puboff cases1

7/29/2019 Puboff cases1

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G.R. Nos. 147026-27 September 11, 2009

CAROLINA R. JAVIER, Petitioner, vs. THE FIRST DIVISION

OF THE SANDIGANBAYAN and the PEOPLE OF THEPHILIPPINES, Respondents.

D E C I S I O N

DEL CASTILLO, J.:

Before the Court is a petition for certiorari1

under Rule 65 ofthe Rules of Court filed by petitioner Carolina R. Javier inCriminal Case Nos. 25867 and 25898, entitled "People of the

Philippines, Plaintiff versus Carolina R. Javier, Accused,"

seeking to nullify respondent Sandiganbayan's: (1) Order2dated November 14, 2000 in Criminal Case No. 25867, which

denied her Motion to Quash Information; (2) Resolution3

datedJanuary 17, 2001 in Criminal Case No. 25898, which deniedher Motion for Reconsideration and Motion to Quash

Information; and (3) Order4

dated February 12, 2001, declaringthat a motion for reconsideration in Criminal Case No. 25898would be superfluous as the issues are fairly simple and

straightforward.

The factual antecedents follow.

On June 7, 1995, Republic Act (R.A.) No. 8047,5

or otherwiseknown as the "Book Publishing Industry Development Act",was enacted into law. Foremost in its policy is the State's goal

in promoting the continuing development of the bookpublishing industry, through the active participation of the

private sector, to ensure an adequate supply of affordable,quality-produced books for the domestic and export market.

To achieve this purpose, the law provided for the creation of

the National Book Development Board (NBDB or theGoverning Board, for brevity), which shall be under the

administration and supervision of the Office of the President.The Governing Board shall be composed of eleven (11)members who shall be appointed by the President of thePhilippines, five (5) of whom shall come from the government,while the remaining six (6) shall be chosen from the nominees

of organizations of private book publishers, printers, writers,book industry related activities, students and the private

education sector.

On February 26, 1996, petitioner was appointed to the

Governing Board as a private sector representative for a term

of one (1) year.6

During that time, she was also the Presidentof the Book Suppliers Association of the Philippines (BSAP).She was on a hold-over capacity in the following year. On

September 14, 1998, she was again appointed to the sameposition and for the same period of one (1) year.

7Part of her

functions as a member of the Governing Board is to attend

book fairs to establish linkages with international bookpublishing bodies. On September 29, 1997, she was issued bythe Office of the President a travel authority to attend the

Madrid International Book Fair in Spain on October 8-12,1997.

8Based on her itinerary of travel,

9she was paid

P139,199.0010

as her travelling expenses.

Unfortunately

, petitioner was not able to attend the scheduled

international book fair.

On February 16, 1998, Resident Auditor Rosario T. Martin

advised petitioner to immediately return/refund her cashadvance considering that her trip was canceled.

11Petitioner,


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however, failed to do so. On July 6, 1998, she was issued a

Summary of Disallowances12

from which the balance forsettlement amounted to P220,349.00. Despite said notice, no

action was forthcoming from the petitioner.

On September 23, 1999, Dr. Nellie R. Apolonio, then theExecutive Director of the NBDB, filed with the Ombudsman a

complaint against petitioner for malversation of public fundsand properties. She averred that despite the cancellation ofthe foreign trip, petitioner failed to liquidate or return to the

NBDB her cash advance within sixty (60) days from date ofarrival, or in this case from the date of cancellation of the trip ,in accordance with government accounting and auditing rules

and regulations. Dr. Apolonio further charged petitioner with

violation of Republic Act (R.A.) No. 671313

for failure to file herStatement of Assets and Liabilities.

The Ombudsman found probable cause to indict petitioner forviolation of Section 3(e) of R.A. No. 3019,

14as amended, and

recommended the filing of the corresponding information.15

It,however, dismissed for insufficiency of evidence, the charge

for violation of R.A. No. 6713.

In an Information dated February 18, 2000, petitioner wascharged with violation of Section 3(e) of R.A. No. 3019 before

the Sandiganbayan, to wit:

That on or about October 8, 1997, or for sometime prior orsubsequent thereto, in the City of Quezon, Philippines and

within the jurisdiction of this Honorable Court, the aforenamedaccused, a public officer, being then a member of thegoverning Board of the National Book Development Board

(NBDB), while in the performance of her official and

administrative functions, and acting with evident bad faith or

gross inexcusable negligence, did then and there willfully,unlawfully and criminally, without any justifiable cause, and

despite due demand by the Resident Auditor and theExecutive Director of NBDB, fail and refuse to return and/orliquidate her cash advances intended for official travel abroadwhich did not materialize, in the total amount of P139,199.00as of September 23, 1999, as required under EO No. 248 and

Sec. 5 of COA Circular No. 97-002

thereby causing damageand undue injury to the Government.

CONTRARY TO LAW.16

The case was docketed as Criminal Case No. 25867 and

raffled to the First Division.

Meanwhile, the Commission on Audit charged petitioner with

Malversation of Public Funds, as defined and penalized underArticle 217 of the Revised Penal Code, for not liquidating thecash advance granted to her in connection with her supposed

trip to Spain. During the conduct of the preliminaryinvestigation, petitioner was required to submit her counter-affidavit but she failed to do so. The Ombudsman found

probable cause to indict petitioner for the crime charged andrecommended the filing of the corresponding information

against her.17

Thus, an Information dated February 29, 2000 was filed beforethe Sandiganbayan, which was docketed as Criminal Case

No. 25898, and raffled to the Third Division, the accusatory

portion of which reads:

That on or about and during the period from October 8, 1997


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to February 16, 1999, or for sometime prior or subsequent

thereto, in Quezon City, Philippines, and within the jurisdictionof this Honorable Court, the above-named accused, a high

ranking officer, being a member of the Governing Board of theNational Book Development Board and as such, isaccountable for the public funds she received as cashadvance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of

P139,199.00, which trip did not materialize, did then and therewillfully, unlawfully and feloniously take, malverse,misappropriate, embezzle and convert to her own personal

use and benefit the aforementioned amount of P139,199.00,Philippine currency, to the damage and prejudice of the

government in the aforesaid amount.

CONTRARY TO LAW.18

During her arraignment in Criminal Case No. 25867, petitionerpleaded not guilty. Thereafter, petitioner delivered to the First

Division the money subject of the criminal cases, whichamount was deposited in a special trust account during the

pendency of the criminal cases.

Meanwhile, the Third Division set a clarificatory hearing inCriminal Case No. 25898 on May 16, 2000 in order to

determine jurisdictional issues. On June 3, 2000, petitionerfiled with the same Division a Motion for Consolidation

19of

Criminal Case No. 25898 with Criminal Case No. 25867,

pending before the First Division. On July 6, 2000, the Peoplefiled an Urgent Ex-Parte Motion to Admit AmendedInformation

20in Criminal Case No. 25898, which was granted.

Accordingly, the Amended Information dated June 28, 2000reads as follows:

That on or about and during the period from October 8, 1997

to February 16, 1999, or for sometime prior or subsequentthereto, in Quezon City, Philippines, and within the jurisdiction

of this Honorable Court, the above-named accused, a highranking officer, being a member of the Governing Board of theNational Book Development Board equated to Board MemberII with a salary grade 28 and as such, is accountable for thepublic funds she received as case advance in connection with

her trip to Spain from October 8-12, 1997, per LBP Check No.10188 in the amount of P139,199.00, which trip did notmaterialize, did then and there willfully, unlawfully and

feloniously take, malverse, misappropriate, embezzle andconvert to her own personal use and benefit theaforementioned amount of P139,199.00, Philippine currency,

to the damage and prejudice of the government in theaforesaid amount.

CONTRARY TO LAW.21

In its Resolution dated October 5, 2000, the Third Divisionordered the consolidation of Criminal Case No. 25898 with

Criminal Case No. 25867. 22

On October 10, 2000, petitioner filed a Motion to QuashInformation,

23averring that the Sandiganbayan has no

jurisdiction to hear Criminal Case No. 25867 as the informationdid not allege that she is a public official who is classified asGrade "27" or higher. Neither did the information charge her as

a co-principal, accomplice or accessory to a public officercommitting an offense under the Sandiganbayan's jurisdiction.She also averred that she is not a public officer or employee

and that she belongs to the Governing Board only as a privatesector representative under R.A. No. 8047, hence, she may


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not be charged under R.A. No. 3019 before the

Sandiganbayan or under any statute which covers publicofficials. Moreover, she claimed that she does not perform

public functions and is without any administrative or politicalpower to speak of that she is serving the private bookpublishing industry by advancing their interest as participant inthe government's book development policy.

In an Order24

dated November 14, 2000, the First Division25

denied the motion to quash with the following disquisition:

The fact that the accused does not receive any compensationin terms of salaries and allowances, if that indeed be the case,is not the sole qualification for being in the government service

or a public official. The National Book Development Board is astatutory government agency and the persons who

participated therein even if they are from the private sector,are public officers to the extent that they are performing their

duty therein as such.

Insofar as the accusation is concerned herein, it would appearthat monies were advanced to the accused in her capacity asDirector of the National Book Development Board for purposes

of official travel. While indeed under ordinary circumstances amember of the board remains a private individual, still when

that individual is performing her functions as a member of theboard or when that person receives benefits or when theperson is supposed to travel abroad and is given government

money to effect that travel, to that extent the private sectorrepresentative is a public official performing public functions; ifonly for that reason, and not even considering situation of her

being in possession of public funds even as a privateindividual for which she would also covered by provisions of

the Revised Penal Code, she is properly charged before this

Court.

On November 15, 2000, the First Division accepted theconsolidation of the criminal cases against petitioner and

scheduled her arraignment on November 17, 2000, forCriminal Case No. 25898. On said date, petitioner manifested

that she is not prepared to accept the propriety of theaccusation since it refers to the same subject matter as thatcovered in Criminal Case No. 25867 for which the

Sandiganbayan gave her time to file a motion to quash. OnNovember 22, 2000, petitioner filed a Motion to Quash theInformation

26in Criminal Case No. 25898, by invoking her right

against double jeopardy. However, her motion was denied in

open court. She then filed a motion for reconsideration.

On January 17, 2001, the Sandiganbayan issued aResolution

27denying petitioners motion with the following

disquisition:

The accused is under the jurisdiction of this Court because

Sec. 4 (g) of P.D. 1606 as amended so provides, thus:

Sec. 4. Jurisdiction. The Sandiganbayan shall exerciseexclusive original jurisdiction in all cases involving:

x x x x

(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state

universities or educational institutions or foundations;

x x x x


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The offense is office-related because the money for her travel

abroad was given to her because of her Directorship in theNational Book Development Board.

Furthermore, there are also allegations to hold the accused

liable under Article 222 of the Revised Penal Code which

reads:

Art. 222. Officers included in the preceding provisions. Theprovisions of this chapter shall apply to private individuals who,in any capacity whatever, have charge of any insular,

provincial or municipal funds, revenues, or property and to anyadministrator or depository of funds or property attached ,seized or deposited by public authority, even if such property

belongs to a private individual.

Likewise, the Motion to Quash the Information in Criminal

Case No. 25898 on the ground of litis pendencia is deniedsince in this instance, these two Informations speak ofoffenses under different statutes, i.e., R.A. No. 3019 and the

Revised Penal Code, neither of which precludes prosecution

of the other.

Petitioner hinges the present petition on the ground that theSandiganbayan has committed grave abuse of discretion

amounting to lack of jurisdiction for not quashing the twoinformations charging her with violation of the Anti-Graft Lawand the Revised Penal Code on malversation of public funds.She advanced the following arguments in support of her

petition, to wit: first, she is not a public officer, and second, shewas being charged under two (2) informations, which is in

violation of her right against double jeopardy.

A motion to quash an Information is the mode by which an

accused assails the validity of a criminal complaint orInformation filed against him for insufficiency on its face in

point of law, or for defects which are apparent in the face ofthe Information.28

Well-established is the rule that when a motion to quash in a

criminal case is denied, the remedy is not a petition forcertiorari, but for petitioners to go to trial, without prejudice toreiterating the special defenses invoked in their motion to

quash. Remedial measures as regards interlocutory orders,such as a motion to quash, are frowned upon and oftendismissed. The evident reason for this rule is to avoid

multiplicity of appeals in a single action.29

The above general rule, however admits of several exceptions,

one of which is when the court, in denying the motion todismiss or motion to quash, acts without or in excess ofjurisdiction or with grave abuse of discretion, then certiorari or

prohibition lies. The reason is that it would be unfair to requirethe defendant or accused to undergo the ordeal and expenseof a trial if the court has no jurisdiction over the subject matter

or offense, or is not the court of proper venue, or if the denialof the motion to dismiss or motion to quash is made with graveabuse of discretion or a whimsical and capricious exercise of

judgment. In such cases, the ordinary remedy of appealcannot be plain and adequate.

30

To substantiate her claim, petitioner maintained that she is nota public officer and only a private sector representative,stressing that her only function among the eleven (11) basic

purposes and objectives provided for in Section 4, R.A. No.8047, is to obtain priority status for the book publishing


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industry. At the time of her appointment to the NDBD Board,

she was the President of the BSAP, a book publishersassociation. As such, she could not be held liable for the

crimes imputed against her, and in turn, she is outside thejurisdiction of the Sandiganbayan.

The NBDB is the government agency mandated to develop

and support the Philippine book publishing industry. It is astatutory government agency created by R.A. No. 8047, whichwas enacted into law to ensure the full development of the

book publishing industry as well as for the creation oforganization structures to implement the said policy. Toachieve this end, the Governing Board of the NBDB was

created to supervise the implementation. The Governing

Board was vested with powers and functions, to wit:

a) assume responsibility for carrying out and implementing thepolicies, purposes and objectives provided for in this Act;

b) formulate plans and programs as well as operational

policies and guidelines for undertaking activities relative topromoting book development, production and distribution as

well as an incentive scheme for individual authors and writers;

c) formulate policies, guidelines and mechanisms to ensure

that editors, compilers and especially authors are paid justlyand promptly royalties due them for reproduction of their works

in any form and number and for whatever purpose;

d) conduct or contract research on the book publishingindustry including monitoring, compiling and providing data

and information of book production;

e) provide a forum for interaction among private publishers,

and, for the purpose, establish and maintain liaison will all thesegments of the book publishing industry;

f) ask the appropriate government authority to ensure effective

implementation of the National Book Development Plan;

g) promulgate rules and regulations for the implementation of

this Act in consultation with other agencies concerned, exceptfor Section 9 hereof on incentives for book development,

which shall be the concern of appropriate agencies involved;

h) approve, with the concurrence of the Department of Budget

and Management (DBM), the annual and supplemental

budgets submitted to it by the Executive director;

i) own, lease, mortgage, encumber or otherwise real andpersonal property for the attainment of its purposes and

objectives;

j) enter into any obligation or contract essential to the properadministration of its affairs, the conduct of its operations or the

accomplishment of its purposes and objectives;

k) receive donations, grants, legacies, devices and similar

acquisitions which shall form a trust fund of the Board toaccomplish its development plans on book publishing;

l) import books or raw materials used in book publishing whichare exempt from all taxes, customs duties and other charges

in behalf of persons and enterprises engaged in bookpublishing and its related activities duly registered with the

board;


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m) promulgate rules and regulations governing the matter in

which the general affairs of the Board are to be exercised andamend, repeal, and modify such rules and regulations

whenever necessary;

n) recommend to the President of the Philippines nominees forthe positions of the Executive Officer and Deputy Executive

Officer of the Board;

o) adopt rules and procedures and fix the time and place forholding meetings: Provided, That at least one (1) regular

meeting shall be held monthly;

p) conduct studies, seminars, workshops, lectures,

conferences, exhibits, and other related activities on bookdevelopment such as indigenous authorship, intellectualproperty rights, use of alternative materials for printing,

distribution and others; and

q) exercise such other powers and perform such other duties

as may be required by the law.31

A perusal of the above powers and functions leads us toconclude that they partake of the nature of public functions. Apublic office is the right, authority and duty, created and

conferred by law, by which, for a given period, either fixed bylaw or enduring at the pleasure of the creating power, anindividual is invested with some portion of the sovereign

functions of the government, to be exercised by him forthe benefit of the public. The individual so invested is apublic officer.32

Notwithstanding that petitioner came from the private sector to

sit as a member of the NBDB, the law invested her with some

portion of the sovereign functions of the government, so thatthe purpose of the government is achieved. In this case, the

government aimed to enhance the book publishing industry asit has a significant role in the national development. Hence, thefact that she was appointed from the public sector and notfrom the other branches or agencies of the government doesnot take her position outside the meaning of a public office.

She was appointed to the Governing Board in order to see to itthat the purposes for which the law was enacted are achieved.The Governing Board acts collectively and carries out its

mandate as one body. The purpose of the law for appointingmembers from the private sector is to ensure that they are alsoproperly represented in the implementation of government

objectives to cultivate the book publishing industry.

Moreover, the Court is not unmindful of the definition of a

public officer pursuant to the Anti-Graft Law, which providesthat a public officer includes elective and appointive officialsand employees, permanent or temporary, whether in the

classified or unclassified or exempt service receivingcompensation, even nominal, from the government.

33

Thus, pursuant to the Anti-Graft Law, one is a public officer ifone has been elected or appointed to a public office. Petitioner

was appointed by the President to the Governing Board of theNDBD. Though her term is only for a year that does not makeher private person exercising a public function. The fact thatshe is not receiving a monthly salary is also of no moment .

Section 7, R.A. No. 8047 provides that members of theGoverning Board shall receive per diem and such allowancesas may be authorized for every meeting actually attended and

subject to pertinent laws, rules and regulations. Also, under


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the Anti-Graft Law, the nature of one's appointment, and

whether the compensation one receives from the governmentis only nominal, is immaterial because the person so elected

or appointed is still considered a public officer.

On the other hand, the Revised Penal Code defines a publicofficer as any person who, by direct provision of the law,

popular election, popular election or appointment bycompetent authority, shall take part in the performance ofpublic functions in the Government of the Philippine Islands, or

shall perform in said Government or in any of its branchespublic duties as an employee, agent, or subordinate official, of

any rank or classes, shall be deemed to be a public officer. 34

Where, as in this case, petitioner performs public functions inpursuance of the objectives of R.A. No. 8047, verily, she is a

public officer who takes part in the performance of publicfunctions in the government whether as an employee, agent,subordinate official, of any rank or classes. In fact, during her

tenure, petitioner took part in the drafting and promulgation ofseveral rules and regulations implementing R.A. No. 8047.She was supposed to represent the country in the canceled

book fair in Spain.

In fine, We hold that petitioner is a public officer. The next

question for the Court to resolve is whether, as a public officer,petitioner is within the jurisdiction of the Sandiganbayan.

Presently,35 the Sandiganbayan has jurisdiction over the

following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise

exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other

known as the Anti-Graft and Corrupt Practices Act, RepublicAct No. 1379, and Chapter II, Section 2, Title VII, Book II of the

Revised Penal Code, where one or more of the accused areofficials occupying the following positions in the government,whether in a permanent, acting or interim capacity, at the timeof the commission of the offense:

(1) Officials of the executive branch occupying the positions ofregional director and higher, otherwise classified as Grade

"27" and higher, of the Compensation and PositionClassification Act of 989 (Republic Act No. 6758), specifically

including:

x x x x

(2) Members of Congress and officials thereof classified as

Grade "Grade '27'" and up under the Compensation and

Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisionsof the Constitution;

(4) Chairmen and members of Constitutional Commission,

without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade"Grade '27'" and higher under the Compensation and Position

Classification Act of 1989.

x x x x

Notably, the Director of Organization, Position Classification


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and Compensation Bureau, of the Department of Budget and

management provided the following information regarding thecompensation and position classification and/or rank

equivalence of the member of the Governing Board of theNBDB, thus:

Per FY 1999 Personal Services Itemization, the Governing

Board of NDBD is composed of one (1) Chairman (ex-officio),one (1) Vice-Chairman (ex-officio), and nine (9) Members, four(4) of whom are ex-officio and the remaining five (5) members

represent the private sector. The said five members of theBoard do not receive any salary and as such their position are

not classified and are not assigned any salary grade.

For purposes however of determining the rank equivalence ofsaid positions, notwithstanding that they do not have any

salary grade assignment, the same may be equated to BoardMember II, SG-28.

36

Thus, based on the Amended Information in Criminal Case

No. 25898, petitioner belongs to the employees classified asSG-28, included in the phrase "all other national and localofficials classified as Grade 27' and higher under the

Compensation and Position Classification Act of 1989."

Anent the issue of double jeopardy, We can not likewise givein to the contentions advanced by petitioner. She argued thather right against double jeopardy was violated when theSandiganbayan denied her motion to quash the two

informations filed against her.1avvphi1

We believe otherwise. Records show that the Informations inCriminal Case Nos. 25867 and 25898 refer to offenses

penalized by different statues, R.A. No. 3019 and RPC,

respectively. It is elementary that fordouble jeopardy to attach,the case against the accused must have been dismissed or

otherwise terminated without his express consent by a court ofcompetent jurisdiction, upon valid information sufficient in formand substance and the accused pleaded to the charge.

37In the

instant case, petitioner pleaded not guilty to the Information forviolation of the Anti-Graft Law. She was not yet arraigned in

the criminal case for malversation of public funds because shehad filed a motion to quash the latter information. Doublejeopardy could not, therefore, attach considering that the two

cases remain pending before the Sandiganbayan and thatherein petitioner had pleaded to only one in the criminal cases

against her.

It is well settled that for a claim of double jeopardy to prosper,the following requisites must concur: (1) there is a complaint or

information or other formal charge sufficient in form andsubstance to sustain a conviction; (2) the same is filed beforea court of competent jurisdiction; (3) there is a valid

arraignment or plea to the charges; and (4) the accused isconvicted or acquitted or the case is otherwise dismissed orterminated without his express consent.38 The third and fourth

requisites are not present in the case at bar.

In view of the foregoing, We hold that the present petition doesnot fall under the exceptions wherein the remedy of certiorarimay be resorted to after the denial of one's motion to quashthe information. And even assuming that petitioner may avail

of such remedy, We still hold that the Sandiganbayan did notcommit grave abuse of discretion amounting to lack of or in

excess of jurisdiction.


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WHEREFORE, the Petition is DISMISSED. The questioned

Resolutions and Order of the Sandiganbayan are AFFIRMED.Costs against petitioner.

SO ORDERED.

G.R. No. 111091 August 21, 1995

ENGINEER CLARO J. PRECLARO, petitioner,vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,

respondents.

KAPUNAN, J.:

On 14 June 1990, petitioner was charged before the

Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019as amended, otherwise known as the Anti-Graft and Corrupt

Practices Act. The information against him read as follows:

That on or about June 8, 1990, or sometime prior thereto, inQuezon City, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, a public officer,being then the Project Manager/ Consultant of the Chemical

Mineral Division, Industrial Technology Development Institute,Department of Science and Technology, a component of theIndustrial Development Institute (ITDI for brevity) which is anagency of the Department of Science and Technology (DOST

for brevity), wherein the Jaime Sta. Maria Constructionundertook the construction of the building in Bicutan, Taguig,

Metro Manila, with a total cost of SEVENTEEN MILLION SIXHUNDRED NINETY FIVE THOUSAND PESOS

(P17,695,000.00) jointly funded by the Philippine and

Japanese Governments, and while the said construction hasnot yet been finally completed, accused either directlyrequested and/or demanded for himself or for another, the

sum of TWO HUNDRED THOUSAND PESOS (P200,000.00),claimed as part of the expected profit of FOUR HUNDREDSIXTY THOUSAND PESOS (P460,000.00) in connection withthe construction of that government building wherein the

accused had to intervene under the law in his capacity asProject Manager/Consultant of said construction saidoffense having been committed in relation to the performance

of his official duties.

CONTRARY TO LAW.1

On 20 July 1990, during arraignment, petitioner pleaded "not

guilty" to the charges against him.

On 30 June 1993, after trial on the merits, the Second Divisionof the Sandiganbayan rendered judgment finding petitioner

guilty beyond reasonable doubt. The dispositive portion reads

as follows:

WHEREFORE, judgment is hereby rendered finding accusedClaro Preclaro y Jambalos GUILTY beyond reasonable doubt

of the violation of Section 3, paragraph (b) of Republic Act No.3019, as amended, otherwise known as the Anti-Graft andCorrupt Practices Act, and he is hereby sentenced to suffer anindeterminate penalty ranging from SIX (6) YEARS and ONE

(1) MONTH, as the minimum, to TEN (10) YEARS and ONE(1) DAY, as the maximum, perpetual disqualification from

public office and to pay the costs of this action.


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SO ORDERED.2

The antecedent facts are largely undisputed.

On 1 October 1989, the Chemical Mineral Division of theIndustrial Technology Development Institute (ITDI), acomponent of the Department of Science and Technology(DOST) employed Petitioner under a written contract of

services as Project Manager to supervise the construction ofthe ITDI-CMD (JICA) Building at the DOST Compound in

Bicutan, Taguig, Metro Manila.3

The contract was to remain in effect from October 1, 1989 up

to the end of the construction period unless sooner terminated.

4

Petitioner was to be paid a monthly salary drawn fromcounter-part funds duly financed by foreign-assisted projectsand government funds duly released by the Department of

Budget and Management. 5

In November 1989, to build the aforementioned CMDStructure, DOST contracted the services of the Jaime Sta.Maria Construction Company with Engr. Alexander Resoso, as

the company's project engineer.6

How petitioner committed a violation of the Anti-Graft &

Corrupt Practices Act is narrated in the Comment of theSolicitor General and amply supported by the records. The

material portions are hereunder reproduced:

xxx xxx xxx

3. In the month of May, 1990, Alexander Resoso, ProjectEngineer of the Sta. Maria Construction Company, was in the

process of evaluating a Change Order for some electricals in

the building construction when petitioner approached him atthe project site (p. 11, 25, Ibid.).

4. Unexpectedly, petitioner made some overtures that

expenses in the Change Order will be deductive (meaning,charged to the contractor by deducting from the contract

price), instead of additive (meaning, charged to the owner).Petitioner intimated that he can forget about the deductiveprovided he gets P200,000.00, a chunk of the contractor's

profit which he roughly estimated to be around P460,000.00(pp. 12-13, 22, Ibid.).

5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the

owner of Sta. Maria Construction Company, Resoso thereafterasked petitioner if he wanted a rendezvous for him to receive

the money. Petitioner chose Wendy's Restaurant, corner E.Delos Santos Avenue and Camias Street, on June 6, 1990 at

around 8:00 o'clock in the evening (p. 14, Ibid.).

6. However, Sta. Maria, Sr. asked for two (2) more days or

until the 8th of June, perceiving financial constraints (Ibid.).

7. Petitioner relented, saying "O.K. lang with me because weare not in a hurry." (p. 15, Ibid.) Petitioner was thereafter

asked to bring along the result of the punch list (meaning, thelist of defective or correctible works to be done by the

contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).

8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded tothe National Bureau of Investigation (NBI) to report the

incident (p. 15, 35, Ibid.).


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9. The NBI suggested an entrapment plan to which Sta. Maria,

Sr. signified his conformity (p. 16, TSN, 12 Oct. 1990).Accordingly, Sta. Maria, Sr. was requested to produce theamount of P50,000.00 in P500.00 denomination to represent

the grease money (p. 37, TSN, 6 Sept. 1990).

10. The next day, or on 8 June 1990, Resoso delivered the

money to the NBI. Thereafter, the money was dusted withflourescent powder and placed inside an attache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed not

to open it. Similarly, he was advised to proceed at the Wendy'sRestaurant earlier than the designated time where a group ofNBI men awaited him and his companion, Sta. Maria, Jr. (pp.

17-18, Ibid.).

11. Hence, from the NBI, Resoso passed by the Jade Valley

Restaurant in Timog, Quezon City, to fetch Sta. Maria, Jr.(Ibid.).

12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at

the Wendy's Restaurant. They were led by the NBI men to atable previously reserved by them which was similarly adjacent

to a table occupied by them (pp. 18-19, Ibid.).

13. Twenty minutes later, petitioner arrived. Supposedly, the

following conversation took place, to wit:

JUSTICE BALAJADIA:

q. When Dave Preclaro arrived, what did he do?

a. We asked him his order and we talked about the punch list.

q. What was his comment about the punch list?

a. He told us that it is harder to produce small items than big

ones.

q. How long did you converse with Engr. Claro Preclaro?

a. I think thirty minutes or so.

q. Was Preclaro alone when he came?

a. Yes, Your Honor.

xxx xxx xxx

PROS. CAOILI:

q. When you talk[ed] about his punch list, did you talk about

anything else?

a. Engineer Sta. Maria, Jr., they were conversing with Dave

Preclaro and he told [him], "O, paano na."

JUSTICE ESCAREAL:

q. Who said "Paano na?"

a. Engineer Sta. Maria, [Jr.]. And then Preclaro told [him],"Paano, How will the money be arranged and can I bring it?"

he said.

And then Jimmy Sta. Maria, Jr. told him it was arranged on two


13/29

bundles on two envelopes.

And then Dave Preclaro told, "Puede" and he asked Jimmy

Sta. Maria, Jr. if there is express teller and could he depositduring night time but Engineer Sta. Maria, Jr. told him, "I do

not have any knowledge or I do not have any express teller

you can deposit. I only know credit card."

PROS. CAOILI:

q. When Engr. Sta. Maria intervened and interviewed him that

way, was there anything that happened?

a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro.

q. Did Claro Preclaro receive these two envelopes from

Engineer Sta. Maria?

a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct.

1990.)

14. From the moment petitioner received the two envelopes

with his right hand, thereafter placing them under his leftarmpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct.

1990).

15. A camera flashed to record the event. Petitionerinstinctively docked to avoid the taking of pictures. In such

manner, the two envelopes fell (p. 23, Ibid.).

16. The NBI men directed petitioner to pick up the twoenvelopes. Petitioner refused. Hence, one of the NBI menpicked up the envelopes and placed them inside a big brown

envelope (p. 27, Ibid.)

17. Petitioner was thenceforth brought to the NBI for

examination (p. 28; Ibid.).

18. At the NBI Forensic Chemistry Section, petitioner's rightpalmar hand was tested positive of flourescent powder. Thesame flourescent powder, however, cannot be detected in

petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990). 7

xxx xxx xxx

Thus, as brought out at the outset, an information was filed

against petitioner which, after due hearing, resulted in his

conviction by the Sandiganbayan. Not satisfied with thedecision, petitioner instituted the present petition for review,

ascribing to the Sandiganbayan the following errors:

1. THE SANDIGANBAYAN ERRED IN TAKING

COGNIZANCE OF THE CASE, INSTEAD OF DISMISSING ITFOR LACK OF JURISDICTION, THE [PETITIONER] NOT

BEING A PUBLIC OFFICER; and

2. THE SANDIGANBAYAN ERRED IN NOT RULING THATNOT ALL THE ELEMENTS OF THE OFFENSE CHARGED

HAVE BEEN ESTABLISHED BEYOND REASONABLEDOUBT AND/OR THAT THE GUILT OF THE [PETITIONER]HAS NOT BEEN ESTABLISHED BEYOND REASONABLE

DOUBT.

We find the petition unmeritorious.

On the first issue, petitioner asserts that he is not a public


14/29

officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt

Practices Act (R.A. No. 3019 as amended), because he wasneither elected nor appointed to a public office. Rather,petitioner maintains that he is merely a private individual hired

by the ITDI on contractual basis for a particular project and fora specified period

8as evidenced by the contract of services

9

he entered into with the ITDI. Petitioner, to further support his"theory," alleged that he was not issued any appointment

paper separate from the abovementioned contract. He was notrequired to use the bundy clock to record his hours of work

and neither did he take an oath of office.10

We are not convinced by petitioner's arguments.

Petitioner miscontrues the definition of "public officer" in R.A.No. 3019 which, according to Sec. 2(b) thereof "includes

elective and appointive officials and employees, permanent ortemporary, whether in the classified or unclassified orexemption service receiving compensation, even nominal,

from the government. . . ."

The word "includes" used in defining a public officer in Sec.2(b) indicates that the definition is not restrictive. The terms

"classified, unclassified or exemption service" were the oldcategories of positions in the civil service which have been

reclassified into Career Service and Non-Career Service11

byPD 807 providing for the organization of the Civil Service

Commission12

and by the Administrative Code of 1987.13

Non-career service in particular is characterized by

(1) entrance on bases other than those of the usual test ofmerit and fitness utilized for the career service ; and (2) tenure

which is limited to a period specified by law, or which is

coterminous with that of the appointing authority or subject tohis pleasure, or which is limited to the duration of a particular

project for which purpose employment was made.

The Non-Career Service shall include:

(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold

their positions at the pleasure of the President and their

personal or confidential staff(s);

(3) Chairman and members of commissions and boards with

fixed terms of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in thegovernment is in accordance with a special contract toundertake a specific work or job, requiring special or technical

skills not available in the employing agency, to beaccomplished within a specific period, which in no case shallexceed one year, and performs or accomplishes the specific

work or job, under his own responsibility with a minimum ofdirection and supervision from the hiring agency; and

(5) Emergency and seasonal personnel. (Emphasis ours.) 14

From the foregoing classification, it is quite evident that

petitioner falls under the non-career service category (formerlytermed the unclassified or exemption service) of the Civil

Service and thus is a public officer as defined by Sec. 2(b) ofthe Anti-Graft & Corrupt Practices Act (R.A. No. 3019).


15/29

The fact that petitioner is not required to record his working

hours by means of a bundy clock or did not take an oath ofoffice became unessential considerations in view of the above-mentioned provision of law clearly including petitioner within

the definition of a public officer.

Similarly, petitioner's averment that he could not be

prosecuted under the Anti-Graft & Corrupt Practices Actbecause his intervention "was not required by law but in theperformance of a contract of services entered into by him as a

private individual contractor,"15

is erroneous. As discussedabove, petitioner falls within the definition of a public officerand as such, his duties delineated in Annex "B" of the contract

of services16

are subsumed under the phrase "wherein the

public officer in his official capacity has to intervene under thelaw."17

Petitioner's allegation, to borrow a cliche, is nothing but

a mere splitting of hairs.

Among petitioner's duties as project manager is to evaluate

the contractor's accomplishment reports/billings18

hence, ascorrectly ruled by the Sandiganbayan he has the "privilege andauthority to make a favorable recommendation and act

favorably in behalf of the government," signing acceptancepapers and approving deductives and additives are someexamples.

19All of the elements of Sec. 3(b) of the Anti-Graft &

Corrupt Practices Act are, therefore, present.

Anent the second issue, we likewise find Petitioner's

allegations completely bereft of merit.

Petitioner insists that the prosecution has failed to establish hisguilt beyond reasonable doubt and that the charges against

him should be rejected for being improbable, unbelievable and

contrary to human nature.

We disagree.

Proof beyond reasonable doubt does not mean that whichproduces absolute certainty. Only moral certainty is required or"that degree of proof which produces conviction in anunprejudiced mind." 20 We have extensively reviewed the

records of this case and we find no reason to overturn the

findings of the Sandiganbayan.

Petitioner enumerates the alleged improbabilities andinconsistencies in the testimonies of the prosecution

witnesses. We shall examine the testimonies referred to with

meticulousness.

Petitioner asserts that it was improbable for him to havedemanded P200,000.00 from Engr. Resoso, when he couldhave just talked directly to the contractor himself. It is quite

irrelevant from whom petitioner demanded his percentageshare of P200,000.00 whether from the contractor's projectengineer, Engr. Alexander Resoso or directly from the

contractor himself Engr. Jaime Sta. Maria Sr. That petitionermade such a demand is all that is required by Sec. 3(b) of R.A.No. 3019 and this element has been sufficiently established by

the testimony of Engr. Resoso, thus:

xxx xxx xxx

Q You said when you were computing your Change Order Mr.Preclaro or Dave Preclaro whom you identified approached

you, what did you talk about?


16/29

A He mentioned to me that we are deductive in our Change

Order three and four so after our conversation I told thisconversation to my boss that we are deductible in the ChangeOrder three and four and then my boss told me to ask why it is

deductive.

Q Did you ask the accused here, Dave Preclaro why it is

considered deductive?

A Yes, sir.

Q What was his answer if any?

A I asked him that my boss is asking me to ask you how come

it became deductive when my computation is additive and hetold me that I have done so much for your company already

and then he picked up cement bag paper bag and computedour alleged profit amounting to One Hundred Sixty ThousandPesos and then he told me that he used to use some

percentage in projects maximum and minimum and in ourcase he would use a minimum percentage and multiply to 60and . . .

JUSTICE ESCAREAL:

Q What is 460?

A P460,000.00 and he said take of the butal and get two

Hundred Thousand Pesos.

JUSTICE BALAJADIA:

What is the translation now?

WITNESS:

A And he said disregard the excess and I will just get the

P200,000.00. (Emphasis ours.)

PROS. CAOILI:

Q What does he mean by that if you know?

A I do not know sir.

He just said, I will get the P200,000.00 and tell it to your boss.

(Emphasis ours.)

JUSTICE BALAJADIA:

Q What is P200,000.00?

A It is Two Hundred Thousand Pesos.

PROS. CAOILI:

Q What did you answer him when he told you that?

A He told me to forget the deductive and electrical and afterthat I told my boss what he told me.

Q Who is your boss?

A Santa Maria Sr.

Q What was the reaction of your boss when you relayed the


17/29

message to Mr. Preclaro?

A The next day he told me to ask Dave where and when to

pick up the money so the next day I asked Dave "Where doyou intend to get the money, the Boss wanted to know."

Q What was the answer of Dave?

A And he told me, Wendy's Restaurant at 3:00 o'clock.

Q When?

A June 6 Wednesday.

Q When he told you that did you comply with June 6appointment?

A I told my boss what he told me again that the meeting willtake place at Wendy's Restaurant corner Edsa and Camias

Street at around 8:00 o'clock p.m. June 6, Wednesday.

Q What did your boss tell you?

A The next day he told me to ask Dave.

Q What did your boss tell you?

A My boss told me to ask Dave to postpone the meeting onJune 6 to be postponed on June 8 at the same place and

same time because my boss is having financial problem.

Q Did you relay the postponement to Dave Preclaro?

A Yes sir. I told what my boss told me.

Q What was his reaction?

A Dave told me "O.K. lang with me" because we are not in ahurry. Any way we are the ones to sign the acceptance papersand my boss instructed me that on Friday to ask Dave to bringalong the result of the punch list and if possible also to bring

along the acceptance papers to be signed by Dave, Lydia

Mejia and Dr. Lirag the director.

Q What happened next after meeting with Preclaro to relay thepostponement if any?

A Nothing happened. The next day, Thursday the bossinstructed me to go with him to the NBI to give a statement.

Q Did you go to the NBI and report to the incident to the NBI?

A Yes sir.

Q Did you give a statement before any of the agents of the of

the NBI?

A Yes sir.21

xxx xxx xxx

Likewise, petitioner's alleged refusal to see Mr. Jaime Sta.Maria Sr. when the latter tried to arrange meetings with himregarding his demand 22 does not weaken the cause against

petitioner. It does not at all prove that petitioner did not ask formoney. Conceivably petitioner did not muster enough courage


18/29

to ask money directly from the contractor himself. Getting the

amount through the project engineer would be safer because ifMr. Sta. Maria, Sr. had refused to give money, petitioner could

always deny having made the demand.

Petitioner contends that the percentage demanded in theamount of P200,000.00 is too high considering that the

estimated profit of the contractor from the CMD project is onlyP460,000.00. In petitioner's words, this would "scare the goosethat lays the golden egg."

23 We reject this argument. The

aforementioned contractor's profit is petitioner's owncomputation as testified to by Engr. Resoso:

xxx xxx xxx

A I asked him that my boss is asking me to ask you how comeit became deductive when my computation is additive and he

told me that I have done so much for your company alreadyand then he picked up cement bag paper bag and computedour alleged profit amounting to One Hundred Sixty Thousand

Pesos and then he told me that he used to use somepercentage in projects maximum and minimum and in ourcase he would use a minimum percentage and multiply to 460

and. . .(Emphasis ours.)

JUSTICE ESCAREAL:

Q What is 460?

A P460,000.00 and it ended to P215 thousand or P20,000.00and he said take of the butal and get the Two Hundred

Thousand Pesos. (Emphasis ours.)

JUSTICE BALAJADIA:

What is the translation now?

WITNESS:

A And he said disregard the excess and I will just get the

P200,000.00.

PROS. CAOILI:

Q What does he mean by that if you know?

A I do not know sir.

He just said, I will get the P200,000.00 and tell it to your boss.24

xxx xxx xxx

The records, however, do not show the true and actual amountthat the Sta. Maria Construction will earn as profit. There is,

therefore, no basis for petitioner's contention as the actual

profit may be lower or higher than his estimation.

Besides, as related by Engr. Resoso, petitioner considers theP200,000.00 percentage proper compensation since he hasallegedly done so much for the Sta. Maria construction

company. 25

Petitioner also argues that:


19/29

According to STA. MARIA, SR., they were deductive by

P280,000.00 (Id., pp. 34-35).

If STA. MARIA CONSTRUCTION was deductive in the amountof P280,000.00, why would the petitioner still demand

P200,000.00 which would increase the contractor's loss to

P480,000.00!

It might have been different if the changes were additive whereSTA. MARIA CONSTRUCTION would have earned more,thereby providing motive for the petitioner to ask for a

percentage!26

But this is precisely what petitioner was bargaining for

P200,000.00 in exchange for forgetting about the deductive27

and thus prevent the Sta. Maria Construction from incurring

losses.

Petitioner's contention that it was impossible for him to make

any demands because the final decision regardingaccomplishments and billing lies with the DOST technicalcommittee is unacceptable. Petitioner is part of the

abovementioned technical committee as the ITDIrepresentative consultant. This is part of his duties under thecontract of services in connection with which he was employed

by the ITDI. Even, assuming arguendo that petitioner does notmake the final decision, as supervisor/consultant, hisrecommendations will necessarily carry much weight. Engr.

Resoso testified thus:

PROS. CAOILI:

Q As a Project Engineer to whom do you present your billing

papers accomplishment report or purchase order?

A The billing paper was being taken cared of by the, of ouroffice. I personally do my job as supervision in the

construction.

Q Do you have any counterpart to supervise the project from

the government side?

A Yes, we have.

Yes, the DOST have a technical Committee Infra-Structure

Committee and also the ITDI as its own representative.

Q Who composed the Technical Committee of the DOST?

A A certain Engineer Velasco, Engineer Sande Banez and

Engineer Mejia.

Q How about the ITDI?

A The ITDI representative composed of Dave Preclaro.

Q Who is this Dave Preclaro?

A He is the consultant of ITDI. (Emphasis ours.)

xxx xxx xxx

ATTY. CAOILI:

Q As Project Engineer do you consult to any body regarding


20/29

your job?

A First if there is any problem in the site I consult my boss.

PROS. CAOILI:

Q How about with the other consultants representing the ITDI

and DOST?

A In the construction site we have meeting every Monday to

discuss any problem.

Q With whom do you discuss this problem?

A The Infra-structure Committee of DOST and the Infra-structure Committee of ITDI, the architect and the contractor.

We had weekly meetings.

Q What matters if any do you consult with Mr. Claro Preclaro?

ATTY. JIMENEZ:

No basis.

JUSTICE ESCAREAL:

They met on problems on Mondays.

ATTY. JIMENEZ:

But there is no mention of Preclaro specifically.

JUSTICE ESCAREAL:

With the representative of DOST and Preclaro

ATTY. JIMENEZ:

Does that also mean that Preclaro is also among the

representatives he is going to consult with?

Well any way. . .

JUSTICE ESCAREAL:

Witness may answer the question.

Read back the question.

COURT STENOGRAPHER:

Reading back the question as ordered by the Court.

WITNESS:

A Every Monday meeting we tackle with accomplishment

report the billing papers.

28

(Emphasis ours.)

xxx xxx xxx

Petitioner also claims that the testimonies of the prosecution

witnesses regarding the entrapment itself are conflicting,doubtful or improbable:


21/29

(aaa) according to RESOSO, only FOUR (4) P500 bills were

dusted with flourescent powder and used in the allegedentrapment.

Contradicting RESOSO, STA. MARIA, SR. said that he gave

fifty thousand (P50,000.00) pesos in P500 denomination to the

NBI.29

There is no such inconsistency. Said witnesses were testifyingon two different subjects. Engr. Sta. Maria, Sr.'s testimonytouched on the amount he gave the NBI for use in the

entrapment while Engr. Resoso's declaration referred only to

the number of bills dusted with flourescent powder.

Petitioner, likewise, misappreciated the following testimony ofResoso:

PROS. CAOILI:

Q What did he do with the two envelopes upon receiving thesame?

A Then he asked Jaime Sta. Maria, Jr. if there is bank tellerexpress, if he could deposit the money but Mr. Sta. Maria said,

"I do not have, I only have credit cards."30

Petitioner intended to deposit the money in his own accountnot that of Mr. Sta. Maria, Jr. He was merely inquiring from the

latter if there was an express teller nearby where he couldmake the deposit. Mr. Sta. Maria Jr. himself testified as

follows:

A He asked me if there was express teller. I told him I do not

know then he asked me whether it is possible to deposit at the

Express Teller at that time. I told him I don't know because Ihave no express teller card and he asked me how am I goingto arrange, how was it arranged if I will bring it, can I bring it.

Then I told him that it was placed in two envelopes consisting

of 500 Peso bills and then he said "Okay na yan." 31

The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal to the People'scause. The transaction was witnessed by several people,

among whom were Engr. Resoso, Mr. Sta. Maria Jr. and theNBI agents whose testimonies on the circumstances before,during and after the turn-over are consistent, logical and

credible.

According to NBI Agent Francisco Balanban Sr., they

purposely took no photographs of the actual turn-over so asnot to alert and scare off the petitioner. During cross-

examination Agent Balanban Jr. stated:

xxx xxx xxx

Q Now, of course, this entrapment operation, you madecertain preparation to make sure that you would be able togather evidence in support of the entrapment?

A Yes sir.

Q As a matter of fact you even brought photographer for the

purpose?

A That is right sir.


22/29

Q And that photographer was precisely brought along to

record the entrapment?

A Yes sir.

Q From the beginning to the end, that was the purpose?

A At the t ime of the arrest sir.

ATTY. JIMENEZ:

From the time of the handing over of the envelopes until the

entrapment would have been terminated?

A No sir we plan to take the photograph only during the arrestbecause if we take photographs he would be alerted during

the handingof the envelopes. (Emphasis ours.)

Q So you did not intend to take photographs of the act of

handing of the envelopes to the suspect?

A We intended but during that time we cannot takephotographs at the time of the handling because the flash willalert the suspect. (Emphasis ours.)

JUSTICE ESCAREAL:

Why did you not position the photographer to a far distance

place with camera with telescopic lens?

A We did not Your Honor.

ATTY. JIMENEZ:

So was it your intention to take photographs only at the time

that he is already being arrested?

A Yes sir. 32

xxx xxx xxx

Petitioner insists that when his hands were placed under ultra-

violet light, both were found negative for flourescent powder.This is petitioner's own conclusion which is not supported byevidence. Such self-serving statement will not prevail over the

clear and competent testimony and the report33

submitted by

the forensic expert of the NBI Ms. Demelen R. dela Cruz, whowas the one who conducted the test and found petitioner's

right palmar hand positive for flourescent powder, the samehand he used, according to witnesses Resoso and Sta. Maria

Jr., to get the money from the latter.

xxx xxx xxx

Q Mrs. dela Cruz since when have you been a Forensic

Chemist at NBI?

A Since 1981 sir.

Q JUSTICE ESCAREAL:

Q By the way, is the defense willing to admit that the witness is

a competent as . . . .

ATTY. JIMENEZ:


23/29

Admitted Your Honor.

PROS. CAOILI:

Madam Witness did you conduct a forensic examination in the

person of one Dave Preclaro y Jambalos?

A Yes sir.

Q If that person whom you examined is here in court would

you be able to recognize him?

ATTY. JIMENEZ:

We admit that the accused is the one examined by thewitness.

ATTY. CAOILI:

Did you prepare the result of the examination in writing?

A Yes sir.

PROS. CAOILI:

Showing to you Physic Examination No. 90-961 which forpurposes of identification has already been marked as Exh. H

what relation has this have with the report that you mentioned

a while ago?

A This is the same report that I prepared sir.

Q How did you conduct such flourescent examination?

A The left and right hands of the accused were placed under

the ultra violet lamp sir.

Q What was the result?

A It gave a . . . under the ultra violent lamp the palmer handsof the suspect gave positive result for the presence of

flourescent powder.

Q What palmar hands?

A Right hand sir.

Q What other examination did you conduct?

A And also the clothing, consisting of the t-shirts and the pantswere examined. Under the ultra violet lamp the presence of

the flourescent powder of the t-shirts and pants cannot beseen or distinguished because the fibers or the material of the

cloth under the ultra violet lamp was flouresce.

Q Please tell the Court why the t-shirts and pants under the

ultra violent lamp was flouresce?

A The materials or the fibers of the clothings it could have

been dyed with flourescent dyes sir.34

xxx xxx xxx

What we find improbable and contrary to human experience is


24/29

petitioner's claim that he was set up by Engr. Sta. Maria Sr.

and Engr. Resoso for no other purpose but revenge onaccount, for petitioner's failure to recommend the Sta. Maria

Construction to perform the extra electrical works. 35

The Sandiganbayan has aptly ruled on this matter, thus:

For another, the claim of accused that there was ill-will on the

part of the construction company is hardly plausible. It is highlyimprobable for the company to embark on a maliciousprosecution of an innocent person for the simple reason that

such person had recommended the services of anotherconstruction firm. And it is extremely impossible for suchcompany to enlist the cooperation and employ the services of

the government's chief investigative agency for such ananomalous undertaking. It is more in accord with reason and

logic to presuppose that there was some sort of a mischievousdemand made by the accused in exchange for certainfavorable considerations, such as, favorable recommendation

on the completeness of the project, hassle-free release offunds, erasure of deductives, etc. Indeed, the rationale for theoccurrence of the meeting and the demand for money is

infinite and boundless.36

As correctly pointed out by the Solicitor General, Engr. Sta.

Maria Sr., who was then engaged in the construction ofanother DOST building, would not risk his business orlivelihood just to exact revenge which is neither profitable nor

logical. As we aptly stated in Maleg v. Sandiganbayan:37

It is hard to believe that the complainant who is a contractorwould jeopardize and prejudice his business interests and risk

being blacklisted in government infrastructure projects,

knowing that with the institution of the case, he may find it no

longer advisable nor profitable to continue in his constructionventures. It is hardly probable that the complainant wouldweave out of the blue a serious accusation just to retaliate and

take revenge on the accused.

From the foregoing, the conclusion is inescapable that on the

basis of the testimonial and documentary evidence presentedduring the trial, the guilt of petitioner has been established

beyond reasonable doubt.

WHEREFORE, the appealed decision of the Sandiganbayan is

hereby AFFIRMED.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ.,concur.

G.R. No. 166355 May 30, 2011

PEOPLE OF THE PHILIPPINES, Petitioner, vs. LUIS J.MORALES, Respondent.

D E C I S I O N

BRION, J.:

We review the petition for review on certiorari, filed by thePeople of the Philippines (the People), to assail the

Resolution1

of the First Division of the Sandiganbayan inCriminal Case No. 27431, entitled "People of the Philippines

versus Luis J. Morales."


25/29

Background Facts

On June 13, 1991, then President Corazon Aquino issuedAdministrative Order No. 223 to commemorate the 100thanniversary of the declaration of Philippine Independence and

thereby created the Committee for the National Centennial

Celebrations in 1998 (Committee).

In 1993, then President Fidel V. Ramos issued ExecutiveOrder No. 128 (EO 128), entitled "Reconstituting theCommittee for the Preparation of the National Centennial

Celebrations in 1998." EO 128 renamed the Committee as the"National Centennial Commission" (NCC). The mandate of theNCC was to "take charge of the nationwide preparations for

the National Celebration of the Philippine Centennial of theDeclaration of Philippine Independence and the Inauguration

of the Malolos Congress."2

The late Vice-President SalvadorLaurel was appointed as NCC Chairman.

On March 10, 1996, the NCC and the Bases Conversion

Development Authority (BCDA)3

organized the PhilippineCentennial Expo 98 Corporation or Expocorp whose primarypurpose was to operate, administer, manage and develop the

Philippine Centennial International Exposition 1998 (Expo

98).4

The Philippine Centennial project was marred by numerousallegations of anomalies, among them, the lack of publicbiddings. In 1998, Senator Ana Dominique Coseteng delivered

a privilege speech in the Senate denouncing these anomalies.Because of this speech, the Senate Blue Ribbon Committeeconducted an investigation on the Philippine Centennial

project. In 1999, then President Joseph Estrada created the

Ad Hoc and Independent Citizens Committee (AHICC), also

for the purpose of investigating these alleged anomalies. Boththe Senate Blue Ribbon Committee and the AHICCrecommended to the Office of the Ombudsman that a more

exhaustive investigation of the Philippine Centennial project be

conducted.

The investigation that followed resulted in the filing in 2001 ofan Information

5by the Ombudsmans Fact-Finding and

Investigation Bureau against respondent Luis J. Morales

(Morales), the acting president of Expocorp at the timerelevant to the case. This Information served as basis for

Criminal Case No. 27431 that we now consider.

The Information against Morales for violation of Section 3(e) ofRepublic Act (R.A.) No. 30196

reads:

That on or about September 6, 1997 or sometime prior orsubsequent thereto in Pasig City, Philippines, and within thejurisdiction of this Honorable Court, the above-named

accused, a public officer, being then the Pres. of ExpoCorporation, Pasig City, a government corporation, and assuch was issued one (1) Mercede[s] Benz, Model 1997-C230,

bearing Serial No. WDB202023-1F-602122, and Engine No.111974-12-027093 for his official use, and while in the

performance of his official functions, acting thru evident badfaith and manifest partiality, did then and there willfully,unlawfully, and criminally give unwarranted benefits to one

Rodolfo M. Lejano by selling to him said Mercede[s] Benzthrough Newton Motors, Inc. represented by its PresidentExequiel V. Mariano in the amount of Two Million Two

Hundred Fifty Thousand Pesos (P2,250,000.00), without therequisite public bidding nor approval of the Board of Directors


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of Expo Corporation and thereafter failed to deposit the

proceeds of the sale of the aforementioned vehicle to theaccount of Expo Corporation, to the damage and prejudice of

the Corporation and the public interest as well.7

In the proceedings before the Sandiganbayan, Morales movedfor the dismissal of the case for lack of jurisdiction over his

person and over the offense charged. He alleged thatExpocorp is a private corporation and that he is not a publicemployee or official. He also alleged that the Sandiganbayan

has no jurisdiction over his person or the offense charged ashe is a private individual who has not been charged jointly withother public officials or employees.He added that Expocorp is

not a government-owned or controlled corporation because itwas not created by a special law, it did not have an originalcharter, and a majority of Expocorps capital stock is owned byprivate individuals. He claimed that he did not receive any

compensation from the government as defined in Section 2(a)of R.A. No. 3019, and the compensation he received as

Expocorps acting president was paid from Expocorps funds.8

In its comment to Expocorps motion, the Office of the Special

Prosecutor, representing the People, insisted that Expocorp isa government-owned corporation since its articles ofincorporation showed that of its ten listed subscribers, BCDAheld stocks valued at P99,999,100.00, while the stocks held by

the rest of the subscribers had a total value of P900.00. ThePeople further argued, based on the Courts ruling in SalvadorH. Laurel v. Aniano A. Desierto,9 that NCC Chairman Laurel

was a public officer; thus, Morales was likewise a public officersince his appointment flowed from the formers exercise of his

authority as chairman of both NCC and Expocorp.

In his reply, Morales averred that upon Expocorps

incorporation, BCDA owned essentially all of Expocorpsstocks. Two months after its incorporation, however, the Boardof Directors of Expocorp issued a resolution declaring all its

unissued and unsubscribed shares open for subscription.Global Clark Assets Corporation (Global) subscribed toessentially all of these unissued and unsubscribed shares;thus, Global became the majority owner with 55.16% of

Expocorps stocks, while BCDA was left as minoritystockholder with 44.84% of Expocorps stocks. Morales alsoasserted that the ruling in Laurel10 applied exclusively to

Chairman Laurel. Morales concluded that since Expocorp is aprivate corporation and an entity distinct from NCC, he, as its

president, is not a public officer.

The Sandiganbayan Resolution

The Sandiganbayan, after considering the arguments of theparties, ruled that the position of a president of a government-

owned or controlled corporation clearly falls within itsjurisdiction. However, before Morales could be heldaccountable as Expocorps president, it must first be

established that Expocorp is a government-owned orcontrolled corporation.

The Sandiganbayan explained in Laurel,

11

that the Court onlyheld that Laurel is a public officer without ruling on whetherExpocorp is a private or a government-owned corporation. The

Court also held that NCC performed executive functions,hence, it was a public office; consequently, its chairman,Laurel, was a public officer. Morales, in the case at bar, is

being charged as president of Expocorp only and not as anNCC official.


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In ruling that Expocorp is a private corporation, the

Sandiganbayan stated that it was not created by a special lawnor did it have an original charter. It was organized under theCorporation Code and was registered with the Securities and

Exchange Commission. According to the Sandiganbayan,Expocorp could not derive its public character from the factthat it was organized by the NCC. The Sandiganbayan ruledthat applying the provisions of the Revised Administrative

Code of 1987, Expocorp is a private corporation becauseGlobal owns 55.16% of its stocks; hence, its officers andemployees are private individuals who are outside the

jurisdiction of the Sandiganbayan. On this basis, theSandiganbayan dismissed the information against Morales.

The Sandiganbayan denied the motion the People

subsequently filed;12 hence, the present petition.

The Issues

The People submits the following grounds:

(1) Expocorp was organized and created for the sole purpose

of performing the executive functions of the NationalCentennial Commission and the sovereign functions of thegovernment, and should be considered as a public office.

(2) Petitioner, as president of Expocorp, should rightfully beconsidered as a "public officer", falling under the jurisdiction of

the Sandigangayan.13

The Courts Ruling

We deny the petition for lack of merit.

The nature of Expocorp

The People submits that Expocorp was an extension of theNCC as provided in Expocorps Articles of Incorporation,specifically Section 214 which states Expocorps primary

purpose. It provides that Expocorps primary purpose was toestablish and operate Expo 98 - an NCC project. The People

stated in its petition, thus -

The position occupied by respondent as President of Expocorpstemmed from his appointment as such by NCC Chair and

Expocorp Chief Executive Officer Salvador H. Laurel. On thebasis of such appointment, respondent served as thegovernments representative and Laurels alter ego in running

the affairs of Expocorp. As held in the Laurel vs. Desiertocase, "even assuming that Expocorp is a private corporation,

petitioners position as Chief Executive officer (CEO) ofExpocorp arose from his Chairmanship of the NCC.Consequently, his acts or omissions as CEO of Expocorp must

be viewed in the light of his powers and functions as NCCChair."

Having established that Expocorp, by extension, performed

part of the sovereign functions delegated to the NCC, it followsthat respondent, as President of Expocorp, performed tasks

that likewise fall within the contemplation of the governmentssovereign functions.15

We do not agree with the People.

Expocorp is a private corporation as found by the

Sandiganbayan. It was not created by a special law but wasincorporated under the Corporation Code and was registered


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with the Securities and Exchange Commission.16

It is also not

a government-owned or controlled corporation. AlthoughBCDA, which owned 999,991 shares

17of its shares, was one

of Expocorps original incorporators, the Board of Directors of

Expocorp allowed Global to buy 1,229,998 of its unused andunsubscribed shares two months after its incorporation. Withthe BCDA as a minority stockholder, Expocorp cannot becharacterized as a government-owned or controlled

corporation. In Dante V. Liban, et al. v. Richard J. Gordon,18

we pointedly said:

Agovernment-owned or controlled corporation must be ownedby the government, and in the case of a stock corporation, at

least a majority of its capital stock must be owned by thegovernment.

The Sandiganbayans Jurisdiction

Section 5, Article XIII of the 1973 Constitution defines the

jurisdiction of the Sandiganbayan:19

Sec. 5. The [Batasang Pambansa] shall create a special court,

to be known as Sandiganbayan, which shall have jurisdictionover criminal and civil cases involving graft and corruptpractices and such other offenses committed by public officers

and employees, including those in government-owned orcontrolled corporations, in relation to their office as may be

determined by law.

R.A. No. 8249,20

which amended Presidential Decree No.1606,

21delineated the jurisdiction of the Sandiganbayan as

follows:

Section 4. Section 4 of the same decree is hereby further

amended to read as follows:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise

exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwiseknown as the Anti-graft and Corrupt Practices Act, Republic

Act No. 1379, and Chapter II, Section 2, Title VII, Book II of theRevised Penal Code, where one or more of the accused areofficials 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 ofregional 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 theSangguniang panlalawigan and provincial treasurers,assessors, engineers and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniangPanlungsod, 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, andall officers of higher rank;


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(e) Officers of the Philippine National Police while occupying

the position of provincial director and those holding the rank ofsenior 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 ofgovernment-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 provisionsof 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 complexedwith other crimes committed by the public officials and

employees mentioned in subsection a of this section in relation

to their office.1avvphi1

c. Civil and criminal cases filed pursuant to and in connectionwith Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

(Underlining supplied.)

Since Expocorp is a private corporation, not a government-owned or controlled corporation, Morales, as Expocorpspresident who now stands charged for violating Section 3(e) of

R.A. No. 3019 in this capacity, is beyond the Sandiganbayans

jurisdiction.

WHEREFORE, premises considered, the petition for review oncertiorari is DISMISSED for lack of merit. TheSandiganbayans June 15, 2004 Resolution in Criminal Case

No. 27431, entitled "People of the Philippines versus Luis J.

Morales,"is AFFIRMED. No costs.

SO ORDERED.

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