1

G.R. Nos. 147026-27

To achieve this purpose, the law provided for the creation of the National Book
Present: Development Board (NBDB or the Governing Board, for brevity), which shall be under
YNARES-SANTIAGO, J., the administration and supervision of the Office of the President. The Governing Board
Chairperson, shall be composed of eleven (11) members who shall be appointed by the President of
CHICO-NAZARIO, the Philippines, five (5) of whom shall come from the government, while the remaining six
VELASCO, JR., (6) shall be chosen from the nominees of organizations of private book publishers,
NACHURA, and printers, writers, book industry related activities, students and the private education
PERALTA, JJ. sector.

Promulgated: On February 26, 1996, petitioner was appointed to the Governing Board as a private
CAROLINA R. JAVIER,
Petitioner, September 11, 2009 sector representative for a term of one (1) year.[6] During that time, she was also the
President of the Book Suppliers Association of the Philippines (BSAP). She was on a
hold-over capacity in the following year. On September 14, 1998, she was again
- versus - appointed to the same position and for the same period of one (1) year. [7] Part of her
functions as a member of the Governing Board is to attend book fairs to establish
linkages with international book publishing bodies. On September 29, 1997, she was
THE FIRST DIVISION OF THE issued by the Office of the President a travel authority to attend the Madrid International
SANDIGANBAYAN and the PEOPLE OF Book Fair in Spain on October 8-12, 1997.[8] Based on her itinerary of travel,[9] she was
THE PHILIPPINES, paid P139,199.00[10] as her travelling expenses.
Respondents. Unfortunately, petitioner was not able to attend the scheduled international book fair.

x-----------------------------------------------------x
DECISION
PERALTA, J.:
Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of Court filed by
petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled People of
the Philippines, Plaintiff versus Carolina R. Javier, Accused, seeking to nullify respondent
Sandiganbayan's: (1) Order[2] dated November 14, 2000 in Criminal Case No. 25867,
which denied her Motion to Quash Information; (2) Resolution [3] dated January 17,
2001 in Criminal Case No. 25898, which denied herMotion for Reconsideration and
Motion to Quash Information; and (3) Order[4] dated February 12, 2001, declaring that a
motion for reconsideration in Criminal Case No. 25898 would be superfluous as the
issues are fairly simple and straightforward.
The factual antecedents follow.
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to
immediately return/refund her cash advance considering that her trip was
canceled.[11] Petitioner, however, failed to do so. On July 6, 1998, she was issued a
Summary of Disallowances[12] from which the balance for settlement amounted
to P220,349.00. Despite said notice, no action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB,
filed with the Ombudsman a complaint against petitioner for malversation of public funds
and properties. She averred that despite the cancellation of the foreign trip, petitioner
failed to liquidate or return to the NBDB her cash advance within sixty (60) days from
date of arrival, or in this case from the date of cancellation of the trip, in accordance with
government accounting and auditing rules and regulations. Dr. Apolonio further charged
petitioner with violation of Republic Act (R.A.) No. 6713 [13] for failure to file her Statement
of Assets and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of
R.A. No. 3019,[14] as amended, and recommended the filing of the corresponding
information.[15] It, however, dismissed for insufficiency of evidence, the charge for
violation of R.A. No. 6713.

In an Information dated February 18, 2000, petitioner was charged with violation of
On June 7, 1995, Republic Act (R.A.) No. 8047,[5] or otherwise known as the Book
Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
Publishing Industry Development Act, was enacted into law. Foremost in its policy is the
State's goal in promoting the continuing development of the book publishing industry,
through the active participation of the private sector, to ensure an adequate supply of That on or about October 8, 1997, or for sometime prior or subsequent
thereto, in the City of Quezon, Philippines and within the jurisdiction of
affordable, quality-produced books for the domestic and export market.

this Honorable Court, the aforenamed accused, a public officer, being
then a member of the governing Board of the National Book
Development Board (NBDB), while in the performance of her official
and administrative functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully, unlawfully and
criminally, without any justifiable cause, and despite due demand by
the Resident Auditor and the Executive Director of NBDB, fail and
refuse to return and/or liquidate her cash advances intended for official
travel abroad which did not materialize, in the total amount
of P139,199.00 as of September 23, 1999, as required under EO No.
248 and Sec. 5 of COA Circular No. 97-002 thereby causing damage
and undue injury to the Government.
CONTRARY TO LAW.[16]
The case was docketed as Criminal Case No. 25867 and raffled to the First Division.
Meanwhile, the Commission on Audit charged petitioner with Malversation of Public
Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not
liquidating the cash advance granted to her in connection with her supposed trip
to Spain. During the conduct of the preliminary investigation, petitioner was required to
submit her counter-affidavit but she failed to do so. The Ombudsman found probable
cause to indict petitioner for the crime charged and recommended the filing of the
corresponding information against her. [17]
Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan,
which was docketed as Criminal Case No. 25898, and raffled to the Third Division, the
accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board and as such, is accountable for the public funds she received as
cash advance in connection with her trip to Spain from October 8-12,
1997, per LBP Check No. 10188 in the amount of P139,199.00, which
trip did not materialize, did then and there willfully, unlawfully and
feloniously take, malverse, misappropriate, embezzle and convert to
her own personal use and benefit the aforementioned amount
of P139,199.00, Philippine currency, to the damage and prejudice of
the government in the aforesaid amount.
CONTRARY TO LAW.[18]
During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money subject of the
2
criminal cases, which amount was deposited in a special trust account during the
pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898
on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner
filed with the same Division a Motion for Consolidation [19] of Criminal Case No. 25898
with Criminal Case No. 25867, pending before the First Division.On July 6, 2000, the
People filed an Urgent Ex-Parte Motion to Admit Amended Information[20] in Criminal
Case No. 25898, which was granted. Accordingly, the Amended Information dated June
28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to
February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a high ranking officer, being a
member of the Governing Board of the National Book Development
Board equated to Board Member II with a salary grade 28 and as such,
is accountable for the public funds she received as case advance in
connection with her trip to Spain from October 8-12, 1997, per LBP
Check No. 10188 in the amount of P139,199.00, which trip did not
materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal
use and benefit the aforementioned amount of P139,199.00, Philippine
currency, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.[21]
In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of
Criminal Case No. 25898 with Criminal Case No. 25867. [22]
On October 10, 2000, petitioner filed a Motion to Quash Information,[23] averring
that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the
information did not allege that she is a public official who is classified as Grade 27 or
higher. Neither did the information charge her as a co-principal, accomplice or accessory
to a public officer committing an offense under the Sandiganbayan's jurisdiction. She
also averred that she is not a public officer or employee and that she belongs to the
Governing Board only as a private sector representative under R.A. No. 8047, hence,
she may not be charged under R.A. No. 3019 before the Sandiganbayan or under any
statute which covers public officials. Moreover, she claimed that she does not perform
public functions and is without any administrative or political power to speak of that she is
serving the private book publishing industry by advancing their interest as participant in
the government's book development policy.
In an Order[24] dated November 14, 2000, the First Division[25] denied the motion
to quash with the following disquisition:
The fact that the accused does not receive any compensation in terms
of salaries and allowances, if that indeed be the case, is not the sole

qualification for being in the government service or a public official. The
National Book Development Board is a statutory government agency
and the persons who participated therein even if they are from the
private sector, are public officers to the extent that they are performing
their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that
monies were advanced to the accused in her capacity as Director of
the National Book Development Board for purposes of official
travel. While indeed under ordinary circumstances a member of the
board remains a private individual, still when that individual is
performing her functions as a member of the board or when that
person receives benefits or when the person is supposed to travel
abroad and is given government money to effect that travel, to that
extent the private sector representative is a public official performing
public functions; if only for that reason, and not even considering
situation of her being in possession of public funds even as a private
individual for which she would also covered by provisions of the
Revised Penal Code, she is properly charged before this Court.
On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on November 17, 2000,
for Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared
to accept the propriety of the accusation since it refers to the same subject matter as that
covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a
motion to quash. On November 22, 2000, petitioner filed a Motion to Quash the
Information[26] in Criminal Case No. 25898, by invoking her right against double
jeopardy. However, her motion was denied in open court. She then filed a motion for
reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution[27] denying
petitioners motion with the following disquisition:
The accused is under the jurisdiction of this Court because
Sec. 4 (g) of P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction. The Sandiganbayan shall
exercise exclusive original jurisdiction in all cases
involving:
xxxx
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
xxxx
3
The offense is office-related because the money for her travel
abroad was given to her because of her Directorship in the National
Book Development Board.
Furthermore, there are also allegations to hold the accused
liable under Article 222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding
provisions. The provisions of this chapter shall apply
to private individuals who, in any capacity whatever,
have charge of any insular, provincial or municipal
funds, revenues, or property and to any administrator
or depository of funds or property attached , seized
or deposited by public authority, even if such
property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal
Case No. 25898 on the ground of litis pendencia is denied since in this
instance, these two Informations speak of offenses under different
statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of
which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan has
committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the
two informations charging her with violation of the Anti-Graft Law and the Revised Penal
Code on malversation of public funds. She advanced the following arguments in support
of her petition, to wit: first, she is not a public officer, and second, she was being charged
under two (2) informations, which is in violation of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused assails the validity of
a criminal complaint or Information filed against him for insufficiency on its face in point of
law, or for defects which are apparent in the face of the Information. [28]
Well-established is the rule that when a motion to quash in a criminal case is denied, the
remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to
reiterating the special defenses invoked in their motion to quash. Remedial measures as
regards interlocutory orders, such as a motion to quash, are frowned upon and often
dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single
action.[29]
The above general rule, however admits of several exceptions, one of which is when the
court, in denying the motion to dismiss or motion to quash, acts without or in excess of
jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The
reason is that it would be unfair to require the defendant or accused to undergo the
ordeal and expense of a trial if the court has no jurisdiction over the subject matter or
offense, or is not the court of proper venue, or if the denial of the motion to dismiss or
motion to quash is made with grave abuse of discretion or a whimsical and capricious
exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate.[30]

To substantiate her claim, petitioner maintained that she is not a public officer and only a
private sector representative, stressing that her only function among the eleven (11)
basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain
priority status for the book publishing industry. At the time of her appointment to the
NDBD Board, she was the President of the BSAP, a book publishers association. As
such, she could not be held liable for the crimes imputed against her, and in turn, she is
outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the Philippine
book publishing industry. It is a statutory government agency created by R.A. No. 8047,
which was enacted into law to ensure the full development of the book publishing
industry as well as for the creation of organization structures to implement the said
policy. To achieve this end, the Governing Board of the NBDB was created to supervise
the implementation. The Governing Board was vested with powers and functions, to wit:
a) assume responsibility for carrying out and implementing the policies,
purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and
guidelines for undertaking activities relative to promoting book
development, production and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that
editors, compilers and especially authors are paid justly and promptly
royalties due them for reproduction of their works in any form and
number and for whatever purpose;
d) conduct or contract research on the book publishing industry
including monitoring, compiling and providing data and information of
book production;
e) provide a forum for interaction among private publishers, and, for
the purpose, establish and maintain liaison will all the segments of the
book publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act
in consultation with other agencies concerned, except for Section 9
hereof on incentives for book development, which shall be the concern
of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget and
Management (DBM), the annual and supplemental budgets submitted
to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and personal
property for the attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper
administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar acquisitions
which shall form a trust fund of the Board to accomplish its
development plans on book publishing;
4
l) import books or raw materials used in book publishing which are
exempt from all taxes, customs duties and other charges in behalf of
persons and enterprises engaged in book publishing and its related
activities duly registered with the board;
m) promulgate rules and regulations governing the matter in which the
general affairs of the Board are to be exercised and amend, repeal,
and modify such rules and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the
positions of the Executive Officer and Deputy Executive Officer of the
Board;
o) adopt rules and procedures and fix the time and place for holding
meetings: Provided, That at least one (1) regular meeting shall be held
monthly;
p) conduct studies, seminars, workshops, lectures, conferences,
exhibits, and other related activities on book development such as
indigenous authorship, intellectual property rights, use of alternative
materials for printing, distribution and others; and
q) exercise such other powers and perform such other duties as may
be required by the law.[31]
A perusal of the above powers and functions leads us to conclude that they partake of
the nature of public functions. A public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of
the public. The individual so invested is a public officer.[32]
Notwithstanding that petitioner came from the private sector to sit as a member of the
NBDB, the law invested her with some portion of the sovereign functions of the
government, so that the purpose of the government is achieved. In this case, the
government aimed to enhance the book publishing industry as it has a significant role in
the national development. Hence, the fact that she was appointed from the public sector
and not from the other branches or agencies of the government does not take her
position outside the meaning of a public office. She was appointed to the Governing
Board in order to see to it that the purposes for which the law was enacted are
achieved. The Governing Board acts collectively and carries out its mandate as one
body. The purpose of the law for appointing members from the private sector is to ensure
that they are also properly represented in the implementation of government objectives to
cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer pursuant to the
Anti-Graft Law, which provides that a public officer includes elective and appointive
officials and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal, from the
government.[33]
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or
appointed to a public office. Petitioner was appointed by the President to the Governing

Board of the NDBD. Though her term is only for a year that does not make her private
person exercising a public function. The fact that she is not receiving a monthly salary is
also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing
Board shall receive per diem and such allowances as may be authorized for every
meeting actually attended and subject to pertinent laws, rules and regulations. Also,
under the Anti-Graft Law, the nature of one's appointment, and whether the
compensation one receives from the government is only nominal, is immaterial because
the person so elected or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person who,
by direct provision of the law, popular election, popular election or appointment by
competent authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said Government or in any of its
branches public duties as an employee, agent, or subordinate official, of any rank or
classes, shall be deemed to be a public officer.[34]
Where, as in this case, petitioner performs public functions in pursuance of the objectives
of R.A. No. 8047, verily, she is a public officer who takes part in the performance of
public functions in the government whether as an employee, agent, subordinate official,
of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and
promulgation of several rules and regulations implementing R.A. No. 8047. She was
supposed to represent the country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for the Court to
resolve is whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,[35] the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as
amended, other known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter
II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials
occupying the following positions in the government,
whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade 27
and higher, of the Compensation and Position Classification
Act of 989 (Republic Act No. 6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified
as Grade Grade '27' and up under the Compensation and
Position Classification Act of 1989;
5
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairmen and members of Constitutional Commission,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified
as Grade Grade '27' and higher under the Compensation and
Position Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position Classification and Compensation Bureau,
of the Department of Budget and management provided the following information
regarding the compensation and position classification and/or rank equivalence of the
member of the Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of
NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-
Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-
officio and the remaining five (5) members represent the private
sector. The said five members of the Board do not receive any salary
and as such their position are not classified and are not assigned any
salary grade.
For purposes however of determining the rank equivalence of said
positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28.[36]
Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs
to the employees classified as SG-28, included in the phrase all other national and local
officials classified as Grade 27' and higher under the Compensation and Position
Classification Act of 1989.
Anent the issue of double jeopardy, We can not likewise give in to the contentions
advanced by petitioner. She argued that her right against double jeopardy was violated
when the Sandiganbayan denied her motion to quash the two informations filed against
her.
We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867
and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and RPC,
respectively. It is elementary that for double jeopardy to attach, the case against the
accused must have been dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon valid information sufficient in form and
substance and the accused pleaded to the charge.[37] In the instant case, petitioner
pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet
arraigned in the criminal case for malversation of public funds because she had filed a
motion to quash the latter information. Double jeopardy could not, therefore, attach

considering that the two cases remain pending before the Sandiganbayan and that
herein petitioner had pleaded to only one in the criminal cases against her.
It is well settled that for a claim of double jeopardy to prosper, the following requisites
must concur: (1) there is a complaint or information or other formal charge sufficient in
form and substance to sustain a conviction; (2) the same is filed before a court of
competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the
accused is convicted or acquitted or the case is otherwise dismissed or terminated
without his express consent.[38] The third and fourth requisites are not present in the case
at bar.
In view of the foregoing, We hold that the present petition does not fall under the
exceptions wherein the remedy of certiorari may be resorted to after the denial of one's
motion to quash the information. And even assuming that petitioner may avail of such
remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion
amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the
Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 111091 August 21, 1995
ENGINEER CLARO J. PRECLARO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
KAPUNAN, J.:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of
Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act. The information against him read as follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then the Project Manager/ Consultant of the
Chemical Mineral Division, Industrial Technology Development Institute,
Department of Science and Technology, a component of the Industrial
Development Institute (ITDI for brevity) which is an agency of the Department of
Science and Technology (DOST for brevity), wherein the Jaime Sta. Maria
Construction undertook the construction of the building in Bicutan, Taguig,
Metro Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED
NINETY FIVE THOUSAND PESOS (P17,695,000.00) jointly funded by the
Philippine and Japanese Governments, and while the said construction has not
yet been finally completed, accused either directly requested and/or demanded
for himself or for another, the sum of TWO HUNDRED THOUSAND PESOS
(P200,000.00), claimed as part of the expected profit of FOUR HUNDRED
SIXTY THOUSAND PESOS (P460,000.00) in connection with the construction
of that government building wherein the accused had to intervene under the law
in his capacity as Project Manager/Consultant of said construction — said
offense having been committed in relation to the performance of his official
duties.
6
CONTRARY TO LAW.1
On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges
against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan
rendered judgment finding petitioner guilty beyond reasonable doubt. The dispositive
portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y
Jambalos GUILTY beyond reasonable doubt of the violation of Section 3,
paragraph (b) of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, and he is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) YEARS and ONE (1) MONTH, as
the minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum,
perpetual disqualification from public office and to pay the costs of this action.
SO ORDERED.2
The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology
Development Institute (ITDI), a component of the Department of Science and Technology
(DOST) employed Petitioner under a written contract of services as Project Manager to
supervise the construction of the ITDI-CMD (JICA) Building at the DOST Compound in
Bicutan, Taguig, Metro Manila.3
The contract was to remain in effect from October 1, 1989 up to the end of the
construction period unless sooner terminated.4 Petitioner was to be paid a monthly salary
drawn from counter-part funds duly financed by foreign-assisted projects and
government funds duly released by the Department of Budget and Management. 5
In November 1989, to build the aforementioned CMD Structure, DOST contracted the
services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as
the company's project engineer. 6
How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated
in the Comment of the Solicitor General and amply supported by the records. The
material portions are hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta.
Maria Construction Company, was in the process of evaluating a Change Order
for some electricals in the building construction when petitioner approached him
at the project site (p. 11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change
Order will be deductive (meaning, charged to the contractor by deducting from
the contract price), instead of additive (meaning, charged to the owner).
Petitioner intimated that he can forget about the deductive provided he gets
P200,000.00, a chunk of the contractor's profit which he roughly estimated to be
around P460,000.00 (pp. 12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta.
Maria Construction Company, Resoso thereafter asked petitioner if he wanted a
rendezvous for him to receive the money. Petitioner chose Wendy's Restaurant,
corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around
8:00 o'clock in the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June,
perceiving financial constraints (Ibid.).

7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry."
(p. 15, Ibid.) Petitioner was thereafter asked to bring along the result of the
punch list (meaning, the list of defective or correctible works to be done by the
contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National
Bureau of Investigation (NBI) to report the incident (p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his
conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was
requested to produce the amount of P50,000.00 in P500.00 denomination to
represent the grease money (p. 37, TSN, 6 Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI.
Thereafter, the money was dusted with flourescent powder and placed inside an
attache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed
not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant
earlier than the designated time where a group of NBI men awaited him and his
companion, Sta. Maria, Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in
Timog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's
Restaurant. They were led by the NBI men to a table previously reserved by
them which was similarly adjacent to a table occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following
conversation took place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what did he
do?
a. We asked him his order and we talked
about the punch list.
q. What was his comment about the punch
list?
a. He told us that it is harder to produce
small items than big ones.
q. How long did you converse with Engr.
Claro Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his punch list,
did you talk about anything else?
a. Engineer Sta. Maria, Jr., they were
conversing with Dave Preclaro and he told
[him], "O, paano na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then
Preclaro told [him], "Paano, How will the
7
money be arranged and can I bring it?" he
said.
And then Jimmy Sta. Maria, Jr. told him it
was arranged on two bundles on two
envelopes.
And then Dave Preclaro told, "Puede" and
he asked Jimmy Sta. Maria, Jr. if there is
express teller and could he deposit during
night time but Engineer Sta. Maria, Jr. told
him, "I do not have any knowledge or I do
not have any express teller you can
deposit. I only know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened and
interviewed him that way, was there
anything that happened?
a. Jimmy Sta. Maria, Jr. handed two
envelopes to Preclaro.
q. Did Claro Preclaro receive these two
envelopes from Engineer Sta. Maria?
a. Yes, sir. (pp. 19-21, Ibid., See also pp.
13-14, TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand,
thereafter placing them under his left armpit, he was accosted by the NBI men
(p. 22, TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively docked to
avoid the taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner
refused. Hence, one of the NBI men picked up the envelopes and placed them
inside a big brown envelope (p. 27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was
tested positive of flourescent powder. The same flourescent powder, however,
cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990).7
xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner which, after
due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with the
decision, petitioner instituted the present petition for review, ascribing to the
Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE,
INSTEAD OF DISMISSING IT FOR LACK OF JURISDICTION, THE
[PETITIONER] NOT BEING A PUBLIC OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE
ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN ESTABLISHED
BEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE
[PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE
DOUBT.
We find the petition unmeritorious.

On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b)
of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he was
neither elected nor appointed to a public office. Rather, petitioner maintains that he is
merely a private individual hired by the ITDI on contractual basis for a particular project
and for a specified period8 as evidenced by the contract of services9 he entered into with
the ITDI. Petitioner, to further support his "theory," alleged that he was not issued any
appointment paper separate from the abovementioned contract. He was not required to
use the bundy clock to record his hours of work and neither did he take an oath of
office. 10
We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according
to Sec. 2(b) thereof "includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the
definition is not restrictive. The terms "classified, unclassified or exemption service" were
the old categories of positions in the civil service which have been reclassified into
Career Service and Non-Career Service 11 by PD 807 providing for the organization of
the Civil Service Commission 12 and by the Administrative Code of 1987. 13
Non-career service in particular is characterized by —
(1) entrance on bases other than those of the usual test of merit and fitness
utilized for the career service;and (2) tenure which is limited to a period
specified by law, or which is coterminous with that of the appointing authority or
subject to his pleasure, or which is limited to the duration of a particular project
for which purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of
office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job, requiring
special or technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year,
and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from the hiring
agency; and
(5) Emergency and seasonal personnel. (Emphasis ours.) 14
From the foregoing classification, it is quite evident that petitioner falls under the non-
career service category (formerly termed the unclassified or exemption service) of the
Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft &
Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy
clock or did not take an oath of office became unessential considerations in view of the
above-mentioned provision of law clearly including petitioner within the definition of a
public officer.
8
Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft &
Corrupt Practices Act because his intervention "was not required by law but in the
performance of a contract of services entered into by him as a private individual
contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of a
public officer and as such, his duties delineated in Annex "B" of the contract of
services 16 are subsumed under the phrase "wherein the public officer in his official
capacity has to intervene under the law." 17 Petitioner's allegation, to borrow a cliche, is
nothing but a mere splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's
accomplishment reports/billings 18hence, as correctly ruled by the Sandiganbayan he has
the "privilege and authority to make a favorable recommendation and act favorably in
behalf of the government," signing acceptance papers and approving deductives and
additives are some examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft &
Corrupt Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner's allegations completely bereft of
merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable
doubt and that the charges against him should be rejected for being improbable,
unbelievable and contrary to human nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty.
Only moral certainty is required or "that degree of proof which produces conviction in an
unprejudiced mind." 20 We have extensively reviewed the records of this case and we
find no reason to overturn the findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies
of the prosecution witnesses. We shall examine the testimonies referred to with
meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from
Engr. Resoso, when he could have just talked directly to the contractor himself. It is quite
irrelevant from whom petitioner demanded his percentage share of P200,000.00 whether
from the contractor's project engineer, Engr. Alexander Resoso or directly from the
contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all
that is required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently
established by the testimony of Engr. Resoso, thus:
xxx xxx xxx
Q You said when you were computing your Change Order Mr.
Preclaro or Dave Preclaro whom you identified approached
you, what did you talk about?
A He mentioned to me that we are deductive in our Change
Order three and four so after our conversation I told this
conversation to my boss that we are deductible in the Change
Order three and four and then my boss told me to ask why it
is deductive.
Q Did you ask the accused here, Dave Preclaro why it is
considered deductive?
A Yes, sir.
Q What was his answer if any?

A I asked him that my boss is asking me to ask you how
come it became deductive when my computation is additive
and he told me that I have done so much for your company
already and then he picked up cement bag paper bag and
computed our alleged profit amounting to One Hundred Sixty
Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in
our case he would use a minimum percentage and multiply to
60 and . . .
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and he said take of the butal and get two
Hundred Thousand Pesos.
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the
P200,000.00. (Emphasis ours.)
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss.
(Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical and after
that I told my boss what he told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the
message to Mr. Preclaro?
A The next day he told me to ask Dave where and when to
pick up the money so the next day I asked Dave "Where do
you intend to get the money, the Boss wanted to know."
Q What was the answer of Dave?
A And he told me, Wendy's Restaurant at 3:00 o'clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6
appointment?
A I told my boss what he told me again that the meeting will
take place at Wendy's Restaurant corner Edsa and Camias
Street at around 8:00 o'clock p.m. June 6, Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
9
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the meeting on
June 6 to be postponed on June 8 at the same place and
same time because my boss is having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a
hurry. Any way we are the ones to sign the acceptance
papers and my boss instructed me that on Friday to ask Dave
to bring along the result of the punch list and if possible also
to bring along the acceptance papers to be signed by Dave,
Lydia Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to relay
the postponement if any?
A Nothing happened. The next day, Thursday the boss
instructed me to go with him to the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the of
the NBI?
A Yes sir. 21
xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried
to arrange meetings with him regarding his demand 22 does not weaken the cause
against petitioner. It does not at all prove that petitioner did not ask for money.
Conceivably petitioner did not muster enough courage to ask money directly from the
contractor himself. Getting the amount through the project engineer would be safer
because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny
having made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too
high considering that the estimated profit of the contractor from the CMD project is only
P460,000.00. In petitioner's words, this would "scare the goose that lays the golden
egg." 23 We reject this argument. The aforementioned contractor's profit is petitioner's
own computation as testified to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you how
come it became deductive when my computation is additive
and he told me that I have done so much for your company
already and then he picked up cement bag paper bag and
computed our alleged profit amounting to One Hundred Sixty
Thousand Pesos and then he told me that he used to use
some percentage in projects maximum and minimum and in
our case he would use a minimum percentage and multiply to
460 and . . . (Emphasis ours.)
JUSTICE ESCAREAL:
Q What is 460?
 10

A P460,000.00 and it ended to P215 thousand or P20,000.00 A Yes, we have.

and he said take of the butal and get the Two Hundred Yes, the DOST have a technical Committee Infra-Structure
Thousand Pesos. (Emphasis ours.) Committee and also the ITDI as its own representative.
JUSTICE BALAJADIA: Q Who composed the Technical Committee of the DOST?
What is the translation now? A A certain Engineer Velasco, Engineer Sande Banez and
WITNESS: Engineer Mejia.
A And he said disregard the excess and I will just get the Q How about the ITDI?
P200,000.00. A The ITDI representative composed of Dave Preclaro.
PROS. CAOILI: Q Who is this Dave Preclaro?
Q What does he mean by that if you know? A He is the consultant of ITDI. (Emphasis ours.)
A I do not know sir. xxx xxx xxx
He just said, I will get the P200,000.00 and tell it to your ATTY. CAOILI:
boss. 24 Q As Project Engineer do you consult to any body regarding
xxx xxx xxx your job?
The records, however, do not show the true and actual amount that the Sta. Maria A First if there is any problem in the site I consult my boss.
Construction will earn as profit. There is, therefore, no basis for petitioner's contention as PROS. CAOILI:
the actual profit may be lower or higher than his estimation. Q How about with the other consultants representing the ITDI
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage and DOST?
proper compensation since he has allegedly done so much for the Sta. Maria A In the construction site we have meeting every Monday to
construction company. 25 discuss any problem.
Petitioner also argues that: Q With whom do you discuss this problem?
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. A The Infra-structure Committee of DOST and the Infra-
34-35). structure Committee of ITDI, the architect and the contractor.
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, We had weekly meetings.
why would the petitioner still demand P200,000.00 which would increase the Q What matters if any do you consult with Mr. Claro Preclaro?
contractor's loss to P480,000.00! ATTY. JIMENEZ:
It might have been different if the changes were additive where STA. MARIA No basis.
CONSTRUCTION would have earned more, thereby providing motive for the JUSTICE ESCAREAL:
petitioner to ask for a percentage! 26 They met on problems on Mondays.
But this is precisely what petitioner was bargaining for — P200,000.00 in exchange for ATTY. JIMENEZ:
forgetting about the deductive 27 and thus prevent the Sta. Maria Construction from But there is no mention of Preclaro specifically.
incurring losses. JUSTICE ESCAREAL:
Petitioner's contention that it was impossible for him to make any demands because the With the representative of DOST and Preclaro
final decision regarding accomplishments and billing lies with the DOST technical ATTY. JIMENEZ:
committee is unacceptable. Petitioner is part of the abovementioned technical committee Does that also mean that Preclaro is also among the
as the ITDI representative consultant. This is part of his duties under the contract of representatives he is going to consult with?
services in connection with which he was employed by the ITDI. Even, Well any way. . .
assuming arguendo that petitioner does not make the final decision, as JUSTICE ESCAREAL:
supervisor/consultant, his recommendations will necessarily carry much weight. Engr. Witness may answer the question.
Resoso testified thus: Read back the question.
PROS. CAOILI: COURT STENOGRAPHER:
Q As a Project Engineer to whom do you present your billing Reading back the question as ordered by the Court.
papers accomplishment report or purchase order? WITNESS:
A The billing paper was being taken cared of by the, of our A Every Monday meeting we tackle with accomplishment
office. I personally do my job as supervision in the report the billing papers. 28 (Emphasis ours.)
construction. xxx xxx xxx
Q Do you have any counterpart to supervise the project from Petitioner also claims that the testimonies of the prosecution witnesses regarding the
the government side? entrapment itself are conflicting, doubtful or improbable:

(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with
flourescent powder and used in the alleged entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand
(P50,000.00) pesos in P500 denomination to the NBI. 29
There is no such inconsistency. Said witnesses were testifying on two different subjects.
Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the
entrapment while Engr. Resoso's declaration referred only to the number of bills dusted
with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon receiving the
same?
A Then he asked Jaime Sta. Maria, Jr. if there is bank teller
express, if he could deposit the money but Mr. Sta. Maria
said, "I do not have, I only have credit cards." 30
Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr.
He was merely inquiring from the latter if there was an express teller nearby where he
could make the deposit. Mr. Sta. Maria Jr. himself testified as follows:
A He asked me if there was express teller. I told him I do not
know then he asked me whether it is possible to deposit at
the Express Teller at that time. I told him I don't know
because I have no express teller card and he asked me how
am I going to arrange, how was it arranged if I will bring it, can
I bring it. Then I told him that it was placed in two envelopes
consisting of 500 Peso bills and then he said "Okay na
yan." 31
The failure of the NBI to take photographs of the actual turn-over of the money to
petitioner is not fatal to the People's cause. The transaction was witnessed by several
people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whose
testimonies on the circumstances before, during and after the turn-over are consistent,
logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of
the actual turn-over so as not to alert and scare off the petitioner. During cross-
examination Agent Balanban Jr. stated:
xxx xxx xxx
Q Now, of course, this entrapment operation, you made
certain preparation to make sure that you would be able to
gather evidence in support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the
purpose?
A That is right sir.
Q And that photographer was precisely brought along to
record the entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
ATTY. JIMENEZ:
11
From the time of the handing over of the envelopes until the
entrapment would have been terminated?
A No sir we plan to take the photograph only during the arrest
because if we take photographs he would be alerted during
the handing of the envelopes. (Emphasis ours.)
Q So you did not intend to take photographs of the act of
handing of the envelopes to the suspect?
A We intended but during that time we cannot take
photographs at the time of the handling because the flash will
alert the suspect. (Emphasis ours.)
JUSTICE ESCAREAL:
Why did you not position the photographer to a far distance
place with camera with telescopic lens?
A We did not Your Honor.
ATTY. JIMENEZ:
So was it your intention to take photographs only at the time
that he is already being arrested?
A Yes sir. 32
xxx xxx xxx
Petitioner insists that when his hands were placed under ultra-violet light, both were
found negative for flourescent powder. This is petitioner's own conclusion which is not
supported by evidence. Such self-serving statement will not prevail over the clear and
competent testimony and the report 33 submitted by the forensic expert of the NBI Ms.
Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's
right palmar hand positive for flourescent powder, the same hand he used, according to
witnesses Resoso and Sta. Maria Jr., to get the money from the latter.
xxx xxx xxx
Q Mrs. dela Cruz since when have you been a Forensic
Chemist at NBI?
A Since 1981 sir.
Q JUSTICE ESCAREAL:
Q By the way, is the defense willing to admit that the witness
is a competent as . . . .
ATTY. JIMENEZ:
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic examination in the
person of one Dave Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would
you be able to recognize him?
ATTY. JIMENEZ:
We admit that the accused is the one examined by the
witness.
ATTY. CAOILI:
Did you prepare the result of the examination in writing?
A Yes sir.
PROS. CAOILI:

Showing to you Physic Examination No. 90-961 which for
purposes of identification has already been marked as Exh. H
what relation has this have with the report that you mentioned
a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under
the ultra violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the palmer hands
of the suspect gave positive result for the presence of
flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the
pants were examined. Under the ultra violet lamp the
presence of the flourescent powder of the t-shirts and pants
cannot be seen or distinguished because the fibers or the
material of the cloth under the ultra violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the
ultra violent lamp was flouresce?
A The materials or the fibers of the clothings it could have
been dyed with flourescent dyes sir. 34
xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's claim that he
was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge
on account, for petitioner's failure to recommend the Sta. Maria Construction to perform
the extra electrical works. 35
The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of the
construction company is hardly plausible. It is highly improbable for the
company to embark on a malicious prosecution of an innocent person for the
simple reason that such person had recommended the services of another
construction firm. And it is extremely impossible for such company to enlist the
cooperation and employ the services of the government's chief investigative
agency for such an anomalous undertaking. It is more in accord with reason and
logic to presuppose that there was some sort of a mischievous demand made
by the accused in exchange for certain favorable considerations, such as,
favorable recommendation on the completeness of the project, hassle-free
release of funds, erasure of deductives, etc. Indeed, the rationale for the
occurrence of the meeting and the demand for money is infinite and
boundless. 36
As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then
engaged in the construction of another DOST building, would not risk his business or
livelihood just to exact revenge which is neither profitable nor logical. As we aptly stated
in Maleg v. Sandiganbayan: 37
12
It is hard to believe that the complainant who is a contractor would jeopardize
and prejudice his business interests and risk being blacklisted in government
infrastructure projects, knowing that with the institution of the case, he may find
it no longer advisable nor profitable to continue in his construction ventures. It is
hardly probable that the complainant would weave out of the blue a serious
accusation just to retaliate and take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial and
documentary evidence presented during the trial, the guilt of petitioner has been
established beyond reasonable doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.
[G.R. No. 145368. April 12, 2002]
SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his capacity
as Ombudsman, respondent.
DECISION
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No.
223 constituting a Committee for the preparation of the National Centennial Celebration
in 1998. The Committee was mandated to take charge of the nationwide preparations for
the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.[1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
reconstituting the Committee for the preparation of the National Centennial Celebrations
in 1998. It renamed the Committee as the National Centennial Commission. Appointed to
chair the reconstituted Commission was Vice-President Salvador H. Laurel. Presidents
Diosdado M. Macapagal and Corazon C. Aquino were named Honorary Chairpersons. [2]
Characterized as an ad-hoc body, the existence of the Commission shall terminate
upon the completion of all activities related to the Centennial Celebrations. [3] Like its
predecessor Committee, the Commission was tasked to take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial of the Declaration
of Philippine Independence and the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to prepare, for approval of the President, a Comprehensive Plan for the
Centennial Celebrations within six (6) months from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff support
by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts, and
the National Historical Institute. Said Secretariat shall be headed by a full time Executive
Director who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation
(Expocorp) was created.[4] Petitioner was among the nine (9) Expocorp incorporators,

who were also its first nine (9) directors. Petitioner was elected Expocorp Chief Executive
Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech
in the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No.
35, creating an ad hoc and independent citizens committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of
the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committees recommendations was the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to
Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended the further investigation by the Ombudsman, and indictment, in proper
cases of, among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of
the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of the
Ombudsman.On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:
1. that a formal complaint be filed and preliminary investigation be conducted
before the Evaluation and Preliminary Investigation Bureau (EPIB), Office
of the Ombudsman against former NCC and EXPOCORP chair Salvador
H. Laurel, former EXPOCORP President Teodoro Q. Pea and AK
President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No.
3019, as amended in relation to PD 1594 and COA Rules and
Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant.[6]
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit
and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to
dismiss.
13
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued
a resolution finding probable cause to indict respondents SALVADOR H. LAUREL and
TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also directed
that an information for violation of the said law be filed against Laurel and
Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but
dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any information before
the Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of
the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH
UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE
ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A
GOVERNMENT-OWNED OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC
OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS
NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT
PRACTICES ACT.[7]
In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs.
Sandiganbayan,[9] where it was held that the jurisdiction of the Ombudsman was limited
to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and
higher. As petitioners position was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over
him.
This last contention is easily dismissed. In the Courts decision in Uy, we held that it
is the prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have control
over prosecution of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling
within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 (An Act
Providing for the Functional and Structural Organization of the Office of the Ombudsman,

and for other purposes) which vests upon the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan And this is further buttressed by Section 11 (4a)
of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the
power to conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan. Thus, repeated references to the Sandiganbayans
jurisdiction clearly serve to limit the Ombudsmans and Special Prosecutors authority to
cases cognizable by the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing pronouncement
in its Resolution dated March 20, 2001. The Court explained the rationale for this
reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary
and unqualified. It pertains to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause
any illegal act or omission of any public official is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly
in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable
by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the
Ombudsman to take over, at any stage, from any investigatory agency of the
government, the investigation of such cases. The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his primary jurisdiction
over cases cognizable by the Sandiganbayan is not incompatible with the discharge of
his duty to investigate and prosecute other offenses committed by public officers and
employees.Indeed, it must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and
non-feasance committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with
the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office
of the Special Prosecutor is merely a component of the Office of the Ombudsman and
may only act under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the
lawmakers did not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the evidence warrants. To
carry out this duty, the law allows him to utilize the personnel of his office and/or
designate any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of certain
14
cases. Those designated or deputized to assist him work under his supervision and
control. The law likewise allows him to direct the Special Prosecutor to prosecute cases
outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active and
effective agent of the people in ensuring accountability in public office. A review of the
development of our Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was
not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as protectors of
the people, who shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations. Among
the awesome powers, functions, and duties vested by the Constitution [11] upon the Office
of the Ombudsman is to [i]nvestigate 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 foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said
law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people shall
act promptly on complaints file in any form or manner against officers or employees of
the Government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.
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;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance,
misfeasance and non-feasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the government, or of
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations.[12]

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence[13] is that provided
by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by which, for
a given period, either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of the government, to
be exercised by him for the benefit of the public. The individual so invested is a public
officer.[14]
The characteristics of a public office, according to Mechem, include the delegation
of sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as an
office.[15]
Petitioner submits that some of these characteristics are not present in the position
of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as [t]he most important characteristic in determining whether a
position is a public office or not.
The most important characteristic which distinguishes an office from an employment or
contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him for
the benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer.[16]
Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that can be
described as legislative or judicial. May the functions of the NCC then be described as
executive?
We hold that the NCC performs executive functions. The executive power is
generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance.[17] The
executive function, therefore, concerns the implementation of the policies as set forth by
law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve,
promote, and popularize the nations historical and cultural heritage and resources, as
well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the
centennial presents an important vehicle for fostering nationhood and a strong sense of
Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;
15
Whereas, the success of the Centennial Celebrations may be insured only through long-
range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise and
capability, particularly in communication and information dissemination, is necessary for
long-range planning and continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake the primary
task of harnessing the multisectoral components from the business, cultural, and
business sectors to serve as effective instruments from the launching and overseeing of
this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the need to strengthen the said Committee to ensure a more coordinated
and synchronized celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organizations. It also referred to the need
to rationalize the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with the
following functions:
(a) To undertake the overall study, conceptualization, formulation
and implementation of programs and projects on the utilization of culture,
arts, literature and media as vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations. In this regard,
it shall include a Philippine National Exposition 98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness
and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of
the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes (e.g.
lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the
historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation,
and to invite private individuals and organizations to assist it in the
performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects,
activities as well as the status of the preparations for the Celebration. [18]
It bears noting the President, upon whom the executive power is vested, [19] created
the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much in the oral
arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you
agree that the task of the centennial commission was also to focus on
the long term over all socio economic development of the zone and
Central Luzon by attracting investors in the area because of the eruption
of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to
touch on by lack of material time I could not but that is a very important
point. When I was made Chairman I wanted the Expo to be in Batangas
because I am a Batangeo but President Ramos said Mr. Vice President
the Central Luzon is suffering, suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic recovery in that area by
putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside
from attracting business investments and employment. And the Estrada
administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo. And our target was to provide
75 thousand jobs. It would have really calibrated, accelerated the
development of Central Luzon. Now, I think they are going back to that
because they had the airport and there are plan to revive the Expo site
into key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding
by a municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the holding of a nationwide celebration which marked the nations
100th birthday may be likened to a national fiesta which involved only the exercise of the
national governments proprietary function.[22] In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a
source of income for the town, nonetheless it is [a] private undertaking as distinguished
from the maintenance of public schools, jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true
nature of an undertaking or function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government in essence,
otherwise, the function becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in the celebration of a town fiesta.
16
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that there can be no hard and fast rule for purposes of determining
the true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated how the surrounding
circumstances plus the political, social, and cultural backgrounds could produce a
conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances plus
the political, social, and cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display resulting
in the death of a bystander alleged to have been caused by defendants negligence. The
defendants demurred to the complaint invoking the defense that the city was engaged in
the performance of a public governmental duty from which it received no pecuniary
benefit and for negligence in the performance of which no statutory liability is
imposed. This demurrer was sustained by the Superior Court of New Haven
Country. Plaintiff sought to amend his complaint to allege that the celebration was for the
corporate advantage of the city. This was denied. In affirming the order, the Supreme
Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of purely
public governmental duties, unless made liable by statute.
A municipality corporation, which under permissive authority of its charter or of statute,
conducted a public Fourth of July celebration, including a display of fireworks, and sent
up a bomb intended to explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance of a governmental
duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes.While there is no United States statute making a similar provision, the different
departments of the government recognize, and have recognized since the government
was established, July 4th as a national holiday. Throughout the country it has been
recognized and celebrated as such. These celebrations, calculated to entertain and
instruct the people generally and to arouse and stimulate patriotic sentiments and love of
country, frequently take the form of literary exercises consisting of patriotic speeches and
the reading of the Constitution, accompanied by a musical program including patriotic air
sometimes preceded by the firing of cannon and followed by fireworks. That such
celebrations are of advantage to the general public and their promotion a proper subject
of legislation can hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the liberation of
our people from oppression by a foreign power. 1998 marked 100 years of independence
and sovereignty as one united nation. The Celebrations was an occasion to reflect upon
our history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for
fostering nationhood and a strong sense of Filipino identity, an opportunity to showcase

Filipino heritage and thereby strengthen Filipino values. The significance of the
Celebrations could not have been lost on petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to rekindle
the love for freedom, love for country, that is the over-all goal that has to make everybody
feel proud that he is a Filipino, proud of our history, proud of what our forefather did in
their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a mere incident and forms no
part of the office. Where a salary or fees is annexed, the office is provided for it is a
naked or honorary office, and is supposed to be accepted merely for the public
good.[23] Hence, the office of petitioner as NCC Chair may be characterized as an
honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which
salary, compensation or fees are attached.[24] But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc
body make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is defined by
rules prescribed by the government and not by contract, which an individual is appointed
by government to perform, who enters on the duties pertaining to his station without any
contract defining them, if those duties continue though the person be changed, -- it
seems very difficult to distinguish such a charge or employment from an office of the
person who performs the duties from an officer.
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no difference, says
Pearson, C.J., whether there be but one act or a series of acts to be done, --
whether the office expires as soon as the one act is done, or is to be held for years
or during good behavior.[25]
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.[26] There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an office of trust as to
disqualify its holder as elector of the United States President and Vice-President. (Under
Article II of the United States Constitution, a person holding an office of trust or profit
under the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an
office of trust under the United States, and that he is therefore disqualified for the office
of elector of President and Vice-President of the United States.
The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign arts,
products, and manufactures, under the auspices of the government of the United States,
and for the constitution of a commission, to consist of more than one delegate from each
State and from each Territory of the United States, whose functions shall continue until
close of the exhibition, and whose duty it shall be to prepare and superintend the
execution of the plan for holding the exhibition. Under the statute the commissioners are
appointed by the President of the United States, on the nomination of the governor of the
17
States and Territories respectively. Various duties were imposed upon the commission,
and under the statute provision was to be made for it to have exclusive control of the
exhibit before the President should announce, by proclamation, the date and place of
opening and holding the exhibition. By an act of Congress approved June 1st, 1872, the
duties and functions of the commission were further increased and defined. That act
created a corporation, called The Centennial Board of Finance, to cooperate with the
commission and to raise and disburse the funds. It was to be organized under the
direction of the commission. The seventh section of the act provides that the grounds for
exhibition shall be prepared and the buildings erected by the corporation, in accordance
with plans which shall have been adopted by the United States Centennial Commission;
and the rules and regulations of said corporation, governing rates for entrance and
admission fees, or otherwise affecting the rights, privileges, or interests of the exhibitors,
or of the public, shall be fixed and established by the United States Centennial
Commission; and no grant conferring rights or privileges of any description connected
with said grounds or buildings, or relating to said exhibition or celebration, shall be made
without the consent of the United States Centennial Commission, and said commission
shall have power to control, change, or revoke all such grants, and shall appoint all
judges and examiners and award all premiums. The tenth section of the act provides that
it shall be the duty of the United States Centennial Commission to supervise the closing
up of the affairs of said corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of the
commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they were
not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such duties
and exercising such functions, in pursuance of statutory direction and authority, are not
to be regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress; for the act under
which they were appointed declares, section 7, that no compensation for services shall
be paid to the commissioners or other officers, provided for in this act, from the treasury
of the United States. The only other officers provided for were the alternates appointed to
serve as commissioners when the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation. Even assuming that Expocorp is a private
corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose from
his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp
must be viewed in the light of his powers and functions as NCC Chair. [27]
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public officer as
defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:
 18

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
officers already penalized by existing law, the following shall constitute corrupt practices compensation, which is not defined by said law, has many meanings.
of any public officer and are hereby declared to be unlawful: Under particular circumstances, compensation has been held to include allowance for
xxx personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
(e) Causing any undue injury to any party, including the Government, or giving any expenses, payments for services, restitution or a balancing of accounts, salary, and
private party any unwarranted benefits, advantage or preference in the discharge of his wages.[30]
official, administrative or judicial functions through manifest partiality, evident bad faith or How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be
gross inexcusable negligence. This provision shall apply to officers and employees of interpreted?
offices or government corporations charged with the grant of licenses or permits or other Did petitioner receive any compensation at all as NCC Chair? Granting that
concessions. petitioner did not receive any salary, the records do not reveal if he received any
A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows: allowance, fee, honorarium, or some other form of compensation. Notably, under the by-
SEC. 2. Definition of terms. As used in this Act, the term laws of Expocorp, the CEO is entitled to per diems and compensation.[31] Would such
xxx fact bear any significance?
(b) Public officer includes elective and appointive officials and employees, permanent or Obviously, this proceeding is not the proper forum to settle these issues lest we
temporary, whether in the classified or unclassified or exemption service receiving preempt the trial court from resolving them.
compensation, even nominal, from the government as defined in the preceding WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
paragraph. [Emphasis supplied.] Courts Resolution dated September 24, 2001 is hereby LIFTED.
It is clear from Section 2 (b), above, that the definition of a public officer is expressly SO ORDERED.
limited to the application of R.A. No. 3019. Said definition does not apply for purposes of Puno, and Ynares-Santiago, JJ., concur.
determining the Ombudsmans jurisdiction, as defined by the Constitution and the Davide, Jr., C.J., (Chairman), no part due to close relation to a party.
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft
and Corrupt Practices Act involves the appreciation of evidence and interpretation of law, PEOPLE OF THE PHILIPPINES, G.R. No. 166355
matters that are best resolved at trial. Petitioner,
To illustrate, the use of the term includes in Section 2 (b) indicates that the Present:
definition is not restrictive.[28] The Anti-Graft and Corrupt Practices Act is just one of
several laws that define public officers. Article 203 of the Revised Penal Code, for CARPIO MORALES, J.,Chairperson,
example, provides that a public officer is: BRION,
x x x any person who, by direct provision of law, popular election or appointment by BERSAMIN,
competent authority, takes part in the performance of public functions in the Government VILLARAMA, JR., and
of Philippines, or performs in said Government or in any of its branches public duties as - versus - SERENO, JJ.
an employee, agent or subordinate official, of any rank or class. Promulgated:
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,[29] on
the other hand, states: May 30, 2011
Officer as distinguished from clerk or employee, refers to a person whose duties not
being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a person
having authority to do a particular act or perform a particular person in the exercise of LUIS J. MORALES,
governmental power, officer includes any government employee, agent or body having Respondent.
authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct x----------------------------------------------------------------------------------------- x
and Ethical Standards for Public Officials and Employees), one may be considered a
public official whether or not one receives compensation, thus: DECISION
Public Officials include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police BRION, J.:
personnel, whether or not they receive compensation, regardless of amount.
Which of these definitions should apply, if at all? We review the petition for review on certiorari, filed by the People of
the Philippines (the People), to assail the Resolution[1] of the First Division of the

Sandiganbayan in Criminal Case No. 27431, entitled People of the Philippines versus
Luis J. Morales.
Background Facts
On June 13, 1991, then President Corazon Aquino issued Administrative Order
No. 223 to commemorate the 100th anniversary of the declaration of Philippine
Independence and thereby created the Committee for the National Centennial
Celebrations in 1998 (Committee).
In 1993, then President Fidel V. Ramos issued Executive Order No. 128 (EO
128), entitled Reconstituting the Committee for the Preparation of the National
Centennial Celebrations in 1998. EO 128 renamed the Committee as the National
Centennial Commission (NCC). The mandate of the NCC was to take charge of the
nationwide preparations for the National Celebration of the Philippine Centennial of the
Declaration of Philippine Independence and the Inauguration of the Malolos
Congress.[2] The late Vice-President Salvador Laurel was appointed as NCC Chairman.
On March 10, 1996, the NCC and the Bases Conversion Development Authority
(BCDA)[3] organized the Philippine Centennial Expo 98 Corporation or Expocorp whose
primary purpose was to operate, administer, manage and develop the Philippine
Centennial International Exposition 1998 (Expo 98).[4]
The Philippine Centennial project was marred by numerous allegations of
anomalies, among them, the lack of public biddings. In 1998, Senator Ana Dominique
Coseteng delivered a privilege speech in the Senate denouncing these
anomalies. Because of this speech, the Senate Blue Ribbon Committee conducted an
investigation on the Philippine Centennial project. In 1999, then President Joseph
Estrada created the Ad Hoc and Independent Citizens Committee (AHICC), also for the
purpose of investigating these alleged anomalies. Both the Senate Blue Ribbon
Committee and the AHICC recommended to the Office of the Ombudsman that a more
exhaustive investigation of the Philippine Centennial project be conducted.
The investigation that followed resulted in the filing in 2001 of an
Information[5] by the Ombudsmans Fact-Finding and Investigation Bureau against
respondent Luis J. Morales (Morales), the acting president of Expocorp at the time
relevant to the case. This Information served as basis for Criminal Case No. 27431 that
we now consider.
The Information against Morales for violation of Section 3(e) of Republic Act
(R.A.) No. 3019[6] reads:
That on or about September 6, 1997 or sometime prior or
subsequent thereto in Pasig City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then the Pres. of Expo Corporation, Pasig City, a
government corporation, and as such was issued one (1) Mercede[s]
Benz, Model 1997-C230, bearing Serial No. WDB202023-1F-602122,
and Engine No. 111974-12-027093 for his official use, and while in the
19
performance of his official functions, acting thru evident bad faith and
manifest partiality, did then and there willfully, unlawfully, and criminally
give unwarranted benefits to one Rodolfo M. Lejano by selling to him
said Mercede[s] Benz through Newton Motors, Inc. represented by its
President Exequiel V. Mariano in the amount of Two Million Two
Hundred Fifty Thousand Pesos (P2,250,000.00), without the requisite
public bidding nor approval of the Board of Directors of Expo
Corporation and thereafter failed to deposit the proceeds of the sale of
the aforementioned vehicle to the account of Expo Corporation, to the
damage and prejudice of the Corporation and the public interest as
well.[7]
In the proceedings before the Sandiganbayan, Morales moved for the dismissal
of the case for lack of jurisdiction over his person and over the offense charged.He
alleged that Expocorp is a private corporation and that he is not a public employee or
official. He also alleged that the Sandiganbayan has no jurisdiction over his person or the
offense charged as he is a private individual who has not been charged jointly with other
public officials or employees. He added that Expocorp is not a government-owned or
controlled corporation because it was not created by a special law, it did not have an
original charter, and a majority of Expocorps capital stock is owned by private individuals.
He claimed that he did not receive any compensation from the government as defined in
Section 2(a) of R.A. No. 3019, and the compensation he received as Expocorps acting
president was paid from Expocorps funds.[8]
In its comment to Expocorps motion, the Office of the Special Prosecutor,
representing the People, insisted that Expocorp is a government-owned corporation
since its articles of incorporation showed that of its ten listed subscribers, BCDA held
stocks valued at P99,999,100.00, while the stocks held by the rest of the subscribers had
a total value of P900.00. The People further argued, based on the Courts ruling
in Salvador H. Laurel v. Aniano A. Desierto,[9] that NCC Chairman Laurel was a public
officer; thus, Morales was likewise a public officer since his appointment flowed from the
formers exercise of his authority as chairman of both NCC and Expocorp.
In his reply, Morales averred that upon Expocorps incorporation, BCDA owned
essentially all of Expocorps stocks. Two months after its incorporation, however, the
Board of Directors of Expocorp issued a resolution declaring all its unissued and
unsubscribed shares open for subscription. Global Clark Assets Corporation (Global)
subscribed to essentially all of these unissued and unsubscribed shares; thus, Global
became the majority owner with 55.16% of Expocorps stocks, while BCDA was left as
minority stockholder with 44.84% of Expocorps stocks. Morales also asserted that the
ruling in Laurel[10] applied exclusively to Chairman Laurel. Morales concluded that since
Expocorp is a private corporation and an entity distinct from NCC, he, as its president, is
not a public officer.
The Sandiganbayan Resolution
The Sandiganbayan, after considering the arguments of the parties, ruled that
the position of a president of a government-owned or controlled corporation clearly falls
within its jurisdiction. However, before Morales could be held accountable as Expocorps

president, it must first be established that Expocorp is a government-owned or controlled
corporation.
The Sandiganbayan explained in Laurel,[11] that the Court only held
that Laurel is a public officer without ruling on whether Expocorp is a private or a
government-owned corporation. The Court also held that NCC performed executive
functions, hence, it was a public office; consequently, its chairman, Laurel, was a public
officer. Morales, in the case at bar, is being charged as president of Expocorp only and
not as an NCC official.
In ruling that Expocorp is a private corporation, the Sandiganbayan stated that it
was not created by a special law nor did it have an original charter. It was organized
under the Corporation Code and was registered with the Securities and Exchange
Commission. According to the Sandiganbayan, Expocorp could not derive its public
character from the fact that it was organized by the NCC. The Sandiganbayan ruled that
applying the provisions of the Revised Administrative Code of 1987, Expocorp is a
private corporation because Global owns 55.16% of its stocks; hence, its officers and
employees are private individuals who are outside the jurisdiction of the Sandiganbayan.
On this basis, the Sandiganbayan dismissed the information against Morales.
The Sandiganbayan denied the motion the People subsequently filed; [12] hence,
the present petition.
The Issues
The People submits the following grounds:
(1) Expocorp was organized and created for the sole purpose of
performing the executive functions of the National Centennial
Commission and the sovereign functions of the government,
and should be considered as a public office.
(2) Petitioner, as president of Expocorp, should rightfully be considered
as a public officer, falling under the jurisdiction of the
Sandigangayan.[13]
The Courts Ruling
We deny the petition for lack of merit.
The nature of Expocorp
The People submits that Expocorp was an extension of the NCC as provided in
Expocorps Articles of Incorporation, specifically Section 2[14] which states Expocorps
primary purpose. It provides that Expocorps primary purpose was to establish and
operate Expo 98 - an NCC project. The People stated in its petition, thus -
20
The position occupied by respondent as President of
Expocorp stemmed from his appointment as such by NCC Chair and
Expocorp Chief Executive Officer Salvador H. Laurel. On the basis of
such appointment, respondent served as the governments
representative and Laurels alter ego in running the affairs of
Expocorp. As held in the Laurel vs. Desierto case, even assuming that
Expocorp is a private corporation, petitioners position as Chief
Executive officer (CEO) of Expocorp arose from his Chairmanship of
the NCC.Consequently, his acts or omissions as CEO of Expocorp
must be viewed in the light of his powers and functions as NCC Chair.
Having established that Expocorp, by extension, performed
part of the sovereign functions delegated to the NCC, it follows that
respondent, as President of Expocorp, performed tasks that likewise
fall within the contemplation of the governments sovereign functions.[15]
We do not agree with the People.
Expocorp is a private corporation as found by the Sandiganbayan. It was not
created by a special law but was incorporated under the Corporation Code and was
registered with the Securities and Exchange Commission.[16] It is also not a government-
owned or controlled corporation. Although BCDA, which owned 999,991 shares[17] of its
shares, was one of Expocorps original incorporators, the Board of Directors of Expocorp
allowed Global to buy 1,229,998 of its unused and unsubscribed shares two months after
its incorporation. With the BCDA as a minority stockholder, Expocorp cannot be
characterized as a government-owned or controlled corporation. In Dante V. Liban, et al.
v. Richard J. Gordon,[18] we pointedly said:
A government-owned or controlled corporation must be
owned by the government, and in the case of a stock corporation, at
least a majority of its capital stock must be owned by the government.
The Sandiganbayans Jurisdiction
Section 5, Article XIII of the 1973 Constitution defines the jurisdiction of the
Sandiganbayan:[19]
Sec. 5. The [Batasang Pambansa] shall create a special
court, to be known as Sandiganbayan, which shall have jurisdiction
over criminal and civil cases involving graft and corrupt practices and
such other offenses committed by public officers and employees,
including those in government-owned or controlled corporations, in
relation to their office as may be determined by law.
 21

R.A. No. 8249,[20] which amended Presidential Decree No. 1606,[21] delineated
the jurisdiction of the Sandiganbayan as follows: (4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and
Section 4. Section 4 of the same decree is hereby further
amended to read as follows: (5) All other national and local officials classified as Grade '27'
and higher under the Compensation and Position Classification Act of
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise 1989.
exclusive original jurisdiction in all cases involving:
b. Other offenses or felonies whether simple or complexed
a. Violations of Republic Act No. 3019, as amended, with other crimes committed by the public officials and employees
otherwise known as the Anti-graft and Corrupt Practices Act, Republic mentioned in subsection a of this section in relation to their office.
Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials c. Civil and criminal cases filed pursuant to and in connection
occupying the following positions in the government whether in a with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
permanent, acting or interim capacity, at the time of the commission of (Underlining supplied.)
the offense:
Since Expocorp is a private corporation, not a government-owned or controlled
(1) Officials of the executive branch occupying the positions of corporation, Morales, as Expocorps president who now stands charged for violating
regional director and higher, otherwise classified as Grade '27' and Section 3(e) of R.A. No. 3019 in this capacity, is beyond the Sandiganbayans jurisdiction.
higher, of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including: WHEREFORE, premises considered, the petition for review
on certiorari is DISMISSED for lack of merit. The Sandiganbayans June 15,
(a) Provincial governors, vice-governors, members of 2004 Resolution in Criminal Case No. 27431, entitled People of the Philippines versus
the Sangguniang panlalawigan and provincial treasurers, assessors, Luis J. Morales, is AFFIRMED. No costs.
engineers and other provincial department heads;
(b) City mayors, vice-mayors, members of SO ORDERED.
the sangguniang Panlungsod, city treasurers, assessors, engineers
and other city department heads;
(c ) Officials of the diplomatic service occupying the position
of consul and higher;
(d) Philippine army and air force colonels, naval captains, and
all officers of higher rank;
(e) Officers of the Philippine National Police while occupying
the position of provincial director and those holding the rank of senior
superintendent or higher;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and special
prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations, state universities or
educational institutions or foundations;

(2) Members of Congress and officials thereof classified as

Grade '27' and up under the Compensation and Position Classification
Act of 1989;

(3) Members of the judiciary without prejudice to the

provisions of the Constitution;