearance and Performance Appraisal Sheet for Teachers
(PAST), while the other teachers received their salaries for the same month. 8 The
Ombudsman concluded that Tuares was "singled out by respondent Caberoy as the only
one who did not receive any amount from the school on June 2002 because, as
established earlier, the former failed to submit her clearance and PAST." 9 The
Ombudsman also took into consideration several infractions previously committed by
Caberoy, which allegedly displayed her "notorious undesirability as a government officer
for withholding teachers' salaries without authority." 10 According to the Ombudsman,
Caberoy could not honestly claim that she had not been forewarned by the Ombudsman
of
the
grave
consequences
of
her
repeated
illegal
act. 11
cralawred
Caberoy filed a petition for certiorari with the CA, seeking the reversal of her dismissal
from service, and in the assailed Decision dated November 21, 2008, the CA granted
Caberoy's petition. The dispositive portion of the CA decision states:
chanRoblesvirtualLa wlibrary
WHEREFORE, the petition is GRANTED. The consolidated decision dated June 30,
2005, of the respondent Ombudsman is hereby REVERSED and SET ASIDE and
another judgment is hereby rendered ABSOLVING the petitioner of any liability, with
costs de
oficio.
SO ORDERED.12
The Ombudsman filed a motion for reconsideration, which was denied by the CA in the
assailed
Resolution
dated
May
14,
2009.
In clearing Caberoy from the charge against her, the CA found that no undue injury was
caused to Tuares since she received her June 2002 salary. According to the CA, since
Caberoy was charged with Violation of Section 3(e) of R.A. No. 3019 and the element of
undue injury is absent in this case, Caberoy cannot be held liable for the offense. 13 The
CA also ruled that Caberoy's "refusal" to release Tuares' salary was justified and the
element of "failure to so act x x x for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit or
advantage in favor of an interested party, or [discrimination] against another" under

Section 3(f) of R.A. No. 3019, is likewise absent. 14 Finally, the CA found that the acts of
Caberoy
are
not
constitutive
of
oppression. 15
cralawred
Lastly, the CA ruled that the Ombudsman's findings and conclusions are not supported
by substantial evidence since Caberoy's act of withholding Tuares' salaries was clearly
justified.16
cralawred
Hence, the present petition, based on the ground that:
THE HONORABLE COURT OF APPEALS' REVERSAL OF THE PETITIONER OFFICE OF THE

OMBUDSMAN'S DECISION FINDING [CABEROY] ADMINISTRATIVELY LIABLE FOR
OPPRESSION IS AN ERROR OF LAW CONSIDERING THAT ITS FINDINGS IS SUPPORTED
BY SUBSTANTIAL EVIDENCE.17
The Ombudsman argues that it was error for the CA to exonerate Caberoy on the
reasons that the withholding of Tuares' salary was justified and that there was no undue
injury on her part as she later received her salary. The Ombudsman contends that
Caberoy was found guilty of Oppression, which is an administrative offense under the
Civil Service law, and is distinct from the crime of Violation of R.A. No. 3019, from
which she was absolved. According to the Ombudsman, the quantum of proof in these
two offenses (Oppression and Violation of R.A. No. 3019) is distinct and the records of
the case disclose that there is substantial evidence to support its decision. The
Ombudsman also contests the factual findings of the CA that Tuares actually received
her salary, stating that in the summary of payrolls and the checks, Tuares' name does
not appear. Moreover, no evidence was presented by Caberoy to prove that Tuares
actually received her salary, other than her bare allegation. Finally, the Ombudsman
states that Caberoy has already been penalized several times for previous misconduct,
which displays her propensity to commit the misdemeanor.18
cralawred
Ruling of the Court

Initially, it must be stated that in a petition for review filed under Rule 45 of the Rules
of Court, the Court is limited only to a review of errors of law committed by the CA, and
the Court is not required to review all over again the evidence presented before the
Ombudsman.19 The rule, nevertheless, admits of exceptions, such as when the findings
of the CA and the Ombudsman are conflicting, 20which is what occurred in the present
case. Hence, the Court must now look into the matter of whether the CA committed a
reversible error when it reversed the findings and conclusions of the Ombudsman.
Tuares charged Caberoy in OMB-V-A-03-0239-E with both Oppression and Violation of
Section 3(e)(f) of R.A. No. 3019. The Ombudsman, however, found Caberoy guilty only
of
Oppression.
Oppression is an administrative offense21 penalized under the Uniform Rules on
Administrative Cases in the Civil Service,22 which provides:
Section 52. Classification of Offenses.Administrative offenses with corresponding

penalties are classified into grave, less grave or light, depending on their gravity or
depravity and effects on the government service.
A. The following are grave offenses with their corresponding penalties:
14. Oppression.
1st Offense - Suspension for six (6) months and one (1) day to one (1) year;
2nd Offense - Dismissal.
xxxx
Oppression is also known as grave abuse of authority, which is a misdemeanor
committed by a public officer, who under color of his office, wrongfully inflict upon any
person any bodily harm, imprisonment or other injury. It is an act of cruelty, severity, or
excessive use of authority.23 To be held administratively liable for Oppression or Grave
Abuse of Authority, there must be substantial evidence presented proving the
complainant's allegations.24 Substantial evidence is that amount of relevant evidence
which a reasonable mind might accept as adequate to support a conclusion. 25 In this
case, the CA correctly overturned the Ombudsman's findings and conclusions, and
explained the reasons for exculpating Caberoy, as follows:
Evidently, from the foregoing disquisitions, respondent Ombudsman contradicted itself

when it found and held that petitioner was guilty of "oppression" for not paying the
private respondent her June 2002 salary, because as a matter of fact she has been paid
albeit delayed. Such payment is clearly and indubitably established from the table
where it was shown that private respondent received on July 17 and 25, 2002, her June
2002 salary in the amounts of P4,613.80 and P4,612.00, respectively.
x
The above narration of facts do not show that petitioner committed acts constitutive of
"oppression." Assuming petitioner's action is erroneous or overly zealous, this certainly
does not merit the most severe penalty of dismissal from government service.
Apparently, the petitioner is only protecting herself from any future, adverse
consequences if she allows the disbursement of public funds without the appropriate
supporting documents. "It is a well-known fact that in the government service an
employee must submit his daily time record duly accomplished and approved before
one
can
collect
his
salary."
x
Finally, on the contention that the findings and conclusions of the respondent
Ombudsman is considered conclusive and deserve respect and finality is true only when
the same is based on substantial evidence. As discussed above, the action taken by
petitioner in withholding the salaries of private respondent was clearly justified. It was a
measure taken by a superior against a subordinate who ignored the basic tenets of law
by not submitting the required documents to support payment of her salary and
proportional
vacation
pay
for
the
aforesaid
period,
x
x
x.
xxx [I]n this case before us, the records is bereft of substantial evidence to support
respondent Ombudsman's findings and conclusion that petitioner committed oppressive
acts against private respondent and violated Sections 3(e) and (f) of RA 3019. On the
contrary and as earlier discussed, respondent Ombudsman found and concluded that
private respondent was paid her June salary albeit late. Hence, it cannot be gainsaid
that the act of respondent Ombudsman in concluding that petitioner is guilty as charged
despite absence of substantial evidence to support the same is totally unfounded and is
therefore, tantamount to grave abuse of discretion amounting to a lack or excess of
discretion, x x x.26 (Citations omitted)
The complaint filed by Tuares against Caberoy charged the latter with "manifest
partiality, evident bad faith or gross inexcusable negligence for having ordered the
payroll clerk of [RANHS] to cause the exclusion of [her] name in the payroll of
June 2002 x x x and [in spite of] the fact that [she has already] rendered full service
during said days x x x without any justifiable reason and without due process and
without any authority under the law."27 A perusal of Tuares' allegations shows that her
claim pertains to the alleged withholding of her salary for the month of June 2002.
Records show, however, that Tuares was actually paid her salary for the month of June
2002. Thus, the vouchers for the payroll period of June 1 to 15, 2002 and June 16 to
30, 200229 showed Tuares' name on line 11 and her signature acknowledging receipt of
her salary for such period. This was, in fact, confirmed in the 2002 salary payrolls
submitted by the RANHS Office of the Auditor and summarized by the Ombudsman, 30 to
wit:
chanroble svirtuallawlibrary
Period
Voucher
No.
Date
Check
of Tuares' No. in
Amount
the Payroll
Received
June (Proportional pay & 101-02-6- June

salary)
161
2002
25, Name
found
not Name
found
not
June (Proportional pay)
101-02-6- June
164
2002
28, Name
found
not Name
found
not
PS-02-7182
4, Name
found
not Name
found
not
July
2002
June (Proportional pay PS-02-7- July 17, 11

& salary)
195
2002
July
2002
19, Name
found
P4,613.8
0
PS-02-7196
June
PS-02-7- July 25, 11

200
2002
P4,612.0
0
July
101-02-8- August
231
19, 2002
P4,694.72
16
not Name
found
not
The amounts received and signed for by Tuares correspond essentially to the other
amounts she received as salary for the other periods in 2002. On this score, entries in
the payroll, being entries in the course of business, enjoy the presumption of regularity
under Section 43, Rule 130 of the Rules of Court, 31 and absent any evidence presented
by Tuares showing the contrary, good faith must be presumed in the preparation and
signing
of
such
payrolls.32
cralawre d
Even assuming, as the Ombudsman asserted, that Tuares received her June 2002
salary only on July 2002, the same does not constitute Oppression or Grave Abuse of
Authority. The delay in the release of Tuares' salary hardly qualifies as an "act of cruelty
or severity or excessive use of authority," especially when she contributed to the cause
of the delay, that is, she submitted her Form 48 (Daily Time Record) for June 2002 only
on
July
11,
2002.33
cralawre d
Neither can the Court subscribe to the Ombudsman's conclusion that Tuares was singled
out by Caberoy. According to the Ombudsman:
In other words, as far as these fortunate teachers are concerned, checks dated June 25
and 28, 2002 and July 04 and 19, 2002 actually and in paper covered their June 2002
salary; checks dated July 17 and 19, 2002 actually and in paper covered their July 2002
salary;
x
x
x.
Whereas on the part of complainant Tuares, this is what really happened: The checks
dated July 17 and 25, 2002 were technically for services rendered in June 2002 as
corrected by COA but the amounts corresponding to complainant's salary for the whole
month of June 2002 was actually received by her only in July 2002 and that in effect
means that she did not really receive any amount from the school in June 2002; x x x.
Viewed from the discussion above, it is therefore crystal clear that complainant was
singled out by respondent Caberoy as the only one who did not receive any amount
from the school on June 2002 because, as established earlier, the former failed to
submit her clearance and PAST.34
It must be stressed that like other grave offenses classified under the Civil Service laws,
bad faith must attend the act complained of. Bad faith connotes a dishonest purpose or
some moral obliquity and conscious doing of a wrong; a breach of sworn duty through
some motive or intent or ill will; it partakes of the nature of fraud. 35 There must be
evidence, independent of the fact of such delay, which will lead to the inevitable
conclusion that it was for the purpose of singling but Tuares. The Court has consistently
upheld the principle that in administrative cases, to be disciplined for grave misconduct
or any grave offense, the evidence against the respondent should be competent and
must be derived from direct knowledge.36 "Reliance on mere allegations, conjectures
and suppositions will leave an administrative complaint with no leg to stand
on."37 Except for the Ombudsman's deduction based on the dates of issuance of the
vouchers and the checks as shown in the payroll, the records of this case are bereft of
evidence that will support its view that the delay in the release of Tuares' salary
indicated that she was singled out. Moreover, as correctly pointed out by the CA, "[t]he
certifications issued by Acting Bookkeeper Hayde S. Momblan will show that it was not
only [Tuares] who was not included in the June 2002 payrolls; there were other
teachers who were not included because they failed to submit the required year-end
clearance, xxx Evidently, [Tuares] was not singled out or discriminated against as
insisted
by
her
and
respondent
Ombudsman." 38
cralawred
All told, the Court finds that the CA did not commit a reversible error in exonerating
Caberoy
WHEREFORE,
from
the
the
petition
for
charge
review
is DENIED for
against
lack
her.
of
merit.
SO ORDERED.
G.R. No. 122166 March 11, 1998

CRESENTE Y. LLORENTE, JR., Petitioner, vs. SANDIGANBAYAN and LETICIA
G. FUERTES, Respondents.
PANGANIBAN, J.:
In a prosecution for violation of Section 3[e] of the Anti-Graft Law, that is, "causing
undue injury to any party," the government prosecutors must prove "actual" injury
to the offended party; speculative or incidental injury is not sufficient.
The Case
Before us is a petition for review of the Decision promulgated on June 23, 1995 and
the Resolution promulgated on October 12, 1995 of the Sandiganbayan in Criminal
Case No. 18343, finding Cresente Y. Llorente, Jr. guilty as charged.
Llorente, then municipal mayor of Sindangan, Zamboanga del Norte, was charged
with violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, under an Information dated October 22, 1992,
textually reproduced as follows: 1
That in or about and during the period of July, 1990 to October, 1991, or for
sometime subsequent thereto, in the Municipality of Sindangan, Province of
Zamboanga del Norte, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused Cresente Y. Llorente, Jr., a public officer, being
then the Mayor of Sindangan, Zamboanga del Norte, in the exercise of his official
and administrative functions, did then and there, willfully, unlawfully and criminally
with evident bad faith refuse to sign and approve the payrolls and vouchers
representing the payments of the salaries and other emoluments of Leticia G.
Fuertes, without just valid cause and without due process of law, thereby causing
undue injury to the said Leticia G. Fuertes.
CONTRARY TO LAW.
Duly arraigned on March 29, 1993, petitioner, with the assistance of counsel,
entered a plea of "NOT GUILTY." 2 After trial in due course, the
Sandiganbayan 3 rendered the assailed Decision, disposing as follows:4
WHEREFORE, judgment is hereby rendered finding accused Mayor Cresente Y.
Llorente, Jr. GUILTY beyond reasonable doubt as principal of the crime of Violation
of Section 3(e) of Republic Act 3019, as amended, and he is hereby sentenced to
suffer imprisonment of SIX (6) YEARS and ONE (1) MONTH, as minimum to SEVEN
(7) YEARS, as maximum; to further suffer perpetual disqualification from public
office; and to pay the costs.
Respondent Court denied the subsequent motion for reconsideration in the assailed
Resolution thus: 5
WHEREFORE, accused's "Motion for Reconsideration and/or New Trial" is hereby
DENIED for lack of merit. His "Motion for Marking of Additional Exhibits Cum Offer
of Documentary Exhibits in Support of Motion for Reconsideration and/or New Trials'
is now rendered moot and academic.
Hence, this petition. 6
The Facts
Version of the Prosecution
As found by Respondent Court, the prosecution's version of the facts of this case is
as follows: 7
After appreciating all the evidence on both sides, the following uncontroverted facts
may be gleaned:
1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged act was
committed, was the Municipal Mayor of Sindangan, Zamboanga del Norte.
2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed Assistant
Municipal Treasurer in the same municipality since October 18, 1985.
3. Starting 1986, private complainant was detailed to different offices, as follows:
(a) Municipality of Katipunan, Zamboanga del Norte - from April, 1986 to August,
1987 as OIC Municipal Treasurer.
(b) Municipality of Roxas, Zamboanga del Norte - from September, 1987 to March,
1988 as OIC Municipal Treasurer.
(c) Office of the Provincial Treasurer of Zamboanga del Norte - from April, 1988 to
May, 1988.
(d) Municipality of Pian, Zamboanga del Norte - from June, 1988 to June, 1990 as
OIC Municipal Treasurer.
4. In July, 1990, she was returned to her post as Assistant Municipal Treasurer in
the town of Sindangan.
She was not provided with office table and chair nor given any assignment; neither
her daily time record and application for leave acted upon by the municipal treasure
per instruction of accused Mayor (Exh. "G-2"; "G-3").
5. On July 23, 1990, the Sangguniang Bayan of Sindangan, Zamboanga del Norte,
presided by accused Mayor, passed Resolution No. SB-214 (Exh. "3"), vehemently
objecting to the assignment of complainant as Assistant Municipal Treasurer of
Sindangan.
6. On March 12, 1991, accused Municipal Mayor received a letter (SB Resolution No.
36) from the Sangguniang Bayan of the Municipality of Pian, demanding from the
private complainant return of the amount overpaid to her as salaries (par. 9, p. 2 of
Exh. "4" - counter-affidavit of accused Mayor).
7. On May 22, 1991, private complainant filed a Petition for Mandamus with
Damages (Exh. "E") against the accused Mayor and the Municipality of Sindangan
before Branch II, Regional Trial Court of Sindangan, Zamboanga del Norte docketed
as Special Proceedings No. 45, for the alleged unjustified refusal of Mayor Llorente
to sign and/or approve her payrolls and/or vouchers representing her salaries and
other emoluments as follows: (a) salary for the month of June, 1990 in the amount
of P5,452.00 under disbursement voucher dated September 5, 1990 (Exh. "H").
Although complainant rendered services at the municipality of Pian during this
period, she could not collect her salary there considering that as of that month,
Pian had already appointed an Assistant Municipal Treasurer. When she referred
the matter to the Provincial Auditor, she was advised to claim her salary for that
month with her mother agency, the Municipality of Sindangan, [(]p. 12, TSN of
August 9, 1994; 10th paragraph of complainant's Supplemental Affidavit marked
Exh. "G"); (b) salary differential for the period from July 1, 1989 to April 30, 1990
in the total amount of P19,480.00 under disbursement voucher dated August, 1990
(Exh. "I"); (c) 13th month pay, cash gift and clothing allowance under
Supplemental Budget No. 5, CY 1990 in the total amount of P7,275 per

disbursement voucher dated December 4, 1990 (Exh. "J"); (d) vacation leave
commutation for the period from October to December 31, 1990 in the total
amount of P16,356.00 per disbursement voucher dated December 3, 1990 (Exh.
"K"); (e) RATA for the months of July, August and September, 1990, January and
February, 1991 in the total amount of P5,900.00 (par. 12 & 16 of Exh. "E"); and (f)
salaries for January and February, 1991 in the total amount of P10,904.00 (par. 17
of Exh. "E").
8. Accused Mayor did not file an answer; instead, he negotiated for an amicable
settlement of the case (p. 24, TSN of August 10, 1994). Indeed, a Compromise
Agreement (Exh. "A") dated August 27, 1991, between the accused and private
complainant was submitted to and approved by the court, hereto quoted as follows:
COMPROMISE AGREEMENT
That the parties have agreed, as they hereby agree, to settle this case amicably on
the basis of the following terms and conditions, to wit:
(a) That the respondent Mayor Cresente Y. Llorente, Jr. binds himself to sign and/or
approve all vouchers and/or payrolls for unpaid salaries, RATA, Cash-gifts, 13th
month pay, clothing allowance, salary differentials and other emoluments which the
petitioner is entitled as Assistant Municipal Treasurer of Sindangan, Zamboanga del
Norte;
(b) That the parties herein hereby waive, renounce and relinquish their other claims
and counter-claims against each other;
(c) That the respondent Mayor Cresente Y. Llorente Jr. binds himself to sign and/or
approve all subsequent vouchers and payrolls of the herein petitioner.
9. On August 27, 1991, a Decision (Exh. "B") was rendered by Judge Wilfredo
Ochotorena on the basis of the aforesaid compromise agreement.
10. For his failure to comply with the terms of the compromise agreement, private
complainant, thru counsel, filed a Motion for Execution on September 12, 1991. A
Writ of Execution (Exh. "C") was issued by the Court on September 17, 1991, and
served [on] the accused on September 23,1991.
11. As shown in the Sheriff's Return dated November 19, 1991 (Exh. "D"), private
complainant was paid her salaries for the period from January, 1991 to August,
1991, while the rest of her salaries including the RATA and other emoluments were
not paid considering the alleged need of a supplemental budget to be enacted by
the Sangguniang Bayan of Sindangan per verbal allegation of the municipal

treasurer.
12. Complainant was not also paid her salaries from July to December 1990;
September and October, 1991; RATA for the period from July 1990 to June 1994
(admission of accused, pp. 8-9, TSN of June 27, 1994, a.m.; Exh. "E"; p. 17, TSN
of June 27, 1994).
13. Sometime in 1993, accused municipal mayor received from the Municipality of
Pian, Bill No. 93-08 (Exh. "1"), demanding from the Municipality of Sindangan
settlement of overpayment to complainant Fuertes in the amount of P50,643.93 per
SE Resolution No. 6 sent on July 23, 1990. The bill was settled by the Municipality
of Sindangan in December, 1993 per Disbursement Voucher No. 101-9312487
dated December 2, 1993 (Exh. "2").
14. Private complainant was able to receive complete payment of her claims only on
January 4, 1993 in the form of checks all dated December 29, 1992 (as appearing
on Exhs. "H", "I", "J", "K" of the prosecution, Exhs. "6", "7", "8", of the defense)
except her RATA which was given to her only on July 25, 1994, covering the period
from July 1990 to December, 1993 amounting to P55,104.00, as evidenced by
Disbursement Voucher dated July 25, 1994 (Exh. "5").
Version of the Defense
While admitting some delays in the payment of the complainant's claims, petitioner
sought to prove the defense of good faith - that the withholding of payment was
due to her failure to submit the required money and property clearance and to the
Sangguniang Bayan's delayed enactment of a supplemental budget to cover the
claims. He adds that such delays did not result in "undue injury" to complainant. In
his memorandum, petitioner restates the facts as follows: 8
1. Complainant . . . was appointed assistant municipal treasurer of Sindangan,
Zamboanga del Norte on October 18, 1985. However, starting 1986 until July 1990,
or for a period of about four (4) and one half (1/2) years, she was detailed in other
municipalities and in the Office of the Provincial Treasurer of Zamboanga del Norte.
She returned as assistant treasurer of Sindangan in July 1990. (Decision, pp. 5-6).
2. As complainant had been working in municipalities and offices other than in
Sindangan for more than four (4) years, her name was removed from the regular
payroll of Sindangan, and payment of past salaries and other emoluments had to be
done by vouchers. When complainant . . . presented her vouchers to petitioner, the
latter required her to submit clearances from the different offices to which she was
detailed, as well as a certificate of last payment as required by COA regulations

(Tsn, p. 11, Aug. 10, 1994). Instead of submitting the required documents, Mrs.
Fuertes said that "what I did, endorsed my voucher to the mayor through the
municipal treasurer" (Tsn, p. 13, June 27, 1994). The municipal treasurer could not,
however, process the vouchers and certify as to the availability of funds until after
the Sangguniang Bayan had passed a supplemental budget for the purpose (Exhs.
D and 6-c Motion), which came only in December 1992.
3. Petitioner, in the meanwhile, received on March 12, 1991 SB Resolution No. 36
from the Municipality of Pian, demanding from Mrs. . . . Fuertes the
reimbursement of P105,915.00, and because of this demand, he needed time to
verify the matter before acting on Mrs. Fuertes' claims (Exh. 4). Mrs. Fuertes
admitted that she had at the time problems of accountability with the Municipality
of Pinan. She testified.
Q. Counsel now is asking you, when you went back to Sindangan there was [sic]
still problems of the claims either against you or against the Municipality of
Sindangan by the municipalities had, [sic] in their minds, overpaid you?
A. Yes, your Honor, that was evidence[d] by the bill of the Municipality of Pinan to
the Municipality of Sindangan. (Tsn, p. 18, Aug. 3, 1994).
4. Petitioner also stated that he could not act on complainant's claims because she
had not submitted the required money and property accountability clearance from
Pinan (Tsn, 11, Aug. 10, 1994) and that at the time the Sangguniang Bayan had
not appropriated funds for the purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).
Nonetheless, petitioner included Mrs. Fuertes' name in the regular annual budget
beginning 1991 (Exhs. 4-b, 4-d, 4-f), as a result of which she had been since then
receiving her regular monthly salary.
5. On May 21, 1991, Mrs. Fuertes filed a complaint . . . Petitioner filed his answer to
the complaint, alleging as a defense, that plaintiff did not exhaust administrative
remedies. (Annex B, p. 3, Petition; Exh. 1-Motion). On August 27, 1991, the parties
entered into a compromise agreement, which the trial court approved (Exh. B). . . .
6. Upon motion of counsel for Mrs. Fuertes, the trial court issued a writ of execution
of the compromise judgment. However, the writ of execution was addressed only to
petitioner; it was not served on the municipal Sangguniang Bayan. . . .
Thus, Mrs. Fuertes had been receiving her regular salary from January, 1991
because petitioner had included her name in the regular budget beginning 1991,
which fact complainant did not dispute. With respect to her other claims for past
services in other offices, Municipal Treasurer; Mrs. Narcisa Caber, informed that a
supplemental budget for such purpose to be passed by the Sangguniang Bayan was
necessary before she could be paid thereof. Being the municipal treasurer, Mrs.
Caber knew that without such supplemental budget, payment of Mrs. Fuertes' other
claims could not be made because the law requires that "disbursements shall be
made in accordance with the ordinance authorizing the annual or supplemental
appropriations" (Sec. 346, RA 7160) and that "no money shall be disbursed unless .
. . the local treasurer certifies to the availability of funds for the purpose." (Sec.
344, RA 7160).
7. Petitioner had instructed the municipal budget officer to prepare the
supplemental budget for payment of complainant's unpaid claims for submission to
the Sangguniang [Bayan] for enactment. (Tsn, pp. 32-33, Aug. 10, 1994). The
budget officer, Mr. Narciso Siasico stated as follows:
1. I am the budget officer for the Municipality of Sindangan, Zamboanga del Norte,
a position I have held since 1981.
xxx xxx xxx
3. Immediately after said mandamus case was settled through a compromise
agreement, Mayor Llorente instructed me to prepare the necessary budget
proposals for the deliberation and approval of the Sangguniang Bayan;
xxx xxx xxx
8. Instead of waiting for the Sangguniang Bayan to enact the budget or of securing
an alias writ of execution to compel the Sangguniang Bayan to pass the same, Mrs.
Fuertes filed a criminal complaint with the Office of the Ombudsman under date of
October 28, 1991, admitting receipt of her salaries from January 1991 and saying
she had not been paid her other claims in violation of the compromise judgment.
(Exh. F). She had thus made the Office of the Ombudsman a collecting agency to
compel payment of the judgment obligation.
9. While the budget proposal had been prepared and submitted to the Sangguniang
Bayan for action, it took time for the Sangguniang Bayan to pass the supplemental
budget and for the Provincial Board to approve the same. It was only on December
27, 1992 that the municipal treasurer and the municipal accountant issued a
certification of availability of funds for the purpose. Petitioner approved the
vouchers immediately, and in a period of one week, Mrs. Fuertes was paid all
claims, as evidenced by the prosecution's Exhs. H, I, J and K, which were the four
vouchers of Mrs. Fuertes, . . . .
xxx xxx xxx

11. Petitioner testified that he could not immediately sign or approve the vouchers
of Mrs. Fuertes for the following reasons:
a) The Sangguniang Bayan had not appropriated the amounts to pay Mrs. Fuertes.
(Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).
b) Municipal Treasurer Caber, to whom Mrs. Fuertes endorsed her vouchers for
processing, and the Municipal Accountant issued the certificate of availability of
funds only on December 27, 1992 (Tsn, p. 42, Aug. 10, 1994; Exhs. H, I, J and K);
and the delay in the issuance of the certificate of availability of funds was due to
the delay by the Provincial Board to approve the supplemental budget. (Tsn, p. 43,
Aug. 10, 1994).
[c]) He received on March 12, 1991 a demand from the Municipality of Pinan,
Zamboanga del Norte, where Mrs. Fuertes last worked, for the reimbursement of
P105,915.00, and the matter had to be clarified first. (Exh. 4). Mrs. Fuertes
admitted that she had some problem of accountability with the Municipality of
Pinan. (Tsn, p. 18, 1994). It took time before this matter could be clarified by the
Municipality of Pinan reducing its claim to P50,647.093 and the Municipality of
Sindangan paying said claim. (Exh. 2; Decision, p. 9).
[d]) Mrs. Fuertes had not submitted the required clearance from the Municipality of
Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not insist on this requirement after the
trial court issued the writ of execution to implement the compromise judgment.
(Tsn, p. 23, Aug. 10, 1994). Nonetheless, in the post audit of Mrs. Fuertes'
accountability, the Commission on Audit issued a notice of suspension of the
amount of P5,452.00 from Mrs. Fuertes for her failure to submit: "1. Clearance for
money & property accountability from former office. 2. Certification as [sic] last day
of service in former office. 3. Certification of last salary received & issued by the
disbursing officer in former office, certified by chief accountant and verified by
resident auditor." (Exh. 2-Motion).
12. The Information dated October 12, 1992 filed against petitioner alleged that
petitioner as mayor did not sign and approve the vouchers of Mrs. Fuertes for
payment of her salaries and other emoluments from July 1, 1990 to October 1991,
which caused her undue injury. However, the prosecution's Exh. "D", the sheriff's
return dated November 19, 1991, stated that Mrs. Fuertes had received her salary
from January 1, 1991 "up to the present", which meant that even before the
information was filed, she had been paid her regular salaries from January 1, 1991
to October 1991. The supplemental budget to cover payment of her other claims for
past services was passed only in December 1992 and the municipal treasurer and
accountant issued the certificate of availability of funds only on December 27, 1992,
and Mrs. Fuertes got paid of [sic] all her other claims, including those not claimed
in the Information, within one week therefrom. (Exhs. H, I, J, and K).
xxx xxx xxx
Ruling of the Sandiganbayan
Respondent Court held that the delay or withholding of complainant's salaries and
emoluments was unreasonable and caused complainant undue injury. Being then
the sole breadwinner in their family, the withholding of her salaries caused her
difficulties in meeting her family's financial obligations like paying for the tuition
fees of her four children. Petitioner's defense that complainant failed to attach the
required money and property clearance to her vouchers was held to be an
afterthought that was brought about, in the first place, by his own failure to issue
any memorandum requiring its submission. That the voucher form listed the
clearance as one of the requirements for its approval had neither been brought to
complainant's attention nor raised by petitioner as defense in his answer. In any
event, the payment of complainant's salary from January to November 1991,
confirmed by the sheriff's return, showed that the clearance was not an
indispensable requirement, because petitioner could have acted upon or approved
the disbursement even without it. The alleged lack of a supplemental budget was
also rejected, because it was petitioner's duty as municipal mayor to prepare and
submit the "executive and supplemental budgets" under Sections 318, 320, and
444 (3)(ii) of the Local Government Code, 9 and the complainant's claims as
assistant municipal treasurer, a permanent position included in the plantilla for
calendar year 1990 and 1991, were classified as "current operating expenditures"
for the same calendar years, which were chargeable against the general funds of
the town of Sindangan. Except for the representation and transportation allowance,
Fuertes' claims for thirteenth month pay, cash gift and clothing allowance were
already covered by Supplemental Budget No. 5 for calendar year 1990. Petitioner's
contention that funds covering complainant's claims were made available only in
December 1992 was unbelievable, considering that an ordinance enacting a
supplemental budget takes effect upon its approval or on the date fixed therein
under Sec. 320 of the Local Government Code.
The Sandiganbayan also ruled that the petitioner's evident bad faith was the direct
and proximate cause of Fuertes' undue injury. Complainant's salaries and
allowances were withheld for no valid or justifiable reasons. Such delay was
intended to harass complainant, because petitioner wanted to replace her with his
political protege whom he eventually designated as municipal treasurer, bypassing
Fuertes who was next in seniority. Bad faith was further evidenced by petitioner's
instructions to the outgoing municipal treasurer not to give the complaining witness
any work assignment, not to provide her with office table and chair, not to act on
her daily time record and application for leave of absence, instructions which were
confirmed in the municipal treasurer's certification. (Exh. G-2).
The Issues
In his memorandum, petitioner submits the following issues: 10
1. Could accused be held liable under Sec. 3(e) of R.A. 3019 "in the discharge of his
official administrative duties", a positive act, when what was imputed to him was
failing and refusing to sign and/or approve the vouchers of Mr[s]. Fuertes on time
or by "inaction on his obligation under the compromise agreement" (ibid., p. 19), a
passive act? Did not the act come under Sec. 3(f) of R.A. 3019, of [sic] which
accused was not charged with?
2. Assuming, arguendo, that his failure and refusal to immediately sign and approve
the vouchers of Mrs. Fuertes comes [sic] under Sec. 3(e), the questions are:
(a) Did not the duty to sign and approve the same arise only after the Sangguniang
Bayan had passed an appropriations ordinance, and not before? In other words,
was the non-passage of the appropriation ordinance a justifiable reason for not
signing the vouchers?
(b) Did Mrs. Fuertes suffer undue injury, as the term is understood in Sec. 3(e), she
having been paid all her claims?
(c) Did petitioner not act in good faith in refusing to immediately sign the vouchers
and implement the compromise agreement until the Sangguniang Bayan had
enacted the appropriation ordinance and until Mrs. Fuertes submitted the clearance
from the Municipality of Pinan, Zamboanga del Norte?
Restated, petitioner claims that the prosecution failed to establish the elements of
undue injury and bad faith. Additionally, petitioner submits that a violation of
Section 3[e] of RA 3019 cannot be committed through nonfeasance.
The Court's Ruling
The petition is meritorious. After careful review of the evidence on record and
thorough deliberation on the applicable provision of the Anti-Graft Law, the Court
agrees with the solicitor general's assessment that the prosecution failed to
establish the elements of the crime charged.
First Issue: Undue Inquiry

Petitioner was charged with violation of Section 3[e] of R.A. 3019, which states:
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.
To hold a person liable under this section, the concurrence of the following elements
must be established beyond reasonable doubt by the prosecution:
(1) that the accused is a public officer or a private person charged in conspiracy
with the former;
(2) that said public officer commits the prohibited acts during the performance of
his or her official duties or in relation to his or her public positions;
(3) that he or she causes undue injury to any party, whether the government or a
private party; and
(4) that the public officer has acted with manifest partiality, evident bad faith or
gross inexcusable negligence. 11
The solicitor general, in his manifestation, 12 points out that "undue injury" requires
proof
of
actual
injury
or
damage,
citing
our
ruling
in Alejandro
13
14
vs. People and Jacinto vs. Sandiganbayan. Inasmuch as complainant was
actually paid all her claims, there was thus no "undue injury" established.
This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot
be presumed even after a wrong or a violation of a right has been established. Its
existence must be proven as one of the elements of the crime. In fact, the causing
of undue injury or the giving of any unwarranted benefits, advantage or preference
through manifest partiality, evident bad faith or gross inexcusable negligence
constitutes the very act punished under this section. Thus, it is required that the
undue injury be specified, quantified and proven to the point of moral certainty.
In jurisprudence, "undue injury" is consistently interpreted as "actual damage."
Undue has been defined as "more than necessary, not proper, [or] illegal;" and
injury as "any wrong or damage done to another, either in his person, rights,
reputation or property[; that is, the] invasion of any legally protected interest of
another." Actual damage, in the context of these definitions, is akin to that in civil
law. 15
In turn, actual or compensatory damages is defined by Article 2199 of the Civil
Code as follows:
Art. 2199. Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
Fundamental in the law on damages is that one injured by a breach of a contract,
or by a wrongful or negligent act or omission shall have a fair and just
compensation commensurate to the loss sustained as a consequence of the
defendant's act. Actual pecuniary compensation is awarded as a general rule,
except where the circumstances warrant the allowance of other kinds of
damages. 16 Actual damages are primarily intended to simply make good or replace
the loss caused by the wrong. 17
Furthermore, damages must not only be capable of proof, but must be actually
proven with a reasonable degree of certainty. They cannot be based on flimsy and
non-substantial evidence or upon speculation, conjecture or guesswork. 18 They
cannot include speculative damages which are too remote to be included in an
accurate estimate of the loss or injury.
In this case, the complainant testified that her salary and allowance for the period
beginning July 1990 were withheld, and that her family underwent financial
difficulty which resulted from the delay in the satisfaction of her claims. 19 As
regards her money claim, payment of her salaries from January 1991 until
November 19, 1991 was evidenced by the Sheriffs Return dated November 19,
1991 (exh. D). She also admitted having been issued a check on January 4, 1994
to cover her salary from June 1 to June 30, 1990; her salary differential from July
1, 1989 to April 30, 1990; her thirteenth-month pay; her cash gift; and her clothing
allowances. Respondent Court found that all her monetary claims were satisfied.
After she fully received her monetary claims, their is no longer any basis for
compensatory damages or undue injury, their being nothing more to compensate.
Complainant's testimony regarding her family's financial stress was inadequate and
largely speculative. Without giving specific details, she made only vague references
to the fact that her four children were all going to school and that she was the
breadwinner in the family. She, however, did not say that she was unable to pay
their tuition fees and the specific damage brought by such nonpayment. The fact
that the "injury" to her family was unspecified or unquantified does not satisfy the
element of undue injury, as akin to actual damages. As in civil cases, actual
damages, if not supported by evidence on record, cannot be considered. 20
Other than the amount of the withheld salaries and allowances which were
eventually received, the prosecution failed to specify and to prove any other loss or
damage sustained by the complainant. Respondent Court insists that complainant
suffered by reason of the "long period of time" that her emoluments were withheld.
This inconvenience, however, is not constitutive of undue injury. In Jacinto, this
Court held that the injury suffered by the complaining witness, whose salary was
eventually released and whose position was restored in the plantilla, was negligible;
undue injury entails damages that are more than necessary or are excessive,
improper or illegal. 21 In Alejandro, the Court held that the hospital employees were
not caused undue injury, as they were in fact paid their salaries. 22
Second Issue: No Evident Bad Faith
In the challenged Decision, Respondent Court found evident bad faith on the part of
the petitioner, holding that, without any valid of justifiable reason, accused withheld
the payment of complainant's salaries and other benefits for almost two (2) years,
demonstrating a clear manifestation of bad faith. 23 It then brushed aside the
petitioner's defenses that complainant failed to submit money and property
clearances for her vouchers, and that an appropriation by the Sangguniang Bayan
was required before complainant's vouchers could be approved. It said: 24
Secondly, his reliance on the failure of complainant to submit the clearances which
were allegedly necessary for the approval of vouchers is futile in the light of the
foregoing circumstances:
xxx xxx xxx
b. The evidence on record shows that complainant's salaries for the period from
January to November 1991 (included as subject matter in the mandamus case)
were duly paid, as confirmed in the Sheriff's Return dated November 19, 1991
(Exh. "D"). This means that accused, even without the necessary clearance, could
have acted upon or approved complainant's disbursement vouchers if he wanted to.
c. It may be true that a clearance is an indispensable requirement before

complainant will be paid of her claims, but accused could not just hide behind the
cloak of the clearance requirement in order to exculpate himself from liability. As
the approving officer, it was his duty to direct complainant to submit the same.
Moreover, accused could not just set aside the obligation he voluntarily imposed
upon himself when he entered into a compromise agreement binding himself to sign
complainant's vouchers without any qualification as to the clearance requirement.
Perforce, he could have seen to it that complainant secured the same in order that
he could comply with the said obligation.
xxx xxx xxx
Fourthly, accused's contention that the delay in the release of complainant's claim
could not be attributed to him because the vouchers were only submitted to him for
his signature on December 24-27, 1992; that the approval of the budget
appropriations/resolutions depends on the Sangguniang Bayan, Budget Officer and
the Sangguniang Panlalawigan, is unavailing.
As revealed in the alleged newly discovered evidence themselves, particularly . . .
SB Res. No. 202 and Appropriation Ordinance No. 035, both dated May 21, 1990
(Exh. "5-a"- Motion), the Sangguniang Bayan appropriated a budget of P5M in the
General Fund for calendar year 1991 [the Budget Officer does not approve the
budget but assists the Municipal Mayor and the Sangguniang Bayan in the
preparation of the budget (Sec. 475, Local Government Code of 1991)].
Complainant's claims consisted of her salaries and other benefits for 1990 and 1991
which were classified as Current Operating Expenditures chargeable against the
General Fund. It is undisputed that she was holding her position as Assistant
Municipal Treasurer in a permanent capacity (her position was also designated
Assistant Department Head), which was included in the plantilla for calender years
1990 and 1991 (Exhs. "4-a" & "4-b", Motion). In Program Appropriation and
Obligation by Object (Exhs. "4-c" & "4-c", Motion), appropriations were made for
current operating expenditures to which complainant's claims properly appertained.
. . . Verily, complainant's claims were covered by appropriations duly approved by
the officials concerned, signifying that adequate funds were available for the
purpose. In fact, even complainant's claims for her 13th month pay, cash gift and
clothing allowance, subject matter of Disbursement Voucher marked Exhibit "J"
which would need a supplemental budget was covered by "Supplemental Budget
No. 5 for CY 1990 duly approved by the authorities concerned" as shown in the
voucher itself. This means that the said claim was already obligated (funds were
already reserved for it) as of calendar year 1990. . . . It is clear, then, that as
regards availability of funds, there was no obstacle for the release of all the
complainant's claims.
The Court disagrees. Respondent Court cannot shift the blame on the petitioner,
when it was the complainant who failed to submit the required clearance. This
requirement, which the complainant disregarded, was even printed at the back of
the very vouchers sought to be approved. As assistant municipal treasurer, she
ought to know that this is a condition for the payment of her claims. This clearance
is required by Article 443 of the Implementing Rules and Regulations of the Local
Government Code of 1991:
Art. 443. Property Clearances - When an employee transfers to another government
office, retires, resigns, is dismissed, or is separated from the service, he shall be
required to secure supplies or property clearance from the supply officer concerned,
the provincial or city general services officer concerned, the municipal mayor and
the municipal treasurer, or the punong barangay and the barangay treasurer, as the
case may be. The local chief executive shall prescribe the property clearance form
for this purpose.
For her own failure to submit the required clearance, complainant is not entirely
blameless for the delay in the approval of her claims.
Also, given the lack of corresponding appropriation ordinance and certification of
availability of funds for such purpose, petitioner had the duty not to sign the
vouchers. As chief executive of the municipality, Llorente could not have approved
the voucher for the payment of complainant's salaries under Sec. 344, Local
Government Code of 1991. 25 Also, Appropriation Ordinance No. 020 26 adding a
supplemental budget for calendar year 1990 was approved on April 10, 1989, or
almost a year before complainant was transferred back to Sindangan. Hence, she
could not have been included therein. SB Resolution No. 202 and Appropriation
Ordinance No. 035, 27 which fixed the municipal budget for calendar year 1991, was
passed only on May 21, 1990, or almost another year after the transfer took effect.
The petitioner's failure to approve the complainant's vouchers was therefore due to
some legal obstacles, 28 and not entirely without reason. Thus, evident bad faith
cannot be completely imputed to him.
Bad faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or ill will; it partakes of the
nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It
contemplates a state of mind affirmatively operating with furtive design or some
motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18
SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the
part of the accused to do wrong or cause damage. 29
In Jacinto, evident bad faith was not appreciated because the actions taken by the
accused were not entirely without rhyme or reason; he refused to release the
complainant's salary because the latter failed to submit her daily time record; he
refused to approve her sick-leave application because he found out that she did not
suffer any illness; and he removed her name from the plantilla because she was
moonlighting during office hours. Such actions were measures taken by a superior
against an erring employee who studiously ignored, if not defied, his authority. 30
In Alejandro, evident bad faith was ruled out, because the accused gave his
approval to the questioned disbursement after relying on the certification of the
bookkeeper on the availability of funds for such disbursement. 31
Third Issue: Interpretation of Causing
The Court does not completely agree with petitioner's assertion that the imputed
act does not fall under Sec. 3[e] which, according to him, requires a positive act - a
malfeasance or misfeasance. Causing means "to be the cause or occasion of, the
effect as an agent, to bring into existence, to make or to induce, to
compel." 32Causing is, therefore, not limited to positive acts only. Even passive acts
or inaction may cause undue injury. What is essential is that undue injury, which is
quantifiable and demonstrable, results from the questioned official act or inaction.
In this case, the prosecution accused petitioner of failing or refusing to pay
complainant's salaries on time, while Respondent Court convicted him of unduly
delaying the payment of complainant's claims. As already explained, both acts did
not, however, legally result in "undue injury" or in "giving any unwarranted
benefits, advantage or preference in the discharge of his official, [or] administrative
. . . functions." Thus, these acts are not punishable under Sec. 3[e].
It would appear that petitioner's failure or refusal to act on the

complainant's vouchers, or the delay in his acting on them more
properly falls under Sec. 3[f]:
(f) Neglecting or refusing, after due demand or request, without
sufficient justification, to act within a reasonable time on any
matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for purpose of
favoring his own interest or giving undue advantage in favor of or
discriminating against any other interested party.
Here, the neglect or refusal to act within a reasonable time is the

criminal act, not the causing of undue injury. Thus, its elements
are:
1) The offender is a public officer;
2) Said officer has neglected or has refused to act without
sufficient justification after due demand or request has been
made on him;
3) Reasonable time has elapsed from such demand or request
without the public officer having acted on the matter pending
before him; and
4) Such failure to so act is "for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage in favor of an
interested party, or discriminating against another. 33
However, petitioner is not charged with a violation of Sec. 3[f].
Hence, further disquisition is not proper. Neither may this Court
convict petitioner under Sec. 3[f] without violating his
constitutional right to due process.
WHEREFORE, the petition is hereby GRANTED. Petitioner is
ACQUITTED of violating Section 3[e] of R.A. 3019, as amended.
No costs.
SO ORDERED.
[G.R.
No.
L-45376-77.
July
26,
1988.]
THE PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. RODOLFO B. ALBANO, in

his capacity as Judge of Circuit Criminal Court, 16th Judicial District, Davao
City
and
City
Mayor
ANTONIO
C.
ACHARON
&
ROSALINA
BERNABE, Respondents.
Romerico P. Vencer for respondent Mayor Antonio C. Acharon.
SYLLABUS
1. CRIMINAL LAW; ANTI-GRAFT & CORRUPT PRACTICES ACT (RA 3019); SUSPENSION
OF PUBLIC OFFICER, MANDATORY BUT NOT AUTOMATIC: HEARING ON VALIDITY OF
INFORMATION, INDISPENSABLE. The Court has previously ruled that, under Sec. 13,
Rep. Act 3019, suspension of a public officer is mandatory. However, suspension cannot
be automatic, the reason being that "a hearing on the validity of the information
appears conformable to the spirit of the law, taking into account the serious and far
reaching consequences of a suspension of an elective public official even before his
conviction and that public interest demands a speedy determination of the issues
involved in (the) cases." Thus, before a suspension order can be issued, a hearing on
the issue of the validity of the information must first be had. This pre-suspension
hearing is conducted to determine basically the validity of the information, from which
the court can have a basis to either suspend the accused, and proceed with the trial on
the merits of the case, or withhold the suspension of the latter and dismiss the case, or
correct
any
part
of
the
proceeding
which
impairs
its
validity.
2. ID.; ID.; ID.; ID.; RIGHT OF ACCUSED TO DUE PROCESS, SECURED. In a presuspension proceeding, the accused is accorded the right to prove that the information
filed against him was filed without prior and due preliminary investigation to which he is
entitled under the law. This is to protect him from hasty, malicious and oppressive
prosecution. Likewise, he is accorded the right to challenge the propriety of his
prosecution on the ground that the acts for which he is charged do not constitute a
violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code,
and the right to present a motion to quash the information on any of the grounds
provided
in
Rule
117
of
the
Rules
of
Court.
3. REMEDIAL LAW; CRIMINAL PROCEDURE; VALIDITY OF PROCEEDINGS MAYBE
CHALLENGED BY WAY OF A MOTION TO QUASH. A challenge to the validity of the
criminal proceedings on the ground that the acts for which the accused is charged do
not constitute a violation of the provisions of Rep. Act 3019, or of the provisions on
bribery of the Revised Penal Code, should be treated only in the same manner as a
challenge to the criminal proceeding by way of a motion to quash on the ground
provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that the
facts charged do not constitute an offense. In other words, a resolution of the challenge
to the validity of the criminal proceeding, on such ground, should be limited to an
inquiry whether the facts alleged in the information, if hypothetically admitted,
constitute the elements of an offense punishable under Rep. Act 3019 or the provisions
on
bribery
of
the
Revised
Penal
Code.
4. CRIMINAL LAW; ANTI-GRAFT & CORRUPT PRACTICES ACT (RA 3019), PRESUSPENSION PROCEEDINGS; GUILT OF ACCUSED NEED NOT BE ESTABLISHED BEFORE
TRIAL ON THE MERITS; RATIONALE. The law does not require that the guilt of the
accused must be established in a pre-suspension proceeding before the trial on the
merits proceeds. Nor does it prohibit the trial, and thus the suspension, of the innocent.
The law permits the trial of the accused based merely on probable cause, as long as
probable cause has been properly determined. And for honest lapses in its
administration, the law provides for remedial measures upon which am innocent public
officer is vindicated and compensated. A requirement that the guilt of the accused must
first be established in the pre-suspension proceeding before trial proper can proceed
would negate the ruling of the Court that the." . . mandatory suspension . . . requires
at the same time that the hearing be expeditious, and not unduly protracted such as to
thwart the prompt suspension envisioned by the Act" and make the trial proper a
surplusage.
5. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF
DISCRETION COMMITTED IN CASE AT BAR. The trial court exceeded its jurisdiction
when it practically held that the prosecution failed to establish the culpability of the
accused in a proceeding which does not even require the prosecution to do so. It acted
with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively
dismissed the cases and, as a consequence thereof, deprived the prosecution of its right
to prosecute and prove its case, thereby violating its fundamental right to due process.
DECISION
PADILLA, J.:
Petition for certiorari seeking to annul and set aside the order of the Circuit Criminal
Court, 16th Judicial District, Davao City, dated 20 December 1976, in Criminal Case No.
CCC-XVI-1-GSC (256) and Criminal Case No. CCC-XVI-2-GSC (256), which denied
Petitioners Motion for Reconsideration of a previous order, dated 28 October 1976,
resolving that the informations filed therein are "invalid ab initio" and consequently
dismissing
said
criminal
cases.
On 11 June 1971, an information was filed in the Court of First Instance of South
Cotabato, Branch I, General Santos City, docketed as Criminal Case No. 255, charging
City Mayor Antonio C. Acharon for violation of Paragraphs (e) and (f), Section 3 of
Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The
information
reads
as
follows:
jgc:chanroble s.com.ph
"That for the period from January to December 1968, in the City of General Santos,
Philippines and within the jurisdiction of this Honorable Court, said accused being then
the incumbent Municipal Mayor of General Santos, South Cotabato, and thereafter from
July 8, 1968 to the present is the City Mayor of the City of General Santos, Philippines,
and being the public officer charged with the grant of license or permit to operate
cockpits in the said City (formerly a Municipality), did then and there willfully, unlawfully
and feloniously, deny the application for renewal of one EMILIO EVANGELISTA for
license or permit to operate his cockpit situated at Labangala, now City of General
Santos, Philippines, and issuing instead in the same year 1968 a license and
permit to operate, as in fact said accused did issue a license or permit to LUIS
ACHARON, his uncle (relative within the third civil degree) to operate a new cockpit
about 250 meters away from the cockpit of Emilio Evangelista and inspite of the order
of the CFI in Civil Case No. 840, entitled "MANDAMUS" in which Emilio Evangelista is
the Petitioner, directing the then Municipal Mayor to accept and give due course to the
application of petitioner Emilio Evangelista for a license or permit to operate his cockpit;
the said accused failed and refused to accept and give due course to said application for
a license or permit, thereby causing injury to said applicant and gave his uncle, LUIS
ACHARON, an unwarranted benefit, advantage or preference in connection with which
City Mayor under Section 10 of Republic Act 5412, known as the City Charter of General
Santos City, has the sole charged (sic) of issuing license or permits, giving his relative
within the third civil degree preference in the discharge of his official functions thru his
manifest partiality, evident bad faith or gross inexcusable negligence and or he has
neglected or refused after due demand or request of Emilio Evangelista for the renewal
of his permit to operate his cockpit without any sufficient justification, thus, giving
directly or indirectly his own uncle, LUIS ACHARON, benefit or advantage or has
discriminated on Emilio Evangelista in the performance of his official duties.
CONTRARY TO PARAGRAPHS (e) and (f) of Section 3, Republic Act No. 3019, . . ." 1
On the same day, another information was filed in the same court, docketed as Criminal
Case No. 256 charging City Mayor Antonio C. Acharon and then City Vice-Mayor
Rosalina Bernabe of violating Section 3, in relation to Section 1, of Republic Act 3019.
Said
information
reads
as
follows:
jgc:chanrobles.com .ph
"That for the period July to December, 1969, in the City of General Santos, Philippines
and within the jurisdiction of this Honorable Court, said accused, being the incumbent
City Mayor and City Vice Mayor, respectively, of General Santos City, Philippines, taking
advantage of their positions as City Mayor and City Vice Mayor, which positions and
offices are public trust, conspiring, confederating together and mutually assisting one
another, did then and there willfully, unlawfully and feloniously, use the names of 327
employees of the city government of General Santos City, fraudulently procure and
purchase 1,635 sacks of rice in bulk with the Regional Office of the Rice & Corn
Administration, Region No. XIII, stationed at General Santos City, by using their own
money and after obtaining said 1,635 sacks of RCA rice at a price very much lower than
the prevailing price in the open market for the same quality of rice, dispose the same
illegally to persons other than the said 327 employees of the city government in
violation of paragraph (a), (e), (h) and (1) of Section 3, in relation to Section 1 of
Republic Act 3019, the accused City Vice Mayor Rosalina Bernabe persuading, inducing
or influencing accused City Mayor Antonio C. Acharon to make a fraudulent official
procurement of rice from the RCA and accused City Mayor Antonio C. Acharon allowed
himself to be so persuaded, induced or influenced to make said fraudulent official
procurement and, as a result the accused City Mayor has caused injury to the
government by the fraudulent official procurement of rice from the RCA and has given
accused City Mayor an unwarranted benefit and advantage thru said fraudulent official
procurement of rice from the RCA; the Mayor being an officer charged with the grant of
concession, namely, the official procurement of rice for city employees without whose
intervention no such rice in bulk can be obtained except from RCA accredited retailers
by the gantas, and/or both accused, directly or indirectly, had financial or pecuniary
interest in the fraudulent procurement of rice from the RCA in connection with which
the said accused intervened in their official capacities, the accused City Vice Mayor
having used her own money in paying the low price of said rice and, thereafter, illegally
disposing of the same and accused City Mayor knowingly approved or granted the
privilege or benefit in favor of the accused City Vice Mayor who was not qualified or
legally entitled from procuring said rice in bulk from said agency, the official request
being
privilege
or
benefit.
chanrobles
lawlibrary
rednad
CONTRARY to Section 3, in relation to Section 1, Republic Act No. 3019. . . ." 2

The prosecution then filed an Urgent Motion for the issuance of an order suspending the
accused from office. The accused Rosalina Bernabe filed a Motion to Dismiss in Criminal
Case No. 256. The trial court thereupon issued a "show cause" order in both criminal
cases, directing the accused to show the invalidity of the informations filed against
them.
Before the pre-suspension hearings in the two (2) cases could be held, the accused
were arraigned, both pleading not guilty. Likewise, pursuant to a resolution of this
Court, both cases were transferred to the Circuit Criminal Court, 6th Judicial District,
Davao City (hereinafter referred to as the trial court) for trial and disposition. Criminal
Case No. 255 and Criminal Case No. 256 were re-docketed as Criminal Case No. CCCXVI-1-GSC (255) and Criminal Case No. CCC-XVI-2-GSC (256), respectively.
On 30 October 1972, the cases were set for trial. However, at the instance of the Acting
District State Prosecutor, and on the latters manifestation that a petition for
reinvestigation had been filed with his office by accused Acharon, and that the granting
of the same was still pending determination, trial was postponed. Likewise, the
presiding judge who was hearing the cases was subsequently appointed to another
court: hence, the trial of the cases was further delayed until herein respondent judge,
Hon. Rodolfo B. Albano was appointed in December 1975 presiding judge of the trial
court.
In September 1976, the cases were again set for hearing. On the date of hearing, 4
October 1976,Accused Acharon filed a Motion to hear the validity of the informations
filed
against
him.
In said hearing, the contending parties in both cases agreed to submit the question of
the validity or invalidity of the two (2) informations on the basis of the records of each
case. And with such submission, the trial court subsequently issued an Order, dated 28
October 1976, deciding the cases on the merits by making findings of fact based on its
assessment of the records of the antecedent proceedings had in the cases, taking into
consideration matters of defense of the accused, resolving that the informations in both
cases are "invalid ab initio" and consequently dismissing said cases. The prosecution
moved for reconsideration; however, on 20 December 1976, the trial court issued its
Order
denying
the
same.
Hence
this
petition
by
the
prosecution.
Basically, petitioner challenges the manner in which the trial court arrived at its
conclusion that the informations filed in both cases are invalid. Petitioner assigns as
reversible
errors
the
following:
"1. THE HONORABLE RESPONDENT COURT ERRED IN FINDING THAT THE ACTS FOR
WHICH BOTH ACCUSED ARE CHARGED DO NOT CONSTITUTE VIOLATIONS OF THE
ANTI-GRAFT AND CORRUPT PRACTICES ACT (R.A. No. 3019) BY TAKING INTO
CONSIDERATION
MATTERS
NOT
ALLEGED
IN
THE
INFORMATIONS.
"2. THE HONORABLE RESPONDENT COURT ERRED IN DECIDING THE CASE ON THE
MERITS WITHOUT TRIAL; CONSEQUENTLY, THE ORDERS OF DISMISSAL IS NULL AND
VOID
AB
INITIO
FOR
WANT
OF
DUE
PROCESS."
3
This
assignment
of
errors
raises
in
turn
the
following
issues:
chanrob1es
virtual
1aw
library
1. whether in a pre-suspension proceeding to determine the validity or invalidity of an

information filed under the Anti-Graft and Corrupt Practices Act, a court may consider
matters
not
alleged
in
the
information
under
consideration.
cralawnad
2. whether a court may, without a trial proper, decide a case on the merits by making
findings of fact after an assessment of the evidence on the record, taking into
consideration matters of defense of the accused, and, on the basis thereof, dismiss the
same.
Section
13
of
Rep.
Act
3019
provides
that:
". . . Any public officer against whom any criminal prosecution under a valid information
under this Act or under the provisions of the Revised Penal Code on bribery is pending
in court, shall be suspended. Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled
to reinstatement and to the salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative proceedings have been filed against
him."
cralaw
virtua1aw
library
The Court has previously ruled that, under Sec. 13, Rep. Act 3019, suspension of a
public officer is mandatory. 4 However, suspension cannot be automatic, the reason
being that "a hearing on the validity of the information appears conformable to the
spirit of the law, taking into account the serious and far reaching consequences of a
suspension of an elective public official even before his conviction and that public
interest demands a speedy determination of the issues involved in (the) cases." 5 Thus,
before a suspension order can be issued, a hearing on the issue of the validity of the
information must first be had. This pre-suspension hearing is conducted to determine
basically the validity of the information, from which the court can have a basis to either
suspend the accused, and proceed with the trial on the merits of the case, or withhold
the suspension of the latter and dismiss the case, or correct any part of the proceeding
which
impairs
its
validity.
As
the
Court
held:
". . . No specific rules need be laid down for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g. that he has not been
afforded the right of due preliminary investigation; that the acts for which he stands
charged do not constitute a violation of the provisions of Republic Act 3019 or the
bribery provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under section 13 of the Act; or he may present a motion to
quash the information on any of the grounds provided for in Rule 117 of the Rules of
Court
.
.
.
."
6
It should be stressed that the right to challenge the validity of the information, in
prosecutions under the anti-graft law, is not limited to the right to challenge the
completeness or sufficiency of the recitals in the information vis-a-vis the essential
elements of the offense as defined by substantive law. Considering the serious and farreaching consequences of a suspension of a public official even before his conviction,
the right to challenge the validity of an information entitles the accused to challenge the
validity of the CRIMINAL PROCEEDINGS leading to the filing of the information against
him.
However, this right of the accused does not divest the prosecution of its right to prove
the guilt of the accused in a trial on the merits, nor should the pre-suspension hearing
substitute
the
trial
proper.
Thus, in a pre-suspension proceeding, the accused is accorded the right to prove that
the information filed against him was filed without prior and due preliminary
investigation to which he is entitled under the law. 7 This is to protect him from hasty,
malicious
and
oppressive
prosecution.
chanroble s
virtual
lawlibrary
Likewise, he is accorded the right to challenge the propriety of his prosecution on the
ground that the acts for which he is charged do not constitute a violation of Rep. Act
3019, or of the provisions on bribery of the Revised Penal Code, and the right to
present a motion to quash the information on any of the grounds provided in Rule 117
of
the
Rules
of
Court.
However, a challenge to the validity of the criminal proceedings on the ground that the
acts for which the accused is charged do not constitute a violation of the provisions of
Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, should be
treated only in the same manner as a challenge to the criminal proceeding by way of a
motion to quash on the ground provided in Paragraph (a), Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not constitute an offense. In other words,
a resolution of the challenge to the validity of the criminal proceeding, on such ground,
should be limited to an inquiry whether the facts alleged in the information, if
hypothetically admitted, constitute the elements of an offense punishable under Rep.
Act 3019 or the provisions on bribery of the Revised Penal Code.
Private
respondent
Bernabe
objects
to
this
procedure,
contending
that:
". . . This would render nugatory the purpose of the pre-suspension hearing.
Considering the harshness of suspension from office, an accused should be allowed to
present evidence in his behalf to refute the allegations in the information. Otherwise,
any public officer can be suspended from the office on the basis of an information
complete and regular upon its face but which may have been based on false, malicious
and
unfounded
imputation
by
unscrupulous
persons.
.
.
."
8
Contrary to private respondents contention, the right to be secured against false,
malicious and unfounded imputations is already covered by the right to a due
preliminary investigation granted to the accused. The law does not require that the guilt
of the accused must be established in a pre-suspension proceeding before the trial on
the merits proceeds. Nor does it prohibit the trial, and thus the suspension, of the
innocent. The law permits the trial of the accused based merely on probable cause, as
long as probable cause has been properly determined. And for honest lapses in its
administration, the law provides for remedial measures upon which am innocent public
officer
is
vindicated
and
compensated.
As
the
law
provides:
". . . Should he [the accused] be convicted by final judgment, he shall lose all
retirement or gratuity benefits under the law, but IF HE IS ACQUITTED, HE SHALL BE
ENTITLED TO REINSTATEMENT AND TO THE SALARIES AND BENEFITS WHICH HE
FAILED TO RECEIVE DURING THE SUSPENSION, unless in the meantime administrative
proceedings
have
been
filed
against
him."
9
(Italics
supplied)
Considering the mandatory suspension of the accused under a valid information, the
law does not contemplate a proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged, or (3) whether or not his
continuance in office could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence, so that a court can have a valid basis in
evaluating the advisability of his suspension pending the trial proper of the case filed
against him. 10 Besides, a requirement that the guilt of the accused must first be
established in the pre-suspension proceeding before trial proper can proceed would
negate the ruling of the Court that the." . . mandatory suspension .. requires at the
same time that the hearing be expeditious, and not unduly protracted such as to thwart
the prompt suspension envisioned by the Act" 11 and make the trial proper a
surplusage.
In the case at bar, respondent Antonio Acharon does not claim that he was denied his
right to due preliminary investigation. Private respondent Bernabe filed a motion to
dismiss dated 18 June 1971, on the ground that the facts alleged in the information
against her do not constitute an offense. Further, respondent Antonio Acharon filed a
motion, dated 4 October 1976, praying that a pre-suspension hearing of the cases be
held to determine the validity of the informations against him, but he did not specify
any ground upon which he challenged the validity of the same.
chanroble s
virtual
lawlibrary
In any event, when the contending parties in both cases agreed to submit the question
of the validity of the informations on the basis of the records of the cases, among
others, 12 to determine whether accused Acharon can be mandatorily suspended, the
trial court was competent to inquire only whether or not (1) accused Acharon had been
afforded due preliminary investigation prior to the filing of the informations against him,
(2) the acts for which he was charged constitute a violation of the provisions of Rep. Act
3019 or of the provisions on bribery of the Revised Penal Code, or (3) the informations
against him can be quashed, under any of the grounds provided in Section 2, Rule 117
of the Rules of Court, not deemed waived in view of the previous arraignment of the
accused.
13
Consequently, the submission by the parties of the issue of invalidity of the informations
on the basis of the records of the case makes said records, in addition to facts admitted
by the prosecution and indubitable facts contained therein, only a legal source from
which the trial court can inquire whether accused Acharon was afforded due preliminary
investigation
before
the
informations
were
filed
against
him.
Likewise, in determining whether the acts for which respondent Antonio Acharon was
charged do not constitute a violation of the provisions of Rep. Act 3019 or of the
provisions on bribery of the Revised Penal Code, the trial court should have limited its
inquiry to (1) the averments in the informations, as hypothetically admitted, (2) facts
admitted
by
the
prosecution,
and
(3)
indubitable
facts.
To traverse the allegations contained in the information, and conclude that "no law had
been violated by the accused," 14 merely on the basis of the records of the case which
contain evidence submitted by the prosecution in the preliminary investigation, preemptively denies the prosecution its right to exhaustively present its evidence against
the
accused
at
the
trial
proper.
Considering that the law does not require the conviction of the accused in the presuspension proceeding but only the determination of the validity of the criminal
proceeding leading to the filing of the information, and given the ability of the latter to
overcome a motion to quash, the prosecution should not be faulted if what it presents
as evidence in the pre-suspension proceedings does not satisfy a finding of guilt beyond
reasonable
doubt
of
the
accused.
The records of the instant case do not show that the proceedings leading to the filing of
the informations against the accused were tainted with any irregularity so as to
invalidate the same. Likewise, a reading of the informations shows that the allegations
contained therein meet the essential elements of offense as defined by substantive law.
15 The record is also bereft of undisputed facts to warrant the quashal of the
informations under any of the grounds provided in Section 2, Rule 117 of the Rules of
Court.
The trial court exceeded its jurisdiction when it practically held that the prosecution
failed to establish the culpability of the accused in a proceeding which does not even
require the prosecution to do so. It acted with grave abuse of discretion, tantamount to
lack of jurisdiction, when it pre-emptively dismissed the cases and, as a consequence
thereof, deprived the prosecution of its right to prosecute and prove its case, thereby
violating its fundamental right to due process. 16 With this violation, its Orders, dated
28 October 1976 and 20 December 1976, are therefore null and void. 17 Likewise, for
being null and void, said orders cannot constitute a proper basis for a claim of double
jeopardy.
18
As
held
by
the
Court:
". . . to raise the defense of double jeopardy, three requisites must be present: (1) a
first jeopardy must have attached prior to the second; (2) the first jeopardy must have
been validly terminated; and (3) the second jeopardy must be for the same offense as
that
in
the
first.
chanrobles
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library
red
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court,
(c) after arraignment, (d) a valid plea having been entered; and (e) the case was
dismissed or otherwise terminated without the express consent of the accused (People
v. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its
jurisdiction when it violated the right of the prosecution to due process.
In effect, the first jeopardy was never terminated, and the remand of the criminal case
for further hearing and/or trial before the lower courts amounts merely to a
continuation of the first jeopardy, and does not expose the accused to a second
jeopardy."
19
WHEREFORE, petition is GRANTED. The challenged orders of the trial court are hereby
declared NULL and VOID. Criminal Case No. CCC-XVI-1-GSC (255) and Criminal Case
No. CCC-XVI-2-GSC (256) are remanded to the trial court for further proceedings in
accordance
with
law.
No
costs.
SO ORDERED.
[G.R.
No.
160718
May
12,
2010]
ANUNCIO C. BUSTILLO, EMILIO SUMILHIG, JR., AND AGUSTIN BILLEDO, JR.,

PETITIONERS,
VS.
PEOPLE
OF
THE
PHILIPPINES,
RESPONDENT.
DECISION
DEL CASTILLO, J.:
It is disputably presumed that official duty has been regularly performed. In this case,
this presumption remains unrebutted; hence, petitioners who were charged with
violations of Section 3(e) of Republic Act (RA) No. 3019, deserve an acquittal. It was
not proven that they gave undue preference or acted in evident bad faith in effecting
the transfer of the properties owned by the local government unit.
This Petition for Review on Certiorari[1] assails the July 31, 2003 Decision[2] of
the Sandiganbayan in Criminal Case No. 24741, finding herein petitioners guilty beyond
reasonable doubt of violation of Section 3(e) of RA 3019. Also assailed is the November
6,
2003
Resolution[3] denying
the
Motion
for
Reconsideration.
Factual
Antecedents
Congressman Ceferino Paredes, Jr. (Congressman Paredes) used a portion of his

Countryside Development Fund (CDF) to purchase one unit of Toyota Tamaraw FX and
six units of Kawasaki motorcycles. All vehicles were registered in the name of the
Municipality of Bunawan and were turned over to the municipality through its mayor,
herein
petitioner
Anuncio
C.
Bustillo
(Bustillo).
On May 17, 1995, the Sangguniang Bayan of Bunawan passed Resolution No. 9527[4] which authorized the transfer without cost of the aforesaid vehicles to the San
Francisco Water District (SFWD). Pursuant thereto, Bustillo executed on June 19, 1995,
a Deed of Transfer[5] relative to the aforementioned vehicles in favor of the SFWD
represented
by
its
General
Manager,
Elmer
T.
Luzon
(Luzon).
On July 27, 1995, the Sangguniang Panlalawigan of Agusan del Sur passed Resolution
No. 183[6]disapproving the Sangguniang Bayan's Resolution No. 95-27 for being
violative of Section 381[7] of RA 7160 or the Local Government Code. On August 17,
1995, it passed Resolution No. 246 [8]canceling and declaring the Deed of Transfer as
null and void for being highly irregular and grossly violative of Section 381 of RA 7160.
On May 23, 1996, a complaint [9] was filed charging Bustillo, Vice-Mayor Agustin Billedo,
Jr. (Billedo), and Sangguniang Bayan members Teogenes Tortor (Tortor), Emilio
Sumilhig, Jr. (Sumilhig), Ruth C. Orot (Orot), and Ernesto Amador, Jr., with violation of
Section 3(e) of RA 3019. Also included in the complaint were Antonio Taotao and Luzon,
the
Board
Secretary
and
General
Manager,
respectively,
of
SFWD.
On August 13, 1996, the Office of the Ombudsman for Mindanao issued a Resolution
which provides:
WHEREFORE, PREMISES CONSIDERED, this Office finds probable cause to prosecute
respondents Antonio C. Bustillo, Agustin Billedo, Jr., Teogenes Tortor, Emilio Sumilhig,
Jr., Ruth C. Orot, Ernesto Amador, Jr., and Elmer T. Luzon for violation of Section 3 (e)
of Republic Act 3019. It is hereby recommended that the enclosed Information be filed
with
the
Sandiganbayan
against
the
abovenamed
respondents.
FINDING insufficient evidence to hold respondent Antonio Taotao, Board Secretary of
SFWD, liable for the charge, let the instant case against him be dismissed.
SO RESOLVED.[10]
Consequently,
on
June
24,
1998,
an
Information
was
filed
with
the Sandiganbayan docketed as Criminal Case No. 24741 charging Bustillo, Billedo,
Tortor, Sumilhig, Orot, Amador, and Luzon, for violation of Section 3(e) of RA 3019,
committed as follows:
That on or about 19 June 1995, or shortly prior or subsequent thereto, in San
Francisco, Agusan del Sur, and within the jurisdiction of this Honorable Court, the
accused Anuncio C. Bustillo, a public officer being then the Mayor of Bunawan, Agusan
del Sur, with salary grade 27, Agustin Billedo, Jr., Vice Mayor of Bunawan, Agusan del
Sur, Teogenes Tortor, Emilio Sumilhig, Jr., Ruth C. Orot, Ernesto Amador, being then
members of the Sangguniang Bayan (SB) of Bunawan, and Elmer T. Luzon, General
Manager of San Francisco Water District (SFWD), all public officers with salary grades
below 27, committing the offense in relation to their official duties and taking
advantage of their official positions, conspiring and confederating with each other [sic],
thru evident bad faith, did there and then, willfully, unlawfully and criminally, cause
undue injury to the government, by passing Sangguniang Bayan Resolution No. 95-27
which transferred without cost one (1) unit of Tamaraw FX vehicle and six (6) units of
KE Kawasaki motorcycles purchased for the Municipality of Bunawan out of the
Countryside Development Fund of Congressman Ceferino Paredes, Jr. and municipal
counterpart fund and which were newly purchased and in perfect running condition, to
the San Francisco Water District in violation of Section 381 of R.A. 7160, and despite
the subsequent nullification of SB Resolution No. 95-27 by the Sangguniang
Panlalawigan of Agusan del Sur and the repeated demands by the municipal
government of Bunawan, accused Elmer T. Luzon and the San Francisco Water District
refused to surrender the afore-enumerated motor vehicle and motorcycles to the
Municipality of Bunawan, thereby depriving it of the possession, ownership and use
thereof, to the damage and prejudice of said local government unit.
CONTRARY TO LAW.[11]
All the accused posted their respective bail for their provisional liberty, with the
exception
of
Orot
who
died
on
June
28,
1998. [12]
On April 16, 1999, Bustillo, Billedo, Tortor and Sumilhig entered pleas of "Not Guilty". [13]
During pre-trial conference[14] held on June 7, 1999, the following facts were admitted
by both the prosecution and the defense:
"1) At the time material to this case all the accused are public officers namely, Anuncio
C. Bustillo as Municipal Mayor and Agustin Billedo, Jr., as Vice Mayor, Teogenes Tortor
and Emilio Sumilhig, Jr., as members of the Sangguniang Bayan all of the Municipality
of
Bunawan,
Agusan
del
Sur;
2) That during the local election held on May 8, 1995, accused Anuncio C. Bustillo was
not re-elected as Mayor of the Municipality of Bunawan, Agusan del Sur;
3) That on May 17, 1995, the Sangguniang Bayan of Bunawan, Agusan del Sur, during
its 17 th regular session passed Resolution No. 95-27 transferring without any
consideration and cost to the San Francisco Water District the following properties: one
(1) unit of Tamaraw Toyota FX and six (6) units of Kawasaki Motorcycles; Accused
Agustin Billedo, Jr., Teogenes Tortor and Emilio Sumilhig, Jr., were among the members
of
the
said
council
who
voted
to
approve
said
Resolution;
4) That on June 19, 1995, accused Anuncio C. Bustillo in behalf of the Municipality of
Bunawan, Agusan del Sur executed a Deed of Transfer relative to the above mentioned
vehicles in favor of San Francisco Water District represented by Elmer T. Luzon, General
Manager;
5) That on July 27, 1995, the Sangguniang Panlalawigan of Agusan del Sur in its
3rdregular session passed Resolution No. 183, series of 1995 disapproving Sangguniang
Bayan
Resolution
No.
95-27
of
the
Municipality
of
Bunawan;
6) That on August 17, 1995, the Sangguniang Panlalawigan of Agusan del Sur passed
Resolution No. 246, series of 1995, canceling and declaring the aforementioned Deed of
Transfer executed by and between the Municipality of Bunawan and San Francisco
Water
District
as
null
and
void;
7) That, in a letter dated July 11, 1995, of Leonardo Barrios, Municipal Mayor of
Bunawan, Agusan del Sur addressed to the Director of San Francisco Water District, it
was requested that the subject Tamaraw FX and Kawasaki Motorcycles owned by the
Municipality of Bunawan, Agusan del Sur be returned to the Municipality of Bunawan;
8) That in response to said letter dated July 11, 1995, of Municipal Mayor Leonardo
Barrios, Antonio Tao-Tao, Acting Board Secretary of San Francisco Water District on his
letter dated July
16,
1995,
refused to
return the
subject vehicles;
9) That the subject vehicles are all newly purchased and serviceable and in good
running condition at the time of the transfer in question;"
The other set of facts agreed upon were:

a) That the purchase price or value of the Toyota Tamaraw FX was P400,000.00 and the
six (6) units Kawasaki Motorcycles P305,100.00, or a total purchase price or value of
P705,100.00
Pesos;
b) That Resolution No. 95-27 was unanimously approved by the members of the
Sangguniang Bayan of Bunawan, Agusan del Sur and was not judicially declared null
and void.
On June 15, 1999, the SFWD executed a Deed of Donation [15] effecting the transfer of
the aforesaid vehicles in favor of the Municipality of Bunawan because according to
SFWD, the water projects funded by the CDF of Congressman Paredes were already
completed.
Thereafter,
Luzon
and
Amador
also
entered
pleas
of
"Not
Guilty".
On December 9, 1999, the Sandiganbayan was informed of the death of Tortor.[16]

During trial, the prosecution presented three witnesses, namely: 1) Florencia Ilorde, 2)
Lilia J. Nacorda, and 3) Leonardo Barrios. After the testimonies of the witnesses and the
admission
of
its
exhibits,
the
prosecution
rested
its
case. [17]
On December 6, 1999, herein petitioners filed a Demurrer to Evidence [18] but it was
denied[19] for lack of merit. Luzon's Demurrer to Evidence [20] was likewise denied on
February 4, 2000.[21] Thus, the defense presented its evidence. Four witnesses, namely:
1) Luzon, 2) Benigno G. Asis, 3) Sumilhig, and 4) Ceferino S. Paredes, were presented
along
with
other
exhibits.
Ruling
of
the
Sandiganbayan
On July 31, 2003, the Sandiganbayan rendered its Decision[22] finding petitioners guilty
beyond reasonable doubt of violation of Section 3(e) of RA 3019. Luzon and Amador
were acquitted for failure of the prosecution to prove their guilt beyond reasonable
doubt. The case against Tortor and Orot was dismissed on account of their demise.
Petitioners filed a Motion for Reconsideration [23] which was denied in a Resolution dated
November 6, 2003. [24]
Issue
Hence this Petition for Review on Certiorari faulting the Sandiganbayan for finding
petitioners guilty of violation of Section 3(e) of RA 3019.
Our Ruling
The Sandiganbayan based its conviction of (Mayor) Bustillo, (Vice-Mayor) Billedo and
(Councilor) Sumilhig on the finding that they conspired to effect the transfer of the
vehicles to the prejudice of the Municipality of Bunawan in violation of the provision of
Section
3(e)
of
RA
3019.
Section 3 (e) of RA 3019 provides:

Section 3. Corrupt practices of public officers. - In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
x
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference in
the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
The elements of the offense are as follows: (1) that the accused are public
officers or private persons charged in conspiracy with them; (2) that said
public officers commit the prohibited acts during the performance of their
official duties or in relation to their public positions; (3) that they caused
undue injury to any party, whether the Government or a private party; (4)
that such injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and (5) that the public officers have acted with
manifest partiality, evident bad faith or gross inexcusable negligence. [25]
In this case, only the first element was proven. At the time material to this case, all the
petitioners are public officers, namely, Bustillo as Municipal Mayor, Billedo as Vice
Mayor,
and
Sumilhig
as
member
of
the Sangguniang
Bayan.
All the other elements were not present. It cannot be denied that the transfer of the
vehicles to SFWD was made in furtherance of the purpose for which the funds were
released which is "to help in the planning, monitoring and coordination of the
implementation of the waterworks projects located throughout the Province of Agusan
del Sur." The Deed of Donation expressly provided that the subject vehicles shall be
used
for
the
same
purpose
for
which
they
were
purchased.
Moreover, the transfer was made to ensure the success of the implementation of the
CDF-funded waterworks projects of the province of Agusan del Sur. In the Memorandum
of Agreement dated February 10, 1993, SFWD was designated to implement, control or
supervise all the CDF-funded waterworks projects. Clearly, the vehicles were donated to
SFWD not because it was given any preference, unwarranted benefits or undue
advantage,
but
in
recognition
of
its
technical
expertise.
We find no evidence on record which would show that petitioners were motivated by
bad faith when they transferred the vehicles to SFWD. Bustillo, as Mayor, is authorized
by law to enter into contracts for and in behalf of the local government unit. Billedo, as
Vice Mayor, acted as the Presiding Officer of the Sangguniang Bayan and did not even
vote for the passage of Resolution No. 95-27. Said Resolution was unanimously passed
by the Sangguniang Bayan and Sumilhig was only one of those who voted for its
passage.
In sum, the petitioners have in their favor the presumption of regularity in the
performance of official duties which the records failed to rebut. The presumption
of regularity of official acts may be rebutted by affirmative evidence of irregularity or
failure to perform a duty. The presumption, however, prevails until it is overcome by no
less than clear and convincing evidence to the contrary. Thus, unless the presumption
in rebutted, it becomes conclusive. Every reasonable intendment will be made in
support of the presumption and in case of doubt as to an officer's act being lawful or
unlawful,
construction
should
be
in
favor
of
its
lawfulness. [26]
WHEREFORE, the July 31, 2003 Decision of the Sandiganbayan in Criminal Case No.
24741 and its November 6, 2003 Resolution are REVERSED and SET ASIDE.
Petitioners Anuncio C. Bustillo, Agustin Billedo, Jr. and Emilio Sumilhig, Jr., are
hereby acquitted for failure to prove their guilt beyond reasonable doubt.
SO ORDERED.
PEDRO G. SISTOZA, petitioner, vs. ANIANO DESIERTO in his

capacity
as
Ombudsman,
and
ELISEO
CO, respondents.
DECISION
BELLOSILLO, J.:
There is no question on the need to ferret out and expel public officers
whose acts make bureaucracy synonymous with graft in the public eye, and
to eliminate systems of government acquisition procedures which covertly
ease corrupt practices. But the remedy is not to indict and jail every person
who happens to have signed a piece of document or had a hand in
implementing routine government procurement, nor does the solution fester
in the indiscriminate use of the conspiracy theory which may sweep into jail
even the most innocent ones. To say the least, this response is excessive
and
would
simply
engender
catastrophic
consequences
since prosecution will likely not end with just one civil servant but must,
logically, include like an unsteady streak of dominoes the department
secretary, bureau chief, commission chairman, agency head, and all chief
auditors who, if the flawed reasoning were followed, are equally culpable for
every crime arising from disbursements they sanction.
Stretching the argument further, if a public officer were to personally

examine every single detail, painstakingly trace every step from inception,
and investigate the motives of every person involved in a transaction before
affixing his signature as the final approving authority, if only to avoid
prosecution, our bureaucracy would end up with public managers doing
nothing else but superintending minute details in the acts of their
subordinates. It is worth noting that while no charges of violation of Sec. 3,
par. (e), of RA 3019 otherwise known as the Anti-Graft and Corrupt Practices
Act, as amended, were filed against the responsible officials of the
Department of Justice and officers of other government agencies who
similarly approved the procurement subject of the instant petition and
authorized the disbursement of funds to pay for it, all the blame
unfortunately fell upon petitioner Pedro G. Sistoza as then Director of the
Bureau of Corrections who merely acted pursuant to representations made
by three (3) office divisions thereof, in the same manner that the other
officials who were not charged but who nonetheless authorized the
transaction in their respective capacities, relied upon the assurance of
regularity made by their individual subordinates.
In truth, it is sheer speculation to perceive and ascribe corrupt intent and
conspiracy of wrongdoing for violation of Sec. 3, par. (e), of the Anti-Graft
and Corrupt Practices Act, as amended, solely from a mere signature on a
purchase order, although coupled with repeated endorsements of its
approval to the proper authority, without more, where supporting documents
along with transactions reflected therein passed the unanimous approval of
equally accountable public officers and appeared regular and customary on
their face.
Stated otherwise, in situations of fallible discretion, good faith is
nonetheless appreciated when the document relied upon and signed shows
no palpable nor patent, no definite nor certain defects or when the public
officer's trust and confidence in his subordinates upon whom the duty
primarily lies are within parameters of tolerable judgment and permissible
margins of error. As we have consistently held, evidence of guilt must be
premised upon a more knowing, personal and deliberate participation of
each individual who is charged with others as part of a conspiracy.
Furthermore, even if the conspiracy were one of silence and inaction
arising from gross inexcusable negligence, it is nonetheless essential to
prove that the breach of duty borders on malice and is characterized by
flagrant, palpable and willful indifference to consequences insofar as other

persons may be affected. Anything less is insufferably deficient to establish
probable cause. Thus, when at the outset the evidence offered at
preliminary investigation proves nothing more than the signature of a public
officer and his statements verifying the regularity of prior procedure on the
basis of documents apparently reliable, the prosecution is duty-bound to
dismiss the affidavit-complaint as a matter of law and spare the system
meant to restore and propagate integrity in public service from the
embarrassment of a careless accusation of crime as well as the unnecessary
expense of a useless and expensive criminal trial.
This petition for certiorari and prohibition stemmed from a routine
purchase of tomato paste to be used as ingredient in the austere diet of the
inmates of the New Bilibid Prison. On 10 August 1999 the Pre-Qualification,
Bid and Awards Committee (PBAC) of the Bureau of Corrections offered for
public bidding the supply of tomato paste in addition to other food items for
consumption in the month of September. Among the bidders were RBJJ, PMS
Trading Enterprises, Filcrafts Industries, Inc., and Elias General
Merchandising. The specification for tomato paste appearing in the bid
announcement and the bid tender form where it appeared as item 55 was
48/170 tins-grams to one (1) case.
[1]
The offers of the respective bidders were embodied in their individual bid
tender forms securely placed inside sealed envelopes. Elias General
Merchandising offered a bid ofP1,350.00 for 100/170 tins-grams to one (1)
case while RBJJ and PMS Trading Enterprises tendered their respective bids
for the same quantity at the higher prices of P1,380.10 andP1,380.05 per
case. On the other hand, Filcrafts Industries, Inc., proffered P539.00 for the
quantity of 48/198 tins-grams to one (1) case. It appears that the bid tender
form executed by Elias General Merchandising and submitted to PBAC
already indicated a change in the quantity specification from 48/170 tinsgrams to 100/170 tins-grams which PBAC approved as shown by the initials
of the chairman and members thereof. In the same breadth, PBAC rejected
the bid of Filcrafts Industries, Inc., for offering a non-registered brand of
tomato paste in the Philippines and its failure to specify in the bid tender
form the country of origin of the tomato paste it would supply.
[2]
[3]
[4]
Based on the abstract of bidding, Elias General Merchandising won the

bidding with its offer of P1,350.00 for 100/170 tins-grams to one (1) case.
On 13 August 1999 the Supply Division of the Bureau of Corrections thus
[5]
prepared the purchase order (PO No. C-99-0140) for the one (1)-month
supply of tomato paste in favor of Elias General Merchandising. It reflected
the supplier's winning offer of P1,350.00 for 100/170 tins-grams to one (1)
case and no longer the initial specification of 48/170 tins-grams. The
Management Division of the Bureau of Corrections passed upon the purchase
order and confirmed the regularity of the procedures previously undertaken,
while the Accounting Division authorized the funding of the purchase order.
Petitioner Sistoza received the purchase order and its supporting
documents, cursorily read them and thereafter affixed his signature on the
purchase order. On 2 September 1999 PBAC issued a resolution noting that
Elias General Merchandising "in all angles x x x greatly complied with the
specifications provided" thereby confirming its winning bid for the monthlong supply of tomato paste.
[6]
[7]
[8]
[9]
Petitioner Sistoza endorsed the winning bid of Elias General

Merchandising to the Department of Justice which initially disapproved the
same. The Justice Department observed that the award to the supplier with
only the second lowest bid was not adequately justified in the 2 September
1999 resolution of the PBAC. The purchase order was thus returned to the
Supply Division which then informed Elias General Merchandising of the
development. The winning bidder replied to the Supply Division and
expressed its willingness to "meet the price of the lowest bidder for item No.
55, tomato paste which is more or less P1,120.00/box for 100 cans/170
grams." The Supply Division proposed in return the price of P964.12/box of
100 cans/170 grams supposedly matching the lowest bid of Filcrafts
Industries Inc. Elias General Merchandising rejected the counter-offer and
pegged its price offer at P1,120.00 for 100 cans/170 grams.
[10]
[11]
On 29 October 1999 petitioner endorsed to the Department of Justice the

purchase order in favor of Elias General Merchandising and conveyed the
supplier's discounted offer ofP1,120.00 for 100 cans/170 grams. He also
alluded to the fact that the tomato paste had been delivered to the New
Bilibid Prison and already consumed by its inmates. For the second time, the
Justice Department disapproved the endorsement notwithstanding the
reduced price since Elias General Merchandising allegedly remained to be
only the second lowest bidder.
[12]
On 29 November 1999 Sistoza endorsed for the third time the purchase
order of tomato paste in favor Elias General Merchandising to the
Department of Justice. He said -
The Pre-Qualification, Bid and Awards Committee in its resolution

dated 2 September 1999 states that Item No. 55 (tomato paste) was
awarded to Elias General Merchandise in spite of being the 2nd
lowest bidder due to the fact that the offer of Filcrafts Industries, Inc.
does not conform [to] the specification provided for in the purchase
orders. The lowest bidder makes a counter-offer while Elias General
Merchandise complied with all the requirements and specifications
set forth [in the] said item. Copy of the said resolution is attached
for your reference. The dealer on its part, since it is questioned for
being awarded to the second lowest bidder, offered to reduce [its]
price from P1,350.00/box (100 tins per box of 170 grams per tin to
P1,120.00/box) x x x x
He again appealed for the approval of the purchase order emphasizing
that the tomato paste had been used for the subsistence of the inmates of
the New Bilibid Prison for the month of September.
On 8 December 1999 Undersecretary of Justice Ramon J. Liwag finally
approved the purchase order for the tomato paste in favor of Elias General
Merchandising at the reduced price of P1,120.00 per case for two hundred
fifteen (215) cases or a total of P240,800.00. Consequently, Disbursement
Voucher No. 99100393 was prepared by the Bureau of Corrections for the
obligation of P240,800.00 and Land Bank Check No. 082195-QQ dated 17
December 1999 was paid to Elias General Merchandising.
On 22 September 1999 while efforts to secure the approval of the
purchase order were being undertaken, respondent Eliseo Co, a perennial
bidder for supply of food items of the New Bilibid Prison, filed an affidavitcomplaint with the Office of the Ombudsman alleging criminal and
administrative charges for violation of Sec. 3, par. (e), RA 3019, otherwise
known as theAnti-Graft and Corrupt Practices Act, against petitioner Pedro G.
Sistoza as Director of the Bureau of Corrections and officers and members of
its Supply Division and PBAC. He claimed that Sistoza and his staff
conspired with each other to cause undue injury to the government and the
inmates of the New Bilibid Prison by giving undue advantage to Elias General
Merchandise although its bid was higher in price and lower in quantity than
that offered by Filcrafts Industries, Inc.
[13]
On 7 July 2000 the Office of the Ombudsman dismissed the

administrative proceedings, docketed as OMB-ADM-0-99-1130, against
petitioner Sistoza and some of his co-respondents therein on the ground that
their actions in awarding the supply of tomato paste to Elias General
Merchandising, although its bid was not the lowest, were merely
recommendatory and that they were effectively scrutinized and validated
when the award was eventually approved by the Department of Justice.
On 29 November 1999, after counter-affidavits and supporting
documents had been filed in the criminal proceedings, docketed as OMBCase No. 0-99-1985, the Evaluation and Preliminary Investigation Bureau
(EPIB), Office of the Ombudsman, issued a resolution recommending the
prosecution of petitioner Sistoza and his co-respondents therein with the
exception of the Chief of the Supply Division for violation of Sec. 3, par.
(e), RA 3019. The EPIB asserted that a failure of bidding should have been
decreed since Elias General Merchandising did not comply with the original
specification of 48/170 tins-grams when it submitted a bid of 100/170 tinsgrams in the same manner that Filcrafts Industries, Inc., did not abide by
several provisions of the bid announcement and that the offer of Elias
General Merchandising should have been rejected since it tendered a price
higher than the bid of Filcrafts Industries, Inc. The EPIB concluded that these
anomalies were fairly obvious from supporting documents showing why and
how the supply of tomato paste was awarded to Elias General Merchandising
and that Sistoza with no greater effort than to look casually at these
documents would have discovered the irregularity of the award.
On 29 March 2000 the Office of the Special Prosecutor (OSP), Office of the
Ombudsman, rendered a memorandum concurring with the findings of the
EPIB in its Resolution of 29 November 1999. It stressed the deviation of the
offer of the supposed winning bidder from the specification of 48/170 tinsgrams and the seemingly irregular preparation of the purchase order ahead
of the 2 September 1999 PBAC Resolution formally awarding the supply of
tomato paste to Elias General Merchandising. The OSP also claimed that
petitioner Sistoza failed to disclose in any of his endorsements of the bidding
to the Department of Justice that the discounted offer of Elias General
Merchandising at P1,120.00 for 100 cans/170 grams was still higher than the
price quoted by Filcrafts Industries, Inc., a fact which petitioner could have
easily found out and conveyed from the counter-proposal made by the
Supply Division to Elias General Merchandising at P964.12/box of 100
cans/170 grams purportedly to match the lowest bid of Filcrafts Industries,

Inc.
On 8 May 2000 the Office of the Chief Legal Counsel, Office of the
Ombudsman,
recommended
approval
of
the
29
March
2000
OSP Memorandum. On 7 June 2000 the Ombudsman authorized the filing of
the appropriate Information against Sistoza and his alleged coconspirators. On 14 June 2000 the Information was filed with the
Sandiganbayan, docketed as Crim. Case No. 26072, accusing Sistoza of the
following acts -
That on or about August 10, 1999 or immediately prior or

subsequent thereto, in Muntinlupa City, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, accused x x x
together with accused Director PEDRO SISTOZA and Supply Division
Chief x x x conspiring and confederating with one another, while in
the performance of their official duties, did then and there willfully,
unlawfully and criminally, with manifest partiality and evident bad
faith made it possible for Elias General Merchandising to qualify and
be the winning bidder in the supply of tomato paste for the
subsistence of prisoners for the month of September 1999 x x x
accused PEDRO SISTOZA, knowing fully well that Elias General
Merchandise was only the second lowest bidder and that the
subsequent offer by the said supplier of the reduced price
of P1,120.00 for 100/170 grams per case was still higher than the
offer of Filcrafts Industries, Inc. at P964.12 for 100/170 grams per
case as computed by accused [Supply Division Chief], still
recommended the approval of Purchase Order No. 0-99-140 to the
Department of Justice and subsequently resulted in the approval
thereof, hence Disbursement Voucher No. 9910093 in the amount
of P240,800.00 was approved by accused PEDRO SISTOZA, and Land
Bank Check No. 082195-QQ was issued to Elias General
Merchandising, thereby giving said supplier unwarranted benefit,
advantage and preference of the Government in the amount
of P46,381.95 x x x x
On 22 June 2000 Sistoza filed with the Sandiganbayan a motion for

reinvestigation and suspension of proceedings therein. The court a
quo granted reinvestigation and referred the matter to the Ombudsman but
denied the prayer for suspension of the proceedings. Accordingly, on 11 July
2000 Sistoza filed an amplified motion for reconsideration with the Office of
the Special Prosecutor but this was also denied on 8 August 2000. On 25
August 2000 the Ombudsman affirmed the denial. Hence, this petition.
On 18 October 2000 this Court issued a temporary restraining order
enjoining the Sandiganbayan from conducting further proceedings in Crim.
Case No. 26072 against petitioner Sistoza in order not to render the instant
petition academic and futile.
Petitioner Sistoza argues that he had no active participation in the award
of the supply of tomato paste to Elias General Merchandising and that his
involvement was limited to signing the purchase order for this food item. He
claims that upon receipt of the purchase order, he cursorily perused the
document and readily affixed his signature on it since the purchase order had
already passed the scrutiny of three (3) office divisions of the Bureau of
Corrections, namely, the Supply Division, Management Division and
Accounting Division. He concludes that as a matter of law his signature on
the purchase order, without more, does not prove any violation of Sec. 3, par.
(e), RA 3019.
It is settled that the preliminary investigation proper, i.e., the
determination of whether there is reasonable ground to believe that the
accused is guilty of the offense charged and should be subjected to the
expense, rigors and embarrassment of trial, is the function of the
prosecution. For criminal cases falling within the jurisdiction of the
Sandiganbayan, it is the Office of the Special Prosecutor, as an organic
component of the Office of the Ombudsman, which exercises investigatory
and prosecutory powers. Concomitantly, as a general rule, this Court does
not interfere with the Ombudsman's determination of the existence or
absence of probable cause. The strict application of this rule, insofar as the
Ombudsman is concerned, is not a trivial matter. In the instant case, we see
this principle at work when the Sandiganbayan deferred to the authority of
the prosecution to exercise investigatory powers when it granted petitioner
Sistoza's motion for reinvestigation.
[14]
As in every rule, however, there are settled exceptions. Hence, the

principle of non-interference does not apply when there is grave abuse of
discretion which would authorize the aggrieved person to file a petition for
certiorari and prohibition under Rule 65, 1997 Rules of Civil Procedure. There
is grave abuse of discretion where power is exercised in an arbitrary,
capricious, whimsical or despotic manner by reason of passion or personal
hostility, patent and gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by law. When the Ombudsman does not
take essential facts into consideration in the determination of probable
cause, it has been ruled that he gravely abuses his discretion.
[15]
[16]
[17]
Section 3, par. (e), RA No. 3019 defines "corrupt practices of public

officers." It provides-
In addition to acts or omissions of public officers already penalized

by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful x x x x (e)
Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the
grant of licenses or permits or other concessions.
The elements of the offense are: (a) The accused is a public officer or a
private person charged in conspiracy with the former; (b) The public officer
commits the prohibited acts during the performance of his or her official
duties or in relation to his or her public functions; (c) That he or she causes
undue injury to any party, whether the government or a private party; (d)
Such undue injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and, (e) That the public officer has acted with
manifest partiality, evident bad faith or gross inexcusable neglect. Evidently,
mere bad faith or partiality and negligence per se are not enough for one to
be held liable under the law since the act of bad faith or partiality must in the
first place be evident or manifest, respectively, while the negligent deed
should both be gross and inexcusable. It is further required that any or all of
these modalities ought to result in undue injury to a specified party.
[18]
We note that the Information against petitioner Sistoza, while

specifying manifest partiality and evident bad faith, does not allege gross
inexcusable negligence as a modality in the commission of the offense
charged. An examination of the resolutions of the Ombudsman would
however confirm that the accusation against petitioner is based on his
alleged omission of effort to discover the supposed irregularity of the award
to Elias General Merchandising which it was claimed was fairly obvious from
looking casually at the supporting documents submitted to him for
endorsement to the Department of Justice. And, while not alleged in
the Information, it was evidently the intention of the Ombudsman to take
petitioner to task for gross inexcusable negligence in addition to the two (2)
other modalities mentioned therein. At any rate, it bears stressing that Sec.
3, par. (e), RA 3019, is committed either by dolo or culpa and although
the Information may have alleged only one (1) of the modalities of
committing the offense, the other mode is deemed included in the
accusation to allow proof thereof.
[19]
In the instant case, there is no direct evidence that petitioner Sistoza

acted in conspiracy with the officers and members of the PBAC and the other
implicated public officials. He did not himself participate in the bidding
procedures nor was he involved in the award of the supply of tomato paste
to Elias General Merchandising. Plainly, the accusation against him rests
upon his signature on the purchase order and his repeated endorsements
thereof notwithstanding his knowledge that the winning bidder did not offer
the least price. The Ombudsman concluded that these acts constituted
manifest partiality, evident bad faith, or even gross inexcusable negligence
resulting in undue injury to the government.
We disagree with the conclusions of the Office of the Ombudsman. We
have meticulously analyzed the arguments raised by the parties in the
various pleadings and motions, together with their documentary evidence,
which all formed the basis for the issuance of the questioned resolutions, and
we are convinced that no probable cause exists to warrant the filing of
charges against petitioner Sistoza for violation of Sec. 3, par. (e), RA 3019.
To begin with, before manifest partiality, evident bad faith or gross
inexcusable negligence may even be considered, the Office of the
Ombudsman should determine with certainty the facts indicative of the
modalities of committing a transgression of the statute.
Simply alleging each or all of these methods is not enough to establish

probable cause, for it is well settled that allegation does not amount to
proof. Nor can we deduce any or all of the modes from mere speculation or
hypothesis since good faith on the part of petitioner as with any other person
is presumed. The facts themselves must demonstrate evident bad faith
which connotes not only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will.
[20]
On the other hand, gross inexcusable negligence does not signify mere
omission of duties nor plainly the exercise of less than the standard degree
of prudence. Rather, it refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where there is
a duty to act, not inadvertently but willfully and intentionally, with conscious
indifference to consequences insofar as other persons may be affected. It
entails the omission of care that even inattentive and thoughtless men never
fail to take on their own property, and in cases involving public officials it
takes place only when breach of duty is flagrant and devious.
[21]
[22]
Clearly, the issue of petitioner Sistoza's criminal liability does not depend
solely upon the allegedly scandalous irregularity of the bidding procedure for
which prosecution may perhaps be proper. For even if it were true and
proved beyond reasonable doubt that the bidding had been rigged, an issue
that we do not confront and decide in the instant case, this pronouncement
alone does not automatically result in finding the act of petitioner similarly
culpable. It is presumed that he acted in good faith in relying upon the
documents he signed and thereafter endorsed. To establish a prima
facie case against petitioner for violation of Sec. 3, par. (e), RA 3019, the
prosecution must show not only the defects in the bidding procedure, a
circumstance which we need not presently determine, but also the alleged
evident bad faith, gross inexcusable negligence or manifest partiality of
petitioner in affixing his signature on the purchase order and repeatedly
endorsing the award earlier made by his subordinates despite his knowledge
that the winning bidder did not offer the lowest price. Absent a wellgrounded and reasonable belief that petitioner perpetrated these acts in the
criminal manner he is accused of, there is no basis for declaring the
existence of probable cause.
As defined above, the acts charged against petitioner do not amount to
manifest partiality, evident bad faith nor gross inexcusable negligence which
should otherwise merit a prosecution for violation of Sec. 3, par. (e), RA

3019. It is not disputed that petitioner relied upon supporting documents
apparently dependable as well as certifications of regularity made by
responsible public officers of three (3) office divisions of the Bureau of
Corrections before affixing his signature on the purchase order. In Alejandro
v. People, evident bad faith was ruled out because the accused gave his
approval to the questioned disbursement after relying on the certification of
the bookkeeper on the availability of funds for the expenditure and since the
act of relying upon a subordinate's certification of regularity cannot be
considered gross inexcusable negligence. In Magsuci v. Sandiganbayan this
Court similarly rejected the theory of criminal liability where the head of
office in discharging his official duties relied upon an act of his subordinate.
[23]
[24]
The fact that petitioner had knowledge of the status of Elias General
Merchandising as being only the second lowest bidder does not ipso
facto characterize petitioner's act of reliance as recklessly imprudent without
which the crime could not have been accomplished. Albeit misplaced,
reliance in good faith by a head of office on a subordinate upon whom the
primary responsibility rests negates an imputation of conspiracy by gross
inexcusable negligence to commit graft and corruption. As things stand,
petitioner is presumed to have acted honestly and sincerely when he
depended upon responsible assurances that everything was aboveboard
since it is not always the case that second best bidders in terms of price are
automatically disqualified from the award considering that the PBAC reserves
the authority to select the best bid not only in terms of the price offered but
other factors as well. In fact, while we do not decide the truth of this
assertion, it is worth noting that the PBAC Chairman and members would
allege that Filcrafts Industries, Inc., offered an unacceptable and unusable
product as its bid, a representation upon which petitioner could have relied
upon in assessing the propriety of the process handled by his co-workers in
the Bureau of Corrections.
[25]
[26]
[27]
[28]
Verily, even if petitioner erred in his assessment of the extrinsic and

intrinsic validity of the documents presented to him for endorsement, his act
is all the same imbued with good faith because the otherwise faulty reliance
upon his subordinates, who were primarily in charge of the task, falls within
parameters of tolerable judgment and permissible margins of error. Stated
differently, granting that there were flaws in the bidding procedures, an issue
which we leave to the Sandiganbayan to decide as against the other accused
therein, there was no cause for petitioner Sistoza to complain nor dispute the
choice nor even investigate further since neither the defects in the process
nor the unfairness or injustice in the actions of his subalterns are definite,
certain, patent and palpable from a perusal of the supporting
documents. Benjamin N. Cardozo would have explained that "[w]hen x x x
we speak of the law as settled, though, no matter how great the apparent
settlement, the possibility of error in the prediction is always present." Given
that the acts herein charged failed to demonstrate a well-grounded belief
that petitioner had prima facie foreknowledge of irregularity in the selection
of the winning bid other than the alleged fact that such bid was not the
lowest, we cannot conclude that he was involved in any conspiracy to rig the
bidding in favor of Elias General Merchandising.
The instant case brings to the fore the importance of clearly
differentiating between acts simply negligent and deeds grossly and
inexcusably negligent punishable under Sec. 3, par. (e), of the Anti-Graft and
Corrupt Practices Act. While we do not excuse petitioner's manner of
reviewing the award of the supply of tomato paste in favor of Elias General
Merchandising, whereby he cursorily perused the purchase order and readily
affixed his signature upon it, since he could have checked the supporting
documents more lengthily, it is our considered opinion that his actions were
not of such nature and degree as to be considered brazen, flagrant and
palpable to merit a criminal prosecution for violation of Sec. 3, par. (e), of RA
3019. To paraphrase Magsuci v. Sandiganbayan, petitioner might have
indeed been lax and administratively remiss in placing too much reliance on
the official documents and assessments of his subordinates, but for
conspiracy of silence and inaction to exist it is essential that there must be
patent and conscious criminal design, not merely inadvertence, under
circumstances that would have pricked curiosity and prompted inquiries into
the transaction because of obvious and definite defects in its execution and
substance. To stress, there were no such patent and established flaws in the
award made to Elias General Merchandising that would have made his
silence tantamount to tacit approval of the irregularity.
[29]
[30]
It is also too sweeping to conclude the existence of conspiracy from the

endorsements made by petitioner Sistoza to the Department of Justice of the
result of the bidding. Fairly evident is the fact that this action involved the
very functions he had to discharge in the performance of his official
duties. Furthermore,
contrary
to
the
allegation
that
petitioner
misrepresented key facts to the Department of Justice, it is clear that his
references to the price offered by Elias General Merchandising and the
rejection of the bid of Filcrafts Industries, Inc., were supported by documents

noted in and attached to his endorsements. Hence, there was no way by
which the approving authority, i.e., the Department of Justice, could have
been misled by him. Clearly, to prosecute him for violation of Sec. 3, par.
(e), RA 3019, on the basis of his endorsements would be the same as
pegging his criminal liability on a mere signature appearing on the
document. In Sabiniano v. Court of Appeals we held that a signature on a
voucher, check or warrant, even if required by law to be affixed thereon, is
not enough to sustain a finding of conspiracy among public officials and
employees charged with defraudation. We further ruled [31]
x x x x Proof, not mere conjectures or assumptions, should be

proffered to indicate that the accused had taken part in, to use this
Court's words in Arias v. Sandiganbayan, the "planning, preparation
and perpetration of the alleged conspiracy to defraud the
government" for, otherwise, any "careless use of the conspiracy
theory (can) sweep into jail even innocent persons who may have
(only) been made unwitting tools by the criminal minds" really
responsible for that irregularity x x x x
[32]
Since petitioner had no reason to doubt the validity of the bidding

process and given the urgency of the situation since the tomato paste had by
then been delivered and consumed by the inmates of the New Bilibid Prison,
we certainly cannot infer malice, evident bad faith or gross inexcusable
negligence from his signing of the purchase order and endorsing the same to
the Department of Justice. Considering that his duties as Director of the
Bureau of Corrections entailed a lot of responsibility not only on the
management side but also in the rehabilitation and execution of convicted
prisoners, public relations and other court-imposed duties, it is unreasonable
to require him to accomplish direct and personal examination of every single
detail in the purchase of a month-long supply of tomato paste and to carry
out an in-depth investigation of the motives of every public officer involved
in the transaction before affixing his signature on the pro-forma documents
as endorsing authority.
To illustrate the detailed work that this proposition would have entailed,
the tomato paste was only item 55 in a partial list of sixty-four (64) other
food items for the month of September alone. In the instant case, petitioner
has no duty to go beyond the verification of the PBAC and to personally
authenticate the procedures previously undertaken. To compel him to

perform such task, i.e., review personally the bidding procedure for each of
these items in all cases and instances as the Ombudsman seems to suggest,
would have meant consuming all his time attending only to the meals of
prisoners. Necessarily, since workload is expectedly heavy, duties have to
be delegated among the different offices for utmost efficiency in the prison
system, an organizational scheme upon which petitioner was entitled to trust
and rely upon for the discharge of his own duties. Indeed the Ombudsman
gravely abused its discretion when he found probable cause against
petitioner Sistoza despite the presence of essential facts negating evident
bad faith, manifest partiality and gross inexcusable negligence, which were
all disregarded.
Having thus concluded, the only remaining issue is whether this Court
can direct the Sandiganbayan to dismiss Crim. Case No. 26072 as against
petitioner Sistoza. This will not be the first time that we order the dismissal
of a criminal case being heard by a trial court for want of probable cause,
and there is no reason not to prescribe the same justified outcome in the
instant petition. In Cabahug v. People where this Court ordered the
dismissal of a criminal case pending before the Sandiganbayan for absence
of probable cause, we declared [33]
While it is the function of the Ombudsman to determine whether or

not the petitioner should be subjected to the expense, rigors and
embarrassment of trial, he cannot do so arbitrarily. This seemingly
exclusive and unilateral authority of the Ombudsman must be
tempered by the Court when powers of prosecution are in danger of
being used for persecution. Dismissing the case against the
accused for palpable want of probable cause not only spares her the
expense, rigors and embarrassment of trial, but also prevents
needless waste of the courts time and saves the precious resources
of the government x x x x [T]he very purpose of a preliminary
investigation is to shield the innocent from precipitate, spiteful and
burdensome prosecution x x x [and] spare the innocent the trouble,
expense and torment of a public trial [as well as] unnecessary
expense on the part of the State for useless and expensive
trials. Thus, when at the outset the evidence cannot sustain a prima
facie case or that the existence of probable cause to form a
sufficient belief as to the guilt of the accused cannot be ascertained,

the prosecution must desist from inflicting on any person the trauma
of going through a trial.
In the interest of a fair and just prosecution we cannot degree otherwise.
WHEREFORE, the instant Petition for Certiorari and Prohibition is
GRANTED. The
29
November
1999 Resolution and
29
March
2000 Memorandum and allied issuances of the Office of the Ombudsman
resolving to charge petitioner PEDRO G. SISTOZA with violation of Sec. 3, par.
(e), of RA 3019 as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, as he was thereafter indicted, are REVERSED and SET
ASIDE. For want of well-founded and reasonable ground to believe that
petitioner PEDRO G. SISTOZA violated Sec. 3, par. (e), of RA 3019 as
amended, or for absence of probable cause therefor, the Sandiganbayan is
ORDERED to DISMISS forthwith Crim. Case No. 26072, entitled "People of the
Philippines v. Pedro Sistoza y Guimmayen, et al.," only as against accused
PEDRO G. SISTOZA, herein petitioner. The 18 October 2000 temporary
restraining order of this Court enjoining the Sandiganbayan from conducting
further proceedings in Crim. Case No. 26072 against petitioner PEDRO G.
SISTOZA is made PERMANENT. This Decision is without prejudice to the
continuation of the proceedings in Crim. Case No. 26072, promptly and
without delay, insofar as the other accused therein are concerned. No
pronouncement as to costs.
SO ORDERED.
THIRD DIVISION
JOSE M. GALARIO,
Petitioner,
G.R. No. 166797

Present:
- versus -
YNARES-SANTIAGO, J.
,
OFFICE
OF
OMBUDSMAN
(Mindanao) and
P. PIANO,
THE
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA,* JJ.
RUTH
Promulgated:
Respon
July 10, 2007
dents.
x---------------------------- --------------------x
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari under Rule 65 of the
1997 Revised Rules of Court seeking the nullification of the (1)
Resolution[1] of the Office of the Ombudsman for Mindanao (OMBMindanao) dated 26 November 2004 finding probable cause to
indict Jose M. Galario, Jr. (petitioner) for violation of Section 3(f) of
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act); and
(2) Order[2] of the same Office dated 7 January 2005 denying
petitioners Motion for Reconsideration. In effect, petitioner, on
injunction against the OMB-Mindanao, prays to prevent said Office
from prosecuting him asserting that there is an abject absence of
probable cause to hold him for trial.
This case originated from an affidavit-complaint filed by Ruth
P. Piano (private respondent) against petitioner resulting in the
institution of administrative and criminal investigations by the
OMB-Mindanao, docketed as OMB-M-A-04-128-G and OMB-M-C-040282-G, respectively.
The following facts are undisputed:

Petitioner was elected on his first term as City Mayor of
Valencia City, Bukidnon, during the May 2001 local elections.
Upon assumption of office, petitioner effected reorganization
and personnel audit of the local bureaucracy. He then
issued two memoranda, both with subject heading
TRANSFER OF ASSIGNMENT and dated 02 July 2001,
addressed to private respondent. In the first memorandum,
petitioner directed:
Effective upon receipt, you are relieved from your
present position as the City Budget Officer and to perform
functions as the City Liaison Officer to do the following
task[s] to wit:
1.
To coordinate with the City Mayor and Department

of Budget and Management and with other
Agencies/Functionaries for the facilitation and
immediate release of our Internal Revenue Allotment
(IRA) and other financial assistance for the different
City projects.
2.
To undergo and submit a study on How to Improve

the Citys Economic Enterprise/Revenue for the
welfare of our people.
3.
To submit, keep the Local Chief Executive abreast

of every transaction[s] relative hereto.
4.
To turn-over all the documents & properties of the

City Budget Office to Mr. Bartolome C. Barte as
Budget Officer in an Acting capacity.
Thus, petitioner created the position of City Liaison Officer to

which he transferred private respondent with the task of
studying and recommending how to improve the economic
enterprises and the local revenue collection efforts of the city.
The second memorandum was of the same tenor as the first

and was a substantial restoration thereof.
Private respondent opposed the two memoranda and filed a
complaint for Constructive Dismissal, Reinstatement to Former
Position and Payment of Representation and Travel Allowance
(RATA) with the Civil Service CommissionRegional Office X (CSCRegional Office). The CSC-Regional Office agreed with private
respondent and by virtue of an Order dated 7 January 2002,
mandated the reinstatement of private respondent to her former
position as City Budget Officer, thus:
WHEREFORE, premises considered, instant appeal is
hereby GRANTED. Accordingly, Mayor Galario is ordered
to REINSTATE Ms. Piano to her previous position as City
Budget Officer and to CAUSE THE PAYMENT OF her RATA
from the time she was deprived of it until her
reinstatement. x x x.[4]
Petitioner then filed a Motion for Reconsideration of the

foregoing Order which was denied by the CSC-Regional Office in
another Order dated 18 February 2002. Petitioner, hence,
appealed the Orders of the CSC-Regional Office dated 7 January
2002 and 18 February 2002 to the CSC-Main Office, which
subsequently dismissed said appeal in Resolution No. 030096
dated 21 January 2003. In Resolution No. 030544 dated 5 May
2003, the CSC denied petitioners Motion for Reconsideration and
affirmed CSC Resolution No. 03-0096 dated 21 January 2003[5]:
WHEREFORE, the appeal of Valencia City Mayor Jose
M. Galario, Jr. is hereby DISMISSED. Civil Service
Commission Regional Office No. X Orders dated January 7,
2002 andFebruary 18, 2002 declaring the Office of the
Mayor Orders both dated July 2, 2001 null and void, stand.
Accordingly, Ruth P. Piano is reinstated to her former

position as City Budget Officer.[6]
Private respondent subsequently moved for the execution of

CSC Resolution No. 030544 dated 5 May 2003 affirming CSC
Resolution No. 030096 dated 21 January 2003.
Even before the CSC could act on private respondents
motion for execution, petitioner issued Memorandum Order No.
07-55 dated 25 July 2003, ordering private respondent to be
reinstated to her former position of City Budget Officer with the
grant of benefits[7] appurtenant to the said position, supposedly in
compliance with CSC Resolution No. 03-0096 dated 21 January
2003. Much later, however, petitioner, in another letter dated 28
July 2003,[8] instructed private respondent not to involve herself in
the signing of documents relating to the citys financial
transactions, citing her pending case [9] with the Office of the
Ombudsman. The task was given to Mr. Bartolome Barte, who
was authorized to sign For the City Budget Officer in the
financial transactions of the city.
In Memorandum Order No. 07-65 dated 30 July 2003,
petitioner directed private respondent to transfer office from the
City Hall Main Building to the Sangguniang Kabataan Building.
Meanwhile, petitioner formally asked the opinion of the CSCRegional Office on whether or not he could legally prohibit private
respondent from signing documents relating to the financial
transactions of the city. In a letter dated 6 October
2003 addressed to petitioner, the CSC-Regional Office opined that
considering that the Office of the Ombudsman had dismissed the
administrative case against private respondent, there was no
more legal impediment to her reinstatement as City Budget
Officer as well as in the performance of her duties as such.
[10]
Thereafter, private respondent filed with the CSC a second

Motion for Execution of its Resolution No. 030096 dated 21
January 2003, resulting in the issuance by the CSC of Resolution
No. 040552 dated 17 May 2004 ordering petitioner to
immediately reinstate private respondent as City Budget Officer.
Petitioner, on the other hand, issued official letters on 24 June
2004 and 02 July 2004 announcing the vacancy of the Office of
the City Budget Officer of Valencia City, prompting private
respondent to file with the CSC a third Motion for Execution of
CSC Resolution No. 030096 dated 21 January 2003 which ordered
her immediate reinstatement as City Budget Officer.
The CSC, in Resolution No. 04-1003 dated 7 September
2004, directed petitioner to allow private respondent to perform
all the duties of a City Budget Officer. The dispositive portion of
said Resolution reads:
WHEREFORE, the Commission hereby directs Mayor
Jose M. Galario, Jr. to allow Piano to perform all the duties
relevant to the position of City Budget Officer and to allow
her to hold office at the City Budget Office. Failure of
Mayor Galario, Jr. to comply with the same would compel
the Commission to cite him in contempt and file the
appropriate charges with the Office of the Ombudsman.
The Civil Service Commission Regional Office No. X is
directed to monitor the strict implementation and
enforcement of this Resolution and to submit a report to
the Commission within ten (10) days from receipt.[11]
Still not satisfied with the latest Resolution of the CSC and
petitioners purported non-compliance with the CSC Order to
reinstate her as City Budget Officer, private respondent went
before the OMB-Mindanao to charge petitioner administratively
(OMB-M-A-04-128-G) and criminally (OMB-M-C-04-282-G) based

on the following allegations:
Oppression, grave misconduct, conduct prejudicial to the
best interests of the government service, and violation of
anti-graft and corrupt practices acts, causing undue injury to
[herein private respondent], and refusing to act upon lawful
order of the Civil Service Commission, to fully implement the
Resolution of the Civil Service Commission, and violation of
ethical standards required of government officials and
employees, under RA6713.
After a preliminary investigation and the submission of

petitioners counter-affidavits and other evidence, the OMBMindanao issued a Resolution dated 26 November 2004 in OMBM-C-04-0282-G, finding as follows WHEREFORE, premises considered, this Office finds
probable cause to indict [herein petitioner] CITY MAYOR
JOSE M. GALARIO, JR., GUILTY of violation of Section 3(f) of
R.A. 3019, as amended.
Accordingly, let the corresponding information be filed
in the Sandiganbayan.[12]
Petitioner thereafter filed a Motion for Reconsideration

praying for the setting aside of the aforestated OMB-Mindanao
Resolution dated 26 November 2004. The OMB-Mindanao
thereafter ruled, in its 7 January 2005 Order, that:
WHEREFORE, premises considered, the Motion for
Reconsideration is hereby DENIED.
The Resolution dated 26 November 2004 is hereby
AFFIRMED.
Here now comes petitioner before this Court via a Petition

for Certiorari under Rule 65 of the revised Rules of Court, raising
the following arguments:
I.
THE OFFICE OF THE OMBUDSMAN-MINDANAO

COMMITTED
GRAVE
ABUSE
OF
DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT RESOLVED THAT PROBABLE CAUSE EXISTS
TO HOLD PETITIONER LIABLE FOR VIOLATION OF
SECTION 3(F) OF R.A. 3019, WHEN IN TRUTH AND IN
FACT, THE ELEMENTS OF THE SUBJECT CRIME DO NOT
EXIST IN THIS CASE AND THAT THERE IS NO FACTUAL
BASIS TO PROVE THE EXISTENCE OF THE ELEMENT OF
FAVORING HIS OWN INTEREST OR GRANTING UNDUE
ADVANTAGE IN FAVOR OF ANOTHER PARTY.
II.
THAT THE OFFICE OF THE OMBUDSMAN FOR

MINDANAO
COMMITTED
GRAVE
ABUSE
OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT INSISTED THAT PETITIONER
FAILED TO HEED THE CSC REINSTATEMENT ORDER OF
17 MARCH 2004[13] WHEN IN TRUTH AND IN FACT,
THERE IS BOTH A LEGAL AND A PHYSICAL
IMPOSSIBILITY TO
COMPLY
WITH
THE
SAME
CONSIDERING THAT PRIVATE RESPONDENT WAS
ALREADY REINSTATED TO HER POSITION AS EARLY AS
25 JULY 2003.
III.
THE PUBLIC RESPONDENT COMMITTED GRAVE

ABUSE OF DISCRETION AND FAILED TO ACCORD DUE
PROCESS TO PETITIONER WHEN IT SUBSEQUENTLY
FOUND HEREIN PETITIONER LIABLE UNDER SECTION
3(F) OF R.A. 3019 WHEN THERE IS NO FACTUAL
ALLEGATION OF ANY OF THE ELEMENTS OF THE SAID
OFFENSE
IN
THE
COMPLAINT
OF
PRIVATE
RESPONDENT AND MORE IMPORTANTLY, PETITIONER
WAS NOT GIVEN ANY OPPORTUNITY TO RESPOND TO
AND REFUTE SUCH CHARGE CONSIDERING THAT ONLY
FACTS RELATING TO SECTION 3(E) WERE RAISED IN
THE COMPLAINT-AFFIDAVIT.
As petitioner
for Certiorari:
empathically
stated
in
this
Petition
[P]etitioner comes to the succor of the Honorable Supreme

Court in order to restrain the respondents from prosecuting
the case against petitioner before the Sandiganbayan and
find that the Ombudsman acted without or in excess of its
authority amounting to grave abuse of discretion when it
ordered the filing of informations [sic] against petitioner for
violation of R.A. 3019, despite the palpable absence of
probable cause.[14]
Petitioner posits that the OMB-Mindanao committed grave

abuse of discretion amounting to lack or excess of jurisdiction
when it found probable cause for the filing of an information
against him for the violation of Section 3(f) of Republic Act No.
3019[15] since an important element of the offense was not
established, particularly, that he was favoring his own interest or
granting undue advantage in favor of another party.
Petitioner further alleges that he was deprived of due
process because he was not given the opportunity to respond to
and refute the charge against him considering that the offense
referred to in the affidavit-complaint was for violation of Section
3(e),[16] and not Section 3(f), of Republic Act No. 3019.
Moreover, petitioner further claims that while private
respondent accused him of refusing to act within reasonable time
on the Resolutions of the CSC directing private respondents full
reinstatement as City Budget Officer, proof to support the
allegation remains wanting. Petitioner reiterates that there was
reinstatement of private respondent as early as 25 July 2003 and
therefore, there already existed a legal and physical impossibility
to execute CSC Resolution No. 041003 dated 17 September 2004.

Hence, he argues that there is sufficient justification why he no
longer ordered the reinstatement of private respondent.
On the other hand, the OMB-Mindanao, as represented by
the Office of the Solicitor General (OSG), asserts that the
allegations in the complaint-affidavit filed with the OMB-Mindanao
make a case for violation of Section 3(f) of Republic Act No.
3019. In its Comment, the OSG reasoned:
[W]hile it is true that private respondents complaint-affidavit
does not contain any specific allegation to the effect that
petitioner refused to implement CSC Resolution No. 030096
dated 21 January 2003 to favor his own interest or give due
advantage to Mr. Bartolome Barte, a combined evaluation
and analysis of the allegations in the complaint-affidavit
would readily reveal otherwise. x x x.[17]
The OSG argues that private respondents complaintaffidavit narrates the acts of the petitioner of removing private
respondent from her position as City Budget Officer in order to
have total control of the Citys finances. Moreover, it maintains
that the complaint-affidavit clearly alleged that petitioner banned
private respondent from signing any document involving the
Citys financial transactions to give undue advantage to Mr.
Bartolome Barte who was thereafter authorized by petitioner to
perform said tasks.
The OSG states that the allegations in the complaint-affidavit
and the evidence on record, including petitioners neglect or
refusal to fully implement the CSCs order to reinstate private
respondent as City Budget Officer, were unjustified and such
refusal qualifies as corrupt practice under Section 3(f) of Republic
Act No. 3019. The complaint-affidavit filed by private-respondent
reveals that petitioners refusal to heed the CSCs order of
reinstatement was clearly intended to discriminate against private

respondent based on petitioners subsequent acts including, but
not limited to, the following:
Petitioners offer to private respondent to retire from the
service with payment of all her retirement benefits
knowing fully well that private respondent was not yet
available for retirement.
Petitioners act of declaring the position of City Budget
Officer vacant after receiving CSCs Resolution No. 040552
dated 7 May 2004 for the execution of CSC Resolution No.
030096 dated 21 January 2003 which ordered petitioners
reinstatement.
The OSG also avers that the petitioners purported

reinstatement of the private respondent, but still barring her from
signing the financial documents of the city without valid reasons,
showed a sinister motive on the part of petitioner. The OSG called
attention to the fact that private respondent was even ordered by
the petitioner to transfer to an office without any support staff,
table, secretary, and office facilities. Finally, the OSG contends
that the transfer by petitioner of private respondent from City
Budget Officer to City Liaison Officer, a non-existent position, was
equal to constructive dismissal.
The threshold issue involved, therefore, in the present
petition is whether or not the OMB-Mindanao acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in
issuing (1) its Resolution dated 26 November 2004 finding
probable cause against petitioner for violation of Section 3(f) of
Republic Act No. 3019; and (2) an Order dated 7 January 2005
denying petitioners Motion for Reconsideration of its earlier
Resolution.
In the determination of probable cause conducted by the

investigating authority, a task which falls herein on the OMBMindanao since the criminal complaint was filed against a public
official in relation to the performance of his official duties,
[18]
probable cause does not require certainty of guilt for a crime. It
is sufficient that based on the preliminary investigation
conducted, it is believed that the act or omission complained of
constitutes the offense charged. It has been clearly explained in
several decisions by this Court, as in Raro v. Sandiganbayan,
[19]
that:
Probable cause has been defined as the existence of such
facts and circumstances as would excite the belief, in a
reasonable mind, acting on the facts within the knowledge
of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.
Probable cause is a reasonable ground for presuming that a
matter is or may be well-founded on such state of facts in
the prosecutors mind as would lead a person of ordinary
caution and prudence to believe or entertain an honest or
strong suspicion that it is so. x x x.[20]
In the instant petition, we do not perceive any grave abuse

of discretion on the part of the OMB-Mindanao when it issued its
Resolution dated 26 November 2004 and Order dated 7 January
2005 finding probable cause for the filing of an information
against herein petitioner for violation of Section 3(f) of Republic
Act No. 3019.
Firstly, a finding of probable cause needs only to rest on
evidence showing that more likely than not a crime has been
committed and there is enough reason to believe that it was
committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing
absolute certainty of guilt. A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of

guilt.
The term does not mean "actual and positive cause" nor
does it import absolute certainty. It is merely based on
opinion and reasonable belief. x x x. Probable cause does
not require an inquiry into whether there is sufficient
evidence to procure a conviction. (Italics supplied.)[21]
Secondly, the allegations and evidence presented by

petitioner failed to prove that the OMB-Mindanao acted in such a
capricious and whimsical exercise of judgment in determining the
existence of probable cause against him. As defined by this Court
By grave abuse of discretion is meant capricious and

whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.[22]
The OMB-Mindanao based the finding of probable cause on

the various affidavits and memoranda and other evidence
submitted
to
it
by
the
parties
during
preliminary
investigation. Petitioner and private respondent were both
accorded the opportunity to present their sides and refute each
others
contentions. It
bears
to
emphasize
that
the
[23]
Resolution
dated 26 November 2004 of the OMB-Mindanao
specifically referred to the following evidence which it took into
consideration in its investigation:
Memorandum dated 2 July 2001
Memorandum dated 2 August 2001

Complaint for Constructive Dismissal, Reinstatement to
Former Position and Payment of Representation and
Travel Allowance
Petitioners Counter-Affidavit
Private Respondents Affidavit-Complaint
Petitioners Answer to the Affidavit-Complaint
Private Respondents Reply
That the OMB-Mindanao looked into the aforementioned

documents submitted by BOTH parties before issuing its assailed
Resolution strongly negates against any averments that it issued
the same capriciously, whimsically, arbitrarily or in a despotic
manner.
And thirdly, a finding of probable cause is a finding of fact
which is generally not reviewable by this Court. Only where there
is a clear case of grave abuse of this discretion will this Court
interfere in the Ombudsman's findings of probable cause. As a
general rule, the Court does not interfere with the Ombudsman's
determination of the existence or absence of probable cause.
As the Court is not a trier of facts, it reposes immense
respect to the factual determination and appreciation
made by the Ombudsman. x x x.[24]
Absent any grave abuse of discretion tainting it, the courts
will not interfere with the Ombudsmans supervision and
control over the preliminary investigation conducted by
him. x x x.
x x x. It is beyond the ambit of this Court to review
the exercise of discretion of the Ombudsman in
prosecuting or dismissing a complaint filed before it.[25]
It is not sound practice to depart from the policy of noninterference in the Ombudsman's exercise of discretion to
determine whether or not to file information against an accused.
As cited in a long line of cases, this Court has pronounced that it
cannot pass upon the sufficiency or insufficiency of evidence to
determine the existence of probable cause. The rule is based not
only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but
upon practicality as well. If it were otherwise, this Court will be
clogged with an innumerable list of cases assailing investigatory
proceedings conducted by the Office of the Ombudsman with
regard to complaints filed before it, to determine if there is
probable cause.
[T]he Court does not interfere with the Ombudsmans
discretion in the finding of probable cause resulting in its
investigations. The Ombudsmans findings are essentially
factual in nature, and the Supreme Court is NOT a trier of
facts.[26]
Unless it is shown that the questioned acts were done in a

capricious and whimsical exercise of judgment evidencing a clear
case of grave abuse of discretion amounting to lack or excess of
jurisdiction, this Court will not interfere in the findings of probable
cause determined by the Ombudsman. The exercise of the
Ombudsman of its constitutionally mandated investigatory and
prosecutory powers shall, as a general rule, be left alone by this
Court.
Now we move to the legal issue raised by petitioner as to
whether he may be charged with violation of Section 3(f) of
Republic Act No. 3019 when he was charged in the affidavitcomplaint for another offense, Section 3(e) of the same Act.
Petitioner contends that the OMB-Mindanao had no basis

whatsoever when it ruled that the herein petitioner may be held
liable under Section 3(f) of Republic Act No. 3019 when he refused
to reinstate private respondent to favor his own interest or to give
undue advantage in favor of Bartolome Barte. Petitioner alleges
that the OMB-Mindanao arrived at such a sweeping conclusion
when not even the private respondent had made the said
allegations in her affidavit-complaint or any pleading. Petitioner
argues that absent such allegations in the affidavitcomplaint, there is simply no basis for the public
respondent to declare that the herein petitioner may be
held liable for violation of Section 3(f) of Republic Act No.
3019, as these allegations are essential to have a finding
of probable cause of violation of Section 3(f).[27]
Pertinent provisions of Republic Act No. 3019,
namely, Sections 3(e) and 3(f), are reproduced below:
SEC. 3. Corrupt practices of public officers. In
addition to acts or omissions of public officers
already penalized by existing law, the following shall
constitute corrupt practices of any public officer and
xxxx
(e) Causing any undue injury to any party,
including the Government, or giving any private
party any unwarranted benefits, advantage or
preference in the discharge of his official
administrative
or
judicial
functions
through
manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to
officers and employees of offices or government
corporations charged with the grant of licences or
permits or other concessions.
(f) Neglecting or refusing, after due demand or

request, without sufficient justification to act within
a reasonable time on any matter pending before him
for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some
pecuniary or material benefit or advantage, or for
purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any
other interested party. (Italics ours.)
Private respondents affidavit-complaint alleged the

violation by petitioner of Section 3(e) of Republic Act No. 3019,
but the Ombudsman, after preliminary investigation, ordered the
filing of an information against petitioner for violation of Section
3(f) of Republic Act No. 3019 instead.
This Court spelled out in Sistoza v. Desierto[28] the
following elements of the offense falling under Section
3(e) of Republic Act No. 3019:
(a) The accused is a public officer or a private
person charged in conspiracy with the former;
(b) The public officer commits the prohibited acts
during the performance of his or her official duties
or in relation to his or her public functions;
(c) That he or she causes undue injury to any
party, whether the government or a private party;
(d) Such undue injury is caused by giving
unwarranted benefits, advantage or preference to
such parties; and
(e) That the public officer has acted with manifest
partiality, evident bad faith or gross inexcusable
neglect. Evidently, mere bad faith or partiality and
negligence per se are not enough for one to be held liable
under the law since the act of bad faith or partiality must
in the first place be evident or manifest, respectively, while
the negligent deed should both be gross and inexcusable.
It is further required that any or all of these modalities
ought to result in undue injury to a specified party.
The OMB-Mindanao determined the absence of one element,

thus, barring it from indicting petitioner for violation of Section
3(e) of Republic Act No. 3019. In its Resolution dated 26
November 2004, the OMB-Mindanao found:
The complainant alleged that her representation
and transportation allowance (RATA) was cut-off effective
01 August 2001, in favor of Bartolome C. Barte, acting as
Officer-in-Charge
and
functioning
as
Budget
Officer. However, the explanation of the respondent that
complainant
had
been
receiving
the
benefits
corresponding to her position per Memorandum Order No.
0755 dated 25 July 2003 was not denied by the latter.
As a result, one of the elements constituting the
offense under Section 3(e) of R.A. 3019, that the public
officer caused any undue injury to any party,
including the government, is missing. Accordingly,
proof of the extent or quantum of damage is not
essential, it being sufficient that the injury suffered or
benefit received can be perceived to be substantial enough
and not merely negligible. It is recognized that there was
no proof of damage caused to the complainant since in
fact she is now receiving her RATA.[29]
Notably, private respondent and petitioner agree that

petitioner was already receiving her RATA as private respondent
did not controvert the fact of payment of her RATA.
While the OMB-Mindanao did not find probable cause to

indict petitioner for violation of Section 3(e) of Republic Act No.
3019, it did find that there was probable cause to file an
information against petitioner for violation of Section 3(f) of the
same statute.
A violation of Section 3(f) of Republic Act No. 3019 is
committed when the following elements[30] exist:
a) The offender is a public officer;
b) The said officer has neglected or has refused to
act without sufficient justification after due demand or
request has been made on him;
c) Reasonable time has elapsed from such demand or
request without the public officer having acted on the matter
pending before him; and
d) Such failure to so act is "for the purpose of

obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material
benefit or advantage in favor of an interested party,
or discriminating against another.
The OMB-Mindanao, in its Resolution dated 26 November

2004, justified its finding of probable cause to file an information
against petitioner before the Sandiganbayan for violation of
Section 3(f) of Republic Act No. 3019, as follows:
The real issue before us is one in which [herein
private respondent] accuses [herein petitioner] Mayor
Galario, Jr. of refusing to act within a reasonable time on
the Order/Resolution of the Civil Service Commission
directing the latter to fully reinstate the former to her
position as Budget Officer.
Records would show that on 7 January 2002, the Civil

Service Commission [Regional Office] issued an order
directing [petitioner] to reinstate [private respondent]
Piano to her previous position as Budget Officer and to
cause the payment of her RATA. The Motion for
Reconsideration filed by respondent Mayor was denied by
the CSC, Region X, Cagayan de Oro City, on 18 February
2002. In a Resolution No. 030096 dated 21 January 2003,
of the Civil Service Commission, Quezon City, the Appeal
filed by [petitioner] was dismissed.
Despite the Resolution of the Civil Service
Commission, [petitioner] did not implement the same.
Dilly-dallying its implementation, [petitioner] filed a Motion
for Reconsideration questioning CSC Resolution No.
030096 dated 21 January 2003. Then, [petitioner] resorted
to intimidating [private respondent] by threatening to file a
case against the [private respondent], and in the
alternative, offered and lured her to resign, with payment
of all retirement benefits.
Consequently, the Civil Service Commission, on 5
May 2003, denied [petitioners] Motion for Reconsideration.
Accordingly, Resolution No. 03-0096 dated 21 January
2003,
of
the
Civil
Service
Commission, Quezon
City thereby stands.
While [petitioner] reinstated [private respondent] as
City Budget Officer on 21 May 2003, nevertheless, on 26
May 2003, [petitioner] relieved herein [private respondent]
as City Budget Officer and instead designated the latter as
City Cooperative Officer. Now, by virtue of the Motion for
Execution filed by herein [private respondent] before the
CSC, Region X, Cagayan de Oro City on 7 July 2003, the
CSC issued again another Order directing [petitioner] to
reinstate herein [private respondent]. On 25 July 2003,
[petitioner] pretentiously reinstated [private respondent]
as City Budget Officer but on 28 July 2003, he banned the
[private respondent] from signing financial transactions of
the local government unit. Instead, [petitioner] designated
Bartolome Barte to sign all documents pertaining to the
financial
transactions
of Valencia City while
respondent] to act as Liaison Officer.
[private
Consequently, [private respondent] filed a Motion to

Implement CSC Resolution No. 030096 dated 21 January
2003, of the Civil Service Commission, Quezon City.
xxxx
Accordingly, it is apparent that CSC Resolution No.
040552, dated 17 May 2004, directed [petitioner] to
immediately implement the said Resolution. But
[petitioner] arbitrarily, arrogantly, and illegally defied the
said Resolution to fully reinstate herein [private
respondent] as Budget Officer of Valencia City, until now.
[Petitioner] even recommended [private respondent] to the
position of City Cooperative Officer just only to oust the
latter in the City Hall. But [private respondent] did not
accept. Not only that, by issuing letters dated June 29,
2004 and July 2, 2004, [petitioner] made it appear that the
position of Budget Officer is vacant, thus, [private
respondent] must apply thereto. Patently, [petitioner] has
no intention of complying the said aforesaid Resolution.
Undoubtedly, [petitioner] is making it hard for herein
[private respondent] to reassume her position as Budget
Officer.
By the foregoing acts, it is apparent that [petitioners]
Manifestation of Compliance with the Order/Resolution of
the Civil Service Commission is tantamount to noncompliance.
Accordingly, [petitioner] may be held liable under Section (f),
R.A. 3019, by x x x refusing, after due demand or request, without
sufficient justification, to act within a reasonable time on
reinstating herein [private respondent] as Budget Officer, for the
purpose of favoring his own interest or giving undue advantage in
favor of Bartolome Barte.
WHEREFORE, PREMISES CONSIDERED, this Office finds
probable cause to indict [petitioner] guilty of violation of Section
3(f) of R.A. 3019, as amended.[31]
There is no reason for us to disturb the findings of the OMBMindanao as aforequoted. We reiterate that this Court has
adopted a policy of non-interference in the conduct of preliminary
investigations, and leaves to the investigating prosecutor (the
Ombudsman, in this case) sufficient latitude of discretion, not only
in determining what will constitute sufficient evidence that will
establish "probable cause" for the filing of information against a
supposed offender, but as well as the proper offense to be
charged against said offender depending again on the evidence
submitted by the parties during the preliminary investigation.
Squarely in point is Avila
Ombudsman which stated thus:
v.
Sandiganbayan
and
We find no merit in petitioner's contention that he

was deprived of due process because the accusation in the
information was for violation of Section 3(e), R. A. 3019,
but the crime charged in the letter complaint subject of the
preliminary investigation was for direct assault.
In Enrile vs. Salazar, we ruled that there is "nothing
inherently irregular or contrary to law in filing against a
respondent an indictment for an offense different from
what was charged in the initiatory complaint, if warranted
by the evidence developed during the preliminary
investigation."[32]
However, this power of the Ombudsman to determine

probable cause and thus charge the proper information is subject
to the requirements of due process, as embodied in the
Constitution.
While the Ombudsman has the full discretion to
determine whether or not a criminal case should be filed,
this Court is not precluded from reviewing the
Ombudsmans action when there is an abuse of discretion,

in which case Rule 65 of the Rules of Court may
exceptionally be invoked pursuant to Section I, Article VIII
of the 1987 Constitution.[33]
Finally, it bears emphasizing once again the extent of the

powers of the Ombudsman in the fulfillment of its constitutional
mandate as protector of the people. Article XI, Section 13 of
the 1987 Philippine Constitution, enumerates the powers,
functions, and duties of the Office of the Ombudsman, among
which is to:
(1) Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
The Ombudsman Act of 1989 (Republic Act No. 6770) likewise

provides:
Sec 15. Powers, Functions and Duties. The Office of the
Ombudsman shall have the following powers, functions and
duties:
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of any
public officer or employee, office or agency, when such act
or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of
this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the
investigation of such cases. (Emphases supplied.)
It is clear from the foregoing constitutional and statutory

provisions that the Ombudsman is given a plenary and
unqualified authority with respect to its investigatory and

prosecutory[34] power, subject only to the constitutional
limitations, and its coverage cannot be limited to the allegations
in any complaint-affidavit that may have been filed against a
public officer. In fact, the Ombudsman may investigate and
prosecute on its own, without need for a complaint-affidavit, for
as long as the case falls within its jurisdiction. Hence, regardless
of the allegations and accusations against the public officer in the
affidavit-complaint, it still rests upon the Ombudsman to
determine the proper crime or offense which can be charged
against the public officer depending on the findings of the
Ombudsman in the preliminary investigation.
WHEREFORE, premises considered, the instant Petition
for Certiorari under Rule 65 of the Revised Rules of Court is
hereby DISMISSED for lack of merit. The Resolution of the Office
of the Ombudsman-Mindanao dated 26 November 2004 in OMBM-C-04-0282-G finding probable cause against petitioner Jose M.
Galario, Jr. for violation of Section 3(f) of Republic Act No. 3019
and the Order of the same Office dated 7 January 2005 denying
petitioners
Motion
for
Reconsideration
are
herebyAFFIRMED. Let the appropriate information be filed
against the petitioner before the Sandiganbayan. Costs against
petitioner.
SO ORDERED.
NEMESIO M. CALIM,
Petitioner,
- versus -
G.R. No. 156527
Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,*
CHICO-NAZARIO, and
NACHURA, JJ.
THE HONORABLE JESUS F.

GUERRERO,
THE
HONORABLE
EMILIO
A.
GONZALEZ
III,
THE
HONORABLE ADORACTION A.
AGBADA, in their respective
capacities as Deputy Ombudsman
for Luzon, Director and Graft
Investigation Officer II, THE
HONORABLE ROBERTO J.
ACOBA, Vice-Mayor, Siniloan,
Laguna, PAUL SIMON Z. GO,
HOMER R. SERRANO, FELIPE
A. EM, ELIGIO R. DE LEON,
FELIPE
V.
CASTRO,
GAUDENCIO
C.
SALAY,
ANDRES
V.
QUINTERO,
HECTOR
A.
MANEJA,
SEDFREY B. REALEZA, all
Promulgated:
members of the Sangguniang
Bayan, Siniloan, Laguna,
Respondents.**
March 5, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Mandamus seeking to compel public respondents
to file the appropriate information against the private respondents for violation of
Section 5(a)[1] of Republic Act No. 6713,[2] otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees.
The relevant antecedents follow:
Petitioner Nemesio M. Calim operates Eastern Laguna Tours and Tourist
Services in Siniloan, Laguna. Private respondent Roberto J. Acoba was the Vice-
Mayor ofSiniloan, Laguna. On the other hand, private respondents Paul Simon Z.
Go, Homer R. Serrano, Felipe A. Em, Eligio R. de Leon, Felipe V.
Castro, Gaudencio C. Salay, Andres V. Quintero, Hector A. Maneja,
and Sedfrey B. Realeza were councilors of the Sangguniang Bayan of Siniloan,
Laguna.
On 23 November 2001, petitioner filed a Complaint-Affidavit[3] with the
Office of the Deputy Ombudsman for Luzon against private respondents for
violation of Section 3(e)[4] of Republic Act No. 3019, as amended, otherwise
known as Anti-Graft and Corrupt Practices Act, and Section 5 (a) of Republic Act
No. 6713. The case was docketed as OMB-1-01-1121-K.
Petitioner alleged, inter alia, that on or about 22 July 2001, he was given a
mayors permit from the municipal government of Siniloan, Laguna, for his tours
and tourist services business. On 31 July 2001, he applied for the registration of his
business name with the Regional Office of the Department of Trade and Industry
in San Pablo City, initially indicating therein as first priority the
name, Mabuhay Tours and Tourist Services for his business. He was, however,
advised by the aforesaid office to change the name to Eastern Laguna Tours and
Tourist Services, and thereafter, was issued a Certification of Registration thereon
on 29 August 2001. He informed Municipal Mayor Guillermo L.Acero, through
the Municipal Business License Office, of the fact of change of the
name Mabuhay Tours and Tourist Services to Eastern Laguna Tours and Tourist
Services.
He further alleged that on 6 August 2001, he received an invitation from
private
respondent
Vice-Mayor Acoba to
appear
before
the Sangguniang Bayan of Siniloan, Laguna. It appears that a certain
Amador Igos filed a letter-complaint with the said body alleging, in the main, the
absence of a franchise of public conveyance on the part of Eastern Laguna Tours
and
Tourist
Services. Ultimately,
on 22
August
2001,
the Sangguniang Bayan of Siniloan, Laguna in Kapasiyahan Bilang 81 T-2001,
[5]
unanimously recommended the cancellation of the municipal license and permit
issued to Eastern Laguna Tours and Tourist Services. Thus, the operations of his
business ceased, thereby, causing him injury, and giving unwarranted benefits and
advantage to his competitor, Van on the Run. The president of Van on the Run is
Felipe Castro, who was a member of the Sangguniang Bayan of Siniloan, Laguna,
and one of the private respondents herein.
Petitioner
averred
that
the
recommendation
of
the Sangguniang Bayan of Siniloan, Laguna, to cancel his municipal license and
permit resulted in the cancellation of various service contracts bringing about a
loss of P3,000.00 per day. He alleged further that on 6 September 2001, he sent a
letter individually addressed to private respondents for the purpose of inquiring as
to the basis of their recommendation to cancel his business license and permit to
operate Eastern Laguna Tours and Tourist Services. Up to the time of filing the
letter-complaint, or on 18 November 2001, he said, all private respondents had not
answered the letter, in gross violation of Section 5, [6] Republic Act No.
6713. Finally, on 4 October 2001, Mayor Guillermo Acero cancelled the mayors
permit to operate Eastern Laguna Tours and Tourist Services based on the
recommendation of the Sangguniang Bayan in Kapasiyahan Bilang 81 T-2001.
On 1 February 2002, six of the eleven private respondents, namely, Felipe
A. Em, Noel Laberinto, Homer Serrano, Eligio de Leon, Hector A. Maneja,
and Sedfrey Realezafiled a joint Counter-Affidavit.[7] They contended that there
was nothing irregular in the issuance of Kapasiyahan Bilang 81 T-2001, as the
same was merely a request to the municipal mayor for cancellation of the mayors
permit after a finding on their part that the petitioner violated the terms and
conditions set in the permit. They similarly contested petitioners use of airconditioned vans to transport passengers from Siniloan to Manila on the ground
that such a purpose was outside the permit which was granted to
petitioner. Petitioner merely applied for a booking office to be established in his
residence. Moreover, they argued that private respondent Felipe Castro was the
adviser, and not president of Van on the Run, as claimed by petitioner. Finally,
they stressed that Van on the Run, the alleged business competitor of Eastern
Laguna Tours and Tourist Services was established as a civic organization and not
for profit or commerce.
Meanwhile, private respondents Vice-Mayor Roberto J. Acoba, Paul Simon
Go, Gaudencio Salay and Andres Quintero filed a Rejoinder,[8] averring similar
arguments as raised in the Counter-Affidavit previously filed by their co-private
respondents. Reiterating their prayer that the Complaint against them be dismissed
for utter lack of merit, they maintained that their action taken as members of
the Sangguniang Bayan of Siniloan, Laguna, in recommending the cancellation of
the mayors permit granted to petitioner was a product of due deliberation and
investigation.[9] They insisted that petitioner failed to prove that he was authorized
to engage as a common carrier to offer daily tours to Metro Manila
and Baguio from Siniloan, Laguna. Hence, in openly engaging in the business of
transport services, petitioner violated the terms and conditions of the mayors
permit.
After an exchange of pleadings between the parties, the Office of the Deputy
Ombudsman for Luzon,[10] through Graft Investigation Officer I Ma. Theresa
B. Bagro, issued a Resolution[11] dated 29 July 2002, recommending the dismissal
of petitioners Complaint for lack of probable cause. The recommendation was
approved by the Deputy Ombudsman for Luzon, Jesus F. Guerrero. It was
underscored therein that the stoppage of petitioners business operations was due to
the act of the mayor in canceling his business permit. In canceling the same, the
mayor relied on several grounds, one of which was the assailed Resolution
or Kapasiyahan Bilang 81 T-2001. The Deputy Ombudsman was likewise not
persuaded that the Sangguniang Bayan of Siniloan, Laguna, passed the Resolution
with bad faith.[12] According to the Deputy Ombudsman, the facts showed that
petitioner actively participated before the Sangguniang Bayan of Siniloan, Laguna,
during the investigation of petitioners business permit, and the recommendation
by the private respondents to cancel the permit was reached only after the bodys
lengthy deliberations. Moreover, the private respondents presented documents
from the Land Transportation Franchising and Regulatory Board (LTFRB), the
Regional Office of the Department of Trade and Industry, as well as the Municipal
Planning Development Coordinator, to support their conclusion that petitioner
violated the conditions set forth in the mayors permit. The Deputy Ombudsman
resolved that the recommendation to cancel petitioners permit was substantiated
with
enough
bases,
and
the
action
of
private
respondents Sangguniang Bayan members of Siniloan, Laguna, did not constitute a
violation of Section 3(e) of Republic Act No. 3019.
The decretal portion of the 29 July 2002 Resolution reads:
WHEREFORE, premises considered, the undersigned respectfully

recommends that the instant complaint be DISMISSED for lack of
probable cause.[13]
Petitioner filed a Motion for Reconsideration thereon. He assigned as error

the omission of the 29 July 2002 Resolution to rule on the second charge against
the private respondents, i.e. violation of Section 5(a) of Republic Act No.
6713. He thus prayed that the Deputy Ombudsman render a ruling on the charge
for violation of Republic Act No. 6713. He also prayed that the Resolution finding
no probable cause on the part of private respondents for violation of Republic Act
No. 3019 be reversed.
On 4 November 2002, the Office of the Deputy Ombudsman issued a Joint
Order. While dismissing the complaint for violation of Section 3(e) of Republic
Act No. 3019 for lack of probable cause, it however acknowledged that it
committed a reversible error in not taking consideration of the charge for the
violation of Section 5(a) of Republic Act No. 6713 as contained in petitioners
Complaint-Affidavit. Indeed, in the Complaint-Affidavit, petitioner averred that
private respondents failed to reply to his letter of inquiry dated 6 September
2001. In his letter, petitioner sought a clarification from private respondents as to
the bases of their recommendation in canceling his business permit. However,
private respondents failed to send a response thereto. Ruling on the matter, the
Deputy Ombudsman found that there was no justification on private respondents
part in ignoring to reply to petitioners letter within the prescribed time, as
specified in Republic Act No. 6713, and, hence, admonished the private
respondents for such failure, with a stern warning that a repetition of the same shall
be dealt with more severely. Thus:
[14]
Anent the first ground invoked in the motion for reconsideration,

We submit that this Office has committed a reversible error in not taking
into consideration the charge for violation of Section 5 (a) of Republic
Act No. 6713 as contained in the complaint-affidavit. The complaint is
anchored on the alleged failure of the respondents to respond to
the September 6, 2001 letter of the complainant inquiring as to the basis
of their recommendation to cancel the business license and permit of his
tours and tourist services company. This allegation was answered by
respondents Roberto J. Acoba, Paul Simon Z. Go, Felipe V.
Castro, Gaudencio C. Salay, and Andres V. Quintero, in their Rejoinder

by stating that they failed to respond to the complainants letter because
of computer problems, the details of which was not elaborated.
Respondents Felipe A. Em, Noel M. Laberinto, Homer R.
Serrano, Eligio R.
de
Leon,
Hector
A. Maneja andSedfrey L. Realeza never filed any answer to this
allegation. After due evaluation of this particular charge, We find that
the failure of the respondents to answer the letter was not justified. There
are many ways, aside from using a computer, by which the respondents
may prepare a response to the complainants letter. For this, the
respondents must be admonished to be more circumspect in the
performance of their duties with stern warning that repetition of the same
act shall be dealt with more severely in the future. However, We do not
find that there is basis for their indictment for violation of Section 3(e) of
Republic Act No. 3019 as it appeared that their failure [to reply to]
respondent was not motivated by malice and bad faith. With the
attendance of the complainant and his counsel during the deliberations of
the Sangguniang Bayan on the mater, it can be deduced that they have
been apprised of the grounds relied upon by the body in recommending
the revocation of their business permit. Neither it appeared that the
complainant has sustained any actual injury by the failure of the
respondents to answer his letter.[15]
The dispositive portion of the Joint Order of 4 November 2002, pronounces:

WHEREFORE, premises considered, it is respectfully
recommended that that the subject two Motions for Reconsideration
dated September 10 and 11, 2002 filed by the complainant bedenied for
lack of merit. However, concerning the failure of the herein respondents
to respond to the complainants letter, they are hereby admonished to be
more circumspect in the performance of their duties with stern warning
that repetition of the same act shall be dealt with more severely in the
future.[16]
Aggrieved, petitioner filed the instant Petition for Mandamus, seeking to

compel the public respondents to file the appropriate information for violation of
Section
5(a)
of
Republic
Act
No.
6713,
against
private
respondents Sangguniang Bayan members of Siniloan, Laguna.
The Office of the Solicitor General filed its Comment, [17] dated 10 July 2003,
praying that the Petition be dismissed for lack of merit.
Petitioner relies on the following grounds for the allowance of the
Petition, viz:
I
THE PUBLIC RESPONDENTS UNLAWFULLY NEGLECTED TO
PERFORM AN ACT WHICH THE LAW SPECIFICALLY ENJOINS
AS A DUTY RESULTING FROM AN OFFICE;and
II
THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURT OF LAW.[18]
Petitioners bone of contention is that since the private respondents were

found by public respondent Office of the Deputy Ombudsman for Luzon to have
committed a violation of Section 5 (a) of Republic Act No. 6713, that is, by failing
to respond to his letter of inquiry within fifteen (15) working days from receipt
thereof, they should be punished with a fine not exceeding the equivalent of six (6)
months salary or suspension not exceeding one (1) year, or removal depending on
the gravity of the offense after due notice and hearing by the appropriate body or
agency, as prescribed in Section 11[19] of the same Act. Hence, petitioner submits
that the public respondents should have filed the proper information with the
proper court for the criminal violation by private respondents of the aforesaid
Section 5(a) of Republic Act No. 6713. Otherwise stated, petitioner theorizes that
public respondents can be compelled by a writ of mandamus to file a criminal
information against the private respondents for their violation, instead of merely
admonishing them, as it did in the assailed Joint Order of 4 November 2002. There
is no other plain, speedy, and adequate remedy available to him in the ordinary
course of law. According to him, the Complaint was for a criminal offense, and not
simply a case of administrative misfeasance. He is adamant that the filing of a
motion for reconsideration is no longer necessary and is rendered useless by the act
of public respondents in admonishing the private respondents.
We dismiss the Petition.

It is elementary that mandamus applies as a remedy only where petitioners
right is founded clearly on law and not when it is doubtful.[20] In varying language,
the principle echoed and reechoed is that legal rights may be enforced
by mandamus only if those rights are well-defined, clear and certain. [21] A writ
of mandamus can be issued only when petitioners legal right to the performance
of a particular act which is sought to be compelled is clear and complete. [22] A
clear legal right is a right which is indubitably granted by law or is inferable as a
matter of law.[23] Mandamus, therefore, is employed to compel the performance,
when refused, of a ministerial duty, this being its chief use and not a discretionary
duty.[24]
Mandamus will not issue to control or review the exercise of discretion of a
public officer where the law imposes upon said public officer the right and duty to
exercise his judgment in reference to any matter in which he is required to act.[25] It
is his judgment that is to be exercised and not that of the court.[26]
Essentially, what petitioner attacks in the instant Petition for Mandamus is
the order of the Office of the Deputy Ombudsman for Luzon, in admonishing the
private respondents. The case partakes of an administrative disciplinary nature.
Herein, petitioner was not able to establish his entitlement to a writ
of mandamus. Petitioner fails to demonstrate that he has a clear legal right to
compel the public respondents to file a criminal information against the private
respondents. Settled is the rule that the Supreme Court will not interfere with the
Ombudsmans exercise of his investigatory and prosecutory powers without good
and compelling reasons to indicate otherwise.[27] Said exercise of powers is based
upon his constitutional mandate[28] and the courts will not interfere in its exercise.
[29]
Courts have upheld the wide latitude of investigatory and prosecutorial powers
that the Ombudsman enjoys; and such powers are virtually free from executive,
legislative or judicial intervention.[30] The rationale of this rule is based not only
upon respect for the investigatory and prosecutory powers that the Office of the
Ombudsman is granted under the present Constitution,[31] but upon practicality as
well; otherwise, the functions of the courts would be perilously bound by
numerous petitions assailing the result of the investigatory proceedings conducted

by the Office, in much the same way that the courts would be saturated if
compelled to review the prosecutors exercise of discretion each time they decide
to file an information or dismiss a complaint.[32] The discretion to prosecute or
dismiss a complaint filed before it is lodged in the Office of the Ombudsman
itself. To compel the Ombudsman to further pursue a criminal case against the
private respondents, as petitioner would have it, is outside the ambit of the courts.
Corollarily, Section 2, Rule II of the Rules of Procedure of the Office of the
Ombudsman which runs:
SEC. 2. Evaluation. Upon evaluating the complaint, the investigating
officer shall recommend whether it may be:
a)
dismissed outright for want of palpable merit;
b)
referred to respondent for comment;
c)
indorsed to the proper government office or agency which has

jurisdiction over the case;
d)
forwarded to the appropriate office or official for factfinding investigation;
e)
referred for administrative adjudication; or
f)
subjected to a preliminary investigation.
and is reinforced by Section 3, Rule III of the same Rules, hereby quoted:
SEC. 3. How initiated. An administrative case may be initiated
by a written complaint under oath accompanied by affidavits of
witnesses and other evidences in support of the charge. An
administrative proceeding may also be ordered by the Ombudsman or
the respective Deputy Ombudsman on his initiative or on the basis of a
complaint originally filed as a criminal action or a grievance complaint
or request for assistance.
clearly provides the Office of the Ombudsman with wide latitude of discretion in
determining what and which acts to prosecute criminally and/or
administratively. In the instant case, the Office of the Deputy Ombudsman opted,
based on the evidence on hand, to only administratively admonish the private
respondents, a penalty which is in fine tune with the mandate of Rule IV, Section
52 (C) (13) of the Uniform Rules on Administrative Cases in the Civil Service,
[33]
which provides:
SEC. 52. Classification of Offenses. Administrative offenses
with corresponding penalties are classified into grave, less grave or light,
depending on their gravity or depravity and effects on the government
service.
xxxx
C. The following are light offenses with corresponding penalties:
xxxx
13. Failure to act promptly on letters and requests within fifteen
(15) days from receipt, except as otherwise provided in the rules
implementing the code of conduct and ethical standards for public
officials and employees: Ist Offense > Reprimand; 2nd Offense >
Suspension for one (1) to thirty (30) days; 3rd Offense > Dismissal.
A graver reason that impels this court to reject petitioners plea is the mode
taken by petitioner in elevating the case to this court. In the case of Fabian
v. Desierto,[34] this court ruled that appeals, if availing, [35] from decisions of the
Office of the Ombudsman in administrative disciplinary cases should be brought to
the Court of Appeals under the provisions of Rule 43[36] of the Rules of
Court. In Lanting v. Ombudsman,[37] we underscored the catena of cases
subsequent to the Fabian ruling, thus:
In Fabian v. Desierto, we held that only appeals from the
decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals under the
provisions of Rule 43 (of the 1997 Revised Rules of Civil
Procedure). We reiterated this ruling in Namuhe vs. Ombudsman and

recently in Barata vs. Abalos, Jr. and Coronel vs. AnianoDesierto, as
Ombudsman, and Pedro Sausal, Jr.[38]
There is, verily, a limited applicability of this courts pronouncement

in Fabian. The Fabian ruling does not extend to orders or decisions of the
Ombudsman in criminal cases. Kuizon v. Ombudsman[39] and Mendoza-Arce v.
Office
of
the
Ombudsman
(Visayas),[40] instructed
that
petitions
for certiorari questioning the Ombudsmans orders or decisions in criminal cases
should be filed in the Supreme Court and not the Court of Appeals. [41] This is the
prevailing rule.[42] The Office of the Deputy Ombudsman, in admonishing the
private respondents, deemed the matter to be one in the nature of an administrative
disciplinary case. The petitioner, in filing the instant Petition for Mandamusbefore
this Court, took a route that is antagonistic to prevailing rules and jurisprudence.
WHEREFORE, under the foregoing premises, the
for Mandamus is DISMISSED. Costs against petitioner.
SO ORDERED.
instant
Petition

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G.R. Nos.

170339, 170398-403 : March 9, 2010

On November 14, 2005, the Sandiganbayan found petitioner guilty as

One hundred fifty thousand pesos (P150,000.00)

Forty thousand pesos (P40,000.00)

Fourth Class and Below

Twenty thousand pesos (P20,000.00) (emphasis

In relation thereto, Section 364 of RA 7160 mandates:

To reiterate, RA 7160 requires that where the head of the office or

REPUBLIC ACT NO. 3019

Sec. 3. Corrupt practices of public officers. - In

discharge of his official administrative or judicial

G.R. Nos. 168951& 169000, July 17, 2013

That on or about 7 November 1995, or sometime prior or subsequent thereto, in

That on or about 7 November 1995, or sometime prior or subsequent thereto, in

appointment to and acceptance of the position of consultant by respondent POSADAS

Sandiganbayan requires a motion for reconsideration to be set for hearing, as it

Section 5, Rule 15 of the Rules of Court reads:

1. The accused must be a public officer discharging administrative, judicial or

Sec. 204. Appointment issued by an officer-in-charge. -- A person designated in an

B. Functions That May Not Be Delegated

Authority to approve the following appointments

a. directors or heads and assistant directors or assistant heads of

Appointment as used in II, C, 5 above includes all types of appointment and

E. Extent of Authority of One Appointed in an Acting/Officer-in-Charge Capacity

Delegated Authority of the President to Appoint

1. The President approves the appointment of officers and employees (including

Appointment as used in II, B, 1 above includes all types of appointmentand

Thus, even granting that the subject appointments in UP Diliman, an autonomous

Unless otherwise allowed by law or by the primary functions of his position, no

The prohibition on dual employment and double compensation in the government

a. The effectivity of an appointment shall be the date of actual assumption by the

Provide overall direction to the Project;

Exercise supervision over Project personnel, including the visiting

Approve the recruitment of personnel, disbursement of Project

Coordinate with other persons, agencies and institutions involved

Perform such other functions as may be necessary to ensure the

1. It must not violate the rule against holding multiple positions;

1) No member of the academic staff, officer or employee of the University shall,

is NOT ADVERSE to the interests of the University;

shall NOT be conducted on official time;

will improve the persons efficiency and usefulness to the

shall be subject to such other requirements as may be

Notwithstanding the supposed amendment of the rule on limited practice of profession

G.R. No. 188066, October 22, 2014

WHEREFORE, premises considered, respondent CYNTHIA E. CABEROY, Principal II,

DISQUALIFICATION FROM REEMPLOYMENT IN THE GOVERNMENT SERVICE. On

advantage in favor of an interested party, or [discrimination] against another" under

Hence, the present petition, based on the ground that:

THE HONORABLE COURT OF APPEALS' REVERSAL OF THE PETITIONER OFFICE OF THE

Ruling of the Court

Section 52. Classification of Offenses.Administrative offenses with corresponding

Evidently, from the foregoing disquisitions, respondent Ombudsman contradicted itself

June (Proportional pay & 101-02-6- June

June (Proportional pay)

June (Proportional pay)

June (Proportional pay PS-02-7- July 17, 11

June (Proportional pay)

PS-02-7- July 25, 11

G.R. No. 122166 March 11, 1998

Supplemental Budget No. 5, CY 1990 in the total amount of P7,275 per

the Sangguniang Bayan of Sindangan per verbal allegation of the municipal