CASE # 8 ART 203 CRIMES COMMITTED BY PUBLIC OFFICERS The pertinent portion of article 210 of the Revised Penal
t portion of article 210 of the Revised Penal Code reads:
G.R. No. L-2971             April 20, 1951
FELICIANO MANIEGO y CATU, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
Llorente and Yumul for petitioner.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano for
respondent.
BENGZON, J.:
This petitioner was convicted, by the Fifth Division of the Court of Appeals, of a violation of
article 210 of the Revised Penal Code. He pleads for acquittal, insisting upon purely legal
points.
The facts found by that appellate court are substantially the following:
That on February 27, 1947, the accused, although appointed as a laborer, had been
placed in charge of issuing summons and subpoenas for traffic violations in the Sala
of Judge Crisanto Aragon of the Municipal Court of the City of Manila. It appears
furthermore, from the testimony of Clerk of Court Baltazar and Fiscal De la Merced,
then Deputy Fiscal attending to traffic violations, that the accused had been permitted
to write motions for dismissal of prescribed traffic cases against offenders without
counsel, and to submit them to the Court for action, without passing through the
regular clerk. On the day in question, Felix Rabia, the complainant herein, appeared
and inquired from the accused about a subpoena that he received. He was informed
that it was in connection with a traffic violation for which said Rabia had been
detained and given traffic summons by an American MP. The accused after a short
conversation went to Fiscal De la Merced and informed the Fiscal that the case had
already prescribed. The Fiscal having found such to be the case, instructed the
accused that if the traffic violator had no lawyer, he could write the motion for
dismissal and have it signed by the party concerned. This was done by the accused
and after the signing by Felix Rabia the matter was submitted to the Court, which
granted the petition for dismissal.
According to Felix Rabia and Agent No. 19 (La forteza) of the National Bureau of
Investigation, the accused informed Rabia that the latter was subject to a fine of P15;
that Rabia inquired whether the same could be reduced because he had no money,
and that the accused informed Rabia that he could fix the case if Rabia would pay
him P10; which Rabia did and the accused pocketed. This charged was denied by
the accused.
Any public officer who shall agree to perform an act constituting a crime, in
connection with the performance of his official duties, in consideration of any offer,
promise, gift or present received by such officer, personally or through the mediation
of another, shall suffer the penalty of prision correccional in its minimum and medium
periods and fine of not lees than the value to the penalty corresponding to the crime
agreed upon if the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act which
does not constitute a crime, and the officer executed said act, he shall suffer the
same penalty provided in the preceding paragraph. . . .
As correctly indicated by counsel for petitioner the four essential elements of the offense are:
(1) the the accused is a public officer within the scope of article 203 of the Revised Penal
Code; (2) that the accused received by himself or thru another, some gift or present, offer or
promise; (3) that such gift, present or promises has been given in consideration of his
commission of some crime or any act not constituting a crime; (4) that the crime or act relates
to the exercise of the functions of the public officer.
There can be no question that petitioner was a public officer within the meaning of article 203,
which includes all persons "who, by direct provision of law, popular election or appointment
by competent authority, shall take part in the performance of public functions in the Philippine
Government, or shall perform in said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class." That definition is quite
comprehensive, embracing as it does, every public servant from the highest to the lowest. For
the purposes of the Penal Code, it obliterates the standard distinction in the law of public
officers between "officer" and "employee".
Petitioner, however, contending that the Court of Appeals erred in regarding him as a public
officer, expounded and discussed several grounds arranged under the following hearings:
a. The doctrine of "the temporary performance of public functions by a laborer"
should not apply in defendant's case.
b. The overt act imputed on the accused does not constitute a circumstance by which
he may be considered a public official.
c. His appointment as laborer came from one source, while the designation and
delimitation of the functions of his appointment came from another source.
After having carefully considered the expository argumentation, we are unconvinced. The law
is clear, and we perceive no valid reason to deny validity to the view entertained by the
Spanish Supreme Court that, for the purposes of punishing bribery, the temporary
performance of public functions is sufficient to constitute a person a public official. This
opinion, it must be stated, was followed and applied by the Court of Appeals because the
accused, although originally assigned to the preparation of summons and subpoenas, had
been allowed in some instance to prepare motions for dismissal of traffic cases.

And this Tribunal has practically concurred with the Spanish court when it opined1 that a
laborer in the Bureau of Post temporarily detailed as filer of money orders was a public officer
within the meaning of article 203 of the Revised Penal Code. Indeed, common sense
indicates that the receipt of bribe money is just as pernicious when committed by temporary
employees as when committed by permanent officials.

The second essential element has likewise been proven. The Court of Appeals said this
petitioner received ten pesos from Rabia (and pocketed the money) in consideration of his
"fixing" Rabia's case, and thereafter he "fixed" it by filing a motion for dismissal, which was
approved in due course.

In connection with the last two elements of the offense, it should be stated that our
pronouncements under the first sufficiently answer petitioner's propositions elaborated in
several parts of his brief, revolving around the thesis that since he was a mere laborer  by
appointment he may not be convicted, because the preparation of motions for dismissal is not
surely the official function of a laborer. Enough to recall that although originally appointed as
a mere laborer, this defendant was on several occasions designated or given the work to
prepare motions for dismissal. He was consequently temporarily discharging such public
functions. And as in the performance thereof he accepted, even solicited, monetary reward,
he certainly guilty as charged.

Wherefore, there being no issue about the penalty imposed, the decision of the Court of
Appeals is affirmed in toto. With costs.
CASE #9 DERELICTION OF DUTY ART 204-209
G.R. No. 143802            November 16, 2001
REYNOLAN T. SALES, petitioner,
vs.
SANDIGANBAYAN (4th Division), OMBUDSMAN, PEOPLE OF THE PHILIPPINES and
THELMA BENEMERITO, respondents.
YNARES-SANTIAGO, J.:
This Court is tasked to resolve the issue of whether or not the proper procedure was followed
and whether petitioner's constitutional rights were safeguarded during the preliminary
investigation conducted before the filing of an Information for Murder against him and the
issuance of a warrant for his arrest by respondent Sandiganbayan. Petitioner asserts that the
Information was hastily filed and the warrant for his arrest was improper because of an
incomplete preliminary investigation. Respondents say otherwise.
The pertinent factual antecedents are matters of record or are otherwise uncontroverted.
On August 2, 1999, petitioner, the incumbent town mayor of Pagudpud, Ilocos Norte, fatally
shot the former mayor and his political rival, Atty. Rafael Benemerito, in an alleged shootout
in Barangay Caparispisan of said municipality after a heated altercation between them. After
the shooting incident, petitioner surrendered and placed himself under the custody of the
municipal police then asked that he be brought to the Provincial PNP Headquarters in Laoag
City.
The next day, August 3, 1999, Police Chief Inspector Crispin Agno and private respondent
Thelma Benemerito, wife of the victim, filed a criminal complaint for Murder1 against petitioner
at the Municipal Circuit Trial Court of Bangui, Ilocos Norte, Branch 127, presided by Judge
Melvin U. Calvan.
Judge Calvan then conducted a preliminary examination of the witnesses, in accordance with
Section 6 (b), Rule 112 of the Rules on Criminal Procedure, found "the existence of probable
cause," and thereafter issued an order dated August 3, 1999 for the issuance of a warrant for
the arrest of petitioner with no bail recommended.2 By virtue of the warrant of arrest,
petitioner was transferred on August 4, 1999 from the Provincial PNP Headquarters to the
Provincial Jail.
On August 5, 1999, Judge Calvan, after conducting a "preliminary investigation in accordance
with Sec. 6 (b) of Rule 112 of the Rules on Criminal Procedure," issued a resolution
forwarding the records of the case to the Office of the Provincial Prosecutor of Ilocos Norte
for appropriate action.3 In addition to the records transmitted by Judge Calvan, there was also
submitted to the Provincial Prosecutor of Ilocos Norte an NBI "Parallel Investigation" Report
dated August 13, 1999, "pursuant to the request for Investigative Assistance made by Dra.
Thelma Lasmarias Benemerito, wife of the victim,"4 with several annexed affidavits, sworn
statements and documents.
Subsequently, on August 19, 1999, petitioner received a subpoena dated August 18, 1999
from the Provincial Prosecutor of Ilocos Norte directing him to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents within ten (10) days from
receipt thereof.5 This petitioner did the following day, August 20, 1999.
While the foregoing proceedings were ongoing, petitioner filed a petition for habeas
corpus with the Court of Appeals docketed as CA-G.R. SP No. 54416, alleging that: 1.] the
order and warrant of arrest for which petitioner was detained is null and void for being issued
by respondent judge who was disqualified by law from acting on the case by reason of his
affinity to private respondent Thelma Benemerito; and 2.] the preliminary examination by
respondent judge was so illegally and irregularly conducted as to oust the said judge of
jurisdiction over the case.
In a Decision dated November 18, 1999,6 the appellate court granted the petition for habeas
corpus and ordered the release of petitioner from detention subject to the outcome of the
proper preliminary investigation. In granting the petition, the Court of Appeals reasoned, inter
alia, that:
I
It is uncontroverted that respondent Judge is a relative within the third civil degree of
affinity of private respondent Thelma Benemerito. Respondent judge is married to
Susana Benemerito-Calvan, whose father is a brother of the victim.
Section 1, Rule 137 of the Rules of Court disqualifies a judge from sitting in a case in
which he is related to either party within the sixth degree of consanguinity or affinity.
This disqualification is mandatory, unlike an inhibition which is discretionary. It
extends to all proceedings, not just to the trial as erroneously contended by
respondent judge. Even Canon 3.12 of the Code of Judicial Conduct mandates that a
judge shall take no part in a proceeding where the judge's impartiality might be
reasonably questioned, as when he is "related by consanguinity or affinity to a party
litigant within the sixth degree." Due process likewise requires hearing before an
impartial and disinterested tribunal so that no judge shall preside in a case in which
he is not wholly free, disinterested, impartial and independent.7
xxx           xxx           xxx
II
The preliminary examination conducted by respondent Judge does not accord with
the prevailing rules. He did it under the old rules, where the preliminary investigation
by the municipal judge has two stages: (1) the preliminary examination stage during
 which the investigating judge determines whether there is reasonable ground to
believe that an offense has been committed and the accused is probably guilty
thereof, so that a warrant of arrest may be issued and the accused held for trial; and
(2) the preliminary investigation proper where the complaint or information is read to
the accused after his arrest and he is informed of the substance of the evidence
adduced against him, after which he is allowed to present evidence in his favor if he
so desires. Presidential Decree 911 (further amending Sec. 1, R.A. 5180, as
amended by P.D. 77) upon which the present rule is based, removed the preliminary
examination stage and integrated it into the preliminary investigation proper. Now the
proceedings consists of only one stage.8
Respondent Judge did not conduct the requisite investigation prior to issuance of the
arrest warrant. The Rules require an examination in writing under oath in the form of
searching questions and answers.9 The statements of witnesses were not sworn
before him but before the Provincial Prosecutor. The purported transcript of
stenographic notes do not bear the signature of the stenographer.
Moreover, he did not complete the preliminary investigation. He claimed to have
examined only the witnesses of the complainant. He issued a Resolution and
forwarded the records to the Provincial Prosecutor without giving the accused
(petitioner) an opportunity to submit counter- affidavits and supporting documents.10
While it is true that the usual remedy to an irregular preliminary investigation is to ask
for a new preliminary investigation, such normal remedy would not be adequate to
free petitioner from the warrant of arrest which stemmed from that irregular
investigation. The Provincial Prosecution has no power to recall the warrant of arrest.
Meanwhile, after receipt of the records of the case from Judge Calvan as well as petitioner-
accused's counter-affidavits, the Ilocos Norte Provincial Prosecutor, instead of conducting a
preliminary investigation of his own, merely forwarded the said records to the Ombudsman for
the latter to conduct the same.
It appears that petitioner was only apprised of the foregoing inaction on the case by the
Provincial Prosecutor when he received on September 10, 1999 a Memorandum dated
September 2, 1999,11 filed by private respondent's counsel, requesting that the case, I.S. No.
99-548, "be remanded to Office of the Ombudsman for preliminary investigation and,
thereafter, for the prosecution of the appropriate indictments before the Sandiganbayan."12
On January 27, 2000, petitioner received a notice from the Ombudsman directing him to file
his counter-affidavits. Considering that petitioner had already submitted his counter-affidavits
to the Ilocos Norte Provincial Prosecutor as far back as August 20, 1999, he found the
directive superfluous and did not act on it.
On May 25, 2000, Graft Investigation Officer II Cynthia V. Vivar issued a
Resolution13 recommending the filing of an Information for Murder against petitioner and four
others14 before the Sandiganbayan. The recommendation was approved by the Ombudsman
on June 16, 2000.15
It appears that petitioner belatedly received a copy of the foregoing Resolution of the graft
investigation officer only on June 21, 2000, and because he was thus effectively prevented
from seeking a reconsideration thereof, he then filed a Motion To Defer Issuance Of Warrant
Of Arrest pending determination of probable cause dated June 22, 2000.16 The motion was
denied by Sandiganbayan's Fourth Division in the challenged Resolution of July 13, 2000.17
Owing to the urgency of the matter, petitioner opted to directly resort to this recourse
eschewing the filing of a motion for reconsideration on the grounds that —
(A) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE
PROCESS WHEN IT RULED HIM TO HAVE NO STANDING TO OBJECT TO THE
ISSUANCE OF A WARRANT FOR HIS ARREST SINCE HE HAS NOT SUBMITTED
TO ITS CUSTODY.
(B) THE SANDIGANBAYAN DENIED MAYOR SALES HIS RIGHT TO DUE
PROCESS WHEN IT ISSUED A WARRANT FOR HIS ARREST ON THE BASIS OF
AN INCOMPLETE PRELIMINARY INVESTIGATION.
(C) THE OMBUDSMAN DENIED MAYOR SALES HIS RIGHT TO DUE PROCESS
WHEN IT HURRIEDLY FILED AN INFORMATION FOR MURDER AGAINST HIM
WITHOUT SCRUTINIZING, OR EVEN ONLY READING, ALL THE EVIDENCE
BEFORE HIM AND WITHOUT CALLING FOR PRODUCTION OF THE CRITICAL
PHYSICAL EVIDENCE.
(D) NOT ONLY DID THE SANDIGANBAYAN GRAVELY ABUSE ITS DISCRETION
WHEN IT RELIED ON AN INCOMPLETE PRELIMINARY INVESTIGATION
CONDUCTED BY THE OMBUDSMAN BUT IT FURTHER AGGRAVATED THIS
GRAVE ABUSE WHEN IT OMITTED ALTOGETHER TO CONDUCT ITS OWN
INDEPENDENT REVIEW OF THE EVIDENCE OF PROBABLE CAUSE.
The primordial question to be resolved in this controversy is whether or not the Ombudsman
followed the proper procedure in conducting a preliminary investigation and, corollarily,
whether or not petitioner was afforded an opportunity to be heard and to submit controverting
evidence.
As this Court pointed out in Duterte v. Sandiganbayan,18 "[t]he purpose of a preliminary
investigation or a previous inquiry of some kind, before an accused person is placed on trial,
is to secure the innocent against hasty, malicious and oppressive prosecution and to protect
him from an open and public accusation of a crime, from the trouble, expenses and anxiety of
a public trial.19 It is also intended to protect the state from having to conduct useless and
expensive trials.20 While the right is statutory rather than constitutional in its fundament, it is a
component part of due process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a mere formal or technical right;
it is a substantive right. To deny the accused's claim to a preliminary investigation would be to
deprive him of the full measure of his right to due process."21
Although a preliminary investigation is not a trial and is not intended to usurp the function of
the trial court, it is not a casual affair. The officer conducting the same investigates or inquires
into the facts concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused. Indeed, preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof
of the guilt of the accused must be adduced so that when the case is tried, the trial court may
not be bound as a matter of law to order an acquittal. A preliminary investigation has been
called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when
there is an opportunity to be heard and for the production of and weighing of evidence, and a
decision is rendered thereon.22
The authority of a prosecutor or investigating officer duly empowered to preside or to conduct
a preliminary investigation is no less than a municipal judge or even a regional trial court
judge. While the investigating officer, strictly speaking, is not a "judge" by the nature of his
functions, he is and must be considered to be a quasi-judicial officer because a preliminary
investigation is considered a judicial proceeding.23 A preliminary investigation should
therefore be scrupulously conducted so that the constitutional right to liberty of a potential
accused can be protected from any material damage.24
Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence
may be considered. While even raw information may justify the initiation of an investigation,
the stage of preliminary investigation can be held only after sufficient evidence has been
gathered and evaluated warranting the eventual prosecution of the case in court.25 In other
words —
. . . it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of
the guarantee of freedom and fair play which are the birthrights of all who live in our
country. It is therefore imperative upon the fiscal or the judge, as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that
the evidence is insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused. Although there is no
general formula or fixed rule for the determination of probable cause since the same
must be decided in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the
judge nor run counter to the clear dictates of reason.26
Measured vis-a-vis the foregoing legal yardsticks, we hold that the proper procedure in the
conduct of the preliminary investigation was not followed, for the following reasons:
First, the records show that the supposed preliminary investigation was conducted in
installments by at least three (3) different investigating officers, none of whom completed the
preliminary investigation. There was not one continuous proceeding but rather a case of
passing the buck, so to speak, the last one being the Ombudsman hurriedly throwing the
buck to the Sandiganbayan. This practice of "passing the buck" by the Ombudsman to the
Sandiganbayan was met with disapproval in Venus v. Desierto27 where this Court speaking
through then Associate Justice, now Chief Justice Hilario G. Davide, Jr., trenchantly said that:
Upon a subsequent re-assessment of the evidence as a consequence of petitioner's
motion for reconsideration, another Special Prosecution Officer . . . found that
petitioner had not violated Sec. 3 (e) of R.A. No. 3019, as amended, he thus,
recommended dismissal of the case for want of probable cause and the filing of the
corresponding manifestation to inform the Sandiganbayan of the result of the motion
for reconsideration. In this instance the Special Prosecutor himself concurred with the
finding. However, the Ombudsman disapproved the recommendation as he found
that probable cause existed but opted to "allow the court to find absence of bad faith."
This marginal note of the Ombudsman simply meant that he believed that petitioner
was in bad faith. However, good faith is always presumed and the Chapter on Human
Relations of the Civil Code directs every person, inter alia, to observe good faith
which, according to the Commission, springs from the foundation of good
conscience. Therefore, he who charges another with bad faith must prove it. In this
sense, the Ombudsman should have first determined the facts indicative of bad faith.
On the basis alone of the finding and conclusion of Special Prosecution Officer III
Victor Pascual, with which the Special Prosecutor concurred, there was no showing
of bad faith on the part of petitioner. It was, therefore, error for the Ombudsman to
"pass the buck", so to speak, to the Sandiganbayan to find "absence of bad faith."
xxx           xxx           xxx.28
Second, the charge against herein petitioner is Murder, a non-bailable offense. The gravity of
the offense alone, not to mention the fact that the principal accused is an incumbent mayor
whose imprisonment during the pendency of the case would deprive his constituents of their
duly-elected municipal executive, should have merited a deeper; and more thorough
preliminary investigation. The Ombudsman, however, did nothing of the sort and instead
swallowed hook, line and sinker the resolution and recommendation of Graft Investigation
Officer II Cynthia V. Vivar, among them the finding that, "aside from the averment of
respondent that the victim fired at him and he was only forced to fire back, no other
evidence was adduced to indicate that such was what happened."29
There are, however, four affidavits on record30 which state in categorical terms that it was the
victim who first fired at petitioner with his Armalite rifle and that petitioner merely returned fire.
An Armalite rifle and empty shells were recovered from the scene of the incident by the PNP
and impounded by it. According to the Physical Science Report No. C-147A-99,31 some of the
shells correspond to the Armalite rifle, thereby indicating that the firearm was fired. The
Ombudsman, however, neither called for the production of the firearm and the empty shells,
nor did he ask for the production of the ballistic and laboratory examinations of the
bloodstains on the Armalite rifle despite the statement by the Provincial Fiscal of Ilocos Norte
that these pieces of evidence were all available.32
There are, furthermore, other dubious circumstances which should have prompted the
Ombudsman to take a second, deeper look instead of adopting in toto the recommendation of
GIO II Vivar. Among these is the matter of the two (2) different autopsies on the cadaver of
the victim, one indicating that the victim sustained two (2) wounds only and the other showing
that the victim had three (3) wounds. The significance of this fact was not appreciated by the
Ombudsman who likewise glossed over the adamant refusal of the private respondent to
subject the cadaver of the victim to a paraffin test, despite the claims of the accused's
witnesses that the victim fired the Armalite rifle.
Given the foregoing circumstances, the Ombudsman for all practical purposes did an even
worse job than Judge Calvan for, by adopting in its entirety the findings of the investigating
officer despite its obvious flaws, he actually did nothing at all and, in effect, threw everything
to the Sandiganbayan for evaluation. This practice, as earlier stated, was not condoned
in Venus v. Desierto, supra. Nor will it be in this case. Prosecutors are endowed with ample
powers in order that they may properly fulfill their assigned role in the administration of
justice. It should be realized, however, that when a man is haled to court on a criminal
charge, it brings in its wake problems not only for the accused but for his family as well.
Therefore, it behooves a prosecutor to weigh the evidence carefully and to deliberate thereon
to determine the existence of a prima facie case before filing the information in court.
Anything less would be a dereliction of duty.33
Third, a person under preliminary investigation by the Ombudsman is entitled to file a motion
for reconsideration of the adverse resolution. This right is provided for in the very Rules of
Procedure of the Ombudsman,34 which states:
SEC. 7. Motion for Reconsideration.
a) Only one motion for reconsideration or reinvestigation of an approved order or
resolution shall be allowed, the same to be filed within fifteen (15) days from notice
thereof with the Office of the Ombudsman or the Deputy Ombudsman as the case
may be.
b) No motion for reconsideration or reinvestigation shall be entertained after the
information shall have been filed in court, except upon order of the court wherein the
case was filed. (Emphasis supplied).
The filing of a motion for reconsideration is an integral part of the preliminary investigation
proper. There is no dispute that the Information was filed without first affording petitioner-
accused his right to file a motion for reconsideration. The denial thereof is tantamount to a
denial of the right itself to a preliminary investigation. This fact alone already renders
preliminary investigation conducted in this case incomplete. The inevitable conclusion is that
the petitioner was not only effectively denied the opportunity to file a motion for
reconsideration of the Ombudsman's final resolution but also deprived of his right to a full
preliminary investigation preparatory to the filing of the information against him.35
As stated earlier, it appears that petitioner belatedly received a copy of the May 25, 2000
Resolution of Graft Investigation Officer II Cynthia V. Vivar only on June 21, 2000. Because
he was thus effectively precluded from seeking a reconsideration thereof, he then filed a
Motion To Defer Issuance Of Warrant Of Arrest pending determination of probable
cause.36 The Sandiganbayan denied the motion in its challenged Resolution of July 13,
2000,37 and forthwith ordered the issuance of the warrant of arrest against petitioner. Suffice it
to state in this regard that such a deprivation of the right to a full preliminary investigation
preparatory to the filing of the information warrants the remand of the case to the
Ombudsman for the completion thereof.38
Fourth, it was patent error for the Sandiganbayan to have relied purely on the Ombudsman's
certification of probable cause given the prevailing facts of this case much more so in the face
of the latter's flawed report and one-sided factual findings. In the order of procedure for
criminal cases, the task of determining probable cause for purposes of issuing a warrant of
arrest is a responsibility which is exclusively reserved by the Constitution to judges.39 People
v. Inting40 clearly delineated the features of this constitutional mandate, viz: 1.] The
determination of probable cause is a function of the judge; it is not for the provincial fiscal or
prosecutor to ascertain. Only the judge and the judge alone makes this determination; 2.] The
preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in
making the determination of probable cause. It is the report, the affidavits, the transcripts of
stenographic notes, if any, and all other supporting documents behind the prosecutor's
certification which are material in assisting the judge in his determination of probable cause;
and 3.] Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or be
released. Even if the two inquiries be made in one and the same proceeding, there should be
no confusion about their objectives. The determination of probable cause for purposes of
issuing the warrant of arrest is made by the judge. The preliminary investigation proper —
whether or not there is reasonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial — is the function of the prosecutor.
Stated differently, while the task of conducting a preliminary investigation is assigned either to
an inferior court magistrate or to a prosecutor,41 only a judge may issue a warrant of arrest.
When the preliminary investigation is conducted by an investigating prosecutor, in this case
the Ombudsman,42 the determination of probable cause by the investigating prosecutor
cannot serve as the sole basis for the issuance by the court of a warrant of arrest. This is
because the court with whom the information is filed is tasked to make its own independent
determination of probable cause for the issuance of the warrant of arrest. Indeed —
. . . the Judge cannot ignore the clear words of the 1987 Constitution which requires .
. . probable cause to be personally determined by the judge . . . not by any other
officer or person.
xxx           xxx           xxx
The extent of the Judge's personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all, the personal determination
is vested in the Judge by the Constitution. It can be brief or as detailed as the
circumstances of each case may require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever necessary. He should
call for the complainant and witnesses themselves to answer the court's probing
questions when the circumstances so require.
xxx           xxx           xxx
We reiterate that in making the required personal determination, a Judge is not
precluded from relying on the evidence earlier gathered by responsible officers. The
extent of the reliance depends on the circumstances of each case and is subject to
the Judge's sound discretion. However, the Judge abuses that discretion when
having no evidence before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on
the Prosecutor's certification and issued the questioned Order dated July 5, 1990
without having before him any other basis for his personal determination of the
existence of probable cause.43
All told, the Court cannot accept the Sandiganbayan's assertions of having found probable
cause on its own, considering the Ombudsman's defective report and findings, which merely
relied on the testimonies of the witnesses for the prosecution and disregarded the evidence
for the defense.44 In Roberts v. CA,45 the trial judge was chastised by the Court for issuing a
warrant of arrest without even reviewing the records of the preliminary investigation which
were then still with the Department of Justice. In the case at bar, it cannot be said that the
Sandiganbayan reviewed all the records forwarded to it by the Ombudsman considering the
fact that the preliminary investigation which was incomplete escaped its notice.
What the Sandiganbayan should have done, faced with such a slew of conflicting evidence
from the contending parties, was to take careful note of the contradictions in the testimonies
of the complainant's witnesses as well as the improbabilities in the prosecution
evidence.46 Certainly —
. . . probable cause may not be established simply by showing that a trial judge
subjectively believes that he has good grounds for his action. Good faith is not
enough. If subjective good faith alone were the test, the constitutional protection
would be demeaned and the people would be "secure in their persons, houses,
papers and effects" only in the fallible discretion of the judge.47 On the contrary, the
probable cause test is an objective one, for in order that there be probable cause the
facts and circumstances must be such as would warrant a belief by a reasonably
discreet and prudent man that the accused is guilty of the crime which has just been
committed.48 This, as we said is the standard. x x x
xxx           xxx           xxx
The sovereign power has the inherent right to protect itself and its people from the
vicious acts which endanger the proper administration of justice; hence the State has
every right to prosecute and punish violators of the law. This is essential for its self-
preservation, nay its very existence. But this does not confer a license for pointless
assaults on its citizens. The right of the State to prosecute is not a carte blanche for
government agents to defy and disregard the rights of its citizens under the
Constitution. Confinement, regardless of duration, is too a high a price to pay for
reckless and impulsive prosecution. x x x
The purpose of the Bill of Rights is to protect the people against arbitrary and
discriminatory use of political power. This bundle of rights guarantees the
preservation of our natural rights which include personal liberty and security against
invasion by the government or any of its branches or instrumentalities. Certainly, in
the hierarchy of rights, the Bill of Rights takes precedence over the right of the State
to prosecute, and when weighed against each other, the scales of justice tilt towards
the former. Thus, relief may be availed of to stop the purported enforcement of
criminal law where it is necessary to provide for an orderly administration of justice, to
prevent the use of the strong arm of the law in an oppressive and vindictive manner,
and to afford adequate protection to constitutional rights.49
In this case, the undue haste in filing of the information against petitioner cannot be ignored.
From the gathering of evidence until the termination of the preliminary investigation, it
appears that the state prosecutors were overly-eager to file the case and to secure a warrant
of arrest of petitioner without bail and his consequent detention. There can be no gainsaying
the fact that the task of ridding society of criminals and misfits and sending them to jail in the
hope that they will in the future reform and be productive members of the community rests
both on the judiciousness of judges and the prudence of the prosecutors. There is however, a
standard in the determination of the existence of probable cause. The determination has not
measured up to that standard this case.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered:

1.] SETTING ASIDE the Resolutions of the Sandiganbayan dated July 13, 2000 and the
Resolution of Graft Investigation Officer II Cynthia V. Vivar dated May 25, 2000 in Criminal
Case No. 26115;

2.] Ordering the Sandiganbayan to QUASH the warrant of arrest it issued against petitioner;

3.] REMANDING the case to the Ombudsman for completion of the preliminary investigation.

SO ORDERED.
SALES VS. SANDIGANBAYAN [369 SCRA 293 G.R. NO. 143802; 16 NOV 2001] of the motion for reconsideration is an integral part of the preliminary investigation proper.
The denial thereof is tantamount to the denial of the right itself to a preliminary investigation.
Facts: The petitioner, the incumbent mayor of Pagudpud Ilocos Norte, shot the former mayor This fact alone renders preliminary investigation conducted in this case incomplete. And
and his political rival Atty. Benemerito. After the shooting, he surrendered himself and hence lastly, it was patent error for the Sandiganbayan to have relied purely on the OMB’s
the police inspector and wife of the victim filed a criminal complaint for murder against him. certification of probable cause given the prevailing facts of the case much more so in the face
The judge after conducting the preliminary examination (p.e. for brevity) found probable of the latter’s flawed report and one side factual findings.
cause and issued a warrant of arrest. Also after conducting the preliminary investigation (p.i.
for brevity), he issued a resolution forwarding the case to the prosecutor for appropriate
action. Petitioner received a subpoena directing him to file his counter affidavit, affidavit of
witnesses and other supporting documents. He did it the following day. While proceedings The court cannot accept the Sandiganbayan’s assertion of having found probable cause on
are ongoing, he filed a petition for habeas corpus with the C.A alleging that: the warrant was its own, considering the OMB’s defective report and findings, which merely rekied on the
null and void because the judge who issued it was a relative by affinity of the private testimonies of the witnesses for the prosecution and disregarded the evidence for the
respondent and the p.e. and the p.i. were illegal and irregular as the judge doesn’t have defense.
jurisdiction on the case. The C.A. granted the petition holding that the judge was a relative by
affinity by 3rd degree to the private respondent and the p.i. he conducted has 2 stages, the
p.e. and the p.i. proper. The proceeding now consists only of one stage. He conducted the Judgment is rendered setting aside the resolution of the Sandiganbayan, ordering the
requisite investigation prior to the issuance of warrant of arrest. Moreover he did not complete Sandiganbayan to quash the warrant of arrest and remanding the OMB for completion of the
it. He only examined the witness of the complainant. But the prosecution instead of preliminary investigation.
conducting p.i. of his own forwarded the records to the Ombudsman (OMB for brevity) for the
latter to conduct the same. The OMB directed the petitioner to submit his counter affidavit, but
he did not comply with it finding the same superfluous. The graft investigator recommended
the filing of information for murder which the OMB approved. Petitioner received a copy of the
resolution but prevented seeking reconsideration thereof he filed a motion to defer issuance
of warrant of arrest pending the determination of probable cause. The Sandiganbayan denied
the motion. This is now a petition for review on the decision of the Sandiganbayan.
Issues:

(1) Whether or Not the OMB followed the procedure in conducting preliminary
investigation.

(2) Whether or Not petitioner was afforded an opportunity to be heard and to submit
controverting evidence.
Held: The proper procedure in the conduct of preliminary investigation was not followed
because of the following reasons. Firstly, the preliminary investigation was conducted by 3
different investigators, none of whom completed the preliminary investigation There was not
one continuous proceeding but rather, cases of passing the buck, the last one being the OMB
throwing the buck to the Sandiganbayan. Secondly, the charge of murder is a non bailable
offense. The gravity of the offense alone should have merited a deeper and more thorough
preliminary investigation. The OMB did nothing of the sort but wallowed the resolution of the
graft investigator. He did a worse job than the judge, by actually adopting the resolution of the
graft investigator without doing anything and threw everything to the Sandiganbayan for
evaluation. Thirdly, a person under preliminary investigation by the OMB is entitled to a
motion for reconsideration, as maintained by the Rules of Procedure by the OMB. The filing
G.R. No. 206866, September 02, 2015
PHILIPPINE DEPOSIT INSURANCE CORPORATION (PDIC), Petitioner, v. HON.
ORLANDO C. CASIMIRO, IN HIS CAPACITY AS OVERALL DEPUTY OMBUDSMAN,
FIDEL C. CU, CARMELITA B. ZATE, AND MARY LOU S. APELO, Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 are the Resolution2 dated January 24, 2012 and the
Order3 dated October 29, 2012 of the Office of the Ombudsman (Ombudsman) in OMB-C-C-
10-0294-G dismissing the criminal complaint against private respondents Fidel C. Cu (Cu),
Carmelita B. Zate (Zate), and Mary Lou S. Apelo (Apelo; collectively, private respondents) for
lack of probable cause.chanrobleslaw
The Facts
The instant case arose from a Joint-Affidavit4 dated June 18, 2010 filed by petitioner
Philippine Deposit Insurance Corporation (PDIC), through its duly-authorized officers,
Alexander N. Dojillo and Israel A. Bandoy, charging private respondents of the crimes of
Direct Bribery and Corruption of Public Officials, defined and penalized under Articles 210
and 212 of the Revised Penal Code (RPC), respectively, as well as violation of Section 3 (e)
of Republic Act No. (RA) 3019, entitled the Anti-Graft and Corrupt Practices Act. Specifically,
private respondents were being sued in the following capacities: (a) Cu (together with
members of his family) as the 85.99% owner of Bicol Development Bank, Inc. (BDBI); (b)
Zate as Chairman/President of BDBI; and (c) Apelo as a former employee of the Bangko
Sentral ng Pilipinas (BSP) who acted as the Bank Officer-In-Charge that examined BDBI's
books and records as of September 30, 2001, and as one of the assistants of Bank Officer-In-
Charge Evangeline C. Velasquez in connection with the Reports of Examination of BDBI's
books and records as of August 31, 2000 and October 31, 2002.5
The Joint-Affidavit averred that on December 22, 2008, PDIC, acting as statutory receiver,
took over the affairs of BDBI after the BSP Monetary Board ordered its closure. As statutory
receiver, PDIC purposedly went on to gather, preserve, and administer its records, assets,
and liabilities for the benefit of its depositors and creditors. In the course of the receivership,
Arsenia T. Gomez (Gomez) - a former Cashier, Service Officer, and Treasurer of BDBI until
its closure - went to the PDIC and submitted an Affidavit6 dated January 12, 2010 outlining
the alleged irregularities committed by private respondents when BDBI was still in operation.7
According to Gomez, on November 16, 2006, Cu instructed her to take money from the vault
in the amount of P30,000.00 and to deposit the same to Apelo's bank account in Philippine
National Bank - Legazpi City Branch under Account Number 224-521-5625.8 When Gomez
asked for the reason, Cu replied "Professional Fee natin sa kanya yan" On further
orders/directives from Cu and Zate, additional deposits were made to Apelo's bank account
on two (2) separate dates, specifically April 20, 2007 and October 3, 2007, in the respective
amounts of P60,000.00 and P50,000.00. After the deposits were made, Gomez was initially
instructed to cover the unofficial and unbooked cash disbursements in favor of Apelo by
placing such amounts in BDBI's books as "Other Cash Items;" and thereafter, to regularize
and remove from BDBI's books such disbursements by including them in the other accounts
of BDBI until they were completely covered.9 To bolster her allegations, Gomez attached
copies of deposit slips and official receipts to show that such deposits were indeed made to
Apelo's bank accounts.10
In this regard, Gomez averred that in the course of her employment with BDBI, she does not
know of any official or legitimate transactions that would warrant BDBI to disburse the
aforesaid amounts in favor of Apelo. However, speaking from personal experience, Gomez
noticed that Cu would always receive an "advance warning" about a surprise examination on
BDBI by BSP. During such time and until the actual arrival of the BSP examiner, Cu would
instruct BDBI employees on how to cover the possible findings/exceptions of the BSP
examiner on the books of BDBI. In addition, Cu shall deliver cash in BDBFs vault in order to
make it appear that the cash listed in the books reflect the actual cash in vault; and after such
examination, Cu will take the cash he delivered to BDBFs vault and return it to the source.11
In view of Gomez's revelations, PDIC decided to file the instant criminal complaint against
private respondents.
In his defense, Cu denied having ordered or instructed Gomez to make such deposits to
Apelo's bank account. He pointed to the lack of evidence to prove that Apelo was aware or
made aware of any alleged bank deposits made to her bank account, thus, negating the
charge of Direct Bribery against her and Corruption of Public Officials against him. For her
part, Zate likewise denied the allegations hurled against her, countering that Gomez's
statements should not be relied upon for being unfounded. Apelo did not file any counter-
affidavit despite the Ombudsman's orders.12
The Ombudsman's Ruling
In a Resolution13 dated January 24, 2012, the Ombudsman dismissed the criminal complaint
for lack of probable cause.14 The Ombudsman found that while it may be said that certain
amounts were indeed deposited to Apelo's bank account, there is no proof that Apelo
subsequently withdrew the same. In this regard, the Ombudsman opined that unless it can be
shown that Apelo made such withdrawals, it cannot be declared with certainty that she
received monetary consideration from Cu and Zate in exchange for the advance information
relative to impending BSP examinations conducted on BDBI.15
PDIC moved for reconsideration, which was, however, denied in an Order16 dated October
29, 2012. The Ombudsman found Gomez's affidavit showing Apelo as the source of the
"advance warnings" received by Cu in connection with the BSP examinations to be
inadmissible in evidence for being hearsay.17 Aggrieved, PDIC filed the instant petition.18
The Issue Before the Court
The primordial issue raised for the Court's resolution is whether or not the Omibudsman
gravely abused its discretion in finding no probable cause to indict private respondents of the
crimes charged.chanrobleslaw
The Court's Ruling
The petition is meritorious.
At the outset, it must be stressed that the Court has consistently refrained from interfering
with the discretion of the Ombudsman to determine the existence of probable cause and to
decide whether or not an Information should be filed. Nonetheless, this Court is not precluded
from reviewing the Ombudsman's action when there is a charge of grave abuse of discretion.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done
in an arbitrary or despotic manner which must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.19 The Court's pronouncement in Ciron v. Gutierrez20 is instructive on
this matter, to wit:chanRoblesvirtualLawlibrary
x x x this Court's consistent policy has been to maintain noninterference in the determination
of the Ombudsman of the existence of probable cause, provided there is no grave abuse in
the exercise of such discretion. This observed policy is based not only on respect for the
investigatory and prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of the Court will be
seriously hampered by innumerable petitions assailing the dismissal of investigatory
proceedings conducted by the Office of the Ombudsman with regard to complaints filed
before it, in much the same way that the courts would be extremely swamped with cases if
they could be compelled to review the exercise of discretion on the part of the fiscals or
prosecuting attorneys each time they decide to file an information in court or dismiss a
complaint by a private complainant.21 (Emphasis and underscoring
supplied)ChanRoblesVirtualawlibrary
In this regard, it is worthy to note that the conduct of preliminary investigation proceedings -
whether by the Ombudsman or by a public prosecutor - is geared only to determine whether
or not probable cause exists to hold an accused-respondent for trial for the supposed crime
that he committed. In Fenequito v. Vergara, Jr.,22 the Court defined probable cause and the
parameters in finding the existence thereof in the following
manner:chanRoblesvirtualLawlibrary
Probable cause, for the purpose of filing a criminal information, has been defined as such
facts as are sufficient to engender a well-founded belief that a crime has been committed and
that respondent is probably guilty thereof. The term does not mean "actual or positive cause"
nor does it import absolute certainty. It is merely based on opinion and reasonable belief.
Probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained of
constitutes the offense charged.
A finding of probable cause needs only to rest on evidence showing that, more likely than not,
a crime has been committed by the suspects. It need not be based on clear and convincing
evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely
not on evidence establishing absolute certainty of guilt. In determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of the rules
of evidence of which he has no technical knowledge. He relies on common sense. What is
determined is whether there is sufficient ground to engender a well-founded belief that a
crime has been committed, and that the accused is probably guilty thereof and should be held
for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a
conviction.23 (Emphases and underscoring supplied)ChanRoblesVirtualawlibrary
Verily, preliminary investigation is merely an inquisitorial mode of discovering whether or not
there is reasonable basis to believe that a crime has been committed and that the person
charged should be held responsible for it. Being merely based on opinion and belief, a finding
of probable cause does not require an inquiry as to whether there is sufficient evidence to
secure a conviction.24 "[A preliminary investigation] is not the occasion for the full and
exhaustive display of [the prosecution's] evidence. The presence or absence of the elements
of the crime is evidentiary in nature and is a matter of defense that may be passed upon after
a full-blown trial on the merits."25 Hence, "the validity and merits of a party's defense or
accusation, as well as the admissibility of testimonies and evidence, are better ventilated
during trial proper than at the preliminary investigation level."26
Guided by the foregoing considerations, the Court finds that the Ombudsman gravely abused
its discretion in dismissing the criminal complaint against private respondents for lack of
probable cause, as will be explained hereunder.
As already stated, Apelo was accused of committing the crime of Direct Bribery, which has
the following elements: (a) that the accused is a public officer; (b) that he received directly or
through another some gift or present, offer or promise; (c) that such gift, present or promise
has been given in consideration of his commission of some crime, or any act not constituting
a crime, or to refrain from doing something which is his official duty to do; and (d) that the
crime or act relates to the exercise of his functions as a public officer.27 On the other hand,
Cu and Zate were accused of committing the crime of Corruption of Public Officials, the
elements of which are as follows: (a) that the offender makes offers or promises, or gives gifts
or presents to a public officer; and (b) that the offers or promises are made or the gifts or
presents are given to a public officer under circumstances that will make the public officer
liable for direct bribery or indirect bribery.28 In addition, all private respondents were charged
with violation of Section 3 (e) of RA 3019. The essential elements of such crime are as
follows: (a) that the accused must be a public officer discharging administrative, judicial, or
official functions (or a private individual acting in conspiracy with such public officers29); (b)
that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c)
that his action caused any undue injury to any party, including the government, or giving any
private party unwarranted benefits, advantage, or preference in the discharge of his
functions.30
A review of the records of the case reveals that after BDBFs closure, PDIC started to perform
its functions as statutory receiver, which includes, among others, the control, management,
and administration of BDBI as well as investigating the causes of BDBI's closure.31 In the
course of the receivership, Gomez — a former Cashier, Service Officer, and Treasurer of
BDBI - came forward and through her affidavit, reported the purported scheme perpetrated by
private respondents that fraudulently concealed BDBFs true condition as a banking entity.
Gomez's affidavit outlines such scheme as follows: (a) Apelo would provide Cu an "advance
warning" of any impending surprise bank examinations on BDBI by BSP; (b) upon receipt of
the "advance warning," Cu would then make the necessary steps to misrepresent BDBI's
status, such as instructing BDBI employees on how to cover the possible findings/exceptions
of the BSP examiner on the books of BDBI, as well as infusing cash into BDBI's vault in order
to make it appear that the cash listed in the books reflect the actual cash in vault, and
thereafter returning such cash to the source; (c) in exchange for such "advance warnings,"
Cu and/or Zate gave Apelo as "professional fees" the aggregate amount of P140,000.00 by
depositing the same to the latter's bank account; and (d) to cover up such amounts given to
Apelo, Cu and/or Zate, instructed Gomez to initially cover the unofficial and unbooked cash
disbursements in favor of Apelo by placing such amounts in BDBI's books as "Other Cash
Items," and thereafter, regularize and remove from BDBI's books such disbursements by
including them in the other accounts of BDBI until they were completely covered. To support
such statements, Gomez provided copies of deposit slips showing that such amount was
indeed deposited to Apelo's bank account. She likewise asserted that in the course of her
employment at BDBI, she does not know of any official or legitimate transactions that BDBI
had with Apelo that would warrant the disbursement of the aforesaid amount in the latter's
favor.
In view of such grave accusations against them, Cu and Zate resorted to mere denials, while
Apelo ignored the complaint by not filing a counter-affidavit despite due notice, thus,
miserably failing to debunk the charges hurled against them. Indubitably, the foregoing
establishes probable cause to believe that private respondents may have indeed committed
such acts constituting the crimes charged against them. As such, they must defend
themselves in a full-blown trial on the merits.
Finally, it was error on the part of the Ombudsman to simply discredit Gomez's affidavit as
inadmissible in evidence for being hearsay. It is noteworthy to point out that owing to the
initiatory nature of preliminary investigations, the technical rules of evidence should not be
applied in the course of its proceedings.32 In the recent case of Estrada v. Ombudsman,33
the Court declared that hearsay evidence is admissible in determining probable cause in
preliminary investigations because such investigation is merely preliminary, and does not
finally adjudicate rights and obligations of parties. Citing a case decided by the Supreme
Court of the United States, it was held that probable cause can be established with hearsay
evidence, as long as there is substantial basis for crediting the hearsay,
viz.:chanRoblesvirtualLawlibrary
Justice Brion's pronouncement in Unilever that "the determination of probable cause does not
depend on the validity or merits of a party's accusation or defense or on the admissibility or
veracity of testimonies presented" correctly recognizes the doctrine in the United States that
the determination of probable cause can rest partially, or even entirely, on hearsay evidence,
as long as the person making the hearsay statement is credible. In United States v.
Ventresca, the United States Supreme Court held:chanRoblesvirtualLawlibrary
While a warrant may issue only upon a finding of "probable cause," this Court has long held
that "the term 'probable cause' ... means less than evidence which would justify
condemnation," x x x and that a finding of "probable cause" may rest upon evidence which is
not legally competent in a criminal trial, x x x As the Court stated in Brinegar v. United States
x x x, "There is a large difference between two things to be proved (guilt and probable cause),
as well as between the tribunals which determine them, and therefore a like difference in the
quanta and modes of proof required to establish them." Thus, hearsay may be the bases for
issuance of the warrant "so long as there ... [is] a substantial basis for crediting the hearsay."
x x x And, in Aguilar, we recognized that "an affidavit may be based on hearsay information
and need not reflect the direct personal observations of the affiant," so long as the magistrate
is "informed of some of the underlying circumstances" supporting the affiant's conclusions
and his belief that any informant involved "whose identity need not be disclosed..." was
"credible" or his information "reliable." x x x.ChanRoblesVirtualawlibrary
Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining
probable cause in a preliminary investigation because such investigation is merely
preliminary, and does not finally adjudicate rights and obligations of parties. x x x.34
(Emphases and underscoring supplied)ChanRoblesVirtualawlibrary
In this case, assuming arguendo that Gomez's statements, as written in her affidavit are
indeed hearsay, there is nevertheless substantial basis to credit the same, considering that
she was a former Cashier, Service Officer, and Treasurer of BDBI - a high-ranking officer that
may be privy to delicate transactions such as the purported "under-the-table" deal involving
private respondents. In this regard, it must be emphasized that in determining the elements of
the crime charged for purposes of arriving at a finding of probable cause, only facts sufficient
to support a prima facie case against the respondents are required, not absolute certainty.
Probable cause implies mere probability of guilt, i.e., a finding based on more than bare
suspicion but less than evidence that would justify a conviction.35 To reiterate, the validity of
the merits of a party's defense or accusations as well as the admissibility of testimonies and
evidences are better ventilated during the trial stage than in the preliminary stage.36
In sum, the Court is convinced that there is probable cause to indict private respondents of
the crimes charged against them. Hence, the Ombudsman committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it ordered the dismissal of the
criminal complaint against private respondents.
WHEREFORE, the petition is GRANTED. The Resolution dated January 24, 2012 and the
Order dated October 29, 2012 of the Office of the Ombudsman in OMB-C-C-10-0294-G are
hereby REVERSED and SET ASIDE. Accordingly, the Office of the Ombudsman is
DIRECTED to issue the proper resolution in order to indict private respondents Fidel C. Cu,
Carmelita B. Zate, and Mary Lou S. Apelo in accordance with this Decision.
SO ORDERED.
G.R. Nos. 169823-24               September 11, 2013
HERMINIO T. DISINI, Petitioner,
vs.
THE HON. SANDIGANBAYAN, FIRST DIVISION, AND THE PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The Sandiganbayan has exclusive original jurisdiction over the criminal action involving
petitioner notwithstanding that he is a private individual considering that his criminal
prosecution is intimately related to the recovery of ill-gotten wealth of the Marcoses, their
immediate family, subordinates and close associates.
The Case
Petitioner Herminio T. Disini assails via petition for certiorari there solutions promulgated by
the Sandiganbayan in Criminal Case No. 28001and Criminal Case No. 28002, both entitled
People v. Herminio T. Disini, on January 17, 2005 (denying his motion to quash the
informations)1 and August 10, 2005 (denying his motion for reconsideration of the denial of
his motion to quash),2 alleging that the Sandiganbayan (First Division) thereby committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
Antecedents
The Office of the Ombudsman filed two informations dated June 30,2004 charging Disini in
the Sandiganbayan with corruption of public officials, penalized under Article 212 in relation to
Article 210 of the Revised Penal Code (Criminal Case No. 28001), and with a violation of
Section 4(a) of Republic Act 3019 (R.A. No. 3019), also known as the Anti-Graft and Corrupt
Practices Act (Criminal Case No. 28002).
The accusatory portions of the informations read as follows:
Criminal Case No. 28001
That during the period from 1974 to February 1986, in Manila, Philippines, and within the
jurisdiction of this Honorable Court, accused HERMINIO T. DISINI, conspiring together and
confederating with the then President of the Philippines Ferdinand E. Marcos, did then and
there, willfully, unlawfully and feloniously offer, promise and give gifts and presents to said
Ferdinand E. Marcos, consisting of accused DISINI’s ownership of two billion and five
hundred (2.5 billion) shares of stock in Vulcan Industrial and Mining Corporation and four
billion (4 billion)shares of stock in The Energy Corporation, with both shares of stock having
then a book value of ₱100.00 per share of stock, and subcontracts, to Engineering and
Construction Company of Asia, owned and controlled by said Ferdinand E. Marcos, on the
mechanical and electrical construction work on the Philippine Nuclear Power Plant
Project("Project") of the National Power Corporation at Morong, Bataan, all for and in
consideration of accused Disini seeking and obtaining for Burns and Roe and Westinghouse
Electrical Corporation (Westinghouse), the contracts to do the engineering and architectural
design and to construct, respectively, the Project, as in fact said Ferdinand E. Marcos, taking
undue advantage of his position and committing the offense in relation to his office and in
consideration of the aforesaid gifts and presents, did award or cause to be awarded to said
Burns and Roe and Westinghouse, the contracts to do the engineering and architectural
design and to construct the Project, respectively, which acts constitute the crime of corruption
of public officials.
CONTRARY TO LAW.3
Criminal Case No. 28002
That during the period 1974 to February 1986, in Manila, Philippines, and within the
jurisdiction of the Honorable Court, accused HERMINIO T. DISINI, conspiring together and
confederating with the then President of the Philippines, Ferdinand E. Marcos, being then the
close personal friend and golfing partner of said Ferdinand E. Marcos, and being further the
husband of Paciencia Escolin-Disini who was the first cousin of then First Lady Imelda
Romualdez-Marcos and family physicianof the Marcos family, taking advantage of such close
personal relation, intimacy and free access, did then and there, willfully, unlawfully and
criminally, in connection with the Philippine Nuclear Power Plant (PNPP)Project
("PROJECT") of the National Power Corporation (NPC) at Morong, Bataan, request and
receive from Burns and Roe, a foreign consultant, the total amount of One Million U.S.
Dollars ($1,000,000.00),more or less, and also from Westinghouse Electric
Corporation(WESTINGHOUSE), the total amount of Seventeen Million U.S.
Dollars($17,000,000.00), more or less, both of which entities were then having business,
transaction, and application with the Government of the Republic of the Philippines, all for
and in consideration of accused DISINI securing and obtaining, as accused Disini did secure
and obtain, the contract for the said Burns and Roe and Westinghouse to do the engineering
and architectural design, and construct, respectively, the said PROJECT, and subsequently,
request and receive subcontracts for Power Contractors, Inc. owned by accused DISINI, and
Engineering and Construction Company of Asia (ECCO-Asia), owned and controlled by said
Ferdinand E. Marcos, which stated amounts and subcontracts constituted kickbacks,
commissions and gifts as material or pecuniary advantages, for securing and obtaining, as
accused DISINI did secure and obtain, through the direct intervention of said Ferdinand E.
Marcos, for Burns and Roe the engineering and architectural contract, and for Westinghouse
the construction contract, for the PROJECT.
CONTRARY TO LAW.4
On August 2, 2004, Disini filed a motion to quash,5 alleging that the criminal actions had been
extinguished by prescription, and that the informations did not conform to the prescribed form.
The Prosecution opposed the motion to quash.6
On September 16, 2004, Disini voluntarily submitted himself for arraignment to obtain the
Sandiganbayan’s favorable action on his motion for permission to travel abroad.7 He then
entered a plea of not guilty to both informations.
As stated, on January 17, 2005, the Sandiganbayan (First Division) promulgated its first
assailed resolution denying the motion to quash.8
Disini moved for the reconsideration of the resolution dated January 17, 2005,9 but the
Sandiganbayan (First Division) denied his motion on August 10, 2005 through the second
assailed resolution.10
Issues
Undaunted, Disini commenced this special civil action for certiorari, alleging that:
A. THE RESPONDENT COURT HAS NO JURISDICTION OVER THEOFFENSES
CHARGED.
1. THE RESPONDENT COURT GRAVELY ERRED WHEN ITRULED THAT
SECTION 4, PARAGRAPHS (A) AND (B) OFREPUBLIC ACT NO. 8249 DO
NOT APPLY SINCE THEINFORMATIONS WERE "FILED PURSUANT TO
E.O. NOS. 1,2, 14 AND 14-A".
2. THE RESPONDENT COURT GRAVELY ERRED WHEN ITASSUMED
JURISDICTION WITHOUT HAVING MET THEREQUISITE UNDER
SECTION 4 OF R.A. 8249 THAT THEACCUSED MUST BE A PUBLIC
OFFICER.
B. THE RESPONDENT COURT ACTED WITH SUCH GRAVEABUSE OF
DISCRETION WHEN IT EFFECTIVELY IGNORED, DISREGARDED, AND DENIED
PETITIONER’SCONSTITUTIONAL AND STATUTORY RIGHT TOPRESCRIPTION.
1. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE
APPLICABLE PRESCRIPTIVE PERIOD.
2. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE
COMMENCEMENT OF THEPRESCRIPTIVE PERIOD.
3. THE RESPONDENT COURT GRAVELY ERRED INDETERMINING THE
POINT OF INTERRUPTION OF THEPRESCRIPTIVE PERIOD.
C. BY MERELY ASSUMING THE PRESENCE OF GLARINGLYABSENT
ELEMENTS IN THE OFFENSES CHARGED TOUPHOLD THE ‘SUFFICIENCY’ OF
THE INFORMATIONS INCRIMINAL CASE NOS. 28001 AND 28002, THE
RESPONDENTCOURT DEMONSTRATED ITS PREJUDGMENT OVER THE
SUBJECT CASES AND ACTED WITH GRAVE ABUSE OF ITSDISCRETION.
D. THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OFDISCRETION IN
REFUSING TO QUASH THE INFORMATIONSDESPITE THEIR UTTER FAILURE
TO COMPLY WITH THEPRESCRIBED FORM, THUS EFFECTIVELY DENYING
THEACCUSED HIS CONSTITUTIONAL AND STATUTORY RIGHTTO BE
INFORMED OF THE NATURE AND CAUSE OF THEACCUSATION AGAINST
HIM.11
Ruling
The petition for certiorari has no merit.
1.Preliminary Considerations
To properly resolve this case, reference is made to the ruling of the Court in G.R. No. 175730
entitled Herminio Disini v. Sandiganbayan,12 which involved the civil action for reconveyance,
reversion, accounting, restitution, and damages (Civil Case No. 0013 entitled Republic v.
HerminioT. Disini, et al.) filed by the Presidential Commission on Good Government(PCGG)
against Disini and others.13 The amended complaint in Civil Case No. 0013 alleged that Disini
had acted in unlawful concert with his co-defendants in acquiring and accumulating ill-gotten
wealth through them is appropriation of public funds, plunder of the nation’s wealth, extortion,
embezzlement, and other acts of corruption,14 as follows:
4. Defendant HERMINIO T. DISINI is a close associate of defendant Ferdinand E. Marcos
and the husband of the first cousin of Defendant Imelda R. Marcos. By reason of this
relationship xxx defendant Herminio Disini obtained staggering commissions from the
Westinghouse in exchange for securing the nuclear power plant contract from the Philippine
government.
xxxx
13. Defendants Herminio T. Disini and Rodolfo Jacob, by themselves and/or in unlawful
concert, active collaboration and willing participation of defendants Ferdinand E. Marcos and
Imelda R. Marcos, and taking undue advantage of their association and influence with the
latter defendant spouses in order to prevent disclosure and recovery of ill-gotten assets,
engaged in devices, schemes, and stratagems such as:
xxxx
(c) unlawfully utilizing the Herdis Group of Companies and Asia Industries, Inc. as conduits
through which defendants received, kept, and/or invested improper payments such as
unconscionably large commissions from foreign corporations like the Westinghouse
Corporation; (d) secured special concessions, privileges and/or benefits from defendants
Ferdinand E. Marcos and Imelda R. Marcos, such as a contract awarded to Westinghouse
Corporation which built an inoperable nuclear facility in the country for a scandalously
exorbitant amount that included defendant’s staggering commissions – defendant Rodolfo
Jacob executed for HGI the contract for the aforesaid nuclear plant;15
Through its letter dated April 8, 1991,16 the PCGG transmitted the records of Criminal Case
No. 28001 and Criminal Case No. 28002 to then Ombudsman Conrado M. Vasquez for
appropriate action, to wit:
In line with the decision of the Supreme Court in the case of EduardoM. Cojuangco, Jr.
versus the PCGG (G.R. Nos. 92319–92320) dated October 2, 1990, we are hereby
transmitting to your Office for appropriate action the records of the attached criminal case
which we believe is similar to the said Cojuangco case in certain aspects, such as: (i) some
parts or elements are also parts of the causes of action in the civil complaints[-]filed with the
Sandiganbayan; (ii) some properties or assets of the respondents have been sequestered;
(iii) some of the respondents are also party defendants in the civil cases.
Although the authority of the PCGG has been upheld by the Supreme Court, we are
constrained to refer to you for proper action the herein-attached case in view of the suspicion
that the PCGG cannot conduct an impartial investigation in cases similar to that of the
Cojuangco case. x x x
Ostensibly, the PCGG’s letter of transmittal was adverting to the ruling in Cojuangco, Jr. v.
Presidential Commission on Good Government (Cojuangco, Jr.),17 viz:
x x x The PCGG and the Solicitor General finding a prima facie basis filed a civil complaint
against petitioner and intervenors alleging substantially the same illegal or criminal acts
subject of the subsequent criminal complaints the Solicitor General filed with the PCGG for
preliminary investigation. x x x.
Moreover, when the PCGG issued the sequestration and freeze orders against petitioner’s
properties, it was on the basis of a prima facie finding that the same were ill-gotten and/or
were acquired in relation to the illegal disposition of coconut levy funds. Thus, the Court finds
that the PCGG cannot possibly conduct the preliminary investigation of said criminal
complaints with the "cold neutrality of an impartial judge," as it has prejudged the matter. x x
x18
xxxx
The Court finds that under the circumstances of the case, the PCGG cannot inspire belief that
it could be impartial in the conduct of the preliminary investigation of the aforesaid complaints
against petitioner and intervenors. It cannot possibly preside in the said preliminary
investigation with an even hand.
The Court holds that a just and fair administration of justice can be promoted if the PCGG
would be prohibited from conducting the preliminary investigation of the complaints subject of
this petition and the petition for intervention and that the records of the same should be
forwarded to the Ombudsman, who as an independent constitutional officer has primary
jurisdiction over cases of this nature, to conduct such preliminary investigation and take
appropriate action.19 (Bold emphasis supplied)
It appears that the resolutions of the Office of the Ombudsman, following its conduct of the
preliminary investigation on the criminal complaints thus transmitted by the PCGG, were
reversed and set aside by the Court in Presidential Commission on Good Government v.
Desierto,20
with the Court requiring the Office of the Ombudsman to file the informations that became the
subject of Disini’s motion to quash in Criminal Case No.28001 and Criminal Case No. 28002.
2.
Sandiganbayan has exclusive and
original jurisdiction over the offenses charged
Disini challenges the jurisdiction of the Sandiganbayan over the offenses charged in Criminal
Case No. 28001 and Criminal Case No. 28002.He contends that: (1) the informations did not
allege that the charges were being filed pursuant to and in connection with Executive Order
(E.O.) Nos.1, 2, 14 and 14-A; (2) the offenses charged were not of the nature contemplated
by E.O. Nos. 1, 2, 14 and 14-A because the allegations in the informations neither pertained
to the recovery of ill-gotten wealth, nor involved sequestration cases; (3) the cases were filed
by the Office of the Ombudsman instead of by the PCGG; and (4) being a private individual
not charged as a co-principal, accomplice or accessory of a public officer, he should be
prosecuted in the regular courts instead of in the Sandiganbayan.
The Office of the Solicitor General (OSG) counters that the Sandiganbayan has jurisdiction
over the offenses charged because Criminal Case No. 28001 and Criminal Case No. 28002
were filed within the purview of Section 4 (c) of R.A. No. 8249; and that both cases stemmed
from the criminal complaints initially filed by the PCGG pursuant to its mandate under E.O.
Nos. 1, 2, 14 and 14-A to investigate and file the appropriate civil or criminal cases to recover
ill-gotten wealth not only of the Marcoses and their immediately family but also of their
relatives, subordinates and close associates.
We hold that the Sandiganbayan has jurisdiction over Criminal Case No. 28001 and Criminal
Case No. 28002.
Presidential Decree (P.D.) No. 1606 was the law that established the Sandiganbayan and
defined its jurisdiction. The law was amended by R.A. No. 7975 and R.A. No. 8249. Under
Section 4 of R.A. No. 8249, the Sandiganbayan was vested with original and exclusive
jurisdiction over all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise 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:
xxxx
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection (a) of this
section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986. (Bold emphasis supplied)
In cases where none of the accused are occupying positions corresponding to salary grade
‘27’ or higher, as prescribed in the said Republic Act No. 6758, or military or PNP officers
mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court and municipal circuit trial court, as the
case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg.
129, as amended.
xxxx
In case private individuals are charged as co-principals, accomplices or accessories with the
public officers or employees, including those employed in government-owned or controlled
corporations, they shall be tried jointly with said public officers and employees in the proper
courts which shall exercise exclusive jurisdiction over them. x x x x
It is underscored that it was the PCGG that had initially filed the criminal complaints in the
Sandiganbayan, with the Office of the Ombudsman taking over the investigation of Disini only
after the Court issued in Cojuangco, Jr. the directive to the PCGG to refer the criminal cases
to the Office of the Ombudsman on the ground that the PCGG would not be an impartial
office following its finding of a prima facie case being established against Disini to sustain the
institution of Civil Case No. 0013.
Also underscored is that the complaint in Civil Case No. 0013 and the informations in
Criminal Case No. 28001 and Criminal Case No. 28002involved the same transaction,
specifically the contracts awarded through the intervention of Disini and President Marcos in
favor of Burns & Roe to do the engineering and architectural design, and Westinghouse to do
the construction of the Philippine Nuclear Power Plant Project (PNPPP). Given their
sameness in subject matter, to still expressly aver in Criminal Case No.28001 and Criminal
Case No. 28002 that the charges involved the recovery of ill-gotten wealth was no longer
necessary.21 With Criminal Case No.28001 and Criminal Case No. 28002 being intertwined
with Civil Case No.0013, the PCGG had the authority to institute the criminal prosecutions
against Disini pursuant to E.O. Nos. 1, 2, 14 and 14-A.
That Disini was a private individual did not remove the offenses charged from the jurisdiction
of the Sandiganbayan. Section 2 of E.O. No.1, which tasked the PCGG with assisting the
President in "the recovery of all ill-gotten wealth accumulated by former President Ferdinand
E. Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or sequestration of all business
enterprises and entities owned or controlled by them, during his administration, directly or
through nominees, by taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship," expressly granted the authority of the PCGG
to recover ill-gotten wealth covered President Marcos’ immediate family, relatives,
subordinates and close associates, without distinction as to their private or public status.
Contrary to Disini’s argument, too, the qualifying clause found in Section 4 of R.A. No. 824922
applied only to the cases listed in Subsection 4aand Subsection 4b of R.A. No. 8249, the full
text of which follows:
xxxx
a. Violations of Republic Act No. 3019, as amended, otherwise 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 1989(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan and provincial treasurers, assessors, engineers and other
provincial department heads;
(b) City mayors, vice-mayors, members of 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;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the
provisions of the Constitution; and
(5) All other national and local officials classified as Grade ‘27’and higher under the
Compensation and Position Classification Act of 1989. b. Other offenses or felonies
whether simple or complexed with other crimes committed by the public officials and
employees mentioned in subsection a of this section in relation to their office. (bold
emphasis supplied)
xxxx
Unquestionably, public officials occupying positions classified as Grade 27 or higher are
mentioned only in Subsection 4a and Subsection 4b,signifying the plain legislative intent of
limiting the qualifying clause to such public officials. To include within the ambit of the
qualifying clause the persons covered by Subsection 4c would contravene the exclusive
mandate of the PCGG to bring the civil and criminal cases pursuant to and in connection with
E.O. Nos. 1, 2, 14 and 14-A. In view of this, the Sandiganbayan properly took cognizance of
Criminal Case No. 28001 and Criminal Case No. 28002 despite Disini’s being a private
individual, and despite the lack of any allegation of his being the co-principal, accomplice or
accessory of a public official in the commission of the offenses charged.
3.
The offenses charged in the
informations have not yet prescribed
In resolving the issue of prescription, the following must be considered, namely: (1) the period
of prescription for the offense charged;(2) the time when the period of prescription starts to
run; and (3) the time when the prescriptive period is interrupted.23
The information in Criminal Case No. 28001 alleged that Disini had offered, promised and
given gifts and presents to Ferdinand E. Marcos; that said gifts were in consideration of Disini
obtaining for Burns & Roe and Westinghouse Electrical Corporation (Westinghouse) the
contracts, respectively, to do the engineering and architectural design of and to construct the
PNPPP; and that President Marcos did award or cause to be awarded the respective
contracts to Burns & Roe and Westinghouse, which acts constituted the crime of corruption of
public officials.24
The crime of corruption of public officials charged in Criminal Case No. 28001 is punished by
Article 212 of the Revised Penal Code with the" same penalties imposed upon the officer
corrupted."25 Under the second paragraph of Article 210 of the Revised Penal Code (direct
bribery),26 if the gift was accepted by the officer in consideration of the execution of an act
that does not constitute a crime, and the officer executes the act, he shall suffer the penalty of
prision mayor in its medium and minimum periods and a fine of not less than three times the
value of the gift. Conformably with Article 90 of the Revised Penal Code,27 the period of
prescription for this specie of corruption of public officials charged against Disini is 15 years.
As for Criminal Case No. 28002, Disini was charged with a violation of Section 4(a) of R.A.
No. 3019. By express provision of Section 11 of R.A. No. 3019, as amended by Batas
Pambansa Blg. 195, the offenses committed under R.A. No. 3019 shall prescribe in 15 years.
Prior to the amendment, the prescriptive period was only 10 years. It became settled in
People v. Pacificador,28 however, that the longer prescriptive period of 15years would not
apply to crimes committed prior to the effectivity of Batas Pambansa Blg. 195, which was
approved on March 16, 1982, because the longer period could not be given retroactive effect
for not being favorable to the accused. With the information alleging the period from 1974 to
February1986 as the time of the commission of the crime charged, the applicable prescriptive
period is 10 years in order to accord with People v. Pacificador .
For crimes punishable by the Revised Penal Code, Article 91 thereof provides that
prescription starts to run from the day on which the crime is discovered by the offended party,
the authorities, or their agents. As to offenses punishable by R.A. No. 3019, Section 2 of R.A.
No. 332629 states:
Section 2. Prescription shall begin to run from the day of the commission of the violation of
the law, and if the same be not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting double jeopardy.
The ruling on the issue of prescription in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Desierto30 is also enlightening, viz:
Generally, the prescriptive period shall commence to run on the day the crime is committed.
That an aggrieved person "entitled to an action has no knowledge of his right to sue or of the
facts out of which his right arises," does not prevent the running of the prescriptive period. An
exception to this rule is the "blameless ignorance" doctrine, incorporated in Section 2 of Act
No. 3326. Under this doctrine, "the statute of limitations runs only upon discovery of the fact
of the invasion of a right which will support a cause of action. In other words, the courts would
decline to apply the statute of limitations where the plaintiff does not know or has no
reasonable means of knowing the existence of a cause of action." It was in this accord that
the Court confronted the question on the running of the prescriptive period in People v.
Duque which became the cornerstone of our 1999 Decision in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto (G.R. No. 130149), and the subsequent
cases which Ombudsman Desierto dismissed, emphatically, on the ground of prescription
too. Thus, we held in a catena of cases, that if the violation of the special law was not known
at the time of its commission, the prescription begins to run only from the discovery thereof,
i.e., discovery of the unlawful nature of the constitutive act or acts.
Corollary, it is safe to conclude that the prescriptive period for the crime which is the subject
herein, commenced from the date of its discovery in 1992 after the Committee made an
exhaustive investigation. When the complaint was filed in 1997, only five years have elapsed,
and, hence, prescription has not yet set in. The rationale for this was succinctly discussed in
the 1999 Presidential Ad Hoc Fact-Finding Committee on Behest Loans, that "it was well-high
impossible for the State, the aggrieved party, to have known these crimes committed prior to
the 1986EDSA Revolution, because of the alleged connivance and conspiracy among
involved public officials and the beneficiaries of the loans." In yet another pronouncement, in
the 2001 Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto (G.R. No.
130817), the Court held that during the Marcos regime, no person would have dared to
question the legality of these transactions. (Citations omitted)31
Accordingly, we are not persuaded to hold here that the prescriptive period began to run from
1974, the time when the contracts for the PNPP Project were awarded to Burns & Roe and
Westinghouse. Although the criminal cases were the offshoot of the sequestration case to
recover ill-gotten wealth instead of behest loans like in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, the connivance and conspiracy among the public
officials involved and the beneficiaries of the favors illegally extended rendered it similarly
well-nigh impossible for the State, as the aggrieved party, to have known of the commission
of the crimes charged prior to the EDSA Revolution in 1986. Notwithstanding the highly
publicized and widely-known nature of the PNPPP, the unlawful acts or transactions in
relation to it were discovered only through the PCGG’s exhaustive investigation, resulting in
the establishment of a prima facie case sufficient for the PCGG to institute Civil Case No.
0013 against Disini. Before the discovery, the PNPPP contracts, which partook of a public
character, enjoyed the presumption of their execution having been regularly done in the
course of official functions.32
Considering further that during the Marcos regime, no person would have dared to assail the
legality of the transactions, it would be unreasonable to expect that the discovery of the
unlawful transactions was possible prior to 1986.
We note, too, that the criminal complaints were filed and their records transmitted by the
PCGG to the Office of the Ombudsman on April 8, 1991for the conduct the preliminary
investigation.33 In accordance with Article 91 of the
Revised Penal Code34 and the ruling in Panaguiton, Jr. v. Department of Justice,35 the filing of
the criminal complaints in the Office of the Ombudsman effectively interrupted the running of
the period of prescription. According to Panaguiton:36
In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which involved violations of
the Anti-Graft and Corrupt Practices Act(R.A. No. 3019) and the Intellectual Property Code
(R.A. No. 8293),which are both special laws, the Court ruled that the prescriptive period is
interrupted by the institution of proceedings for preliminary investigation against the accused.
In the more recent case of Securities and Exchange Commission v. Interport Resources
Corporation, the Court ruled that the nature and purpose of the investigation conducted by
the Securities and Exchange Commission on violations of the Revised Securities Act, another
special law, is equivalent to the preliminary investigation conducted by the DOJ in criminal
cases, and thus effectively interrupts the prescriptive period.
The following disquisition in the Interport Resources case is instructive, thus:
While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326
appears before" investigation and punishment" in the old law, with the subsequent change in
set-up whereby the investigation of the charge for purposes of prosecution has become the
exclusive function of the executive branch, the term "proceedings" should now be understood
either executive or judicial in character: executive when it involves the investigation phase
and judicial when it refers to the trial and judgment stage. With this clarification, any kind of
investigative proceeding instituted against the guilty person which may ultimately lead to his
prosecution should be sufficient to toll prescription.
Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on
account of delays that are not under his control.
The prevailing rule is, therefore, that irrespective of whether the offense charged is
punishable by the Revised Penal Code or by a special law, it is the filing of the complaint or
information in the office of the public prosecutor for purposes of the preliminary investigation
that interrupts the period of prescription. Consequently, prescription did not yet set in because
only five years elapsed from 1986, the time of the discovery of the offenses charged, up to
April 1991, the time of the filing of the criminal complaints in the Office of the Ombudsman.
The informations were sufficient in form and substance
It is axiomatic that a complaint or information must state every single fact necessary to
constitute the offense charged; otherwise, a motion to dismiss or to quash on the ground that
the complaint or information charges no offense may be properly sustained. The fundamental
test in determining whether a motion to quash may be sustained based on this ground is
whether the facts alleged, if hypothetically admitted, will establish the essential elements of
the offense as defined in the law.37 Extrinsic matters or evidence aliunde are not considered.38
The test does not require absolute certainty as to the presence of the elements of the
offense; otherwise, there would no longer be any need for the Prosecution to proceed to trial.
The informations in Criminal Case No. 28001 (corruption of public officials) and Criminal
Case No. 28002 (violation of Section 4(a) of RA No.3019) have sufficiently complied with the
requirements of Section 6, Rule110 of the Rules of Court, viz:
Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if
it states the name of the accused; the designation of the offense given by the statute; the acts
or omissions complained of as constituting the offense; the name of the offended party; the
approximate date of the commission of the offense; and the place where the offense was
committed.
When the offense is committed by more than one person, all of them shall be included in the
complaint or information.
The information in Criminal Case No. 28001 alleging corruption of public officers specifically
put forth that Disini, in the period from 1974 to February 1986 in Manila, Philippines,
conspiring and confederating with then President Marcos, willfully, unlawfully and feloniously
offered, promised and gave gifts and presents to President Marcos, who, by taking undue
advantage of his position as President, committed the offense in relation to his office, and in
consideration of the gifts and presents offered, promised and given by Disini, President
Marcos caused to be awarded to Burns & Roe and Westinghouse the respective contracts to
do the engineering and architectural design of and to construct the PNPPP. The felonious act
consisted of causing the contracts for the PNPPP to be awarded to Burns & Roe and
Westinghouse by reason of the gifts and promises offered by Disini to President Marcos.
The elements of corruption of public officials under Article 212 of the Revised Penal Code
are:
1. That the offender makes offers or promises, or gives gifts or presents to a public
officer; and
2. That the offers or promises are made or the gifts or presents are given to a public
officer under circumstances that will make the public officer liable for direct bribery or
indirect bribery.
The allegations in the information for corruption of public officials, if hypothetically admitted,
would establish the essential elements of the crime. The information stated that: (1) Disini
made an offer and promise, and gave gifts to President Marcos, a public officer; and (2) in
consideration of the offers, promises and gifts, President Marcos, in causing the award of the
contracts to Burns & Roe and Westinghouse by taking advantage of his position and in
committing said act in relation to his office, was placed under circumstances that would make
him liable for direct bribery.39
The second element of corruption of public officers simply required the public officer to be
placed under circumstances, not absolute certainty, that would make him liable for direct or
indirect bribery. Thus, even without alleging that President Marcos received or accepted
Disini’s offers, promises and gifts – an essential element in direct bribery – the allegation that
President Marcos caused the award of the contracts to Burns & Roe and Westinghouse
sufficed to place him under circumstances of being liable for direct bribery.
The sufficiency of the allegations in the information charging the violation of Section 4(a) of
R.A. No. 3019 is similarly upheld. The elements of the offense under Section 4(a) of R.A. No.
3019 are:
1. That the offender has family or close personal relation with a public official;
2. That he capitalizes or exploits or takes advantage of such family or close personal
relation by directly or indirectly requesting or receiving any present, gift, material or
pecuniary advantage from any person having some business, transaction,
application, request or contract with the government;
3. That the public official with whom the offender has family or close personal relation
has to intervene in the business transaction, application, request, or contract with the
government.
The allegations in the information charging the violation of Section 4(a) of R.A. No. 3019, if
hypothetically admitted, would establish the elements of the offense, considering that: (1)
Disini, being the husband of Paciencia Escolin-Disini, the first cousin of First Lady Imelda
Romualdez-Marcos, and at the same time the family physician of the Marcoses, had close
personal relations and intimacy with and free access to President Marcos, a public official; (2)
Disini, taking advantage of such family and close personal relations, requested and received
$1,000,000.00 from Burns & Roe and $17,000,000.00 from Westinghouse, the entities then
having business, transaction, and application with the Government in connection with the
PNPPP; (3) President Marcos, the public officer with whom Disini had family or close
personal relations, intervened to secure and obtain for Burns & Roe the engineering and
architectural contract, and for Westinghouse the construction of the PNPPP.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the resolutions
promulgated on January 17, 2005 and August 10, 2005 by the Sandiganbayan (First Division)
G.R. Nos. 113908 & 114819 April 18, 1997
PABLO G. QUIÑON, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
NARVASA, C.J.:
The special civil actions of certiorari and prohibition at bar treat of two (2) criminal actions,
both against the same accused, herein petitioner, and both pending in the Sandiganbayan.
One is docketed as Criminal Case No. 16279; the other, Criminal Case No. 19561.
Criminal Case No. 16279
On November 5, 1990, an information was filed in the Sandiganbayan against Pablo B.
Quiñon, then the Station Commander of Calinog, Iloilo PC/INP, charging him with the felony
of "malversation of public properties" under Article 217 of the Revised Penal Code. The
information alleged that on or about March 14, 1988, having come into the possession and
control in his official capacity of two (2) pistols and their magazines, and one (1) shotgun, with
a total value of P15,000.00, and being accountable, by reason of the duties of his office, for
public properties coming to his possession and control, he applied and converted the firearms
to his personal use and benefit to the damage and prejudice of the government. The case
was docketed as Criminal Case No. 16279, and raffled to the Third Division.
On arraignment, Quiñon entered a plea of not guilty, after which the case was set for pre-trial
and trial on July 18, and 19, 1991. At the instance of Quiñon and his counsel, Atty. Teodulo
Colado, the pre-trial and trial were reset to September 16, and 17, 1992 for the reason that
Colada had been appointed Municipal Judge of Cabatuan, Isabela.
On September 16, 1991, Quiñon's new counsel, Atty. Gerardo B. Roldan, Jr., filed a motion to
reset the case to November 12, 14 and 15, 1991, pleading other important commitments and
his lack of preparation for trial. The Sandiganbayan reset the case to November 14, and 15,
1991.
On November 14, 1991 only Atty. Roldan appeared, alleging he could not get in touch with
Quiñon. It appearing that Quiñon had been duly notified of the hearing through personal
service of subpoena and through his bondsmen, and on motion of the Public Prosecutor, the
Sandiganbayan thereupon ordered Quiñon arrested, his bond confiscated, and the case reset
on January 23 and 24, 1992.
On January 8, 1992, Atty. Roldan sought reconsideration of the Order of November 14, 1991.
He argued that Quiñon's failure to appear on that date was due to inability to travel on
account of hypertension, a medical certificate of a Dr. Renato Armada, Rural Health
Physician of Janiuay, Iloilo dated November 8, 1992 being submitted in substantiation. The
Court set aside its Order of November 14, 1991 and recalled the warrant for Quiñon's arrest.
The setting of January 23 and 24 was maintained.
Quiñon again failed to appear in Court for the hearing of January 23, 1992, the same reason
being adduced: essential hypertension. The Sandiganbayan directed the aforementioned Dr.
Renato Armada, and the Provincial Health Officer, to examine Quiñon and submit a report of
their findings within ten days. The hearing was once more reset to March 25 and 26, 1992,
and then, on account of an error in scheduling, to April 7 and 8, 1992.
The hearing was scheduled anew on June 9 and 10, 1992, on Quiñon's averment that he
could not appear on April 7 and 8, 1992 because he was suffering dizziness on account of
hypertension.
On June 9, 1992, Atty. Geraldo Roldan filed a motion for leave to withdraw as counsel for
Quiñon on the ground that having been elected municipal councilor of Mandaluyong, Metro
Manila, he (Roldan) was no longer allowed to practice by reason of "the effectivity of the
Local Government Code of 1991 (Republic Act No. 7160) on January 1, 1992 . . . "However,
by Order dated June 9, 1992, the Sandiganbayan denied the motion "in the meantime"
because it did not bear Quiñon's conformity, and required that notice of the motion be given
to Quiñon so that, "if he conforms thereto, he can proceed to retain another counsel to defend
him" (Annex C, petition).
Quiñon did not show up on June 9, 1992 although, as shown by the records, subpoena had
been duly served on him through both his wife, Leticia L. Quiñon, and his bondsmen
(Gregorio Brasileño and Asuncion Armada). Accordingly, the Court issued another Order
which, observing that Quiñon had put in an appearance only once, at his arraignment, and
had been absent during all the six (6) times that the case had been set for pre-trial and trial,
required him to show cause in ten (10) days why he should not be held in contempt for failing
to appear; and reset the case for pre-trial and trial on November 5 and 6, 1992 at 8:30 o'clock
A.M. The subpoena was served on Quiñon, again through both his wife, Leticia, and his
bondsmen.
This time, on November 5, 1992, Quiñon put in an appearance, but without his lawyer.
Quiñon advised the Court that his lawyer was down with typhoid fever, and asked that the
case be reset. The Sandiganbayana acceded, and transferred the pre-trial and trial to
February 23 and 24, 1993. The corresponding subpoena was served on Quiñon and his
bondsmen.
Quiñon failed to present himself on February 23, 1993. Instead he caused submission to the
Court of an affidavit of his, once more adverting to his "severe dizziness" as evidenced by a
medical certificate of Dr. Noel Gigare of the Janiuay District Hospital, dated February 19,
1993.
The Sandiganbayan dealt with the affidavit on the day following, It issued an Order dated
February 24, 1993, in which it deemed the affidavit to be "in fact . . a request for
postponement of the case on account of an alleged illness of the accused;" noted the
prosecution's objection thereto; recalled that in prior "settings, accused and counsel had
asked for postponement of trial on the same gound;" agreed with the prosecution's
observation that "it takes time, energy and great expense for witnesses to come all the way
from Iloilo and so, if they come only to find that the accused has asked for postponement of
trial, it engenders disappointment to the prosecution and embarassment to the Court;"
remarked that "the excuses put up by the accused . . were flimsy and obviously designed to
delay trial;" considered the accused "to have waived his presence during trial today" and
authorized the "prosecution . . (to) proceed to present evidence in accordance with law."
The prosecution thereupon presented its proofs and then rested its case, after which the
Sandiganbayan issued another Order to the effect that "the accused Pablo Quiñon may
present evidence in his defense on July 22 and 23, 1993, at 8:30 o'clock in the morning."
Neither Quiñon nor his counsel came to the Court on the appointed date, July 22, 1993. After
waiting until 11 o'clock that morning, the Sandiganbayan issued an Order in open Court
declaring the case submitted for decision, Quiñon's "failure to appear notwithstanding . . that
notice was given to him and that he was given the opportunity to present evidence today . .
(being) considered a waiver of his right to present evidence;" directing the prosecutor "to
present a memorandum for the prosecution within ten (10) days;" and commanding that
Quiñon be arrested, his bond confiscated, and his bondsmen required to produce him within
thirty (30) days and "show cause in writing why judgment on the bond shall not be rendered
under the circumstances." As directed, the prosecution filed on July 28, 1993 a memorandum
recommending conviction of Quiñon of the felony charged.
Ten weeks or so afterwards, or on October 8, 1993, Quiñon filed a motion seeking
reconsideration of the Sandiganbayan's Orders of February 24, 1993 and July 22, 1993,
claiming denial of due process as his lawyer (Atty. Roldan) had not been notified of the
hearings of February 23, 1993 and July 22, 1992; that his failure to appear on February 23
and 24, 1993 was justified by illness, as certified by Dr. Gigare's certificate dated February
19, 1993; and that although the subpoena received by him for the hearing of July 22 and 23,
1993 directed him to inform his counsel thereof, his inability to get in touch with the latter
made him decide not appear on said dates. The motion was denied by Resolution of the
Sandiganbayan dated January 18, 1994 which "consequently deemed (the case) ready for
decision." At this time, Quiñon was being represented by still another counsel, Atty. Ramon A.
Gonzales.
G.R. No.  13908
Quiñon filed with this Court a petition for certiorari and prohibition, dated February 22, 1994
— docketed as G.R. No. 13908. The petition (1) alleged (a) that the Sandiganbayan had no
jurisdiction to try the case against him; (b) that the facts charged do not constitute an offense;
and (c) that the Sandiganbayan was gravely abusing its jurisdiction "in denying petitioner's
motion to re-open the case and present evidence after the prosecution . . rested its case; and
(2) prayed for annulment, and perpetual proscription of enforcement, of the Orders of
February 24, 1993, July 22, 1993, and January 18, 1994 or, alternatively, that Quiñon be
allowed "to cross-examine the People's witnesses and adduce evidence in his behalf."
Criminal Case No. 19561
At about the time of the rendition (on February 24, 1993) of the first Order challenged in G.R.
No. 13908, another event occurred which has since given rise to another proceeding
involving Quiñon. This was the filing in the Office of the Iloilo Provincial Prosecution, on or
about February 20, 1993, of another criminal complaint against Quiñon, resulting in the filing
by the Office of the Ombudsman, after preliminary investigation, of an information dated
August 2, 1993 also charging him with "malversation of public property." The indictment
averred that on or about January 7, 1993, there were issued to Quiñon government property
consisting of two (2) revolvers and a shotgun with a total value of P16,000.00, and once in
possession thereof he did, with abuse of trust and confidence, malverse, misappropriate and
convert to his own personal use said firearms to the damage and prejudice of the
government. The case was docketed as Criminal Case No. 19561 and raffled to the First
Division.
Quiñon filed a motion to quash the information on February 22, 1994 on the ground that:
1) the information did not charge an offense as it did not allege that he was an accountable
public officer having "custody of subject firearms and in-charge of their safekeeping," and not
being an accountable officer, he may not be charged with malversation under Article 217 of
the Revised Penal Code;
2) the Sandiganbayan had no jurisdiction to try the felony because the complaint was
originally filed with the Iloilo prosecution office which consequently acquired jurisdiction over it
to the exclusion of the Ombudsman; and
3) under Section 4, Rule 112 of the Rules of Court, it was not the Special Prosecutor of the
Sandiganbayan, but the Iloilo Provincial Prosecutor that had authority to file the information.
Quiñon thereafter submitted a "Supplemental Motion to Quash" dated March 3, 1994,
invoking another ground for dismissal of the case against him: that the Sandiganbayan had
no jurisdiction in view of Section 46, R.A. No. 6975 conferring jurisdiction over the crime in
question on "regular courts," thus excluding the Sandiganbayan which is a "special court."
The Sandiganbayan denied both motions, by Resolution dated March 7, 1994. Its ruling
pertinently reads:
xxx xxx xxx
The information does narrate facts which constitute an offense. Both Art. 217
and Art. 220 hold persons who are not "accountable officers" as such when
 they are, nonetheless, accountable for specific public property as when they
have a duty to return the same or to dispose thereof is provided by law or by
lawful regulations or orders of their superiors.
This Court does have jurisdiction of the case because the alleged conversion
by the accused of the firearms earlier issued to him as Police Sergeant
constituted an office-related offense over which the Sandiganbayan has
jurisdiction (Sec. 4, PD 1606).
This Court possesses jurisdiction over the case involving a police officer
charged in connection with the performance of his duties since it has been
the view of this Court that the designation of "regular courts" in Sec. 46 R.A.
No. 6975 is in contradistinction from military courts and not against
"specialized" court such as the Sandiganbayan.
For the last two reasons, the preliminary investigation herein was properly
conducted and the Information filed by the Office of the Ombudsman.
G.R. No.  114819
Subsequently the Sandiganbayan set Quiñon's arraignment on March 25, 1994 but reset it to
May 6, 1994 on motion of the latter's lawyer, Atty. Ramon A. Gonzales, it appearing that on
April 19, 1994, the latter had filed in the Supreme Court a petition for certiorari and prohibition
dated April 14, 1994. In said petition he contended that in denying the motion to quash the
Sandiganbayan had acted with grave abuse of discretion amounting to lack or excess of
jurisdiction; and he prayed that the Order of March 23, 1994 be annulled. The case was
docketed as G.R. No. 114819.
Consolidation of G.R.  Nos.
114819 and 113908
Later, on February 13, 1995, G.R. No. 114819 was consolidated with G.R. No. 113908.
The Court's Dispositions
I. Sandiganbayan has Jurisdiction
Over Offenses Charged
Petitioner's first contention is that the Sandiganbayan has no jurisdiction over the cases
because under the law, R.A. 6975, criminal actions involving members of the Philippine
National Police are "within the exclusive jurisdiction of the regular courts;" and since the
Sandiganbayan is not a regular, but a special, court, it follows that it is not competent to take
cognizance of the accusations against petitioner, a member of the PNP. The issue has
already been dealt with by this Court in Republic v. Hon. Maximiano Asuncion, et al., 231
SCRA 211 (1994). In that case, after analyzing and considering the provisions of R.A. 6975 in
relation to the Constitution (Section 6, Article XVI, creating a national police force), and the
official transcript of the deliberations of the Bicameral Conference Committee on National
Defense, this Court declared (at pp. 213 et seq) that:
. . the terms civil courts and regular courts were used interchangeably or
were considered as synonymous by the Bicameral Committee and then by
the Senate and House of Representatives, . . (hence,) the term regular
courts in Section 46 of R.A. No. 6975 means civil courts. There could have
been no other meaning intended since the primary purposes of the law is to
remove from courts-martial the jurisdiction over criminal cases involving
members of the PNP and to vest it in the courts within our judicial
system, i.e., the civil courts which, as contradistinguished from courts-martial,
are the regular courts. Courts-martial are not courts within the Philippine
judicial system; they pertain to the executive department of the government
and are simply instrumentalities of the executive power. Otherwise stated,
courts-martial are not regular courts.
xxx xxx xxx
Regular courts are those within the judicial department of the government,
namely, the Supreme Court and such lower courts as may be established by
law. Per Section 16, Chapter 4, Book II of the Administrative Code of 1987,
such lower courts "include the Court of Appeals, Sandiganbayan, Court of
Tax Appeals, Regional Trial Courts, Shari'a District Courts, Metropolitan Trial
Courts, Municipal Trial Courts, Municipal Circuit Trial Courts, and Shari'a
Circuit Courts."
The Sandiganbayan was created by P.D. No. 1486 pursuant to the mandate
of section 5, Article XIII of the 1973 Constitution. This was revised by P.D.
No. 1606. The latter was amended by P.D. No. 1861. Under the amendments
introduced by P.D. No. 1861, the Sandiganbayan has . . (e)xclusive original
jurisdiction in all cases involving:
xxx xxx xxx
(2) Other offenses or felonies committed by public officers and employees in
relation to their office, including those employed in government-owned or
controlled corporations, whether simple or complexed with other crimes,
where the penalty prescribed by law is higher than  prision correctional or
imprisonment for six (6) years or a fine of P6,000.00 . . .
Undoubtedly then, the Sandiganbayan is a regular court and is thus included
in the term regular courts in Section 46 of R.A. No. 6975.
Petitioner's plea that this ruling be re-examined and abandoned is unpersuasive. The Court
perceives no reason to go over the arguments already extensively considered and passed
upon in 1994 when it promulgated the Asuncion decision. Petitioner's present arguments add
nothing of substance to the contentions then rejected by the Court. The doctrine is sound, its
logic obvious. It must be maintained.
II. Informations Filed By Proper
Authorized Officers
Petitioner next theorizes that the complaint which initiated Criminal Case No. 16279 was
originally filed with the Iloilo prosecution office; consequently, this office acquired jurisdiction
over it to the exclusion of the Ombudsman; and under Section 4, Rule 112 of the Rules of
Court, it is not the Special Prosecutor of the Sandiganbayan, but the Iloilo Provincial
Prosecutor who had authority to file the information.
The theory is plainly untenable. It is confuted by relevant provisions of the Ombudsman Act of
1989 (RA 6770) which inter alia (1) confers on the Office of the Special Prosecutor — "an
organic component of the Office of the Ombudsman . . under the supervision and control of
the Ombudsman" — the power to "conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan" (Sec. 11), and (2) recognizes the "primary
jurisdiction" of the Office of the Ombudsman "over cases cognizable by the Sandiganbayan
and (its power) in the exercise of this primary jurisdiction, . . to take over, at any stage, from
any investigatory agency of Government, the investigation of such cases" (Sec. 15).
Moreover, pursuant to Department Circular No. 50, dated November 6, 1991, jointly
promulgated by Ombudsman Conrado M. Vasquez and Acting Secretary Silvestre Bello III of
the Department of Justice, it is the Ombudsman's responsibility and prerogative to approve
the resolution of the investigating prosecutor who conducts the preliminary investigation of a
crime cognizable by the Sandiganbayan, and to file the corresponding information with said
court.
Also germane is Administrative Order No. 8 of the Ombudsman, dated November 8,
1990, viz.:
For purposes of investigation and prosecution, Ombudsman cases involving
criminal offenses may be subdivided into two classes, to wit: (1) those
cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction
of the regular courts, the difference between the two, aside from the category
of the courts wherein they are filed, is on the authority to prosecute, such
cases.
The power to investigate or conduct a preliminary investigation in any
Ombudsman case may be exercised by an investigator or prosecutor of the
Office of the Ombudsman, or by any Provincial or City Prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
prosecutors.
The prosecution of cases cognizable by the Sandiganbayan shall be under
the direct exclusive control and supervision of the Office of the Ombudsman.
In cases cognizable by the regular courts, the control and supervision by the
Office of the Ombudsman is only in Ombudsman cases in the sense defined
above. The law recognizes a concurrence of jurisdiction between the Office
of the Ombudsman and other investigation agencies of the government in the
prosecution of the cases of the government in the prosecution of cases
cognizable by regular courts. (citing IV Herrera, Remedial Law, Criminal
Procedure, pp. 754-755).
In light of the broad powers conferred by law on the Ombudsman and the Special Prosecutor,
it is thus completely inconsequential that the complaint by which Criminal Case No. 16279
was instituted — charging a crime cognizable by the Sandiganbayan — might have been
originally filed with the Iloilo Prosecution Office, or the preliminary investigation therein
conducted.
III. Information in Either Case
Adequately Charges Offense
Next, petitioner Quiñon postulates that the informations in both cases do not charge an
offense. He asserts that (1) the indictment in Criminal Case No. 16279 does not characterize
him as a public officer who is the custodian of the firearms or otherwise in charge of their
safekeeping  and (2) that in Case No. 19561 does not allege that he was accountable for the
guns as "the custodian . . (thereof) with authority to safeguard the same." In other words, he
claims that his position in either case was not fiduciary in nature; hence, he may not be
charged with malversation under Article 217 of the Revised Penal Code; the proper charge
would be of a violation of Article 218 of said Code.
This contention is as indefensible as the others already dealt with.
The information in Criminal Case No. 16279 dated November 5, 1990 (rollo of G.R. No.
113908, pp. 105-106) pertinently alleges that
1) Quiñon "was a public officer, being then the Station Commander of
Calinog, Iloilo PC/PNP;"
2) that "by reason of the duties of his office . . (he was) accountable for public
properties that come to his possession and control;"
3) that he "received in his official capacity . . (specifically described)
firearms;" and
4) that thereafter, "with grave abuse of confidence, (he) did then feloniously
apply and convert to his personal use and benefit the said firearms to the
 damage and prejudice of the government in total amount of Fifteen Thousand
Pesos (P15,000.00), Philippine currency."
On the other hand, the information in Criminal Case No. 19561 dated August 2, 1993 (rollo,
G.R. No. 114819, pp. 33-34), relevantly avers that:
1) Quiñon was the station Police Commander at Janiuay, Iloilo;
2) by reason of his office, there were issued to him government properties
consisting of particularly described firearms;
3) once in possession of the above-described properties, . . (Quiñon), with
abuse of trust and confidence, malversed, misappropriated and converted to
his own personal use and benefit said properties . . thereby causing damage
and prejudice to the government in the aforementioned sum of P16,000.00,
Philippine Currency.
It can hardly be doubted that the first indictment (in Criminal Case No. 16279) explicity and
adequately sets out all the familiar elements of the felony of malversation under Article 217 of
the Revised Penal Code, viz.:
(a) That the offender be a public officer.
(b) That he had the custody of control of funds or property by reason of the
duties of his office.
(c) That those funds or property were public funds or property for which he
was accountable.
(d) That he appropriated, took, misappropriated, or consented or, through
abandonment or negligence, permitted another reason to take them. (SEE
Luis B. Reyes, The Revised Penal Code, Criminal Law, 11th ed. 1977, Book
Two, Art. 114-367, p. 382, Fundamental of Criminal Law, Revised Gregorio,
1971, 3rd Ed., p. 302).
The second information, in Criminal Case No. 19561, is substantially identical to the first
except that it does not contain the averment that "by reason of the duties of his office . . (he
was) accountable for public properties that come to his possession and control . ." This is of
no moment. The second informations states that there were issued to Quiñon by reason of
his office as Police Station Commander of Janiuay, Iloilo, government properties consisting of
particularly described firearms. The delivery to Quiñon, by reason of the duties of his office as
PNP Station Commander, of the firearms belonging to the Government, necessarily and
inescapably entailed the implicit obligation on his part to safely keep the firearms, use them
for the purposes for which they were obviously entrusted to him, and to return them to the
proper authority at termination of his tenure as commander, or on the demand by the owner;
the duty, in other words to account for said firearms. And his act — also expressly stated in
the information — of malversing, misappropriation and converting the firearms to his own
personal use and benefit, with abuse of trust and confidence — completed the basic
description of the crime of malversation attributed to him.
No error can therefore be imputed to the ruling of the respondent Sandiganbayan (March 7,
1994 rollo, G.R. No. 114819, p. 53) to the following effect:
The Motion to Quash filed by the accused dated February 22, 1994 and the
Supplement thereto dated March 3, 1994 are denied.
The information does narrate facts which constitute an offense. Both Art. 217
and Art. 220 hold persons who are not accountable officers as such when
they are, nonetheless, accountable for specific public property as when they
have a duty to return the same or to dispose thereof as provided by law or by
lawful regulation or orders of their superiors.
This Court does have jurisdiction of the case because the alleged conversion
by the accused of the firearm earlier issued to him as a Police Sergeant
constitutes an office related offense over which the Sandiganbayan has
jurisdiction (Sec. 4, PD. 1606).
This Court possesses jurisdiction over the case involving a police officer
charged in connection with the performance of regular court in Section 46 of
R.A. No. 6975 is in contradistinction from military courts and not against
specialized court such as the Sandiganbayan.
IV. No Abuse of Discretion by Sandiganbayan
In Deriving Quiñon's Motion to Reopen
Case and Present Evidence.
Petitioner finally theorizes that the Sandiganbayan gravely abused its discretion in Case No.
16279, "in denying petitioner's motion to re-open the case and present evidence after the
prosecution . . rested its case." The material facts, recited at some length in this opinion,
more than adequately belie this asseveration. In Pulido v. Lazaro (158 SCRA 107 [1988]), the
Court ruled that "(t)here was no denial of due process where petitioner had many
opportunities and had afforded adequate hearing to argue his case." Far from being tainted
by error, therefore, the Sandiganbayan's challenged resolution, founded upon the undisputed
facts on record, correctly reflected the legal principles involved, viz.:
Considering the circumstances obtaining in this case, circumstances which
caused inordinate delay of trial of the accused's own making, the Court
cannot but stand pat on the Orders sought to be reconsidered. It is very clear
 that the accused had asked for innumerable postponements of trial simply for
purpose of delay posing a challenge to and defiance of, the Court's authority.
The accused had simply taken the Court for granted. It can be seen that
accused's alleged severe dizziness and or hypertension, his frequent
reasons for asking for delay or trial, are not such illnesses as would prevent
accused's appearance in court Due process of law pertains not only to the
accused but also to the prosecution. Court proceedings in the
Sandiganbayan is peculiar in the sense that the parties to a case most often
come from distant provinces in Mindanao, the Visayas and Northern Luzon. It
is hard for witnesses for the prosecution or for the accused for that matter to
bring witnesses from distant provinces to Manila. It is harder still to bring
them to Manila only to find that a party has asked for postponement of trial. It
witnesses reside only in the same municipality where the Court holds
sessions or even in the same province where the Court is stationed there
would be little inconvenience for the witnesses to come back and forth
without being heard. As we have stated earlier, this is not so in trial of cases
in the Sandiganbayan.
x x x           x x x          x x x
We repeat that the Court, in a magnanimous gesture, ordered on February 25, 1993 that,
while the Court was constrained to hear the witnesses for the prosecution because they come
all the way from Iloilo, notwithstanding the absence of the accused, the accused be given the
opportunity to present evidence on July 22 & 23, 1993. The accused did not appear in court
for trial on the dates aforesaid.
It merely needs be pointed out that the foregoing conclusions of the Sandiganbayan are
entirely in accord (1) with Section 14(2), Article III of the Constitution which states that:
(2) in all criminal prosecution, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him to have a speedy, impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused
provided that he had been duly notified and his failure to appear is
unjustifiable. . ;
as well as (2) with Section 1 (c), Rule 115 of the Rules of Court, providing that:
. . In all criminal prosecutions, the accused shall be entitled:
xxx xxx xxx
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from the arraignment to the promulgation of the judgment. The
accused may however, waive his presence at the trial pursuant to the
stipulations set forth in his bail bond, unless his presence is specifically
ordered by the court for purposes of identification. The absence of the
accused without any justifiable cause at the trial of a particular date of which
he had notice shall be considered a waiver of his right to be present during
that trial. When an accused under custody had been notified of the date of
the trial and escapes, he shall be deemed to have waived his right to be
present on said date and on all subsequent trial dates until custody is
regained. Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can properly protect
his right without the assistance of counsel; (emphasis supplied)
V. A Last Word
The Court feels that before closing this opinion, a remainder of certain basic prepositions is
needful.
The special civil action of certiorari or prohibition is not the proper remedy against
interlocutory orders such as those assailed in these proceedings. He can order denying a
motion to quash the information, and one declaring the accused to have waived his right to
present evidence and considering the case submitted for decision. As pointed out by the
Office of the Solicitor General (citing Nierras v. Dacuycuy, 181 SCRA 1 [1990], and Acharon
v. Purisima, et al., 13 SCRA 309, People v. Madaluyo, 1 SCRA 990), the established rule is
that when such an adverse interlocutory order is rendered, the remedy is not to resort
forthwith to certiorari or prohibition, but to continue with the case in due course and, when an
unfavorable verdict is handed down, to take an appeal in the manner authorized by law. It is
only where there are special circumstances clearly demonstrating the inadequacy of an
appeal that the special civil action of certiorari or prohibition may exceptionally be allowed.
The Court has been cited to no such special circumstances in the cases at bar.
WHEREFORE, the petitions for certiorari and prohibition are DENIED for lack of merit, with
costs against petitioner.
IT IS SO ORDERED.
G.R. No. 185224               July 29, 2015
AMELIA CARMELA CONSTANTINO ZOLETA, Petitioner,
vs.
THE HONORABLE SANDIGANBAYAN [FOURTH DIVISION] and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 filed by petitioner Amelia Carmela
Constantino Zoleta assailing the November 5, 2008 decision2 of the Sandiganbayan (Fourth
Division) in Criminal Case No. 28326.
The case stemmed from an anonymous complaint filed against the petitioner, Mary Ann
Gadian, and Sheryll Desiree Tangan before the Office of the Ombudsman-Mindanao
(Ombudsman) for participating in the scheme of questionable grants and donations to
fictitious entities using provincial funds. As a result of this complaint, the Commission on Audit
(COA) conducted a special audit in Sarangani Province. Among the irregularities discovered
by the Special Audit Team was a ₱20,000.00 financial assistance given to Women in
Progress (WIP), a cooperative whose members were mostly government personnel or
relatives of the officials of Sarangani Province.
The COA Special Audit Team submitted its report to the Ombudsman which, in turn,
conducted a preliminary investigation. Thereafter, the Ombudsman, through the Office of the
Special Prosecutor, charged the petitioner, Vice-Governor Felipe Constantino, Violeta
Bahilidad, Maria Camanay, and Teodorico Diaz with malversation of public funds by
falsification of public documents defined and penalized under Article 217 in relation to Article
171(2) and Article48 of the Revised Penal Code, as amended, before the Sandiganbayan in
an Information which reads: That on January 24, 2002 or prior or subsequent thereto in
Sarangani, Philippines, and within the jurisdiction of this Honorable Court, accused Felipe
Katu Constantino, a high-ranking public officer, being the Vice-Governor of the Province of
Sarangani, Maria D. Camanay, Provincial Accountant, Teodorico F. Diaz, Provincial Board
Member, Amelia Carmela C. Zoleta, Executive Assistant III, all accountable public officials of
the Provincial Government of Sarangani, by reason of the duties of their office, conspiring
and confederating with Violita Bahilidad, private individual, the public officers, while
committing the offense in relation to office, taking advantage of their respective positions, did
then and there wilfully, unlawfully and feloniously take, convert and misappropriate the
amount of TWENTY THOUSAND PESOS (₱20,000.00), Philippine Currency, in public funds
under their custody, and for which they are accountable, by falsifying or causing to be falsified
the corresponding Disbursement Voucher No. 101-2002-01-822 and its supporting
documents, making it appear that financial assistance had been sought by Women In
Progress, Malungon, Sarangani, represented by its President, Amelia Carmela C. Zoleta,
when in truth and in fact, the accused knew fully well that no financial assistance had been
requested by the said group and her association, nor did Amelia Carmela C. Zoleta and her
association receive the aforementioned amount, thereby facilitating the release of the above-
mentioned public funds in the amount of TWENTY THOUSAND PESOS (₱20,000.00)through
encashment by the accused at Land Bank of the Philippines (LBP) Check No. 36481 dated
January 24, 2002 issued in the name of the Violeta Bahilidad, which amount they
subsequently misappropriated to their personal use and benefit and despite demand, the said
accused failed to return the said amount to the damage and prejudice of the government and
the public interest of the aforesaid sum.
CONTRARY TO LAW.3 (Emphasis in the original.)
On arraignment, the petitioner, Vice-Governor Constantino and Bahilidad pleaded "not guilty."
Diaz and Camanay, on the other hand, remained at large.
On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.4 The People of the
Philippines, though the Office of the Special Prosecutor, filed its Comment and Ex Parte
Motion to Include Testimonial Evidence and Issue to Pre-trial Order5 essentially claiming that
the Pre-trial Order did not reflect certain testimonial evidence "as stated during the Pre-Trial."6
In its Order7 dated April 5, 2006, the Sandiganbayan amended certain portions of the Pre-trial
Order.
On April 25, 2006, Vice-Governor Constantino died in a vehicular accident, resulting in the
dismissal of the case against him.
In its decision dated November 5,2008, the Sandiganbayan found the petitioner and Bahilidad
guilty beyond reasonable doubt of the crime charged, and sentenced them to suffer the
indeterminate penalty of fourteen (14) years, eight (8) months and one (1) day, as minimum,
to sixteen (16) years, five (5) months, and eleven (11) days of reclusion temporal, as
maximum. It also imposed on them the additional penalty of perpetual disqualification from
holding any public office. The Sandiganbayan likewise directed them to pay back the
Province of Sarangani ₱20,000.00 plus interest, computed from January 2002 until fully paid.8
The Sandiganbayan held that Vice-Governor Constantino had control and custody of the
funds by reason of his office, and that his signature was needed before a grant, donation, or
assistance could be released to a requesting party. According to the Sandiganbayan, Vice-
Governor Constantino approved the ₱20,000.00 disbursement despite the lack of the
required documentation.
The Sandiganbayan further ruled that Vice-Governor Constantino conspired with the other
accused in using a dummy organization WIP to facilitate the malversation. It explained that
the petitioner, who was Vice-Governor Constantino’s own daughter and who held the position
of Executive Assistant III in his office, committed the following acts: (a) ordered Mary Ann
Gadian, a computer operator at the Office of the Sangguniang Panlalawigan of Sarangani, to
make a letter-request for financial assistance using a nonexistent cooperative; (b) directed
Jane Tangan, the Local Legislative Staff Officer of the Office of the Vice-Governor, to falsify
the signature of WIP’s secretary, Melanie Remulta, on the request-letter; and (c) certified and
approved the disbursement voucher; and then presented it to Diaz, Camanay, and Vice-
Governor Constantino for their respective signatures.
The Sandiganbayan likewise ruled that falsification was a necessary means to commit the
crime of malversation.
THE PETITION FOR REVIEW ON CERTIORARI
In the present petition, the petitioner argued that: (a) the Sandiganbayan’s November 5, 2008
decision in Criminal Case No. 28326 was void because one of its signatories, Justice Gregory
Ong, was not a natural-born Filipino citizen per Kilosbayan Foundation v. Exec. Sec.
Ermita,9 and hence not qualified to be a Sandiganbayan justice; (b) the totality of evidence
presented by the prosecution was insufficient to overcome the petitioner’s presumption of
innocence; and (c) the Sandiganbayan denied her due process when it issued its Order dated
April 5, 2006, amending certain portions of the pre-trial order without any hearing.
In its Comment,10 the People countered that Kilosbayan merely required Justice Ong to
complete "all necessary steps, through the appropriate adversarial proceedings in court, to
show that he is a natural born Filipino citizen and correct the records of his birth and
citizenship." It added that Kilosbayan did not categorically rule that Justice Ong was not a
natural-born Filipino who was disqualified from accepting an appointment to the position of
Associate Justice of this Court. The People further pointed out that the Court in Topacio v.
Ong11 already acknowledged Justice Ong’s actual physical possession and exercise of the
functions of the office of an Associate Justice of the Sandiganbayan.
The People likewise argued that the issue of sufficiency of the prosecution evidence is a
question of fact which is beyond the province of a petition for review on certiorari. It
nonetheless maintained that the Sandiganbayan’s findings were supported by the evidence
on record.
On the third issue, the People maintained that a person charged with willful malversation can
validly be convicted of malversation through negligence.
OUR RULING
We DENY the petition.
I. The Sandiganbayan’s November 5, 2008 decision is valid
The petitioner’s reliance in Kilosbayan to challenge the validity of the Sandiganbayan’s
decision is misplaced.
We point out that Kilosbayana rose from a petition for certiorari filed by both Kilosbayan
Foundation and Bantay Katarungan – both non-governmental organizations engaged in
public and civic causes – assailing then President Gloria Macapagal-Arroyo’s appointment of
Justice Ong as an Associate Justice of the Court on the ground that the latter was not a
natural born citizen. Contrary to the petitioner’s claim, Kilosbayan did not rule that Justice
Ong was not a natural-born Filipino (and hence unqualified to assume the position of a
Sandiganbayan Justice). The Court merely stated that Justice Ong cannot accept an
appointment to the position of Associate Justice of the Supreme Court or assume the position
of that office, "until he shall have successfully completed all the necessary steps, through the
appropriate adversarial proceedings in court to show that he is a natural-born Filipino citizen
and correct the records of his birth and citizenship."12
At any rate, the Court has long settled the issue of Justice Ong’s citizenship. After the Court
promulgated Kilosbayan, Justice Ong immediately filed with the Regional Trial Court (RTC),
Branch 264, Pasig City, a petition for the amendment/ correction/ supplementation or
annotation of an entry in [his] Certificate of Birth, docketed as S.P. Proc No. 11767-SJ. In its
decision of October 24, 2007, the RTC13 granted Justice Ong's petition to be recognized as a
natural-born Filipino. Consequently, the RTC directed the Civil Registrar of San Juan, Metro
Manila to annotate in the Certificate of Birth of Justice Ong its (RTC’s) decision.
The RTC denied the motions moving for a reconsideration of its decision.
In its six-page resolution in 2013, the Court En Banc also held that Justice Ong was a natural-
born citizen, thus:
The pronouncements of the Court in both GR No. 179895 and GR No. 180543, and the
finality of the decision rendered by the RTC on October 24, 2007,in S.P. No. 11767-
SJrecognizing Justice Ong as a natural born citizen of the Philippines and directing the
correction of the existing records of his birth and citizenship have already definitively settled
the subject of the query posed by SP Villa-Ignacio.14
Even without this ruling, we hold that Justice Ong was a de facto officer during the period of
his incumbency as a Sandiganbayan Associate Justice. A de facto officer is one who is in
possession of an office and who openly exercises its functions under color of an appointment
or election, even though such appointment or election may be irregular.15 It is likewise defined
as one who is in possession of an office, and is discharging its duties under color of authority,
by which is meant authority derived from an appointment, however irregular or informal, so
that the incumbent be not a mere volunteer.16 Consequently, the acts of the de facto officer
are as valid for all purposes as those of a de jure officer, in so far as the public or third
persons who are interested therein are concerned.17
In the light of these considerations, we find no basis to invalidate the November 5, 2008
decision of the Sandiganbayan in Criminal Case No. 28326.
II. Only questions of law should be raised in a Rule 45 petition
It is settled that the appellate jurisdiction of the Supreme Court over decisions and final orders
of the Sandiganbayan is limited only to questions of law; it does not review the factual
findings of the Sandiganbayan which, as a general rule, are conclusive upon the Court.
A question of law exists when there is doubt or controversy as to what the law is on a certain
state of facts. On the other hand, a question of fact exists when the doubt or controversy
arises as to the truth or falsity of the alleged facts. The resolution of a question of fact
necessarily involves a calibration of the evidence, the credibility of the witnesses, the
existence and the relevance of surrounding circumstances, and the probability of specific
situations.18
In the present petition, the petitioner alleges that the presented evidence were insufficient to
support a conviction. She thus seeks a re-evaluation of the Sandiganbayan’s appreciation of
the evidence presented, including the credibility of witnesses and the probative value of their
testimonies. The petitioner likewise wants the Court to take a closer look into her claim that
the charges against them were politically motivated.
To our mind, the Sandiganbayan’s findings that: the testimonies of Gadian and Tangan were
credible and worthy of belief; WPI was an unregistered cooperative; the signatures of the
petitioner and her co-accused on the disbursement voucher were authentic; Remulta’s
signature had been forged; and the charges against the accused were not politically
motivated, are questions of fact, as these matters were resolved after a calibration of the
pieces of evidence presented during trial. The Court will not anymore weigh these pieces of
evidence in the absence of a clear showing that these findings had been arrived at arbitrarily
or are devoid of support in the records.
At any rate, we hold that the Sandiganbayan correctly convicted the petitioner of the complex
crime of malversation of public funds through falsification of public documents.
Malversation may be committed by appropriating public funds or property; by taking or
misappropriating the same; by consenting, or through abandonment or negligence, by
permitting any other person to take such public funds or property; or by being otherwise guilty
of the misappropriation or malversation of such funds or property.19
The elements common to all acts of malversation under Article 217 of the Revised Penal
Code, as amended, are the following: (a) that the offender be a public officer; (b) that he had
custody or control of funds or property by reason of the duties of his office; (c) that those
funds or property were public funds or property for which he was accountable; and (d) that he
appropriated, took, misappropriated or consented, or through abandonment or negligence,
permitted another person to take them. All these elements have been established by the
prosecution.
First, it is undisputed that all the accused, except Bahilidad, are all public officers. A public
officer is defined in the Revised Penal Code as "any person who, by direct provision of the
law, 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 class. Constantino was the Vice-Governor of Sarangani
Province, while the petitioner, Camanay, and Diaz were occupying the positions of Executive
Assistant (at the Office of the Vice-Governor), Provincial Accountant, and Provincial Board
Member, respectively.
Second, the funds misappropriated are public in character, as they were funds belonging to
the Province of Sarangani.
Third, Vice-Governor Constantino and Camanay were accountable public officers. Under the
Government Auditing Code of the Philippines, an accountable public officer is a public officer
who, by reason of his office, is accountable for public funds or property. The Local
Government Code expanded this definition with regard to local government officials. Section
340 of the LGC reads:
Section 340. Persons Accountable for Local Government Funds. – Any officer of the local
government unit whose duty permits or requires the possession or custody of local
government funds shall be accountable and responsible for the safekeeping thereof in
conformity with the provisions of this title. Other local officials, though not accountable by the
nature of their duties, may likewise be similarly held accountable and responsible for local
government funds through their participation in the use or application thereof. (Emphasis
ours.)
Local government officials become accountable public officers either (1) because of the
nature of their functions; or (2) on account of their participation in the use or application of
public funds.20
As a required standard procedure, the signatures of, among others, the Vice-Governor and
the Provincial Accountant are needed before any disbursement of public funds can be made.
No checks can be prepared and no payment can be effected without their signatures on a
disbursement voucher and the corresponding check. In other words, any disbursement and
release of public funds require their approval. Thus, Constantino and Camanay, in their
capacities as Vice-Governor and Provincial Accountant, had control and responsibility over
the subject funds.
Finally, Vice-Governor Constantino and Camanay appropriated, took, misappropriated or
consented, or through abandonment or negligence, permitted another person to take the
public funds when they signed Disbursement Voucher No. 101-2002-01-822. The term
voucher, when used in connection with disbursement of money, implies some instrument that
shows on what account or by what authority a particular payment has been made, or that
services have been performed which entitle the party to whom it is issued to payment.
Corollarily, when an authorized person approves a disbursement voucher, he certifies to the
correctness of the entries therein, among others: that the expenses incurred were necessary
and lawful, the supporting documents are complete, and the availability of cash therefor. He
also attests that the person who performed the services or delivered the supplies, materials,
or equipment is entitled to payment.21
Notably, the signatures of Camanayand Vice-Governor Constantino also appeared on the
Allotment and Obligation Slip (ALOBS) and in Land Bank Check No. 0000036481,
respectively. Their respective signatures in these documents allowed Bahilidad to encash
₱20,000.00. We also point out that although the purported request was made by the WIP, the
check was made payable to a private person, that is, Bahilidad. According to Helen Cailing,
the leader of the COA Special Audit Team, there were no supporting documents attached to
this disbursement voucher proving that Bahilidad was indeed the treasurer of WIP.
We also agree with the Sandiganbayan’s ruling that falsification was a necessary means to
commit the crime of malversation. Article 171, paragraphs (2) and (5) of the Revised Penal
Code, provides:
ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. - The
penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any
public officer, employee, or notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
xxxx
2. Causing it to appear that persons have participated in any act or proceeding when they did
not in fact so participate;
xxxx
In the present case, the records showed that the petitioner ordered Tangan to sign above the
name of Remulta in the letter-request to make it appear that the latter, as WIP Secretary,
consented to the request for financial assistance. We note, too, that this letter-request was
made on January 24, 2002, but Gadianante dated it to January 7, 2002, so that the
transaction would not look suspicious (considering that both the disbursement voucher and
check were also dated January 24, 2002).
The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy does not need to be proven by
direct evidence and may be inferred from the conduct ―before, during, and after the
commission of the crime ― indicative of a joint purpose, concerted action, and concurrence
of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one
concurs with the criminal design of another, as shown by an overt act leading to the crime
committed. It may be deduced from the mode and manner of the commission of the crime.22
In the present case, the records established with moral certainty that the petitioner and her
co-accused acted in concert to achieve a common objective. The presence of conspiracy
between the petitioner and her co-accused was explained by the Sandiganbayan as follows:
xxxx
Moreover, the testimony of Gadian and Tangan indubitably established that accused
Constantino and Zoleta took advantage of their official positions. Zoleta ordered Gadian to
make a request using a nonexistent cooperative. She ordered Tangan to falsify the signature
of Remulta in the request letter. Both followed the directive of Zoleta, being their superior, the
Executive Assistant and the daughter of the Vice-Governor who places her initials before the
Vice-Governor affixes his own signature. Despite the irregularity, accused Constantino
approved the disbursement. The facts taken together would prove the existence of
conspiracy. Zoleta, as president of an in existent association and a co-terminous employee at
the office of her father, initiated the request for obligation of allotments and certified and
approved the disbursement voucher. There is no doubt that Constantino facilitated the illegal
release of the fund by signing the questioned voucher. Without the signatures of accused
Constantino, Zoleta, and Bahilidad, the amount could not have been disbursed on that
particular day. When the voucher with its supporting documents was presented to accused
Constantino, Diaz, and Camanay for approval and signature, they readily signed them without
further ado, despite the lack of proper documentation and noncompliance of the rules. Zoleta
had contact with the payee of the check, Bahilidad, and received the amount. Their combined
acts, coupled with the falsification of the signature of Remulta, all lead to the conclusion that
the accused conspired to defraud the government.
The concurrence of wills or unity of purpose and action between the accused is
indubitable.1âwphi1 A careful scrutiny of the records revealed that indeed: (a) the petitioner
signed the letter-request for financial assistance, and this was approved by Diaz and Vice-
Governor Constantino; (b) the ALOBS was signed by Camanay; (c) Disbursement Voucher
No. 101-2002-01-822 was signed by Vice-Governor Constantino, Diaz and Camanay; and (d)
Land Bank Check No. 0000036481 was signed by Vice-Governor Constantino.
The connivance between the accused is made more glaring by the fact that the entire
transaction – from the letter-request, to the approval of the disbursement voucher, until the
processing and release of the check – was completed in only one day. We note, too, that the
disbursement had been approved even without the required supporting documents such as
the Articles of Cooperation and Certificate from the Cooperative Development Authority.
There was also noncompliance with the COA-prescribed auditing and accounting guidelines
on the release of fund assistance to NGOs, such as the required monitoring and inspection
report either by the Office of the Provincial Agriculturist or the Provincial Engineering Office.
As earlier stated, the purported request was made by WIP, but the check was made payable
to Bahilidad (despite the COA’s findings that there were no supporting documents proving
that she was WIP’s treasurer). We are aware that Bahilidad was acquitted by this Court in
G.R. No. 18519523 – a case where she questioned her conviction by the Sandiganbayan. This
does not preclude us, however, from ruling that the other accused, i.e., Vice-Governor
Constantino, Diaz, Camanay, and the petitioner, conspired with each other to attain a
common objective. We point out that Bahilidad’s acquittal was anchored on the fact that she
had no hand in the preparation, processing or disbursing of the check issued in her name. It
cannot be denied in the present case that the petitioner, Vice-Governor Constantino, Diaz,
and Camanay, all participated in the preparation and processing of Disbursement Voucher
No. 101-2002-01-82224 as evidenced by their respective signatures affixed there. Sanggunian
Panlalawigan Bookbinder25 Gadian, in fact, witnessed Vice-Governor Constantino, Camanay,
and Diaz sign these documents.
In Barriga v. Sandiganbayan,26 we ruled that:
It must be stressed that a public officer who is not in charge of public funds or property by
virtue of her official position, or even a private individual, may be liable for malversation or
illegal use of public funds or property if such public officer or private individual conspires with
an accountable public officer to commit malversation or illegal use of public funds or property.
Besides, even on the putative assumption that the evidence against petitioner yielded a case
of malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still
be in order. Malversation is committed either intentionally or by negligence. The dolo or the
culpa present in the offense is only a modality in the perpetration of the felony. Even if the
mode charged differs from the mode proved, the same offense of malversation is involved
and conviction thereof is proper. A possible exception would be when the mode of
commission alleged in the particulars of the indictment is so far removed from the ultimate
categorization of the crime that it may be said due process was denied by deluding the
accused into an erroneous comprehension of the charge against him. That no such prejudice
was occasioned on petitioner nor was he beleaguered in his defense is apparent from the
records of this case. (Underscoring and emphasis in the original.)
The Proper Penalty

III. No denial of due process
The petitioner claims that he was denied due process when the Sandiganbayan granted the
prosecution’s motion to amend certain portions of the pre-trial order without any hearing. In
essence, the petitioner argues that she could not be convicted of malversation through
consent, abandonment, or negligence because this allegation was not contained in the
Information.
The petitioner’s argument lacks merit.
We modify the maximum term of the penalty imposed on the petitioner by the
Sandiganbayan, from sixteen (16) years, five (5) months, and eleven (11) days to eighteen
(18) years, two (2) months, and twenty one (21) days of reclusion temporal, in accordance
with Articles 48 and 21 7 of the Revised Penal Code, as amended, in relation to the
Indeterminate Sentence Law.31 WHEREFORE, in the light of all the foregoing, we DENY the
petition. Accordingly, we AFFIRM the November 5, 2008 decision of the Sandiganbayan
(Fourth Division) in Criminal Case No. 28326 with the MODIFICATION that the maximum
term of the penalty imposed on the petitioner be increased from sixteen ( 16) years, five ( 5)
months, and eleven (11) days to eighteen (18) years, two (2) months and twenty one (21)
days of reclusion temporal.

Malversation is committed either intentionally or by negligence. The dolo or the culpa present SO ORDERED.
in the offense is only a modality in the perpetration of the felony. Even if the mode charged
differs from the mode proved, the same offense of malversation is involved and conviction
thereof is proper. All that is necessary for conviction is sufficient proof that the accountable
officer had received public funds, that he did not have them in his possession when demand
therefor was made, and that he could not satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the accused is hardly necessary as long as the
accused cannot explain satisfactorily the shortage in his accounts.27

In People v. Consigna, et al.,28 the Court first ruled that an accused charged with wilful
malversation can be validly convicted of malversation through negligence where the evidence
sustains the latter mode of perpetrating the offense.

Similarly, in People v. Ochoa,29 the Court stated that [e]ven when the Information charges
wilful malversation, conviction for malversation through negligence may still be adjudged if
the evidence ultimately proves that mode of commission of the offense.

In Tubola, Jr. v. Sandiganbayan,30 we affirmed the accused’s conviction of malversation of

public funds under Article 217 of the Revised Penal Code, and reasoned out as follows: