REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

THIRD DIVISION

Minutes of the proceedings held on September 18, 2019.

Present:

Hon. AMPARO M. CABOTAJE-TANG .... PresidingJustice / Chairperson

Hon. BERNELITO R. FERNANDEZ Associate JusticeHon. RONALD B. MORENO . Associate Justice

The followingresolution was adopted:

Cases Nos. SB-17-CRM-1526 to 1527; SB-17-CRM-1531and SB-17-CRM-1544 - PEOPLE vs. MARINA P. CLARETE,et. al.

This resolves accused Arthur C. Yap'sCompliance/ Manifestation (With the Resolution dated 27 March2019) dated April 25, 2019.1

In its Resolution dated March 27, 2019, the Court gaveaccused Yap ten (10) days from notice to explain why he shouldnot be placed under preventive suspension pursuant to Section13 of Republic Act (R. A.) No. 3019 and Section 4, Rule VIII ofthe 2018 Revised Internal Rules of the Sandiganbayan.

In his subject compliance/manifestation, accused Yapeffectively claims that any move to place him under preventivesuspension is premature due to the pendency of the petitionsfor certiorari which he filed with the Supreme Court. Accordingto him, one of the said petitions assails the Office of theOmbudsman's resolution finding probable cause against himwhich is docketed as G.R. No. 232974. He emphasizes that inthe said petition, the Office of the Solicitor General (OSG) had

.r>)()!I pp .. 254-288, Vol. XVI, Record

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x--------------- ------- ---------------- ------------ x

2

filed a manifestation praying for the dismissal of the criminalcharges against him. The other petition, docketed as G.R. No.238584-87, assails the Court's Resolution denying his motionto quash Informations. Thus, he contends that there is still aquestion on the validity of the Informations against him.Allegedly, he cannot be placed under preventive suspensionbecause under Section 13 of R.A. No. 3019, preventivesuspension requires a prior hearing to determine the validity ofthe Information. He asserts that "any contrary propositionwould be entirely premature and would preempt the finalrulings on the petitions for certiorari.?

Accused Yap also argues that the factual circumstances ofthese cases will not serve the purpose of preventive suspension.He claims that he cannot manipulate evidence or undulyinfluence the witnesses against him considering that he has leftthe Department of Agriculture (DA)since 2010; that witnessespresented by the prosecution and intended to be presented bythe prosecution do not even personally know him; and thatthere was no complaint from the prosecution of any attempt onhis part to manipulate evidence or influence witnesses. Hefurther argues that there is no basis to believe that he willcommit any act of malfeasance while in office as, in fact, theInformations against him do not attribute any unlawful act tohim.3

In its Comment/ Opposition [on theCompliance/ Manifestation (with the Resolution dated 27 March2019)] dated June 13, 2019, the prosecution points out thataccused Yap admitted the validity of the Informations againsthim when he pleaded not guilty during his arraignment. Itclaims that all the matters he raised to support his argumentthat the Informations against him should be quashed on theground that the facts charged do not constitute an offense areevidentiary matters that are best passed upon during trial. Theprosecution, however, points out that the NABCOR is not animplementing agency listed in the PDAF menu of the GeneralAppropriations Act (GAA)for the CY's 2007-2009 but the DA,the agency he headed at that time. It also claims that preventive

~

)(\\2 at pp. 2-4; 6-73 at p. 8

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-I7-CRM-1526 to 1527;SB-17-CRM-153J; SB-17-CRM-\544x --------- ------------ ------ ----- ---------------- -- x

4

In Bolastig vs. Sandiganbayan,6 the Supreme Courtemphasized the mandatory nature of the preventive suspensionrequired under Section 13 of R.A.No. 3019 in this wise:

[S]ection 13 of Republic Act No. 3019 makes itmandatory for the Sandiganbayan to suspend any publicofficer against whom a valid information chargingviolation of that law, Book II, Title 7 of the Revised PenalCode, or any offense involving fraud upon government orpublic funds or property is filed. The Courttrying a casehas neither discretion nor duty to determine whetheror not a preventive suspension is requiredto preventthe accused from using his office to intimidatewitnesses or frustrate his prosecution or continuecommitting malfeasance in office. The presumptionis that unless the accused is suspended he mayfrustrate his prosecution or commit further acts ofmalfeasance or do both, in the same way that upon afinding that there is probable cause to believe that acrime has been committed and that the accused isprobably guilty thereof, the law requires the judge toissue a warrant for the arrest of the accused. The lawdoes not require the court to determine whether theaccused is likely to escape or evade the jurisdiction of thecourt.

Thus, once the information is found to be sufficient in formand substance, then the court must issue the order ofsuspension as a matter of course. There are no ifs or buts aboutit. This is because a preventive suspension is not a penalty. Itis not imposed as a result of judicial proceedings. In fact, ifacquitted, the official concerned shall be entitled toreinstatement and to the salaries and benefits which he failedto receive during suspension. Taking into consideration thepublic policyinvolvedin preventively suspending a public officercharged under a valid information, the protection of publicinterest will definitely have to prevail over the private interest ofthe accused/7

~~a, 436 SCRA 337 (2004); emphasis supplied7 Socrates vs. Sandiganbayan, 253 SCRA 773 \996)

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x --------------- ----------------------------------- x

6

principal case may be a ground for an administrativecharge.?

Further, "suspension from office"under Section 13 of R.A.No.3019 applies to any officewhich an accused may be holding,and not only the particular officeunder which he is charged asheld by the Supreme Court in Bayot vs. Sandiganbayan,lO towit:

. .. Further, the claim of petitioner that he cannotbe suspended because he is presently occupying aposition different from that under which he is charged isuntenable. The amendatory provision clearly states thatany incumbent public officeragainst whom any criminalprosecution under a valid information under RepublicAct 3019 or for any offense involving fraud upon thegovernment or public funds or property whether as asimple or as a complex offense and in whatever stage ofexecution and mode of participation, is pending in court,shall be suspended from office.Thus, by the use of theword "office"the same applies to any office which theofficer charged may be holding, and not only theparticular officeunder which he was charged.

Accordingly, there is no merit to accused Yap's claim thatto place him on preventive suspension will not achieve itspurpose because he no longer holds the position of a DASecretary, the position he held when the alleged offenses werecommitted.

While indeed accused Yap ceased to be connected with theDA since 2010 and that he has not manipulated evidence orintimidated witnesses, the presumption is that unless theaccused is suspended, he may frustrate his prosecution orcommit further acts of malfeasance or do both.J! To repeat, theCourt has neither discretion nor duty to determine whether ornot a preventive suspension is required to prevent the accused

r>gemphasis supplied10 128 SCRA 383 (1984)11 Bolastig vs. Sandiganbayan, supra notes 5 and 6

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x---------------------------- ---------------------- x

3

suspension under Section 13 of R.A. No. 3019 is mandatory;hence, the Court has no discretion to determine whether apreventive suspension is necessary to forestall the possibilitythat the accused may use his office to intimidate witnesses orfrustrate his prosecution or continue committing malfeasance."

Section 13 of R. A.No. 3019, as amended, reads:

Section 13. Suspension and loss of benefits. - Anyincumbent public officer against whom any criminalprosecution under a valid Information under this Act orunder Title 7, Book II of the RevisedPenal Code or for anyoffense involvingfraud upon government or public fundsor property whether as a simple or as a complex offenseand in whatever stage of execution and mode ofparticipation, is pending in court, shall be suspendedfrom office.Should he be convicted by final judgment, heshall lose all retirement or gratuity benefits under anylaw, but if he is acquitted, he shall be entitled toreinstatement, and to the salaries and benefits which hefailed to receive during suspension, unless in themeantime administrative proceedings have been filedagainst him.

In the event that such convicted officer, who mayhave already been separated from the service, hasalready received such benefits he shall be liable torestitute the same to the government.

It is now settled that Section 13 of R. A. No. 3019 makesit mandatory for the Sandiganbayan to suspend any publicofficialagainst whom a valid information charging a violation ofthe said law, Book 11, Title 7 of the Revised Penal Code, or anyoffense involving fraud upon government or public funds orproperty is filed.~

__ Po;4 pp. 538-542, Vol. XVI, Record5 Villasefior, et al. vs. Sandiganbayan, et. al., 547 SCRA 658 (2008) citing Bolastig vs. Sandiganbayan,235 SCRA 103 (1994)

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-J544x------ ------------------------ -------------------- x

5

In these cases, the Court denied accused Yap's motion toquash Informations which was anchored on the ground that thefacts charged therein do not constitute an offense. In sodenying the said motion, the Court thereby ruled that theInformations sought to be quashed are valid.

Admittedly, accused Yap has a pending petition forcertiorari with the Supreme Court assailing the Court's denialof his motion to quash. It bears emphasizing, however, that theSupreme Court has not issued a temporary restraining orderand/ or writ of preliminary injunction enjoining thecontinuation of the proceedings in these cases. Neither has theSupreme Court issued any restraining order or preliminaryinjunction in the petition for certiorari questioning theOmbudsman's finding of probable cause.

In the fairly recent case of Cagang vs. Sandiganbayan,Fifth Division,8 the Supreme Court held that "the pendency ofa petition for certiorari before this Court will not prevent theSandiganbayan from proceeding to trial absent the issuance ofa temporary restraining order or writ of preliminary injunction."This is pursuant to the explicit directive in Section 7, Rule 65 ofthe Rules of Court which provides:

Section 7. Expediting proceedings; injunctiverelief.- Thecourt in which the petition is filedmay issueorders expeditingthe proceedings,and it may also granta temporary restraining order or a writ of preliminaryinjunction for the preservationofthe rights ofthe partiespending such proceedings. The petition shall notinterrupt the course of the principal case, unless atemporary restraining order or a writ of preliminaryinjunction has been issued, enjoining the publicrespondent fromfurther proceedingwith the case.

The public respondent shall proceed with theprincipal case within ten (10) days from the filing ofa petition for certiorari with a higher court ortribunal, absent a temporary restraining order or apreliminary injunction, or upon its expiration.Failure of the public respondent to proceed with the

'G.R. Nos. 206438,206458, 210141-42, July31,2018 ~ /

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526to 1527;SB-17-CRM-1531; SB-17-CRM-1544x------------------ -------------------------------- x

7

from using his office to intimidate witnesses or frustrate hisprosecution or continue committing malfeasance in office.

WHEREFORE, the Court hereby orders the suspensionpendente lite of accused Arthur C. Yap as governor of theProvince of Bohol and from any other public positions he maynow or hereafter hold for a period of ninety (90) days effectiveimmediately from receipt of this resolution.

Let a copy of this Resolution be furnished the Secretary ofthe Department of Interior and LocalGovernment (DILG)for theimplementation ofthis order of suspension. The DILGSecretaryis directed to inform the Court of the action taken thereonwithin five (5)days from the implementation of the suspension.

The suspension of the accused shall automatically belifted upon the expiration of the ninety-day period from theimplementation of this resolution.

SO ORDERED.Quezon City, Metro Manila

APPROVED:

MORENO, R., J.

CABOTAJE-TANG, A.M., P.J.

FERNANDEZ, B., J.

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x--------------- ------- ---------------- ------------ x

2

filed a manifestation praying for the dismissal of the criminalcharges against him. The other petition, docketed as G.R. No.238584-87, assails the Court's Resolution denying his motionto quash Informations. Thus, he contends that there is still aquestion on the validity of the Informations against him.Allegedly, he cannot be placed under preventive suspensionbecause under Section 13 of R.A. No. 3019, preventivesuspension requires a prior hearing to determine the validity ofthe Information. He asserts that "any contrary propositionwould be entirely premature and would preempt the finalrulings on the petitions for certiorari.?

Accused Yap also argues that the factual circumstances ofthese cases will not serve the purpose of preventive suspension.He claims that he cannot manipulate evidence or undulyinfluence the witnesses against him considering that he has leftthe Department of Agriculture (DA)since 2010; that witnessespresented by the prosecution and intended to be presented bythe prosecution do not even personally know him; and thatthere was no complaint from the prosecution of any attempt onhis part to manipulate evidence or influence witnesses. Hefurther argues that there is no basis to believe that he willcommit any act of malfeasance while in office as, in fact, theInformations against him do not attribute any unlawful act tohim.3

In its Comment/ Opposition [on theCompliance/ Manifestation (with the Resolution dated 27 March2019)] dated June 13, 2019, the prosecution points out thataccused Yap admitted the validity of the Informations againsthim when he pleaded not guilty during his arraignment. Itclaims that all the matters he raised to support his argumentthat the Informations against him should be quashed on theground that the facts charged do not constitute an offense areevidentiary matters that are best passed upon during trial. Theprosecution, however, points out that the NABCOR is not animplementing agency listed in the PDAF menu of the GeneralAppropriations Act (GAA)for the CY's 2007-2009 but the DA,the agency he headed at that time. It also claims that preventive

~

)(\\2 at pp. 2-4; 6-73 at p. 8

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-I7-CRM-1526 to 1527;SB-17-CRM-153J; SB-17-CRM-\544x --------- ------------ ------ ----- ---------------- -- x

4

In Bolastig vs. Sandiganbayan,6 the Supreme Courtemphasized the mandatory nature of the preventive suspensionrequired under Section 13 of R.A.No. 3019 in this wise:

[S]ection 13 of Republic Act No. 3019 makes itmandatory for the Sandiganbayan to suspend any publicofficer against whom a valid information chargingviolation of that law, Book II, Title 7 of the Revised PenalCode, or any offense involving fraud upon government orpublic funds or property is filed. The Courttrying a casehas neither discretion nor duty to determine whetheror not a preventive suspension is requiredto preventthe accused from using his office to intimidatewitnesses or frustrate his prosecution or continuecommitting malfeasance in office. The presumptionis that unless the accused is suspended he mayfrustrate his prosecution or commit further acts ofmalfeasance or do both, in the same way that upon afinding that there is probable cause to believe that acrime has been committed and that the accused isprobably guilty thereof, the law requires the judge toissue a warrant for the arrest of the accused. The lawdoes not require the court to determine whether theaccused is likely to escape or evade the jurisdiction of thecourt.

Thus, once the information is found to be sufficient in formand substance, then the court must issue the order ofsuspension as a matter of course. There are no ifs or buts aboutit. This is because a preventive suspension is not a penalty. Itis not imposed as a result of judicial proceedings. In fact, ifacquitted, the official concerned shall be entitled toreinstatement and to the salaries and benefits which he failedto receive during suspension. Taking into consideration thepublic policyinvolvedin preventively suspending a public officercharged under a valid information, the protection of publicinterest will definitely have to prevail over the private interest ofthe accused/7

~~a, 436 SCRA 337 (2004); emphasis supplied7 Socrates vs. Sandiganbayan, 253 SCRA 773 \996)

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x --------------- ----------------------------------- x

6

principal case may be a ground for an administrativecharge.?

Further, "suspension from office"under Section 13 of R.A.No.3019 applies to any officewhich an accused may be holding,and not only the particular officeunder which he is charged asheld by the Supreme Court in Bayot vs. Sandiganbayan,lO towit:

. .. Further, the claim of petitioner that he cannotbe suspended because he is presently occupying aposition different from that under which he is charged isuntenable. The amendatory provision clearly states thatany incumbent public officeragainst whom any criminalprosecution under a valid information under RepublicAct 3019 or for any offense involving fraud upon thegovernment or public funds or property whether as asimple or as a complex offense and in whatever stage ofexecution and mode of participation, is pending in court,shall be suspended from office.Thus, by the use of theword "office"the same applies to any office which theofficer charged may be holding, and not only theparticular officeunder which he was charged.

Accordingly, there is no merit to accused Yap's claim thatto place him on preventive suspension will not achieve itspurpose because he no longer holds the position of a DASecretary, the position he held when the alleged offenses werecommitted.

While indeed accused Yap ceased to be connected with theDA since 2010 and that he has not manipulated evidence orintimidated witnesses, the presumption is that unless theaccused is suspended, he may frustrate his prosecution orcommit further acts of malfeasance or do both.J! To repeat, theCourt has neither discretion nor duty to determine whether ornot a preventive suspension is required to prevent the accused

r>gemphasis supplied10 128 SCRA 383 (1984)11 Bolastig vs. Sandiganbayan, supra notes 5 and 6

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-1544x---------------------------- ---------------------- x

3

suspension under Section 13 of R.A. No. 3019 is mandatory;hence, the Court has no discretion to determine whether apreventive suspension is necessary to forestall the possibilitythat the accused may use his office to intimidate witnesses orfrustrate his prosecution or continue committing malfeasance."

Section 13 of R. A.No. 3019, as amended, reads:

Section 13. Suspension and loss of benefits. - Anyincumbent public officer against whom any criminalprosecution under a valid Information under this Act orunder Title 7, Book II of the RevisedPenal Code or for anyoffense involvingfraud upon government or public fundsor property whether as a simple or as a complex offenseand in whatever stage of execution and mode ofparticipation, is pending in court, shall be suspendedfrom office.Should he be convicted by final judgment, heshall lose all retirement or gratuity benefits under anylaw, but if he is acquitted, he shall be entitled toreinstatement, and to the salaries and benefits which hefailed to receive during suspension, unless in themeantime administrative proceedings have been filedagainst him.

In the event that such convicted officer, who mayhave already been separated from the service, hasalready received such benefits he shall be liable torestitute the same to the government.

It is now settled that Section 13 of R. A. No. 3019 makesit mandatory for the Sandiganbayan to suspend any publicofficialagainst whom a valid information charging a violation ofthe said law, Book 11, Title 7 of the Revised Penal Code, or anyoffense involving fraud upon government or public funds orproperty is filed.~

__ Po;4 pp. 538-542, Vol. XVI, Record5 Villasefior, et al. vs. Sandiganbayan, et. al., 547 SCRA 658 (2008) citing Bolastig vs. Sandiganbayan,235 SCRA 103 (1994)

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526 to 1527;SB-17-CRM-1531; SB-17-CRM-J544x------ ------------------------ -------------------- x

5

In these cases, the Court denied accused Yap's motion toquash Informations which was anchored on the ground that thefacts charged therein do not constitute an offense. In sodenying the said motion, the Court thereby ruled that theInformations sought to be quashed are valid.

Admittedly, accused Yap has a pending petition forcertiorari with the Supreme Court assailing the Court's denialof his motion to quash. It bears emphasizing, however, that theSupreme Court has not issued a temporary restraining orderand/ or writ of preliminary injunction enjoining thecontinuation of the proceedings in these cases. Neither has theSupreme Court issued any restraining order or preliminaryinjunction in the petition for certiorari questioning theOmbudsman's finding of probable cause.

In the fairly recent case of Cagang vs. Sandiganbayan,Fifth Division,8 the Supreme Court held that "the pendency ofa petition for certiorari before this Court will not prevent theSandiganbayan from proceeding to trial absent the issuance ofa temporary restraining order or writ of preliminary injunction."This is pursuant to the explicit directive in Section 7, Rule 65 ofthe Rules of Court which provides:

Section 7. Expediting proceedings; injunctiverelief.- Thecourt in which the petition is filedmay issueorders expeditingthe proceedings,and it may also granta temporary restraining order or a writ of preliminaryinjunction for the preservationofthe rights ofthe partiespending such proceedings. The petition shall notinterrupt the course of the principal case, unless atemporary restraining order or a writ of preliminaryinjunction has been issued, enjoining the publicrespondent fromfurther proceedingwith the case.

The public respondent shall proceed with theprincipal case within ten (10) days from the filing ofa petition for certiorari with a higher court ortribunal, absent a temporary restraining order or apreliminary injunction, or upon its expiration.Failure of the public respondent to proceed with the

'G.R. Nos. 206438,206458, 210141-42, July31,2018 ~ /

RESOLUTIONPeople vs. Clarete, et al.Cases Nos. SB-17-CRM-1526to 1527;SB-17-CRM-1531; SB-17-CRM-1544x------------------ -------------------------------- x

7

from using his office to intimidate witnesses or frustrate hisprosecution or continue committing malfeasance in office.

WHEREFORE, the Court hereby orders the suspensionpendente lite of accused Arthur C. Yap as governor of theProvince of Bohol and from any other public positions he maynow or hereafter hold for a period of ninety (90) days effectiveimmediately from receipt of this resolution.

Let a copy of this Resolution be furnished the Secretary ofthe Department of Interior and LocalGovernment (DILG)for theimplementation ofthis order of suspension. The DILGSecretaryis directed to inform the Court of the action taken thereonwithin five (5)days from the implementation of the suspension.

The suspension of the accused shall automatically belifted upon the expiration of the ninety-day period from theimplementation of this resolution.

SO ORDERED.Quezon City, Metro Manila

APPROVED:

MORENO, R., J.

CABOTAJE-TANG, A.M., P.J.

FERNANDEZ, B., J.