GR. No. L-48928 February 25, 1982

MITA PARDO DE TAVERA, plaintiff-appellant, vs.PHILIPPINE TUBERCULOSIS SOCIETY, INC., FRANCISCO ORTIGAS, JR., MIGUEL CAÑIZARES, BERNARDO P. PARDO, RALPH NUBLA, MIDPANTAO ADIL, ENRIQUE GARCIA, ALBERTO G. ROMULO and THE PRESENT BOARD OF DIRECTORS, PHILIPPINE TUBERCULOSIS SOCIETY, INC., defendants- appellees.

 

GUERRERO, J.:

On March 23, 1976, plaintiff-appellant Mita Pardo de Tavera filed with the Court of First Instance of Rizal a complaint against the Philippine Tuberculosis Society, Inc. (hereinafter referred to as the Society), Miguel Canizares, Ralph Nubla, Bernardo Pardo, Enrique Garcia, Midpantao Adil, Alberto Romulo, and the present Board of Directors of the Philippine Tuberculosis Society, Inc.

On April 12, 1976, plaintiff-appellant filed an amended complaint impleading Francisco Ortigas, Jr. as party defendant.

In substance, the complaint alleged that plaintiff is a doctor of Medicine by profession and a recognized specialist in the treatment of tuberculosis, having been in the continuous practice of her profession since 1945; that she is a member of the Board of Directors of the defendant Society, in representation of the Philippine Charity Sweepstakes Office; that she was duly appointed on April 27, 1973 as Executive Secretary of the Society; that on May 29, 1974, the past Board of Directors removed her summarily from her position, the lawful cause of which she was not informed, through the simple expedient of declaring her position vacant; that immediately thereafter, defendant Alberto Romulo was appointed to the position by an affirmative vote of seven directors, with two abstentions and one objection; and that defendants Pardo, Nubla, Garcia and Adil, not being members of defendant Society when they were elevated to the position of members of the Board of Directors, are not qualified to be elected as such and hence, all their acts in said meeting of May 29, 1974 are null and void.

The defendants filed their answer on May 12, 1976, specifically denying that plaintiff was illegally removed from her position as Executive Secretary and averring that under the Code of By-Laws of the Society, said position is held at the pleasure of the Board of Directors and when the pleasure is exercised, it only means that the incumbent has to vacate the same because her term has expired; that defendants Pardo, Nubla, Adil and Garcia were, at the time of their election, members of the defendant Society and qualified to be elected as members of the Board, that assuming that said defendants were not members of defendant Society at the time of their election, the question of qualification of the members of the Board of Directors should have been raised at the time of their election: that assuming that the qualification of members of the Board of Directors can be questioned after their assumption of their offices as directors, such contest cannot be done in a collateral action; that an action to question the qualifications of the Directors must be brought within one year from their election; and that a Director elected without necessary qualification becomes at least a de facto director, whose acts are as valid and binding as a de jure director. Further, defendant disputed the timeliness of the filing of the action stating that an action to question one's ouster from a corporate office must be filed within one year from said ouster.

On the same date, defendant Adil filed a Motion to Dismiss on the ground that the complaint states no cause of action, or if it does, the same has prescribed. Inasmuch as plaintiff seeks reinstatement, he

argued that the complaint is an action for quo warranto and hence, the same should be commenced within one year from May 29, 1974 when the plaintiff was ousted from her position.

Plaintiff filed an Opposition to Motion to Dismiss on May 28, 1976, stating that the complaint is a suit for damages filed under the authority of Section 6, Article 11 of the present Constitution in relation to Articles 12 and 32(6) of the New Civil Code, and her constitutional right to equal protection of the law, as guaranteed by Section 1, Article IV of the present Constitution.

On June 2, 1976, defendant Adil filed a Reply to Plaintiff's Opposition to Motion to Dismiss arguing that since there is an averment of plaintiff's right to office, and that defendant Romulo is unlawfully in possession thereof, their it is indeed, a case for quo warranto; and that assuming that it is merely a suit for damages, then, the same is premature, pursuant to Section 16, Rule 66 of the Rules of Court.

On September 3, 1976, the coturt a quo rendered a decision holding that the present suit being one for quo warranto it should be filed within one year from plaintiff's outer from office; that nevertheless, plaintiff was not illegally rendered or used from her position as Executive Secretary in The Society since plaintiff as holding an appointment all the pleasure of the appointing power and hence her appointment in essence was temporary in nature, terminable at a moment's notice without need to show that the termination was for cause; and Chat plaintiff's ouster from office may not be challenged on the ground that the acts of defendants Pardo, Adil, Nubla and Garcia are null and void, they being not qualified to be elected members of the Board of Directors because the qualifications of the members of the Board of Directors which removed plaintiff from office may not be the subject of a collateral attack in the present suit for quo warranto affecting title to the office of Executive Secretary.

On October 13, 1976, plaintiff filed a Motion for Reconsideration to which defendants filed an Opposition. On November 25, 1976, the court a quo denied the motion for Reconsideration.

Dissatisfied with the decision and the order denying the motion for reconsideration. plaintiff filed a Notice of Appeal and an Urgent Motion for Extension of Time to File Record on Appeal, which was granted in an order dated December 15, 1976. However, on December 20, 1976, the court a quo issued an amended order where it qualified the action as principally one for quo warranto and hence, dispensed with the filing of a record on appeal as the original records of the case are required to be elevated to the Court of Appeals.

On August 8, 1978, the Court of Appeals issued a resolution certifying this case to this Court considering that the appeal raises no factual issues and involves only issues of law, as may be

gleaned from the following assignments of errors:

I. The lower court erred in holding that the present case is one for quo warranto and not an action for damages.

II. In deciding the case, the lower court erred in not upholding the Society's By-Laws, the applicable laws, and the pertinent provisions of the Constitution.

III. The lower court erred in holding that the plaintiff-appellant is not in the civil service, and therefore, not entitled to the guaranty against removal from office except for cause and after due process of law.

The nature of an action filed in court is determined by the facts alleged in the complaint as constituting the cause of action, and not those averred as a defense in the defendant's answer. The theory adopted by the plaintiff in his complaint is one thing; that by the defendant in his answer another. The purpose of an action or suit and the law to govern it, including the period of prescription,

is to be determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief. Rone et al. vs. Claro, et al., L-4472, May 8, 1952, 91 Phil. 250). In Baguioro vs. Barrios, et al., 77 Phil. 120, the Supreme Court held that if the relief demanded is not the proper one which may be granted under the law, it does not characterize or determine the nature of plaintiff's action, and the relief to which plaintiff is entitled based on the facts alleged by him in his complaint, although it is not the relief demanded, is what determines the nature of the action.

While it is true that the complaint questions petitioner's removal from the position of Executive Secretary and seeks her reinstatement thereto, the nature of the suit is not necessarily one of quo warranto. The nature of the instant suit is one involving a violation of the rights of the plaintiff under the By-Laws of the Society, the Civil Code and the Constitution, which allegedly renders the individuals responsible therefore, accountable for damages, as may be gleaned from the following allegations in the complaint as constituting the plaintiff's causes of action, to wit:

20. That, as a consequence of the unfair and malicious removal of plaintiff from her office, which the plaintiff maintains to be contrary to morals, good customs, public policy, the pertinent provisions of said By-Laws of the Society, the laws, and the guarranties of the Constitution, by defendants Canizares, Ortigas Jr., Pardo, Adil, Nubla and Garcia, the plaintiff suffered not only material damages, but serious damage to her priceless properties, consisting of her honor and reputation, which were maliciously and unlawfully besmirched, thereby entitling her to compensation for material and moral damages, from said defendants, jointly and severally, under Article 21, in relation to Article 32(6) of the New Civil Code;

xxx xxx xxx

24. That as a consequence of the inordinate use and abuse of power by defendants, Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia, in arbitrarily, illegally, and unjustly removing the plaintiff from office, without due process of law, and in denying to her the enjoyment of the guaranty of the Constitution to equal protection of the law, the plaintiff suffered material and moral damages as a result of the debasement of her dignity, both as an individual and as a professional (physician) of good standing, therefore, defendant Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia should be ordered to pay her moral damages, jointly and severally;

xxx xxx xxx

26. That the acts of the defendants Canizares, Ortigas Jr., Pardo, Adil, Nubla and Garcia, in illegally removing the plaintiff from her position as Executive Secretary of defendant Society, which plaintiff was then holding under a valid appointment and thereafter, immediately appointing defendant Alberto Romulo to the position, is most unfair, unjust and malicious, because it is contrary to good morals, good customs, public policy, the pertinent provisions of the Code of By-Laws of the defendant Society, the laws and the aforementioned guarranties of the Constitution; that the plaintiff complaint that the said defendants are legally obligated to compensate her, in concept of exemplary damages, in order to restrain persons in authority from committing similar file I and un constitutional acts which debase human dignity and inflict injuries to their fellowmen;

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31. That, as a consequence of the said unjustified refusal of the defendant, present Board of Directors of the defendant Society, to resolve the complaint of the plaintiff and extend to her the reliefs to which she is entitled under the law and the Constitution, it is respectfully submitted that said defendant Board is under legal obligation to correct the illegal and unconstitutional act of defendants Caares Ortigas Jr., Pardo, Nubla, Adil and Garcia, by restoring the plaintiff to her position as Executive Secretary of the defendant Society, payment of salaries and other benefits, corresponding to the period of her illegal and unconstitutional removal from office.

Further, it must be noted that the action is not only against Alberto Romulo, the person appointed in her stead, but also against the Society and the past and present members of the Board. In fact, Romulo is sued as present occupant of the office and not to hold him accountable for damages because he did not participate in the alleged illegal and unconstitutional removal of plaintiff- appellant. The action is primarily against the Society and the past members of the Board who are responsible for her removal. The present Board of Directors has been implead as party defendant for the purpose merely of enabling it to act, "to reinstate the plaintiff to her position as Executive Secretary of the defendant Society" being one of the reliefs prayed for in the prayer of the complaint.

Hence, We hold that where the respondents, except for one, namely, Alberto Romulo, are not actually holding the office in question, the suit could not be one for quo warranto.

Corollarily, the one-year period fixed in Section 16, Rule 66 of the Revised Rules of Court within which a petition for quo warranto should be filed, counted from the date of ouster, does not apply to the case at bar. The action must be brought within four (4) years, in accordance with Valencia vs. Cebu Portland Cement Co., et al., L-13715, December 23, 1959, 106 Phil. 732, case involving a plaintiff separated from his employment for alleged unjustifiable causes, where this Court held that the action n is one for "injury to the rights of the plaintiff, and must be brought within 4 years murder Article 1146 of the New Civil Code .

Nonetheless, although the action is not barred by the statute of limitations, We rule that it will not prosper. Contrary to her claim, petitioner was not illegally removed or from her position as Executive Secretary in violation of Code of By-laws of the Society. the New Civil Code and the pertinent provisions of the Constitution.

Petitioner claims and the respondents do not dispute that the Executive Secretary is an officer of the Society pursuant to provision in the Code of By-laws Laws:

Section 7.01. Officers of the Society. — The executed officers f the Society shag be the President a Vice-President, a Treasurer who shall be elected by the Board of Directors, Executive Secretary, and an Auditor, who shall be appointed by the Board of Directors, all of whom shall exercise the functions. powers and prerogatives generally vested upon skich officers, the functions hereinafter set out for their respective offices and such other duties is from time to time, may be prescribed by the Board of Directors. On e person may hold more than one office except when the functions thereof are incompatible with each other.

It is petitioner's contention that she is subject, to removal pursuant to Section 7.04 of the Code of By-laws which respondents correctly dispute citing Section 7.02 of the same Cede. The aforementioned provisions state as follows:

Section 7.02. Tenure of Office. — All executive officers of the Society except the Executive Secretary and the Auditor shall be elected the Board of Directors, for a term

of one rear ind shall hold office until their successors are elected and have qualified. The Executive secretary, the Auditor and all other office ers and employees of the Society shall hold office at the pleasure of the Board of Directors, unless their term of employment shall have been fixed in their contract of employment.

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Section 7.04. Removal of Officers and Employees. — All officers and employees shall be subject to suspension or removal for a sufficient cause at any time by affirmative vote of a majority of an the members of the Board of Directors, except that employees appointed by the President alone or by the other officers alone at the pleasure of the officer appointing him.

It appears from the records, specifically the minutes of the special meeting of the Society on August 3, 1972, that petitioner was designated as Acting Executive Secretary with an honorarium of P200.00 monthly in view of the application of Dr. Jose Y. Buktaw for leave effective September 1, 1972 for 300 working days. This designation was formalized in Special Order No. 110, s. 1972 wherein it was indicated that: "This designation shall take effect on September 1, 1972 and shall remain until further advice."

In the organizational meeting of the Society on April 25, 1973, the minutes of the meeting reveal that the Chairman mentioned the need of appointing a permanent Executive Secretary and stated that the former Executive Secretary, Dr. Jose Y. Buktaw, tendered his application for optional retirement, and while on terminal leave, Dr. Mita Pardo de Tavera was appointed Acting Executive Secretary. In view thereof, Don Francisco Ortigas, Jr. moved, duly seconded, that Dr. Mita Pardo de Tavera be appointed Executive Secretary of the Philippine Tuberculosis Society, Inc. The motion was unanimously approved.

On April 27, 1973, petitioner was informed in writing of the said appointment, to wit:

Dr. Mita Pardo de Tavera

Philippine Tuberculosis Society, Inc.

Manila

Madam:

I am pleased to inform you that at the meeting of the Board of Directors held on April 25, 1973, you were appointed Executive Secretary, Philippine Tuberculosis Society, Inc. with such compensation ,petition and allowances as are provided for in the Budget of the Society, effective immediately, vice Dr. Jose Y. Buktaw, retired.

Congratulations.

Very truly yours,

For the Board of Directors:

(Sgd) Miguel Canizares,

M.D. MIGUEL CARIZARES, M.D.

President

Although the minutes of the organizational meeting show that the Chairman mentioned the need of appointing a "permanent" Executive Secretary, such statement alone cannot characterize the appointment of petitioner without a contract of employment definitely fixing her term because of the specific provision of Section 7.02 of the Code of By-Laws that: "The Executive Secretary, the Auditor, and all other officers and employees of the Society shall hold office at the pleasure of the Board of Directors, unless their term of employment shall have been fixed in their contract of employment." Besides the word permanent" could have been used to distinguish the appointment from acting capacity".

The absence of a fixed term in the letter addressed to petitioner informing her of her appointment as Executive Secretary is very significant. This could have no other implication than that petitioner held an appointment at the pleasure of the appointing power.

An appointment held at the pleasure of the appointing power is in essence temporary in nature. It is co-extensive with the desire of the Board of Directors. Hence, when the Board opts to replace the incumbent, technically there is no removal but only an expiration of term and in an expiration of term, there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be separated from office. The protection afforded by Section 7.04 of the Code of By-Laws on Removal of Officers and Employees, therefore, cannot be claimed by petitioner.

Thus, in the case of Moji vs. Mariño 13 SCRA 293, where the appointment contains the following proviso: that it may be terminated at anytime without any proceedings, at the pleasure of the President of the Philippines, this Court held: "It may, therefore, be said that, though not technically a temporary appointment, as this term is used in Section 24(b) of the Civil Service Act of 1959, petitioner's appointment in essence is temporary because of its character that it is terminable at the pleasure of the appointing power. Being temporary in nature, the appointment can be terminated at a moment's notice without need to show cause as required in appointments that belong to the classified service."

In Paragas vs. Bernal 17 SCRA 150, this Court distinguished between removal and expiration of term .

In the case at bar there has been, however, no removal from office. Pursuant to the charter of Dagupan City, the Chief of Police thereof holds office at the pleasure of the President. Consequently, the term of office of the Chief of Police expires at any time that the President may so declare. This is not removal, inasmuch as the latter entails the ouster of an incumbent before the expiration of his term. In the present case, petitioner's term merely expired upon receipt by him of the communication of respondent Assistant Executive Secretary of the President, dated September 14, 1962.

Petitioner cannot likewise seek relief from the general provisions of the New Civil Code on Human Relations nor from the fundamental principles of the New Constitution on preservation of human dignity. While these provisions present some basic principles that are to be observed for the rightful relationship between human beings and the stability of social order, these are merely guides for

human conduct in the absence of specific legal provisions and definite contractual stipulations. In the case at bar, the Code of By-Laws of the Society contains a specific provision governing the term of office of petitioner. The same necessarily limits her rights under the New Civil Code and the New Constitution upon acceptance of the appointment.

Moreover, the act of the Board in declaring her position as vacant is not only in accordance with the Code of By-Laws of the Society but also meets the exacting standards of honesty and good faith. The meeting of May 29, 1974, at which petitioner ,petitioner's position was declared vacant, was caged specifically to take up the unfinished business of the Reorganizational Meeting of the Board of April 30, 1974. Hence, and act cannot be said to impart a dishonest purpose or some moral obliquity and conscious doing to wrong but rather emanates from the desire of the Board to reorganize itself.

Finally, We find it unnecessary to resolve the third assignment of error. The proscription against removal without just cause and due process of law under the Civil Service Law does not have a bearing on the case at bar for the reason, as We have explained, that there was no removal in her case but merely an expiration of term pursuant to Section 7.02 of the Code of By-Laws. Hence, whether or not the petitioner falls within the protective mantle of the Civil Service Law is immaterial and definitely unnecessary to resolve this case.

WHEREFORE, premises considered, the decision of the lower court holding that petitioner was not illegally removed or ousted from her position as Executive Secretary of the Philippine Tuberculosis Society, Inc., is hereby AFFIRMED.

SO ORDERED.

G.R. No. 141309             June 19, 2007

LIWAYWAY VINZONS-CHATO, petitioner, vs.FORTUNE TOBACCO CORPORATION, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No. 47167, which affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97-341-MK, denying petitioner’s motion to dismiss. The complaint filed by respondent sought to recover damages for the alleged violation of its constitutional rights arising from petitioner’s issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared invalid in Commissioner of Internal Revenue v. Court of Appeals.3

Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different brands of cigarettes, among which are "Champion," "Hope," and "More" cigarettes.

On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3, 1993. Prior to its effectivity, cigarette brands ‘Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax.4 RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec. 142,5 (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack."6

On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993.7 The same letter assessed respondent for ad valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt thereof.8 On August 3, 1993, respondent filed a petition for review with the Court of Tax Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the implementation of RMC 37-93.9 In its decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v. Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen short of the requirements for a valid administrative issuance.

On April 10, 1997, respondent filed before the RTC a complaint11 for damages against petitioner in her private capacity. Respondent contended that the latter should be held liable for damages under Article 32 of the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right against deprivation of property without due process of law and the right to equal protection of the laws.

Petitioner filed a motion to dismiss12 contending that: (1) respondent has no cause of action against her because she issued RMC 37-93 in the performance of her official function and within the scope of her authority. She claimed that she acted merely as an agent of the Republic and therefore the latter is the one responsible for her acts; (2) the complaint states no cause of action for lack of allegation of malice or bad faith; and (3) the certification against forum shopping was signed by respondent’s counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same.

On September 29, 1997, the RTC denied petitioner’s motion to dismiss holding that to rule on the allegations of petitioner would be to prematurely decide the merits of the case without allowing the parties to present evidence. It further held that the defect in the certification against forum shopping was cured by respondent’s submission of the corporate secretary’s certificate authorizing its counsel to execute the certification against forum shopping. The dispositive portion thereof, states:

WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant Liwayway Vinzons-Chato and the motion to strike out and expunge from the record the said motion to dismiss filed by plaintiff Fortune Tobacco Corporation are both denied on the grounds aforecited. The defendant is ordered to file her answer to the complaint within ten (10) days from receipt of this Order.

SO ORDERED.13

The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However, same was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if the defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38, Book I of the Administrative Code is the general law on the civil liability of public officers while Article 32 of the Civil Code is the special law that governs the instant case. Consequently, malice or bad faith need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the defect of the certification against forum shopping was cured by the submission of the corporate secretary’s certificate giving authority to its counsel to execute the same.

Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done in the performance of her functions as a public officer, hence, it is Section 38, Book I of the Administrative Code which should be applied. Under this provision, liability will attach only when there is a clear showing of bad faith, malice, or gross negligence. She further averred that the Civil Code, specifically, Article 32 which allows recovery of damages for violation of constitutional rights, is a general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a special law on the superior public officers’ liability, such that, if the complaint, as in the instant case, does not allege bad faith, malice, or gross negligence, the same is dismissible for failure to state a cause of action. As to the defect of the certification against forum shopping, she urged the Court to strictly construe the rules and to dismiss the complaint.

Conversely, respondent argued that Section 38 which treats in general the public officers’ "acts" from which civil liability may arise, is a general law; while Article 32 which deals specifically with the public officers’ violation of constitutional rights, is a special provision which should determine whether the complaint states a cause of action or not. Citing the case of Lim v. Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code, it is enough that there was a violation of the constitutional rights of the plaintiff and it is not required that said public officer should have acted with malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad faith or malice, the motion to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or malice are not necessary to hold petitioner liable.

The issues for resolution are as follows:

(1) May a public officer be validly sued in his/her private capacity for acts done in connection with the discharge of the functions of his/her office?

(2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative Code should govern in determining whether the instant complaint states a cause of action?

(3) Should the complaint be dismissed for failure to comply with the rule on certification against forum shopping?

(4) May petitioner be held liable for damages?

On the first issue, the general rule is that a public officer is not liable for damages which a person may suffer arising from the just performance of his official duties and within the scope of his assigned tasks.15 An officer who acts within his authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims without its consent.16 However, a public officer is by law not immune from damages in his/her personal capacity for acts done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for official actions.17

Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there is bad faith, malice, or gross negligence on the part of a superior public officer. And, under Section 39 of the same Book, civil liability may arise where the subordinate public officer’s act is characterized by willfulness or negligence. Thus –

Sec. 38. Liability of Superior Officers. – (1) A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

x x x x

Section 39. Liability of Subordinate Officers. – No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acts under orders or instructions of his superior.

In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who directly or indirectly violates the constitutional rights of another, may be validly sued for damages under Article 32 of the Civil Code even if his acts were not so tainted with malice or bad faith.

Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity for acts done in the course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional right of the plaintiff.

Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and that the decisive provision thereon is Article 32 of the Civil Code.

A general statute is one which embraces a class of subjects or places and does not omit any subject or place naturally belonging to such class. A special statute, as the term is generally understood, is one which relates to particular persons or things of a class or to a particular portion or section of the state only.19

A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of which is special and particular and the other general which, if standing alone, would include the same matter and thus conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.20

The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication.21

Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which holds provinces, cities, and municipalities civilly liable for death or injuries by reason of defective conditions of roads and other public works, is a special provision and should prevail over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the liability for defective street conditions. Under said Charter, the city shall not be held for damages or injuries arising from the failure of the local

officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing or attempting to enforce the same. As explained by the Court:

Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by, any person by reason" — specifically — "of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.23

In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication of a tax ordinance, the City Charter of Manila, a special act which treats ordinances in general and which requires their publication before enactment and after approval, or the Tax Code, a general law, which deals in particular with "ordinances levying or imposing taxes, fees or other charges," and which demands publication only after approval. In holding that it is the Tax Code which should prevail, the Court elucidated that:

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. Th[is] exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. Special provision governs.

Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides:

ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

x x x x

(6) The right against deprivation of property without due process of law;

x x x x

(8) The right to the equal protection of the laws;

x x x x

The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows:

"DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another person’s constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons:

"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in the nature of a tort.

"Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one’s duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights."25

The Code Commission deemed it necessary to hold not only public officers but also private individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It is not necessary that the defendant under this Article should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of individual rights. It suffices that there is a violation of the constitutional right of the plaintiff.26

Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act which has been defined as the commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation.28 There are cases in which it has been stated that civil liability in tort is determined by the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was

wrongful.29 Presence of good motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of another’s legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent.30

The clear intention therefore of the legislature was to create a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive or intent of the defendant.31 This is a fundamental innovation in the Civil Code, and in enacting the Administrative Code pursuant to the exercise of legislative powers, then President Corazon C. Aquino, could not have intended to obliterate this constitutional protection on civil liberties.

In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of accountability of public officials under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression, joint tortfeasors.

On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the civil liability of superior and subordinate public officers for acts done in the performance of their duties. For both superior and subordinate public officers, the presence of bad faith, malice, and negligence are vital elements that will make them liable for damages. Note that while said provisions deal in particular with the liability of government officials, the subject thereof is general, i.e., "acts" done in the performance of official duties, without specifying the action or omission that may give rise to a civil suit against the official concerned.

Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of an "act" that may give rise to an action for damages against a public officer, and that is, a tort for impairment of rights and liberties. Indeed, Article 32 is the special provision that deals specifically with violation of constitutional rights by public officers. All other actionable acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While the Civil Code, specifically, the Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be committed by public officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with civil liability arising from errors in the performance of duties, Article 32 of the Civil Code is the specific provision which must be applied in the instant case precisely filed to seek damages for violation of constitutional rights.

The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of the plaintiff.

Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission of the secretary’s certificate authorizing the counsel to sign and execute the certification against forum shopping cured the defect of respondent’s complaint. Besides, the merits of the instant case justify the liberal application of the rules.33

WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 7, 1999 which affirmed the Order of the Regional Trial Court of Marikina, Branch 272, denying petitioner’s motion to dismiss, is AFFIRMED. The Presiding Judge, Regional Trial Court of Marikina, Branch 272, is herebyDIRECTED to continue with the proceedings in Civil Case No. 97-341-MK with dispatch.

With costs.

SO ORDERED.

G.R. No. 122166 March 11, 1998

CRESENTE Y. LLORENTE, JR., petitioner, vs.SANDIGANBAYAN and LETICIA G. FUERTES, respondents.

PANGANIBAN, J.:

In a prosecution for violation of Section 3[e] of the Anti-Graft Law, that is, "causing undue injury to any party," the government prosecutors must prove "actual" injury to the offended party; speculative or incidental injury is not sufficient.

The Case

Before us is a petition for review of the Decision promulgated on June 23, 1995 and the Resolution promulgated on October 12, 1995 of the Sandiganbayan in Criminal Case No. 18343, finding Cresente Y. Llorente, Jr. guilty as charged.

Llorente, then municipal mayor of Sindangan, Zamboanga del Norte, was charged with violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, under an Information dated October 22, 1992, textually reproduced as follows:1

That in or about and during the period of July, 1990 to October, 1991, or for sometime subsequent thereto, in the Municipality of Sindangan, Province of Zamboanga del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused Cresente Y. Llorente, Jr., a public officer, being then the Mayor of Sindangan, Zamboanga del Norte, in the exercise of his official and administrative functions, did then and there, willfully, unlawfully and criminally with evident bad faith refuse to sign and approve the payrolls and vouchers representing the payments of the salaries and other emoluments of Leticia G. Fuertes, without just valid cause and without due process of law, thereby causing undue injury to the said Leticia G. Fuertes.

CONTRARY TO LAW.

Duly arraigned on March 29, 1993, petitioner, with the assistance of counsel, entered a plea of "NOT GUILTY."2 After trial in due course, the Sandiganbayan3 rendered the assailed Decision, disposing as follows:4

WHEREFORE, judgment is hereby rendered finding accused Mayor Cresente Y. Llorente, Jr. GUILTY beyond reasonable doubt as principal of the crime of Violation of Section 3(e) of Republic Act 3019, as amended, and he is hereby sentenced to suffer imprisonment of SIX (6) YEARS and ONE (1) MONTH, as minimum to SEVEN (7) YEARS, as maximum; to further suffer perpetual disqualification from public office; and to pay the costs.

Respondent Court denied the subsequent motion for reconsideration in the assailed Resolution thus:5

WHEREFORE, accused's "Motion for Reconsideration and/or New Trial" is hereby DENIED for lack of merit. His "Motion for Marking of Additional Exhibits Cum Offer of Documentary Exhibits in Support of Motion for Reconsideration and/or New Trials' is now rendered moot and academic.

Hence, this petition.6

The Facts

Version of the Prosecution

As found by Respondent Court, the prosecution's version of the facts of this case is as follows:7

After appreciating all the evidence on both sides, the following uncontroverted facts may be gleaned:

1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged act was committed, was the Municipal Mayor of Sindangan, Zamboanga del Norte.

2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed Assistant Municipal Treasurer in the same municipality since October 18, 1985.

3. Starting 1986, private complainant was detailed to different offices, as follows:

(a) Municipality of Katipunan, Zamboanga del Norte — from April, 1986 to August, 1987 as OIC Municipal Treasurer.

(b) Municipality of Roxas, Zamboanga del Norte — from September, 1987 to March, 1988 as OIC Municipal Treasurer.

(c) Office of the Provincial Treasurer of Zamboanga del Norte — from April, 1988 to May, 1988.

(d) Municipality of Piñan, Zamboanga del Norte — from June, 1988 to June, 1990 as OIC Municipal Treasurer.

4. In July, 1990, she was returned to her post as Assistant Municipal Treasurer in the town of Sindangan.

She was not provided with office table and chair nor given any assignment; neither her daily time record and application for leave acted upon by the municipal treasure per instruction of accused Mayor (Exh. "G-2"; "G-3").

5. On July 23, 1990, the Sangguniang Bayan of Sindangan, Zamboanga del Norte, presided by accused Mayor, passed Resolution No. SB-214 (Exh. "3"), vehemently objecting to the assignment of complainant as Assistant Municipal Treasurer of Sindangan.

6. On March 12, 1991, accused Municipal Mayor received a letter (SB Resolution No. 36) from the Sangguniang Bayan of the Municipality of Piñan, demanding from the private complainant return of the amount overpaid to her as salaries (par. 9, p. 2 of Exh. "4" — counter-affidavit of accused Mayor).

7. On May 22, 1991, private complainant filed a Petition for Mandamus with Damages (Exh. "E") against the accused Mayor and the Municipality of Sindangan before Branch II, Regional Trial Court of Sindangan, Zamboanga del Norte docketed as Special Proceedings No. 45, for the alleged unjustified refusal of Mayor Llorente to sign and/or approve her payrolls and/or vouchers representing her salaries and other emoluments as follows: (a) salary for the month of June, 1990 in the amount of P5,452.00 under disbursement voucher dated September 5, 1990 (Exh. "H"). Although complainant rendered services at the municipality of Piñan during this period, she could not collect her salary there considering that as of that month, Piñan had already appointed an Assistant Municipal Treasurer. When she referred the matter to the Provincial Auditor, she was advised to claim her salary for that month with her mother agency, the Municipality of Sindangan, [(]p. 12, TSN of August 9, 1994; 10th paragraph of complainant's Supplemental Affidavit marked Exh. "G"); (b) salary differential for the period from July 1, 1989 to April 30, 1990 in the total amount of P19,480.00 under disbursement voucher dated August, 1990 (Exh. "I"); (c) 13th month pay, cash gift and clothing allowance under Supplemental Budget No. 5, CY 1990 in the total amount of P7,275 per disbursement voucher dated December 4, 1990 (Exh. "J"); (d) vacation leave commutation for the period from October to December 31, 1990 in the total amount of P16,356.00 per disbursement voucher dated December 3, 1990 (Exh. "K"); (e) RATA for the months of July, August and September, 1990, January and February, 1991 in the total amount of P5,900.00 (par. 12 & 16 of Exh. "E"); and (f) salaries for January and February, 1991 in the total amount of P10,904.00 (par. 17 of Exh. "E").

8. Accused Mayor did not file an answer; instead, he negotiated for an amicable settlement of the case (p. 24, TSN of August 10, 1994). Indeed, a Compromise Agreement (Exh. "A") dated August 27, 1991, between the accused and private complainant was submitted to and approved by the court, hereto quoted as follows:

COMPROMISE AGREEMENT

That the parties have agreed, as they hereby agree, to settle this case amicably on the basis of the following terms and conditions, to wit:

(a) That the respondent Mayor Cresente Y. Llorente, Jr. binds himself to sign and/or approve all vouchers and/or payrolls for unpaid salaries,

RATA, Cash-gifts, 13th month pay, clothing allowance, salary differentials and other emoluments which the petitioner is entitled as Assistant Municipal Treasurer of Sindangan, Zamboanga del Norte;

(b) That the parties herein hereby waive, renounce and relinquish their other claims and counter-claims against each other;

(c) That the respondent Mayor Cresente Y. Llorente Jr. binds himself to sign and/or approve all subsequent vouchers and payrolls of the herein petitioner.

9. On August 27, 1991, a Decision (Exh. "B") was rendered by Judge Wilfredo Ochotorena on the basis of the aforesaid compromise agreement.

10. For his failure to comply with the terms of the compromise agreement, private complainant, thru counsel, filed a Motion for Execution on September 12, 1991. A Writ of Execution (Exh. "C") was issued by the Court on September 17, 1991, and served [on] the accused on September 23,1991.

11. As shown in the Sheriff's Return dated November 19, 1991 (Exh. "D"), private complainant was paid her salaries for the period from January, 1991 to August, 1991, while the rest of her salaries including the RATA and other emoluments were not paid considering the alleged need of a supplemental budget to be enacted by the Sangguniang Bayan of Sindangan per verbal allegation of the municipal treasurer.

12. Complainant was not also paid her salaries from July to December 1990; September and October, 1991; RATA for the period from July 1990 to June 1994 (admission of accused, pp. 8-9, TSN of June 27, 1994, a.m.; Exh. "E"; p. 17, TSN of June 27, 1994).

13. Sometime in 1993, accused municipal mayor received from the Municipality of Piñan, Bill No. 93-08 (Exh. "1"), demanding from the Municipality of Sindangan settlement of overpayment to complainant Fuertes in the amount of P50,643.93 per SE Resolution No. 6 sent on July 23, 1990. The bill was settled by the Municipality of Sindangan in December, 1993 per Disbursement Voucher No. 101-9312487 dated December 2, 1993 (Exh. "2").

14. Private complainant was able to receive complete payment of her claims only on January 4, 1993 in the form of checks all dated December 29, 1992 (as appearing on Exhs. "H", "I", "J", "K" of the prosecution, Exhs. "6", "7", "8", of the defense) except her RATA which was given to her only on July 25, 1994, covering the period from July 1990 to December, 1993 amounting to P55,104.00, as evidenced by Disbursement Voucher dated July 25, 1994 (Exh. "5").

Version of the Defense

While admitting some delays in the payment of the complainant's claims, petitioner sought to prove the defense of good faith — that the withholding of payment was due to her failure to submit the required money and property clearance and to the Sangguniang Bayan's delayed enactment of a supplemental budget to cover the claims. He adds that such delays did not result in "undue injury" to complainant. In his memorandum, petitioner restates the facts as follows:8

1. Complainant . . . was appointed assistant municipal treasurer of Sindangan, Zamboanga del Norte on October 18, 1985. However, starting 1986 until July 1990, or for a period of about four (4) and one half (1/2) years, she was detailed in other municipalities and in the Office of the Provincial Treasurer of Zamboanga del Norte. She returned as assistant treasurer of Sindangan in July 1990. (Decision, pp. 5-6).

2. As complainant had been working in municipalities and offices other than in Sindangan for more than four (4) years, her name was removed from the regular payroll of Sindangan, and payment of past salaries and other emoluments had to be done by vouchers. When complainant . . . presented her vouchers to petitioner, the latter required her to submit clearances from the different offices to which she was detailed, as well as a certificate of last payment as required by COA regulations (Tsn, p. 11, Aug. 10, 1994). Instead of submitting the required documents, Mrs. Fuertes said that "what I did, endorsed my voucher to the mayor through the municipal treasurer" (Tsn, p. 13, June 27, 1994). The municipal treasurer could not, however, process the vouchers and certify as to the availability of funds until after the Sangguniang Bayan had passed a supplemental budget for the purpose (Exhs. D and 6-c Motion), which came only in December 1992.

3. Petitioner, in the meanwhile, received on March 12, 1991 SB Resolution No. 36 from the Municipality of Piñan, demanding from Mrs. . . . Fuertes the reimbursement of P105,915.00, and because of this demand, he needed time to verify the matter before acting on Mrs. Fuertes' claims (Exh. 4). Mrs. Fuertes admitted that she had at the time problems of accountability with the Municipality of Pinan. She testified.

Q. Counsel now is asking you, when you went back to Sindangan there was [sic] still problems of the claims either against you or against the Municipality of Sindangan by the municipalities had, [sic] in their minds, overpaid you?

A. Yes, your Honor, that was evidence[d] by the bill of the Municipality of Pinan to the Municipality of Sindangan. (Tsn, p. 18, Aug. 3, 1994).

4. Petitioner also stated that he could not act on complainant's claims because she had not submitted the required money and property accountability clearance from Pinan (Tsn, 11, Aug. 10, 1994) and that at the time the Sangguniang Bayan had not appropriated funds for the purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994). Nonetheless, petitioner included Mrs. Fuertes' name in the regular annual budget beginning 1991 (Exhs. 4-b, 4-d, 4-f), as a result of which she had been since then receiving her regular monthly salary.

5. On May 21, 1991, Mrs. Fuertes filed a complaint . . . Petitioner filed his answer to the complaint, alleging as a defense, that plaintiff did not exhaust administrative remedies. (Annex B, p. 3, Petition; Exh. 1-Motion). On August 27, 1991, the parties entered into a compromise agreement, which the trial court approved (Exh. B). . . .

6. Upon motion of counsel for Mrs. Fuertes, the trial court issued a writ of execution of the compromise judgment. However, the writ of execution was addressed only to petitioner; it was not served on the municipal Sangguniang Bayan. . . .

Thus, Mrs. Fuertes had been receiving her regular salary from January, 1991 because petitioner had included her name in the regular budget beginning 1991, which fact complainant did not dispute. With respect to her other claims for past services in other offices, Municipal Treasurer; Mrs. Narcisa Caber, informed that a supplemental budget for such purpose to be passed by the Sangguniang Bayan was necessary before she could be paid thereof. Being the municipal treasurer, Mrs. Caber knew that without such supplemental budget, payment of Mrs. Fuertes' other claims could not be made because the law requires that "disbursements shall be made in accordance with the ordinance authorizing the annual or supplemental appropriations" (Sec. 346, RA 7160) and that "no money shall be disbursed unless . . . the local treasurer certifies to the availability of funds for the purpose." (Sec. 344, RA 7160).

7. Petitioner had instructed the municipal budget officer to prepare the supplemental budget for payment of complainant's unpaid claims for submission to the Sangguniang [Bayan] for enactment. (Tsn, pp. 32-33, Aug. 10, 1994). The budget officer, Mr. Narciso Siasico stated as follows:

1. I am the budget officer for the Municipality of Sindangan, Zamboanga del Norte, a position I have held since 1981.

x x x           x x x          x x x

3. Immediately after said mandamus case was settled through a compromise agreement, Mayor Llorente instructed me to prepare the necessary budget proposals for the deliberation and approval of the Sangguniang Bayan;

x x x           x x x          x x x

8. Instead of waiting for the Sangguniang Bayan to enact the budget or of securing an alias writ of execution to compel the Sangguniang Bayan to pass the same, Mrs. Fuertes filed a criminal complaint with the Office of the Ombudsman under date of October 28, 1991, admitting receipt of her salaries from January 1991 and saying she had not been paid her other claims in violation of the compromise judgment. (Exh. F). She had thus made the Office of the Ombudsman a collecting agency to compel payment of the judgment obligation.

9. While the budget proposal had been prepared and submitted to the Sangguniang Bayan for action, it took time for the Sangguniang Bayan to pass the supplemental budget and for the Provincial Board to approve the same. It was only on December 27, 1992 that the municipal treasurer and the municipal accountant issued a certification of availability of funds for the purpose. Petitioner approved the vouchers immediately, and in a period of one week, Mrs. Fuertes was paid all claims, as evidenced by the prosecution's Exhs. H, I, J and K, which were the four vouchers of Mrs. Fuertes, . . . .

x x x           x x x          x x x

11. Petitioner testified that he could not immediately sign or approve the vouchers of Mrs. Fuertes for the following reasons:

a) The Sangguniang Bayan had not appropriated the amounts to pay Mrs. Fuertes. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).

b) Municipal Treasurer Caber, to whom Mrs. Fuertes endorsed her vouchers for processing, and the Municipal Accountant issued the certificate of availability of funds only on December 27, 1992 (Tsn, p. 42, Aug. 10, 1994; Exhs. H, I, J and K); and the delay in the issuance of the certificate of availability of funds was due to the delay by the Provincial Board to approve the supplemental budget. (Tsn, p. 43, Aug. 10, 1994).

[c]) He received on March 12, 1991 a demand from the Municipality of Pinan, Zamboanga del Norte, where Mrs. Fuertes last worked, for the reimbursement of P105,915.00, and the matter had to be clarified first. (Exh. 4). Mrs. Fuertes admitted that she had some problem of accountability with the Municipality of Pinan. (Tsn, p. 18, 1994). It took time before this matter could be clarified by the Municipality of Pinan reducing its claim to P50,647.093 and the Municipality of Sindangan paying said claim. (Exh. 2; Decision, p. 9).

[d]) Mrs. Fuertes had not submitted the required clearance from the Municipality of Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not insist on this requirement after the trial court issued the writ of execution to implement the compromise judgment. (Tsn, p. 23, Aug. 10, 1994). Nonetheless, in the post audit of Mrs. Fuertes' accountability, the Commission on Audit issued a notice of suspension of the amount of P5,452.00 from Mrs. Fuertes for her failure to submit: "1. Clearance for money & property accountability from former office. 2. Certification as [sic] last day of service in former office. 3. Certification of last salary received & issued by the disbursing officer in former office, certified by chief accountant and verified by resident auditor." (Exh. 2-Motion).

12. The Information dated October 12, 1992 filed against petitioner alleged that petitioner as mayor did not sign and approve the vouchers of Mrs. Fuertes for payment of her salaries and other emoluments from July 1, 1990 to October 1991, which caused her undue injury. However, the prosecution's Exh. "D", the sheriff's return dated November 19, 1991, stated that Mrs. Fuertes had received her salary from January 1, 1991 "up to the present", which meant that even before the information was filed, she had been paid her regular salaries from January 1, 1991 to October 1991. The supplemental budget to cover payment of her other claims for past services was passed only in December 1992 and the municipal treasurer and accountant issued the certificate of availability of funds only on December 27, 1992, and Mrs. Fuertes got paid of [sic] all her other claims, including those not claimed in the Information, within one week therefrom. (Exhs. H, I, J, and K).

x x x           x x x          x x x

Ruling of the Sandiganbayan

Respondent Court held that the delay or withholding of complainant's salaries and emoluments was unreasonable and caused complainant undue injury. Being then the sole breadwinner in their family, the withholding of her salaries caused her difficulties in meeting her family's financial obligations like paying for the tuition fees of her four children. Petitioner's defense that complainant failed to attach the required money and property clearance to her vouchers was held to be an afterthought that was brought about, in the first place, by his own failure to issue any memorandum requiring its submission. That the voucher form listed the clearance as one

of the requirements for its approval had neither been brought to complainant's attention nor raised by petitioner as defense in his answer. In any event, the payment of complainant's salary from January to November 1991, confirmed by the sheriff's return, showed that the clearance was not an indispensable requirement, because petitioner could have acted upon or approved the disbursement even without it. The alleged lack of a supplemental budget was also rejected, because it was petitioner's duty as municipal mayor to prepare and submit the "executive and supplemental budgets" under Sections 318, 320, and 444 (3)(ii) of the Local Government Code,9 and the complainant's claims as assistant municipal treasurer, a permanent position included in the plantilla for calendar year 1990 and 1991, were classified as "current operating expenditures" for the same calendar years, which were chargeable against the general funds of the town of Sindangan. Except for the representation and transportation allowance, Fuertes' claims for thirteenth month pay, cash gift and clothing allowance were already covered by Supplemental Budget No. 5 for calendar year 1990. Petitioner's contention that funds covering complainant's claims were made available only in December 1992 was unbelievable, considering that an ordinance enacting a supplemental budget takes effect upon its approval or on the date fixed therein under Sec. 320 of the Local Government Code.

The Sandiganbayan also ruled that the petitioner's evident bad faith was the direct and proximate cause of Fuertes' undue injury. Complainant's salaries and allowances were withheld for no valid or justifiable reasons. Such delay was intended to harass complainant, because petitioner wanted to replace her with his political protege whom he eventually designated as municipal treasurer, bypassing Fuertes who was next in seniority. Bad faith was further evidenced by petitioner's instructions to the outgoing municipal treasurer not to give the complaining witness any work assignment, not to provide her with office table and chair, not to act on her daily time record and application for leave of absence, instructions which were confirmed in the municipal treasurer's certification. (Exh. G-2).

The Issues

In his memorandum, petitioner submits the following issues:10

1. Could accused be held liable under Sec. 3(e) of R.A. 3019 "in the discharge of his official administrative duties", a positive act, when what was imputed to him was failing and refusing to sign and/or approve the vouchers of Mr[s]. Fuertes on time or by "inaction on his obligation under the compromise agreement" (ibid., p. 19), a passive act? Did not the act come under Sec. 3(f) of R.A. 3019, of [sic] which accused was not charged with?

2. Assuming, arguendo, that his failure and refusal to immediately sign and approve the vouchers of Mrs. Fuertes comes [sic] under Sec. 3(e), the questions are:

(a) Did not the duty to sign and approve the same arise only after the Sangguniang Bayan had passed an appropriations ordinance, and not before? In other words, was the non-passage of the appropriation ordinance a justifiable reason for not signing the vouchers?

(b) Did Mrs. Fuertes suffer undue injury, as the term is understood in Sec. 3(e), she having been paid all her claims?

(c) Did petitioner not act in good faith in refusing to immediately sign the vouchers and implement the compromise agreement until the

Sangguniang Bayan had enacted the appropriation ordinance and until Mrs. Fuertes submitted the clearance from the Municipality of Pinan, Zamboanga del Norte?

Restated, petitioner claims that the prosecution failed to establish the elements of undue injury and bad faith. Additionally, petitioner submits that a violation of Section 3[e] of RA 3019 cannot be committed through nonfeasance.

The Court's Ruling

The petition is meritorious. After careful review of the evidence on record and thorough deliberation on the applicable provision of the Anti-Graft Law, the Court agrees with the solicitor general's assessment that the prosecution failed to establish the elements of the crime charged.

First Issue: Undue Inquiry

Petitioner was charged with violation of Section 3[e] of R.A. 3019, which states:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x           x x x          x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

To hold a person liable under this section, the concurrence of the following elements must be established beyond reasonable doubt by the prosecution:

(1) that the accused is a public officer or a private person charged in conspiracy with the former;

(2) that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions;

(3) that he or she causes undue injury to any party, whether the government or a private party; and

(4) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.11

The solicitor general, in his manifestation,12 points out that "undue injury" requires proof of actual injury or damage, citing our ruling in Alejandro vs. People13 and Jacinto vs. Sandiganbayan.14 Inasmuch as complainant was actually paid all her claims, there was thus no "undue injury" established.

This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.

In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property[; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.15

In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendant's act. Actual pecuniary compensation is awarded as a general rule, except where the circumstances warrant the allowance of other kinds of damages.16 Actual damages are primarily intended to simply make good or replace the loss caused by the wrong.17

Furthermore, damages must not only be capable of proof, but must be actually proven with a reasonable degree of certainty. They cannot be based on flimsy and non-substantial evidence or upon speculation, conjecture or guesswork.18 They cannot include speculative damages which are too remote to be included in an accurate estimate of the loss or injury.

In this case, the complainant testified that her salary and allowance for the period beginning July 1990 were withheld, and that her family underwent financial difficulty which resulted from the delay in the satisfaction of her claims.19 As regards her money claim, payment of her salaries from January 1991 until November 19, 1991 was evidenced by the Sheriffs Return dated November 19, 1991 (exh. D). She also admitted having been issued a check on January 4, 1994 to cover her salary from June 1 to June 30, 1990; her salary differential from July 1, 1989 to April 30, 1990; her thirteenth-month pay; her cash gift; and her clothing allowances. Respondent Court found that all her monetary claims were satisfied. After she fully received her monetary claims, their is no longer any basis for compensatory damages or undue injury, their being nothing more to compensate.

Complainant's testimony regarding her family's financial stress was inadequate and largely speculative. Without giving specific details, she made only vague references to the fact that her four children were all going to school and that she was the breadwinner in the family. She, however, did not say that she was unable to pay their tuition fees and the specific damage brought by such nonpayment. The fact that the "injury" to her family was unspecified or unquantified does not satisfy the element of undue injury, as akin to actual damages. As in civil cases, actual damages, if not supported by evidence on record, cannot be considered.20

Other than the amount of the withheld salaries and allowances which were eventually received, the prosecution failed to specify and to prove any other loss or damage sustained by the complainant. Respondent Court insists that complainant suffered by reason of the "long period of time" that her emoluments were withheld.

This inconvenience, however, is not constitutive of undue injury. In Jacinto, this Court held that the injury suffered by the complaining witness, whose salary was eventually released and whose position was restored in the plantilla, was negligible; undue injury entails damages that are more than necessary or are excessive, improper or illegal.21 In Alejandro, the Court held that the hospital employees were not caused undue injury, as they were in fact paid their salaries.22

Second Issue: No Evident Bad Faith

In the challenged Decision, Respondent Court found evident bad faith on the part of the petitioner, holding that, without any valid of justifiable reason, accused withheld the payment of complainant's salaries and other benefits for almost two (2) years, demonstrating a clear manifestation of bad faith.23 It then brushed aside the petitioner's defenses that complainant failed to submit money and property clearances for her vouchers, and that an appropriation by the Sangguniang Bayan was required before complainant's vouchers could be approved. It said:24

Secondly, his reliance on the failure of complainant to submit the clearances which were allegedly necessary for the approval of vouchers is futile in the light of the foregoing circumstances:

x x x           x x x          x x x

b. The evidence on record shows that complainant's salaries for the period from January to November 1991 (included as subject matter in the mandamus case) were duly paid, as confirmed in the Sheriff's Return dated November 19, 1991 (Exh. "D"). This means that accused, even without the necessary clearance, could have acted upon or approved complainant's disbursement vouchers if he wanted to.

c. It may be true that a clearance is an indispensable requirement before complainant will be paid of her claims, but accused could not just hide behind the cloak of the clearance requirement in order to exculpate himself from liability. As the approving officer, it was his duty to direct complainant to submit the same. Moreover, accused could not just set aside the obligation he voluntarily imposed upon himself when he entered into a compromise agreement binding himself to sign complainant's vouchers without any qualification as to the clearance requirement. Perforce, he could have seen to it that complainant secured the same in order that he could comply with the said obligation.

x x x           x x x          x x x

Fourthly, accused's contention that the delay in the release of complainant's claim could not be attributed to him because the vouchers were only submitted to him for his signature on December 24-27, 1992; that the approval of the budget appropriations/resolutions depends on the Sangguniang Bayan, Budget Officer and the Sangguniang Panlalawigan, is unavailing.

As revealed in the alleged newly discovered evidence themselves, particularly . . . SB Res. No. 202 and Appropriation Ordinance No. 035, both dated May 21, 1990 (Exh. "5-a"- Motion), the Sangguniang Bayan appropriated a budget of P5M in the General Fund for calendar year 1991 [the Budget Officer does not approve the budget but assists the Municipal Mayor and the Sangguniang Bayan in the preparation of the budget (Sec. 475, Local Government Code of 1991)]. Complainant's claims consisted of her salaries and other benefits for 1990 and 1991 which were classified as Current Operating Expenditures chargeable against the General Fund. It is undisputed that she was holding her position as Assistant Municipal Treasurer in a permanent capacity (her position was also designated Assistant Department Head), which was included in the plantilla for calender years 1990 and 1991 (Exhs. "4-a" & "4-b", Motion). In Program Appropriation and Obligation by Object (Exhs. "4-c" & "4-c", Motion), appropriations were made for current operating expenditures to which complainant's claims properly appertained. . . . Verily, complainant's claims were covered by appropriations duly approved by the officials concerned, signifying that adequate funds were available for the purpose. In fact, even complainant's claims for her 13th month pay, cash gift and clothing allowance, subject matter of Disbursement Voucher marked Exhibit "J" which would need a supplemental budget was covered by "Supplemental Budget No. 5 for CY 1990 duly approved by the authorities concerned" as shown in the voucher itself. This means that the said claim was already obligated (funds were already reserved for it) as of calendar year 1990. . . . It is clear, then, that as regards availability of funds, there was no obstacle for the release of all the complainant's claims.

The Court disagrees. Respondent Court cannot shift the blame on the petitioner, when it was the complainant who failed to submit the required clearance. This requirement, which the complainant disregarded, was even printed at the back of the very vouchers sought to be approved. As assistant municipal treasurer, she ought to know that this is a condition for the payment of her claims. This clearance is required by Article 443 of the Implementing Rules and Regulations of the Local Government Code of 1991:

Art. 443. Property Clearances — When an employee transfers to another government office, retires, resigns, is dismissed, or is separated from the service, he shall be required to secure supplies or property clearance from the supply officer concerned, the provincial or city general services officer concerned, the municipal mayor and the municipal treasurer, or the punong barangay and the barangay treasurer, as the case may be. The local chief executive shall prescribe the property clearance form for this purpose.

For her own failure to submit the required clearance, complainant is not entirely blameless for the delay in the approval of her claims.

Also, given the lack of corresponding appropriation ordinance and certification of availability of funds for such purpose, petitioner had the duty not to sign the vouchers. As chief executive of the municipality, Llorente could not have approved the voucher for the payment of complainant's salaries under Sec. 344, Local Government Code of 1991.25 Also, Appropriation Ordinance No. 02026 adding a supplemental budget for calendar year 1990 was approved on April 10, 1989, or almost a year before complainant was transferred back to Sindangan. Hence, she could not have been included therein. SB Resolution No. 202 and Appropriation Ordinance No. 035,27 which fixed the municipal budget for calendar year 1991, was passed only on May 21, 1990, or almost another year after the transfer took effect. The petitioner's failure to approve the complainant's vouchers was therefore due to some legal obstacles,28 and not entirely without reason. Thus, evident bad faith cannot be completely imputed to him.

Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.29

In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason; he refused to release the complainant's salary because the latter failed to submit her daily time record; he refused to approve her sick-leave application because he found out that she did not suffer any illness; and he removed her name from the plantilla because she was moonlighting during office hours. Such actions were measures taken by a superior against an erring employee who studiously ignored, if not defied, his authority.30

In Alejandro, evident bad faith was ruled out, because the accused gave his approval to the questioned disbursement after relying on the certification of the bookkeeper on the availability of funds for such disbursement.31

Third Issue: Interpretation of Causing

The Court does not completely agree with petitioner's assertion that the imputed act does not fall under Sec. 3[e] which, according to him, requires a positive act — a malfeasance or misfeasance. Causing means "to be the cause or occasion of, the effect as an agent, to bring into existence, to make or to induce, to compel."32 Causing is, therefore, not limited to positive acts only. Even passive acts or inaction may cause undue injury. What is essential is that undue injury, which is quantifiable and demonstrable, results from the questioned official act or inaction.

In this case, the prosecution accused petitioner of failing or refusing to pay complainant's salaries on time, while Respondent Court convicted him of unduly delaying the payment of complainant's claims. As already explained, both acts did not, however, legally result in "undue injury" or in "giving any unwarranted benefits, advantage or preference in the discharge of his official, [or] administrative . . . functions." Thus, these acts are not punishable under Sec. 3[e].

It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]:

(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of undue injury. Thus, its elements are:

1) The offender is a public officer;

2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him;

3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and

4) Such failure to so act is "for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party, or discriminating against another.33

However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his constitutional right to due process.

WHEREFORE, the petition is hereby GRANTED. Petitioner is ACQUITTED of violating Section 3[e] of R.A. 3019, as amended. No costs.

SO ORDERED.

G.R. No. 164435               September 29, 2009

VICTORIA S. JARILLO, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

DEL CASTILLO, J.:

This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that the Decision1of the Court of Appeals (CA), dated July 21, 2003, and its Resolution2 dated July 8, 2004, be reversed and set aside.

On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC) of Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11:

INFORMATION

The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of BIGAMY, committed as follows:

That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Victoria S. Jarillo, being previously united in lawful marriage with Rafael M. Alocillo, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with Emmanuel Ebora Santos Uy which marriage was only discovered on January 12, 1999.

Contrary to law.

On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial proceeded.

The undisputed facts, as accurately summarized by the CA, are as follows.

On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000).

On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church wedding ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out of the marital union, appellant begot a daughter, Rachelle J. Alocillo on October 29, 1975 (Exhs. F, R, R-1).

Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1, before then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).

On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding in Manila (Exh. E).

In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of marriage before the Regional Trial Court of Manila.

Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay City x x x.

x x x x

Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their marriage.

On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of which states:

WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the crime of BIGAMY.

Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum.

This court makes no pronouncement on the civil aspect of this case, such as the nullity of accused’s bigamous marriage to Uy and its effect on their children and their property. This aspect is being determined by the Regional Trial Court of Manila in Civil Case No. 99-93582.

Costs against the accused.

The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2 August 2001.3

For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null and void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a valid marriage license; and (3) the action had prescribed, since Uy knew about her marriage to Alocillo as far back as 1978.

On appeal to the CA, petitioner’s conviction was affirmed in toto. In its Decision dated July 21, 2003, the CA held that petitioner committed bigamy when she contracted marriage with Emmanuel Santos Uy because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioner’s contentions that her marriages were celebrated without a marriage license, and that Uy had notice of her previous marriage as far back as 1978.

In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28, 2003, declaring petitioner’s 1974 and 1975 marriages to Alocillo null and void ab initio on the ground of Alocillo’s psychological incapacity. Said decision became final and executory on July 9, 2003. In her motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of her conviction. However, in its Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals,4 denied reconsideration and ruled that "[t]he subsequent declaration of nullity of her first marriage on the ground of psychological incapacity, while it retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, the said marriage is not without legal consequences, among which is incurring criminal liability for bigamy."5

Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where petitioner alleges that:

V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE.

V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.

V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO.

V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.

V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS UY HAS NO VALID MARRIAGE LICENSE.

V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE AND THE INDETERMINATE SENTENCE LAW.

The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is true that right after the presentation of the prosecution evidence, petitioner moved for suspension of the proceedings on the ground of the pendency of the petition for declaration of nullity of petitioner’s marriages to Alocillo, which, petitioner claimed involved a prejudicial question. In her appeal, she also asserted that the petition for declaration of nullity of her marriage to Uy, initiated by the latter, was a ground for suspension of the proceedings. The RTC denied her motion for suspension, while the CA struck down her arguments. In Marbella-Bobis v. Bobis,6 the Court categorically stated that:

x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. x x x

x x x x

x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner. Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x x x7

The foregoing ruling had been reiterated in Abunado v. People,8 where it was held thus:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.9

For the very same reasons elucidated in the above-quoted cases, petitioner’s conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioner’s two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment petitioner contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, petitioner’s marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of petitioner’s marriage to Uy make any difference.10 As held in Tenebro, "[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision

penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage."11

Petitioner’s defense of prescription is likewise doomed to fail.

Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that "[c]rimes punishable by other afflictive penalties shall prescribe in fifteen years," while Article 91 states that "[t]he period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents x x x ."

Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence, prescription began to run from that time. Note that the party who raises a fact as a matter of defense has the burden of proving it. The defendant or accused is obliged to produce evidence in support of its defense; otherwise, failing to establish the same, it remains self-serving.12 Thus, for petitioner’s defense of prescription to prosper, it was incumbent upon her to adduce evidence that as early as the year 1978, Uy already obtained knowledge of her previous marriage.

A close examination of the records of the case reveals that petitioner utterly failed to present sufficient evidence to support her allegation. Petitioner’s testimony that her own mother told Uy in 1978 that she (petitioner) is already married to Alocillo does not inspire belief, as it is totally unsupported by any corroborating evidence. The trial court correctly observed that:

x x x She did not call to the witness stand her mother – the person who allegedly actually told Uy about her previous marriage to Alocillo. It must be obvious that without the confirmatory testimony of her mother, the attribution of the latter of any act which she allegedly did is hearsay.13

As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their [agents]," as opposed to being counted from the date of registration of the bigamous marriage.15 Since petitioner failed to prove with certainty that the period of prescription began to run as of 1978, her defense is, therefore, ineffectual.1avvphi1

Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the Revised Penal Code. Again, petitioner is mistaken.

The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower than that prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The Indeterminate Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum penalty, as long as it is anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.16

Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under Article 349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The penalty next lower is prision correccional, which ranges from 6 months and 1 day to 6 years. The minimum penalty of six years imposed by the trial court is, therefore, correct as it is still within the duration of prision correccional. There being no mitigating or aggravating circumstances proven in this case, the

prescribed penalty of prision mayor should be imposed in its medium period, which is from 8 years and 1 day to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years.

However, for humanitarian purposes, and considering that petitioner’s marriage to Alocillo has after all been declared by final judgment17 to be void ab initio on account of the latter’s psychological incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum.

IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but AFFIRMED in all other respects. Petitioner is sentenced to suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum.

SO ORDERED.

G.R. No. 164856               January 20, 2009

JUANITO A. GARCIA and ALBERTO J. DUMAGO, Petitioners, vs.PHILIPPINE AIRLINES, INC., Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Juanito A. Garcia and Alberto J. Dumago assail the December 5, 2003 Decision and April 16, 2004 Resolution of the Court of Appeals1 in CA-G.R. SP No. 69540 which granted the petition for certiorari of respondent, Philippine Airlines, Inc. (PAL), and denied petitioners’ Motion for Reconsideration, respectively. The dispositive portion of the assailed Decision reads:

WHEREFORE, premises considered and in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE. The assailed November 26, 2001 Resolution as well as the January 28, 2002 Resolution of public respondent National Labor Relations Commission [NLRC] is hereby ANNULLED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Consequently, the Writ of Execution and the Notice of Garnishment issued by the Labor Arbiter are hereby likewise ANNULLED and SET ASIDE.

SO ORDERED.2

The case stemmed from the administrative charge filed by PAL against its employees-herein petitioners3 after they were allegedly caught in the act of sniffing shabu when a team of company security personnel and law enforcers raided the PAL Technical Center’s Toolroom Section on July 24, 1995.

After due notice, PAL dismissed petitioners on October 9, 1995 for transgressing the PAL Code of Discipline,4prompting them to file a complaint for illegal dismissal and damages which was, by Decision of January 11, 1999,5 resolved by the Labor Arbiter in their favor, thus ordering PAL to, inter alia, immediately comply with the reinstatement aspect of the decision.

Prior to the promulgation of the Labor Arbiter’s decision, the Securities and Exchange Commission (SEC) placed PAL (hereafter referred to as respondent), which was suffering from severe financial losses, under an Interim Rehabilitation Receiver, who was subsequently replaced by a Permanent Rehabilitation Receiver on June 7, 1999.

From the Labor Arbiter’s decision, respondent appealed to the NLRC which, by Resolution of January 31, 2000, reversed said decision and dismissed petitioners’ complaint for lack of merit.6

Petitioners’ Motion for Reconsideration was denied by Resolution of April 28, 2000 and Entry of Judgment was issued on July 13, 2000.7

Subsequently or on October 5, 2000, the Labor Arbiter issued a Writ of Execution (Writ) respecting thereinstatement aspect of his January 11, 1999 Decision, and on October 25, 2000, he issued a Notice of Garnishment (Notice). Respondent thereupon moved to quash the Writ and to lift the Notice while petitioners moved to release the garnished amount.

In a related move, respondent filed an Urgent Petition for Injunction with the NLRC which, by Resolutions of November 26, 2001 and January 28, 2002, affirmed the validity of the Writ and the Notice issued by the Labor Arbiter but suspended and referred the action to the Rehabilitation Receiver for appropriate action.

Respondent elevated the matter to the appellate court which issued the herein challenged Decision and Resolution nullifying the NLRC Resolutions on two grounds, essentially espousing that: (1) a subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect of a labor arbiter’s decision (the first ground), and (2) the impossibility to comply with the reinstatement order due to corporate rehabilitation provides a reasonable justification for the failure to exercise the options under Article 223 of the Labor Code (the second ground).

By Decision of August 29, 2007, this Court PARTIALLY GRANTED the present petition and effectively reinstated the NLRC Resolutions insofar as it suspended the proceedings, viz:

Since petitioners’ claim against PAL is a money claim for their wages during the pendency of PAL’s appeal to the NLRC, the same should have been suspended pending the rehabilitation proceedings. The Labor Arbiter, the NLRC, as well as the Court of Appeals should have abstained from resolving petitioners’ case for illegal dismissal and should instead have directed them to lodge their claim before PAL’s receiver.

However, to still require petitioners at this time to re-file their labor claim against PAL under peculiar circumstances of the case– that their dismissal was eventually held valid with only the matter of reinstatement pending appeal being the issue– this Court deems it legally expedient to suspend the proceedings in this case.

WHEREFORE, the instant petition is PARTIALLY GRANTED in that the instant proceedings herein are SUSPENDED until further notice from this Court. Accordingly, respondent Philippine Airlines, Inc. is hereby DIRECTED to quarterly update the Court as to the status of its ongoing rehabilitation. No costs.

SO ORDERED.8 (Italics in the original; underscoring supplied)

By Manifestation and Compliance of October 30, 2007, respondent informed the Court that the SEC, by Order of September 28, 2007, granted its request to exit from rehabilitation proceedings.9

In view of the termination of the rehabilitation proceedings, the Court now proceeds to resolve the  remaining issuefor consideration , which is whether petitioners may collect their wages during the period between the Labor Arbiter’s order of reinstatement pending appeal and the NLRC decision overturning that of the Labor Arbiter, now that respondent has exited from rehabilitation proceedings.

Amplification of the First Ground

The appellate court counted on as its first ground the view that a subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect of a labor arbiter’s decision.

On this score, the Court’s attention is drawn to seemingly divergent decisions concerning reinstatement pending appeal or, particularly, the option of payroll reinstatement. On the one hand is the jurisprudential trend as expounded in a line of cases including Air Philippines Corp. v. Zamora,10 while on the other is the recent case ofGenuino v. National Labor Relations Commission.11 At the core of the seeming divergence is the application of paragraph 3 of Article 223 of the Labor Code which reads:

In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The

posting of a bond by the employer shall not stay the execution for reinstatement provided herein. (Emphasis and underscoring supplied)

The view as maintained in a number of cases is that:

x x x [E]ven if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. On the other hand, if the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality,  the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period.12 (Emphasis in the original; italics and underscoring supplied)

In other words, a dismissed employee whose case was favorably decided by the Labor Arbiter is entitled to receive wages pending appeal upon reinstatement, which is immediately executory. Unless there is a restraining order, it is ministerial upon the Labor Arbiter to implement the order of reinstatement and it is mandatory on the employer to comply therewith.13

The opposite view is articulated in Genuino which states:

If the decision of the labor arbiter is later reversed on appeal upon the finding that the ground for dismissal is valid, then   the employer has the right to require the dismissed employee on payroll reinstatement to refund the salaries s/he received   while the case was pending appeal, or it can be deducted from the accrued benefits that the dismissed employee was entitled to receive from his/her employer under existing laws, collective bargaining agreement provisions, and company practices. However, if the employee was reinstated to work during the pendency of the appeal, then the employee is entitled to the compensation received for actual services rendered without need of refund.

Considering that Genuino was not reinstated to work or placed on payroll reinstatement, and her dismissal is based on a just cause, then she is not entitled to be paid the salaries stated in item no. 3 of the fallo of the September 3, 1994 NLRC Decision.14 (Emphasis, italics and underscoring supplied)

It has thus been advanced that there is no point in releasing the wages to petitioners since their dismissal was found to be valid, and to do so would constitute unjust enrichment.

Prior to Genuino, there had been no known similar case containing a dispositive portion where the employee was required to refund the salaries received on payroll reinstatement. In fact, in a catena of cases,15 the Court did not order the refund of salaries garnished or received by payroll-reinstated employees despite a subsequent reversal of the reinstatement order.

The dearth of authority supporting Genuino is not difficult to fathom for it would otherwise render inutile the rationale of reinstatement pending appeal.

x x x [T]he law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man.

x x x x

These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic

force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability.

x x x x

x x x In short, with respect to decisions reinstating employees, the law itself has determined a sufficiently overwhelming reason for its execution pending appeal.

x x x x

x x x Then, by and pursuant to the same power (police power), the State may authorize an immediate implementation, pending appeal, of a decision reinstating a dismissed or separated employee since that saving act is designed to stop, although temporarily since the appeal may be decided in favor of the appellant, a continuing threat or danger to the survival or even the life of the dismissed or separated employee and his family.16

The social justice principles of labor law outweigh or render inapplicable the civil law doctrine of unjust enrichment espoused by Justice Presbitero Velasco, Jr. in his Separate Opinion. The constitutional and statutory precepts portray the otherwise "unjust" situation as a condition affording full protection to labor.

Even outside the theoretical trappings of the discussion and into the mundane realities of human experience, the "refund doctrine" easily demonstrates how a favorable decision by the Labor Arbiter could harm, more than help, a dismissed employee. The employee, to make both ends meet, would necessarily have to use up the salaries received during the pendency of the appeal, only to end up having to refund the sum in case of a final unfavorable decision. It is mirage of a stop-gap leading the employee to a risky cliff of insolvency.

Advisably, the sum is better left unspent. It becomes more logical and practical for the employee to refuse payroll reinstatement and simply find work elsewhere in the interim, if any is available. Notably, the option of payroll reinstatement belongs to the employer, even if the employee is able and raring to return to work. Prior toGenuino, it is unthinkable for one to refuse payroll reinstatement. In the face of the grim possibilities, the rise of concerned employees declining payroll reinstatement is on the horizon.

Further, the Genuino ruling not only disregards the social justice principles behind the rule, but also institutes a scheme unduly favorable to management. Under such scheme, the salaries dispensed pendente lite merely serve as a bond posted in installment by the employer. For in the event of a reversal of the Labor Arbiter’s decision ordering reinstatement, the employer gets back the same amount without having to spend ordinarily for bond premiums. This circumvents, if not directly contradicts, the proscription that the "posting of a bond [even a cash bond] by the employer shall not stay the execution for reinstatement."17

In playing down the stray posture in Genuino requiring the dismissed employee on payroll reinstatement to refund the salaries in case a final decision upholds the validity of the dismissal, the Court realigns the proper course of the prevailing doctrine on reinstatement pending appeal vis-à-vis the effect of a reversal on appeal.

Respondent insists that with the reversal of the Labor Arbiter’s Decision, there is no more basis to enforce the reinstatement aspect of the said decision. In his Separate Opinion, Justice Presbitero Velasco, Jr. supports this argument and finds the prevailing doctrine in Air Philippines and allied

cases inapplicable because, unlike the present case, the writ of execution therein was secured prior to   the reversal of the Labor Arbiter’s decision.

The proposition is tenuous. First, the matter is treated as a mere race against time. The discussion stopped there without considering the cause of the delay. Second, it requires the issuance of a writ of execution despite the immediately executory nature of the reinstatement aspect of the decision. In Pioneer Texturing Corp. v. NLRC,18which was cited in Panuncillo v. CAP Philippines, Inc.,19 the Court observed:

x x x The provision of Article 223 is clear that an award [by the Labor Arbiter] for reinstatement shall be immediately executory even pending appeal and the posting of a bond by the employer shall not stay the execution for reinstatement. The legislative intent is quite obvious, i.e., to make an award of reinstatement immediately enforceable, even pending appeal. To require the application for and issuance of a writ of execution as prerequisites for the execution of a reinstatement award would certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate execution of a reinstatement order. The reason is simple. An application for a writ of execution and its issuance could be delayed for numerous reasons. A mere continuance or postponement of a scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose envisioned by Article 223. In other words, if the requirements of Article 224 [including the issuance of a writ of execution] were to govern,   as we so declared in Maranaw,  then the executory nature of a reinstatement order or award contemplated by Article 223 will be unduly circumscribed and rendered ineffectual. In enacting the law, the legislature is presumed to have ordained a valid and sensible law, one which operates no further than may be necessary to achieve its specific purpose. Statutes, as a rule, are to be construed in the light of the purpose to be achieved and the evil sought to be remedied. x x x In introducing a new rule on the reinstatement aspect of a labor decision under Republic Act No. 6715, Congress should not be considered to be indulging in mere semantic exercise. x x x20 (Italics in the original; emphasis and underscoring supplied)

The Court reaffirms the prevailing principle that even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court.21 It settles the view that the Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee’s salaries.22

Amplification of the Second Ground

The remaining issue, nonetheless, is resolved in the negative on the strength of the second ground relied upon by the appellate court in the assailed issuances. The Court sustains the appellate court’s finding that the peculiar predicament of a corporate rehabilitation rendered it impossible for respondent to exercise its option under the circumstances.

The spirit of the rule on reinstatement pending appeal animates the proceedings once the Labor Arbiter issues the decision containing an order of reinstatement. The immediacy of its execution needs no further elaboration.Reinstatement pending appeal necessitates its immediate execution during the pendency of the appeal, if the law is to serve its noble purpose. At the same time, any attempt on the part of the employer to evade or delay its execution, as observed in Panuncillo and as what actually transpired in Kimberly,23 Composite,24 Air Philippines,25 and Roquero,26 should not be countenanced.

After the labor arbiter’s decision is reversed by a higher tribunal, the employee may be barred from collecting the accrued wages, if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of the employer.

The test is two-fold: (1) there must be actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and (2) the delay must not be due to the employer’s unjustified act or omission. If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor Arbiter’s decision.

In Genuino, there was no showing that the employer refused to reinstate the employee, who was the Treasury Sales Division Head, during the short span of four months or from the promulgation on May 2, 1994 of the Labor Arbiter’s Decision up to the promulgation on September 3, 1994 of the NLRC Decision. Notably, the former NLRC Rules of Procedure did not lay down a mechanism to promptly effectuate the self-executory order of reinstatement, making it difficult to establish that the employer actually refused to comply.

In a situation like that in International Container Terminal Services, Inc. v. NLRC27 where it was alleged that the employer was willing to comply with the order and that the employee opted not to pursue the execution of the order, the Court upheld the self-executory nature of the reinstatement order and ruled that the salary automatically accrued from notice of the Labor Arbiter's order of reinstatement until its ultimate reversal by the NLRC. It was later discovered that the employee indeed moved for the issuance of a writ but was not acted upon by the Labor Arbiter. In that scenario where the delay was caused by the Labor Arbiter, it was ruled that the inaction of the Labor Arbiter who failed to act upon the employee’s motion for the issuance of a writ of execution may no longer adversely affect the cause of the dismissed employee in view of the self-executory nature of the order of reinstatement.28

The new NLRC Rules of Procedure, which took effect on January 7, 2006, now require the employer to submit areport of compliance within 10 calendar days from receipt of the Labor Arbiter’s decision,29 disobedience to which clearly denotes a refusal to reinstate. The employee need not file a motion for the issuance of the writ of execution since the Labor Arbiter shall thereafter motu proprio issue the writ. With the new rules in place, there is hardly any difficulty in determining the employer’s intransigence in immediately complying with the order.

In the case at bar, petitioners exerted efforts30 to execute the Labor Arbiter’s order of reinstatement until they were able to secure a writ of execution, albeit issued on October 5, 2000 after the reversal by the NLRC of the Labor Arbiter’s decision. Technically, there was still actual delay which brings to the question of whether the delay was due to respondent’s unjustified act or omission.

It is apparent that there was inaction on the part of respondent to reinstate them, but whether such omission was justified depends on the onset of the exigency of corporate rehabilitation.

It is settled that upon appointment by the SEC of a rehabilitation receiver, all actions for claims before any court, tribunal or board against the corporation shall ipso jure be suspended.31 As stated early on, during the pendency of petitioners’ complaint before the Labor Arbiter, the SEC placed respondent under an Interim Rehabilitation Receiver. After the Labor Arbiter rendered his decision, the SEC replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver.

Case law recognizes that unless there is a restraining order, the implementation of the order of reinstatement is ministerial and mandatory.32 This injunction or suspension of claims by legislative fiat33 partakes of the nature of a restraining order that constitutes a legal justification for respondent’s non-compliance with the reinstatement order. Respondent’s failure to exercise the alternative options

of actual reinstatement and payroll reinstatement was thus justified. Such being the case, respondent’s obligation to pay the salaries pending appeal, as the normal effect of the non-exercise of the options, did not attach.

While reinstatement pending appeal aims to avert the continuing threat or danger to the survival or even the life of the dismissed employee and his family, it does not contemplate the period when the employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to survive.

The parallelism between a judicial order of corporation rehabilitation as a justification for the non-exercise of its options, on the one hand, and a claim of actual and imminent substantial losses as ground for retrenchment, on the other hand, stops at the red line on the financial statements. Beyond the analogous condition of financial gloom, as discussed by Justice Leonardo Quisumbing in his Separate Opinion, are more salient distinctions. Unlike the ground of substantial losses contemplated in a retrenchment case, the state of corporate rehabilitation was judicially pre-determined by a competent court and not formulated for the first time in this case by respondent.

More importantly, there are legal effects arising from a judicial order placing a corporation under rehabilitation. Respondent was, during the period material to the case, effectively deprived of the alternative choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction but also in view of the interim relinquishment of management control to give way to the full exercise of the powers of the rehabilitation receiver. Had there been no need to rehabilitate, respondent may have opted for actual physical reinstatement pending appeal to optimize the utilization of resources. Then again, though the management may think this wise, the rehabilitation receiver may decide otherwise, not to mention the subsistence of the injunction on claims.

In sum, the obligation to pay the employee’s salaries upon the employer’s failure to exercise the alternative options under Article 223 of the Labor Code is not a hard and fast rule, considering the inherent constraints of corporate rehabilitation.

WHEREFORE, the petition is PARTIALLY DENIED. Insofar as the Court of Appeals Decision of December 5, 2003 and Resolution of April 16, 2004 annulling the NLRC Resolutions affirming the validity of the Writ of Execution and the Notice of Garnishment are concerned, the Court finds no reversible error.

SO ORDERED.

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners, vs.MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

 

YAP, J.:

This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the military personnel directly involved and/or their superiors as well.

This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants.

Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs

Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel.

Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit."

A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983, issued an order, as follows:

It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs.

Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only some of the lawyers.

In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved:

(1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of merit;

(2) For lack of cause of action as against the following defendants, to wit:

1. Gen Fabian Ver

2. Col. Fidel Singson

3. Col. Rolando Abadilla

4. Lt. Col. Conrado Lantoria, Jr.

5. Col. Galileo Montanar

6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango

9. Lt. Romeo Ricardo

10. Lt. Raul Bacalso

the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to defendants, to wit:

1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba

the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and modified.

Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.

We find the petition meritorious and decide to give it due course.

At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:

ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process

(7) of law;

(8) The right to a just compensation when private property is taken for public use;

(9) The right to the equal protection of the laws;

(10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(11) The liberty of abode and of changing the same;

(12) The privacy of cmmunication and correspondence;

(13) The right to become a member of associations or societies for purposes not contrary to law;

(14) The right to take part in a peaceable assembly to petition the Government for redress of grievances;

(15) The right to be free from involuntary servitude in any form;

(16) The rigth of the accused against excessive bail;

(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in behalf;

(18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(20) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield — borrowing the words of Chief Justice Claudio Teehankee — to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2

Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that —

Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9).

On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of the privilege of the writ of habeas corpus in

view of the remaining dangers to the security of the nation. The proclamation also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and subversion shall continue to be in force and effect."

Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that, therefore, respondents Ver and the named members of the task force should be held liable for damages.

But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819).

xxx xxx xxx

The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion involving petitioners enjoy such immunity from Suit. 3

We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4

No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority.

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.

Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned.

We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action."

We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.

Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text:

However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.

Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment.

However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore has become moot and academic.

This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated?

Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates.

Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors.

In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law and jurisprudence.

Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and liberties enumerated therein, among others —

1. Freedom from arbitrary arrest or illegal detention;

2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures;

4. The privacy of communication and correspondence;

5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness.

The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their constitutional rights.

Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violation.

The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8

Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code.

This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss?

It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel

for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa.

But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.

In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against private respondents.

SO ORDERED.

G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner, vs.HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner, vs.HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

 

FRANCISCO, J.:

Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December 20. 1991 3 denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt Of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused — he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of

the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

Office of the President of the Philippines

Malacanang

January 8, 1986

MEMO TO: The General ManagerManila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS. 4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 135,758,961.52

3. Supplemental Contract No. 14Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 151,699,862.69

5. Supplemental Contract No. 16Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:

— Approved by Price Escalation Committee(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants andcurrently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PECand currently under evaluation 66.5 million——————Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN

Minister 5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA — the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

MalacanangManila

January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10 — P 25,000,000.00Jan. 16 — 25,000,000.00 Jan. 30 — 5,000,000.00

(Sgd.) Fe Roa-Gimenez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he

(Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:

xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation. 7

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

xxx xxx xxx

Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea — a crime is not committed if the mind of the person performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa:

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior — the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose." 16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would only be for a sum of up to P34.5 million. 17

xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million. 18

Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475.392.35

xxx xxx xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir.

xxx xxx xxx 20

ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you that these are due and demandable?

A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as follows:

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:

There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in Good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable.

Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of Settlement and Balances — apparently made to underscore Tabuena's personal accountability, as agency head, for MIAA funds — would all the more support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own use' of another's property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)

— At p. 207, Words and Phrases,Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At page 168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right.

— People vs. Webber, 57 O.G.p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use.

— People vs. Luntao, 50 O.G.p. 1182, 1183 28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to

have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable. 29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently

lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was independent and fearless. We know it was not: even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights of the accused." 35 While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-examination questions asked by the counsels) After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities?

A I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount?

A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables And, in fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor.

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do not have any proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation billings?

A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company?

WITNESS

A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or check, if there were payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985?

A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS

A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA?

WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of settlement, your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?

A Yes, your Honor.

*Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . . 41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date placed by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?

A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see who typed this receipt?

A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated January 30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed?

A Yes, sir.

*AJ HERMOSISIMA

*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me.

So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second deliveries?

A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55 million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked?

A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed, your Honor.

*Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation?

A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the President?

A Yes, your Honor.

*Q And was that the last time also that you received such a memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacañang?

WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor.

*Q Why did you agree to pay to Malacañang when your obligation was with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacañang was not the creditor?

A I saw nothing wrong with that because that is coming, from the President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment ,with the government?

A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board, your Honor.

*Q But you were not the executive or operating officer of the Games and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time?

A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our Resident COA representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply?

A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What will I do here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly?

WITNESS

A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car?

A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. . . . 42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Manager's check in the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager's checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request for the issuance of Manager's check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was marked as exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor?

A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes.

Q Did you actually participate in the counting of the money by bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers?

A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application for Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities ?

A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check?

A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

A Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President

Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it"., if in your opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a particular transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such amount was being disposed of?

A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. . . . 43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross- examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

xxx xxx xxx

*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

xxx xxx xxx

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

xxx xxx xxx

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same

level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*Q In fact, for purposes of internal control, you have different in officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

*Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction ?

*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of

petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution. 48

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. . . 50

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel. 51

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in, the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts. 55

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process. 56

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.

Adm. Case No. 2474             September 15, 2004

EDUARDO M. COJUANGCO, JR., complainant, vs.ATTY. LEO J. PALMA, respondent.

D E C I S I O N

PER CURIAM:

"The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character.

These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal."1

Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo J. Palma, alleging as grounds "deceit, malpractice, gross misconduct in office, violation of his oath as a lawyer and grossly immoral conduct."

The facts are undisputed:

Complainant and respondent met sometime in the 70’s. Complainant was a client of Angara Concepcion Regala & Cruz Law Offices (ACCRA) and respondent was the lawyer assigned to handle his cases. Owing to his growing business concerns, complainant decided to hire respondent as his personal counsel.

Consequently, respondent’s relationship with complainant’s family became intimate. He traveled and dined with them abroad.2 He frequented their house and even tutored complainant’s 22-year old daughter Maria Luisa Cojuangco (Lisa), then a student of Assumptionlavvphil.net

Convent.

On June 22, 1982, without the knowledge of complainant’s family, respondent married Lisa in Hongkong. It was only the next

day that respondent informed complainant and assured him that "everything is legal." Complainant was shocked, knowing fully well that respondent is a married man and has three children. Upon investigation, complainant found that respondent courted Lisa during their tutoring sessions. Immediately, complainant sent his two sons to Hongkong to convince Lisa to go home to Manila and discuss the matter with the family. Lisa was persuaded.

Complainant also came to know that: (a) on the date of the supposed marriage, respondent requested from his (complainant’s) office an airplane ticket to and from Australia, with stop-over in Hong Kong; (b) respondent misrepresented himself as "bachelor" before the Hong Kong authorities to facilitate his marriage with Lisa; and (c) respondent was married to Elizabeth Hermosisima and has three children, namely: Eugene Philippe, Elias Anton and Eduardo Lorenzo.

On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a petition3 for declaration of nullity of the marriage between respondent and Lisa, docketed as Civil Case No. Pq-0401-P. In the Decision4 dated November 2, 1982, the CFI declared the marriage null and void ab initio.

Thereafter, complainant filed with this Court the instant complaint5 for disbarment, imputing to respondent the following acts:

"a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his family and taking undue advantage of his tutoring sessions with Maria Luisa, respondent secretly courted her. The great disparity in intelligence, education, age, experience and maturity between Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as to overcome her scruples and apprehensions about respondent’s courtship and advances, considering that he is a married man with three (3) children;

b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her travels abroad under false pretenses that he was traveling on official business for complainant. To

break down the final resistance of Maria Luisa and assuage her pangs of guilt, he made representations that there was no legal impediment whatsoever to his marrying;

c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage, respondent succeeded in inducing and beguiling her into marrying him. Without complying with the requirements of Philippine law that he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the "advice" of Maria Luisa’s parents should first be obtained she being only twenty-two (22) years of age, respondent succeeded in contracting marriage with her in Hongkong on June 22, 1982 by falsely representing himself before the Hongkong authorities that he is a ‘bachelor.’ x x x."

Respondent filed a motion to dismiss6 on the ground of lack of cause of action. He contended that the complaint fails to allege acts constituting deceit, malpractice, gross misconduct or violation of his lawyer’s oath. There is no allegation that he acted with "wanton recklessness, lack of skill or ignorance of the law" in serving complainant’s interest. Anent the charge of grossly immoral conduct, he stressed that he married complainant’s daughter with "utmost sincerity and good faith" and that "it is contrary to the natural course of things for an immoral man to marry the woman he sincerely loves."

In the Resolution7 dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and recommendation. Former Assistant Solicitor General Oswaldo D. Agcaoili conducted the investigation.

Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 645388 a Resolution9 (a) setting aside the CFI Decision dated November 2, 1982 in Civil Case No. Pq–0401-P declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the outcome of this case.

On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedings10 on the ground that the final outcome of Civil Case No. Pq–0401-P poses a prejudicial question to the disbarment proceeding. It was denied.

Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining Order.11 In the Resolution dated December 19, 1984, we enjoined the OSG from continuing the investigation of the disbarment proceedings.12

Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar Discipline. On October 19, 1998, Commissioner Julio C. Elamparo issued the following order:

"Considering the length of time that this case has remained pending and as a practical measure to ease the backlog of this Commission, the parties shall within ten (10) days from notice, manifest whether or not they are still interested in prosecuting this case or supervening events have transpired which render this case moot and academic or otherwise, this case shall be deemed closed and terminated."13

In his Manifestation,14 complainant manifested and confirmed his continuing interest in prosecuting his complaint for disbarment against respondent.

On the other hand, respondent sought several postponements of hearing on the ground that he needed more time to locate vital documents in support of his defense. The scheduled hearing of December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he fail to appear or present deposition, the case will be deemed submitted for resolution.15 Respondent

again failed to appear on January 24, 2002; hence, the case was considered submitted for resolution.16

On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and Recommendation finding respondent guilty of grossly immoral conduct and violation of his oath as a lawyer. She recommended that respondent be suspended from the practice of law for a period of three (3) years. Thus:

"The main issue to be resolved in this case is whether or not respondent committed the following acts which warrant his disbarment:

a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant;

b) His misrepresentation that there was no legal impediment or prohibition to his contracting a second marriage;

c) The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral conduct and violation of his oath as a lawyer.

Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor, however, he claimed that the marriage certificate stated a condition no different from term "spinster" with respect to Luisa.

There is no question that respondent as a lawyer well versed in the law knew fully well that in marrying Maria Luisa he was entering into a bigamous marriage defined and penalized under Article 349 of the Revised Penal Code. The respondent betrayed the trust reposed in him by complainant. He was treated as part of the family and was allowed to tutor Maria Luisa.

For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and violation of his oath as a lawyer, and it is recommended that respondent be suspended from the practice of law for a period of three (3) years.

SO ORDERED."

The IBP Board of Governors adopted and approved the above Report and Recommendation, but it reduced respondent’s penalty to only one (1) year suspension.

Except for the penalty, we affirm the IBP’s Report and Recommendation.

At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards among its members. There is no distinction as to whether the transgression is committed in the lawyer’s professional capacity or in his private life. This is because a lawyer may not divide his personality so as to be an attorney at one time and a mere citizen at another.17 Thus, not only his professional activities but even his private life, insofar as the latter may reflect unfavorably upon the good name and prestige of the profession and the courts, may at any time be the subject of inquiry on the part of the proper authorities.18

Respondent claims that he had served complainant to the best of his ability. In fact, the complaint does not allege that he acted with "wanton recklessness, lack of skill and ignorance of the law."

While, complainant himself admitted that respondent was a good lawyer,19 however, professional competency alone does not make a lawyer a worthy member of the Bar. Good moral character is always an indispensable requirement.

The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with Elizabeth Hermosisima. The Certification20 from the Local Civil Registrar of Cebu City shows that he married Elizabeth on December 19, 1971 at Cardial’s Private Chapel, Cebu City. On the other hand, the Certificate of Marriage21 from the Deputy Registrar of Marriages, Hong Kong, proves respondent’s subsequent marriage with Lisa on July 9, 1982. That Elizabeth was alive at the time of respondent’s second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeth’s classmate and family friend.22

Undoubtedly, respondent’s act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of Court. He exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. In particular, he made a mockery of marriage which is a sacred institution demanding respect and dignity. His act of contracting a second marriage is contrary to honesty, justice, decency and morality.23

This is not the first occasion that we censure immorality. Thus, we have somehow come up with a common definition of what constitutes immoral conduct, i.e., "that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community."24 Measured against this definition, respondent’s act is manifestly immoral. First, he abandoned his lawful wife and three children. Second, he lured an innocent young woman into marrying him. And third, he misrepresented himself as a "bachelor" so he could contract marriage in a foreign land.

Our rulings in the following cases are relevant:

1) In Macarrubo vs. Macarrubo,25 respondent entered into multiple marriages and then resorted to legal remedies to sever them. There, we ruled that "[S]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole." As such, "there can be no other fate that awaits respondent than to be disbarred."

(2) In Tucay vs. Tucay,26 respondent contracted marriage with another married woman and left complainant with whom he has been married for thirty years. We ruled that such acts constitute "a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession," warranting respondent’s disbarment.

(3) In Villasanta vs. Peralta,27 respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We held that "the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality." Thus, lacking the good moral character required by the Rules of Court, respondent was disqualified from being admitted to the bar.

(4) In Cabrera vs. Agustin,28 respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and integrity, which at all times is expected of members of the bar. He is, therefore, disbarred from the practice of law.

(5) In Toledo vs. Toledo,29 respondent abandoned his wife, who supported him and spent for his law education, and thereafter cohabited with another woman. We ruled that he "failed to maintain the

highest degree of morality expected and required of a member of the bar." For this, respondent was disbarred.

(6) In Obusan vs. Obusan, Jr.,30 respondent abandoned his lawful wife and child and resumed cohabitation with his former paramour. Here, we ruled that "abandoning one’s wife and resuming carnal relations with a former paramour, a married woman," constitute grossly immoral conduct warranting disbarment.

The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was respondent’s closeness to the complainant’s family as well as the latter’s complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be complainant’s legal affairs only, he sneaked at the latter’s back and courted his daughter. Like the proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of complainant’s resources by securing a plane ticket from complainant’s office in order to marry the latter’s daughter in Hongkong. He did this without complainant’s knowledge. Afterwards, he even had the temerity to assure complainant that "everything is legal." Clearly, respondent had crossed the limits of propriety and decency.

Respondent justified his conduct by professing he really loved Lisa and since he married her, he cannot be charged with immorality. His reasoning shows a distorted mind and a brazen regard on the sanctity of marriage. In such relationship, the man and the woman are obliged to live together, observe mutual respect and fidelity.31 How could respondent perform these obligations to Lisa when he was previously married to Elizabeth? If he really loved her, then the noblest thing he could have done was to walk away.

Respondent’s culpability is aggravated by the fact that Lisa was just a 22-year old college student of Assumption Convent and was under psychological treatment for emotional immaturity.32 Naturally, she was an easy prey.

Anent respondent’s argument that since the validity of his marriage to Lisa has not yet been determined by the court with finality, the same poses a prejudicial question to the present disbarment proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to the instant disbarment proceeding. As we held in In re Almacen,33 a disbarment case is sui generis for it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an administrative case against him,34 or if an affidavit of withdrawal of a disbarment case does not affect its course,35 then the judgment of annulment of respondent’s marriage does not also exonerate him from a wrongdoing actually committed. So long as the quantum of proof --- clear preponderance of evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches.36

The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they "shall not engage in unlawful, dishonest, immoral or deceitful conduct." This is founded on the lawyers’ primordial duty to society as spelled out in Canon 1 which states:

"CANON 1 – A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes."

It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:37

"Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic."

Corollarily, the above responsibility is enshrined in the Attorney’s Oath which every lawyer in the country has to take before he is allowed to practice.

In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The penalty of one (1) year suspension recommended by the IBP is not commensurate to the gravity of his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of disbarment.

WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation of his oath as a lawyer, and is hereby DISBARRED from the practice of law.

Let respondent’s name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant, the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision.

SO ORDERED.

G.R. No. 171435               July 30, 2008

ANTHONY T. REYES, Petitioner, vs.PEARLBANK SECURITIES, INC., Respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Anthony T. Reyes prays for the reversal of the 26 October 2005 Decision1 and 7 February 2006 Resolution2 of the Court of Appeals in "Anthony T. Reyes v. Secretary of the Department of Justice and Pearlbank Securities, Inc.," docketed as CA-G.R. SP No. 90006, ruling that the Secretary of the

Department of Justice (DOJ) did not commit grave abuse of discretion in finding probable cause to charge petitioner Reyes with the crime of falsification of commercial and private documents.

Pearlbank Securities, Inc. (PEARLBANK) is a domestic corporation engaged in the securities business.

Westmont Investment Corporation (WINCORP) is a domestic corporation operating as an investment house. Among the services rendered by WINCORP to its clients in the ordinary course of its business as an investment house is the arranging and brokering of loans. Petitioner Anthony T. Reyes was formerly the Vice President for Operations and Administration of WINCORP.3

PEARLBANK alleged that in March 2000, it received various letters from persons who invested in WINCORP demanding payment of their matured investments, which WINCORP failed to pay, threatening legal action. According to these investors, WINCORP informed them that PEARLBANK was the borrower of their investments. WINCORP alleged that it was unable to repay its investors because of the failure of its fund borrowers, one of which was PEARLBANK, to pay the loans extended to them by WINCORP. As proof of their claims, the investors presented Confirmation Advices,4 Special Powers of Attorney and Certifications signed and issued to them by WINCORP.

The period covered by these Confirmation Advices was from 25 January 2000 to 3 April 2000, with said Confirmation Advices bearing the words "Borrower: PEARLBANK Securities, Inc."

PEARLBANK denied having any outstanding loan obligation with WINCORP or its investors.

In reaction to the accusations against it, PEARLBANK immediately wrote Antonio T. Ong, WINCORP President, demanding an explanation as to how and why PEARLBANK was made to appear to be involved in its transactions. According to PEARLBANK, it did not get any reply from WINCORP.

PEARLBANK alleged that WINCORP’s acts of stating and making it appear in several Confirmation Advices, Special Powers of Attorney and Certifications that PEARLBANK was the borrower of funds from the lenders/investors of WINCORP constituted falsification of commercial and private documents.

While PEARLBANK admitted obtaining loans from WINCORP, it alleged that these accounts were settled by way of an offsetting arrangement. Thus, the promissory notes executed by PEARLBANK covering such loans were allegedly all stamped "cancelled." It denied obtaining loans from WINCORP or its lenders/investors from the period 11 December 1998 to 18 January 1999 due to the fact that there was "no valid and effective grant of a credit facility" in favor of PEARLBANK during the said period.

On 3 April 2000, PEARLBANK served on WINCORP a final demand letter asking for a full and accurate accounting of the identities and investments of the lenders/investors and the alleged loan obligations of PEARLBANK, with the supporting records and documents including the purported Confirmation Advices.

WINCORP, however, still did not heed the demands of PEARLBANK and failed to produce the loan agreement documents it allegedly executed with the latter.

On 7 April 2000, PEARLBANK filed two complaints with the Securities and Exchange Commission (SEC) against Ong and several John Does for full and accurate accounting of the investments of WINCORP and of PEARLBANK’s alleged loan obligations to WINCORP and/or its investors. The cases were docketed as SEC Cases No. 04-00-6590 and 04-00-6591.

On 6 September 2000, Juanita U. Tan, Treasurer of PEARLBANK, filed a complaint on behalf of PEARLBANK for falsification by private individuals of commercial and private documents before the DOJ. The case was docketed as I.S. No. 2000-1491. Named respondents in the complaint were the officers and directors of WINCORP, to wit: petitioner herein Anthony T. Reyes, Antonio T. Ong, Gilda C. Lucena,5 Nemesio R. Briones, Loida C. Tamundong,6 Eric R.G. Espiritu, and John or Jane Does.

In answer to the complaint of PEARLBANK in I.S. No. 2000-1491, WINCORP, through Ong, explained that among the services offered by WINCORP was the arranging and/or brokering of loans for clients. Upon application of PEARLBANK, WINCORP agreed to arrange and/or broker loans on behalf of the former. Thus, in a meeting of its Board of Directors on 28 November 1995, WINCORP approved a credit line in favor of PEARLBANK in the amount of P250M.

According to Ong, pursuant to this Credit Line Agreement, PEARLBANK was able to obtain, through the brokerage of WINCORP, loans from several lenders/investors in the total amount of P324,050,474.24 for which PEARLBANK issued promissory notes from 1995 to 1996. The Credit Line Agreement was renewed for another year or up to 25 October 1996. PEARLBANK made payments, leaving a balance of around P300M on the loan. On 28 April 1997, the Credit Line Agreement was amended and the credit line was increased from P250M to P850M. On 11 December 1998, PEARLBANK arranged with WINCORP to transact additional loans from lenders in the amount of P200M, the proceeds of which were deposited in the account of Farmix Fertilizers, Inc., a corporation wholly owned and/or controlled by Manuel Tankiansee and Juanita Uy Tan. Following the previous procedure, WINCORP prepared the promissory notes corresponding to the additional loans, totaling P200M, and forwarded said documents to PEARLBANK. WINCORP maintains, however, that the promissory notes were never returned. WINCORP issued the standard Confirmation Advices to the lenders of PEARLBANK for said loans. Although the promissory notes were stamped "terminated" or "cancelled," the renewal promissory notes were not sent back/returned by PEARLBANK to WINCORP.

From the foregoing, WINCORP asserted that PEARLBANK was accurately designated as the borrower from the lenders/investors. The Confirmation Advices, Special Powers of Attorney, and Certifications it issued to the lenders/investors, indicating PEARLBANK as the borrower, were prepared in good faith and in accordance with the records of WINCORP. Hence, the officers and directors named as respondents in I.S. No. 2000-1491 who prepared, signed, and reviewed such documents denied having falsified them.

On 2 January 2001, Ong, Lucena, Briones, Tamundong and Espiritu filed a Motion to Admit Attached Memorandum before the DOJ, asserting that the criminal complaint against them should be dismissed for lack of probable cause or suspended due to the existence of a prejudicial question involving the SEC cases.

On 18 June 2001, Prosecutor Estherbella N. Rances of the DOJ Task Force on Financial Fraud issued a Review Resolution recommending the filing of Informations for falsification of commercial and private documents by private individuals against petitioner Reyes, Ong, Briones, Lucena, Espiritu, and Tamundong.

On 21 August 2001, prior to the expiry of the period to file a motion for reconsideration, Informations for Falsification of Commercial and Private Documents under paragraphs 1 and 2, Article 172,7 in relation to paragraph 2 of Article 1718 of the Revised Penal Code, were filed against petitioner, Ong, Briones, Lucena, Espiritu, and Tamundong before Branch 2 of the Metropolitan Trial Court (MTC) of Manila apparently relying on the Rances resolution dated 18 June 2001. The cases were docketed as Criminal Cases No. 365255-88.

On 28 August 2001, petitioner filed a motion for reconsideration of the 18 June 2001 Resolution of Prosecutor Rances. He raised the issues earlier brought up by Ong, Briones, Lucena, Espiritu and Tamundong, contending there was lack of probable cause and that there existed a prejudicial question. The other respondents in the criminal complaint filed a separate joint motion for reconsideration on 4 September 2001.9

Meanwhile, on 13 November 2001, petitioner filed an Urgent Motion to Suspend Proceedings and to Defer Arraignment of Accused before the MTC of Manila where the criminal cases were pending, leading to the cancellation of the arraignment scheduled for 21 November 2001.

Citing no cogent reason to modify or reverse the assailed 18 June 2001 Resolution, Prosecutor Rances denied the two motions for reconsideration filed by petitioner and his co-respondents in a Resolution issued on 13 December 2001.

Ong, Briones, Lucena, Espiritu, and Tamundong appealed the 13 December 2001 Resolution10 to the Office of the DOJ Secretary while petitioner filed a Petition for Review with the same office.11

On 27 June 2003, Undersecretary (Usec.) Ma. Merceditas N. Gutierrez (representing the Office of the DOJ Secretary) resolved the appeal and Petition for Review in a joint Resolution reversing the Resolutions dated 18 June 2001 and 13 December 2001 of Prosecutor Rances. In ruling that the complaint in I.S. No. 2000-1491 should be dismissed, Usec. Gutierrez took into consideration the following:

(1) That the confirmation advices were mere renewals forming part of the earlier loans of PEARLBANK under an existing credit line agreement;

(2) That [petitioner, Ong, Lucena, Briones, Tamundong, and Espiritu] are mere employees of WINCORP performing perfunctory functions in good faith;

(3) That Confirmation Advices are not commercial documents;

(4) That SEC Case No. 0400-6590, is a prejudicial question, involving issues which are intimately related to the issues in the present case.

Thus, the Office of the DOJ Secretary ordered the Office of the Chief State Prosecutor to move for the withdrawal of the Informations from the MTC.12

PEARLBANK filed a motion for reconsideration with the Office of the DOJ Secretary for the setting aside of its 27 June 2003 Resolution, with a motion13 praying that DOJ Usec. Gutierrez inhibit herself from the proceedings.

On 4 December 2003, DOJ Secretary Simeon Datumanong issued a Resolution granting the motion for reconsideration of PEARLBANK.14

In effect, DOJ Secretary Datumanong reversed the 27 June 2003 Resolution of Usec. Gutierrez and reinstated the 18 June 2001 Resolution of Prosecutor Rances finding probable cause to charge petitioner and other respondents in I.S. No. 2000-149, except for Eric R. G. Espiritu, for the crime of falsification of commercial and private documents:

WHEREFORE, the resolution dated 27 June 2003 (Resolution No. 283, Series of 2003) is hereby REVERSED and SET ASIDE. The Chief State Prosecutor’s Review Resolution dated 18 June 2001 is

hereby REINSTATED, with the MODIFICATION that respondent ERIC R.G. ESPIRITU should be excluded. The Chief State Prosecutor is directed to cause the amendment of the informations filed against said respondent Espiritu by excluding him therefrom, and to report the action taken hereon within ten (10) days from receipt hereof.15

In said Resolution, DOJ Secretary Datumanong explained that while Eric R. G. Espiritu was one of the signatories of the Certifications, considering the nature of the certifications in question and his duties and functions, it would appear that he was entitled to rely on the Certifications and representations of those in the Treasury group. The DOJ Secretary ratiocinated that there was no prejudicial question involved, since the existence of an outstanding obligation on the part of PEARLBANK under its Credit Line with WINCORP was irrelevant and immaterial to the falsification cases, and shall not be determinative of the outcome of said falsification cases. Explaining further, he said that it was clear from the admissions of respondents therein that the loans reflected in the Confirmation Advices, which appeared to be new loans, were matched against the alleged outstanding loans of complainant.

On 8 January 2004, petitioner filed a motion for reconsideration of the 4 December 2003 Resolution of the DOJ Secretary.16

On the other hand, his co-respondents filed a separate motion for reconsideration on 16 January 2004. 17

On 1 March 2005, DOJ Secretary Datumanong denied both motions for reconsideration.

Petitioner sought recourse with the Court of Appeals via a Petition for Certiorari under Rule 65 of the 1997 Revised Rules of Court, docketed as CA-G.R. No. 90006. Petitioner sought the nullification of the 4 December 2003 DOJ Resolution based on the following arguments:

(a) petitioner did not make any untruthful statements in the Confirmation Advices since [PEARLBANK] allegedly has an outstanding obligation with Westmont Investment Corporation;

(b) WINCORP’s Confirmation Advices subject of the falsification case were not commercial documents; and

(c) a prejudicial question exists warranting the suspension of proceedings in the falsification case.

During the pendency of the petition for certiorari with the Court of Appeals, petitioner filed an Urgent Ex Parte Motion to Suspend Further Proceedings before the same MTC Court on 11 July 2005, contending that Criminal Case Nos. 365255 to 88 should be suspended, since he had filed a pending Petition for Certiorari under Rule 65 of the Rules of Court with the Court of Appeals to annul the 4 December 2003 and 1 March 2005 Resolution of the DOJ.

On 26 October 2005, the Court of Appeals promulgated its Decision dismissing CA-G.R. No. 90006. The appellate court found that the DOJ Secretary did not commit grave abuse of discretion in finding that there was probable cause for holding that petitioner was guilty of the offense charged. It noted that the Informations were already filed against petitioner before Branch 2 of the MTC of the National Capital Region (NCR), and petitioner’s liability for the crime of falsification of commercial and private documents could best be threshed out at the trial on the merits of the case.

On 7 February 2006, the Court of Appeals issued a Resolution denying petitioner’s motion for reconsideration.

Petitioner thus filed this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, making the following assignment of errors:

I.

THE COURT OF APPEALS SANCTIONED A DEPARTURE FROM ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT ALLOWED THE ARBITRARY AND CAPRICIOUS EXERCISE BY THE DOJ OF ITS POWER TO DETERMINE PROBABLE CAUSE. THE DOJ COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING ITS 4 DECEMBER 2003 AND 1 MARCH 2005 RESOLUTIONS.

II.

THE CONSTITUTION EXPRESSLY PROVIDES THAT NO PERSON SHALL BE DENIED THE EQUAL PROTECTION OF THE LAWS. HOWEVER, THE COURT OF APPEALS COUNTENANCED THE DOJ’S VIOLATION OF SUCH CONSTITUTIONAL RIGHT OF PETITIONER WHEN THE DOJ DISMISSED THE CHARGES AGAINST MR. ERIC R. G. ESPIRITU AND YET FOUND PROBABLE CAUSE AGAINST HEREIN PETITIONER EVEN AS BOTH ARE SIMILARLY SITUATED.

III.

THE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT UPHELD THE DOJ RESOLUTIONS WHICH DID NOT ONLY FAIL TO CONSIDER THE EVIDENCE ON RECORD. LIKEWISE, THE COURT OF APPEALS SANCTIONED THESE RESOLUTIONS WHICH WERE NOT IN ACCORD WITH EXISTING LAW AND SUPREME COURT DECISIONS ON PREJUDICIAL QUESTIONS.

IV.

THE COURT OF APPEALS COMMITTED SERIOUS LEGAL ERROR AND DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT UPHELD THE DOJ’S CLASSIFICATION OF THE CONFIRMATION ADVICES SUBJECT OF THE CASE A QUO AS COMMERCIAL DOCUMENTS, A CLASSIFICATION WHICH IS CONTRARY TO ITS OWN EARLIER DETERMINATION AND THAT OF THE DOJ.

Essentially, petitioner avers that his rights to due process and equal protection of the law were jeopardized when DOJ Secretary Datumanong issued his 4 December 2004 Resolution affirming the finding of probable cause against him and the other respondents in I.S. No. 2000-1491, and reversing the earlier 27 June 2003 Resolution of his Office, which ordered the dismissal of the complaint of PEARLBANK, there being no new evidence presented between the two Resolutions. He further accuses the DOJ Secretary of violating his right to the equal protection of the law by dismissing the charges against Espiritu, another respondent in I.S. No. 2000-1491, but not those against him. He insists that the charges against him must be dismissed, arguing that he and Espiritu are similarly situated.

Petitioner prays that the Court nullify and set aside the Court of Appeals Decision dated 26 October 2005 and Resolution dated 7 February 2006 in CA-G.R. No. 90006, there being no probable cause to charge him with the crimes of falsification of commercial and private documents. He further alleges that the proceedings in Criminal Cases No. 365255-88 should be suspended pending resolution of the two SEC Cases which have now been transferred to the jurisdiction of, and are now pending before, the Regional Trial Courts of Makati on the ground that the these cases constitute a prejudicial question.

This Court finds the present petition to be without merit and accordingly denies the same.

The issues presented by petitioner may be narrowed down to two:

(a) whether or not there is probable cause to file an information for falsification of private and commercial documents against petitioner; and

(b) whether the two cases before the SEC are prejudicial questions which have to be resolved before the criminal cases may proceed.

Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof.18 The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. 19

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt.20 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.21 What is determined is whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the accused is probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.

These findings of probable cause fall within the jurisdiction of the prosecutor or fiscal in the exercise of executive power, which the courts do not interfere with unless there is grave abuse of discretion. The determination of its existence lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party. Thus, the decision whether to dismiss a complaint or not is dependent upon the sound discretion of the prosecuting fiscal.22 He may dismiss the complaint forthwith, if he finds the charge insufficient in form or substance or without any ground. Or he may proceed with the investigation if the complaint in his view is sufficient and in proper form. To emphasize, the determination of probable cause for the filing of information in court is an executive function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of the case.23 Ultimately, whether or not a complaint will be dismissed is dependent on the sound discretion of the Secretary of Justice.24 And unless made with grave abuse of discretion, findings of the Secretary of Justice are not subject to review.25

For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of preliminary investigations and to leave the Department of Justice ample latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justice’s findings and conclusions on the matter of probable cause except in clear cases of grave abuse of discretion. 26

The restraint exercised by this Court in interfering with the determination of probable cause by the prosecutor, unless there is grave abuse of discretion, is only consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule, 27 none of which are obtaining in the case now before us.

In the present case, petitioner was not able to convince this Court to deviate from the general rule of non-interference. The Court of Appeals did not err in dismissing petitioner’s application for a writ of certiorari, absent grave abuse of discretion on the part of the DOJ Secretary in finding probable cause against him for the falsification of commercial and private documents.

In D.M. Consunji, Inc. v. Esguerra,28 we defined grave abuse of discretion in this wise:

By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.

Contrary to the claims of petitioner, the Court of Appeals did not perfunctorily or mechanically deny his Petition for Certiorari therein. A comprehensive review of the assailed Decision of the appellate court readily reveals that it considered and judiciously passed upon all the arguments presented by both parties before finally decreeing the dismissal of petitioner’s Petition for Certiorari.

Although no new evidence was presented by the parties from the time the first Resolution was issued by DOJ Usec. Gutierrez on 7 June 2003 until the second Resolution was issued by DOJ Secretary Datumanong on 4 December 2004, the DOJ Secretary is not precluded from making inferences of fact and conclusions of law which may be different from, contrary to, or even entirely abandoning, the findings made by DOJ Usec. Gutierrez although they were both faced with the same evidence and arguments.

First, it must be noted that DOJ Secretary Datumanong issued his Resolution of 4 December 2004 upon the filing by PEARLBANK of a motion for reconsideration of the Resolution dated 7 June 2003 of DOJ Usec. Gutierrez entirely dismissing its complaint. The 4 December 2004 Resolution, therefore, of DOJ Secretary Datumanong was the result of his acting on, and granting of, the motion for reconsideration of PEARLBANK. The purpose of a motion for reconsideration is precisely to request the court or quasi-judicial body to take a second look at its earlier judgment and correct any errors it may have committed therein.

Second, it cannot be said that DOJ Secretary Datumanong’s final ruling is entirely without basis when, in fact, Reviewing Prosecutor Rances had earlier made a similar finding on 18 June 2001 that there was probable cause to believe that petitioner and the other respondents in I.S. No. 2000-1491 were guilty of falsification of commercial and private documents, based on essentially the same evidence and arguments.

And finally, DOJ Secretary Datumanong exhaustively presented in his 4 December 2004 the legal and factual reasons for his reversal of the 27 June 2003 Resolution of DOJ Usec. Gutierrez, which negated petitioner’s assertion of capriciousness, whimsicality, or arbitrariness on his part.

Equally without merit is petitioner’s assertion that upon dismissal of the charges against his co-respondent Espiritu, those against him must likewise be dismissed. Petitioner insists that if the charges against an accused rest upon the same evidence used to charge a co-accused, the dismissal of the charges against the former should benefit the latter.

This is flawed reasoning, a veritable non sequitur.

Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be charged with what crime or for what offense. In Webb v. De Leon29 in which the petitioners

questioned the non-inclusion of Alfaro in the Information for rape with homicide filed against them, despite Alfaro’s alleged conspiratorial participation in the crime charged, this Court pronounced that:

[T]he prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion---the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasboard of factors which are best appreciated by prosecutors x x x.

While the right to equal protection of the law requires that litigants are treated in an equal manner by giving them the same rights under similar circumstances,30 it may not be perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of those who are probably guilty thereof were charged.

Petitioner further insists that the proceedings in SEC Cases No. 04-00-6590 and No. 04-00-6591, now pending before the RTC of Makati31 (civil cases), warrant the suspension of Criminal Cases No. 365255-88. (criminal cases).

We disagree.

Under Rule 111 of the Revised Rules of Court, a criminal action may be suspended upon the pendency of a prejudicial question in a civil action, to wit:

Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in court for trial, and shall be filed in the same criminal action at any time before the prosecution rests.

A prejudicial question is defined as one which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal.32

The prejudicial question must be determinative of the case before the court, but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime, but so intimately connected with it that it determines the guilt or innocence of the accused; and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.33

It comes into play generally in a situation in which a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.34

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. Based on Section 7 of the same rule, it has two essential elements:

Sec. 7. Elements of prejudicial question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the

subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.

In Sabandal v. Tongco,35 this Court had the opportunity to further expound on the resolution of prejudicial questions in this manner:

If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity "that the civil case be determined first before taking up the criminal case," therefore, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.

There is no prejudicial question here.

We note that the Informations filed in the criminal cases charge petitioner and his other co-accused with falsification of commercial and private documents under paragraph 1 of Article 172, in relation to paragraph 2 of Article 171 of the Revised Penal Code; and paragraph 2 of Article 172, in relation to paragraph 2 of Article 171 of the Revised Penal Code, in signing and/or issuing the questioned Confirmation Advices, Special Powers of Attorney and Certifications on behalf of WINCORP, stating therein that PEARLBANK owed the third parties (lenders and investors). Each of the Informations36 alleged that the therein named accused:

x x x confederating and conspiring together, did then and there willfully, unlawfully and feloniously prepare, execute and sign a Confirmation Advice of WINCORP x x x to make it appear in the said commercial document that PEARLBANK SECURITIES, INC., a corporation legally established, is a borrower of WINCORP, having allegedly secured and granted a loan in the amount of x x x when in truth and in fact, the said accused well knew that PEARLBANK SECURITIES, INC. had not secured nor had been granted said loan on the date above-mentioned, and having falsified said document in the manner stated, the said accused issued a copy of the said document, which has not been notarized before a notary public or other person legally authorized to do so, the accused issued the said document to, and was received by one Tiu K. Tiac to the damage and prejudice of PEARLBANK SECURITIES, INC., represented by its Treasurer and Director Juanita U. Tan.

The principal issue to be resolved in the criminal cases is whether or not petitioner committed the acts referred to in the Informations, and whether or not these would constitute falsification of commercial and private documents under the law.1awphi1

In contrast, the issues to be resolved in SEC Case No. 04-00-6591 are as follows:

(1) whether or not Tankiansee is entitled to the accounting and disclosure pursuant to Section 74, Tile VII of the Corporation Code of the Philippines;

(2) whether or not Tankiansee is entitled to be furnished copies of the records or documents demanded from WINCORP;

(3) whether or not WINCORP is liable to Tankiansee for damages.

SEC Case No. 04-00-6590 involves the following issues:

(1) whether or not PEARLBANK has loan obligations with WINCORP or its stockholders;

(2) whether or not the subject Confirmation Advices and other related documents should be declared to be without force and effect or if PEARLBANK is entitled to be relieved of the legal effects thereof;

(3) whether or not defendants therein are liable for damages to PEARLBANK as a consequence of this alleged fraudulent scheme.37

A cursory reading of the above-mentioned issues would show that, although apparently arising from the same set of facts, the issues in the criminal and civil cases are clearly different from one another. Furthermore, the issues in the civil cases are not determinative of the issues in the criminal cases.

Petitioner particularly calls attention to the purported prejudicial issue in the civil cases: whether PEARLBANK has outstanding loan obligations to WINCORP or its stockholders/investors. Although said issue may be related to those in the criminal cases instituted against petitioner, we actually find it immaterial to the resolution of the latter.

That PEARLBANK does have outstanding loans with WINCORP or its stockholders/investors is not an absolute defense in, and would not be determinative of the outcome of, the criminal cases. Even if the RTC so rules in the civil cases, it would not necessarily mean that these were the very same loan transactions reflected in the Confirmation Advices, Special Powers of Attorney and Certifications issued by WINCORP to its stockholders/investors, totally relieving petitioner and his other co-accused from any criminal liability for falsification. The questioned documents specifically made it appear that PEARLBANK obtained the loans during the first four months of the year 2000. Hence, in the criminal cases, it is not enough that it be established that PEARLBANK has outstanding loans with WINCORP or its stockholders/investors, but also that these loans were acquired by PEARLBANK as WINCORP made it to appear in the questioned documents it issued to its stockholders/investors. This only demonstrates that the resolution of the two civil cases is not juris et de jure determinative of the innocence or guilt of the petitioner in the criminal cases.

Finally, we note that the criminal cases were already instituted and pending before the MTC. Petitioner would have the opportunity to present the arguments and evidence in his defense in the course of the trial of said cases which will now proceed by virtue of this Decision.

WHEREFORE, premises considered, the instant Petition for Review on Certiorari is DENIED. The Decision dated 26 October 2005 and Resolution dated 7 February 2006 of the Court of Appeals in CA-G.R. No. 90006 are hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 172060               September 13, 2010

JOSELITO R. PIMENTEL, Petitioner, vs.MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals, promulgated on 20 March 2006, in CA-G.R. SP No. 91867.

The Antecedent Facts

The facts are stated in the Court of Appeals’ decision:

On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action for frustrated parricide against Joselito R. Pimentel (petitioner), docketed as Criminal Case No. Q-04-130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223 (RTC Quezon City).

On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and trial of Civil Case No. 04-7392 (Maria Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under Section 36 of the Family Code on the ground of psychological incapacity.

On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the RTC Quezon City on the ground of the existence of a prejudicial question. Petitioner asserted that since the relationship between the offender and the victim is a key element in parricide, the outcome of Civil Case No. 04-7392 would have a bearing in the criminal case filed against him before the RTC Quezon City.

The Decision of the Trial Court

The RTC Quezon City issued an Order dated 13 May 20053 holding that the pendency of the case before the RTC Antipolo is not a prejudicial question that warrants the suspension of the criminal case before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-130415 are the injuries sustained by respondent and whether the case could be tried even if the validity of petitioner’s marriage with respondent is in question. The RTC Quezon City ruled:

WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground] of the Existence of a Prejudicial Question is, for lack of merit, DENIED.

SO ORDERED.4

Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,5 the RTC Quezon City denied the motion.

Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or temporary restraining order before the Court of Appeals, assailing the 13 May 2005 and 22 August 2005 Orders of the RTC Quezon City.

The Decision of the Court of Appeals

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of Appeals ruled that in the criminal case for frustrated parricide, the issue is whether the offender commenced the commission of the crime of parricide directly by overt acts and did not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. On the other hand, the issue in the civil action for annulment of marriage is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals ruled that even if the marriage between petitioner and respondent would be declared void, it would be immaterial to the criminal case because prior to the declaration of nullity, the alleged acts constituting the crime of frustrated parricide had already been committed. The Court of Appeals ruled that all that is required for the charge of frustrated parricide is that at the time of the commission of the crime, the marriage is still subsisting.

Petitioner filed a petition for review before this Court assailing the Court of Appeals’ decision.

The Issue

The only issue in this case is whether the resolution of the action for annulment of marriage is a prejudicial question that warrants the suspension of the criminal case for frustrated parricide against petitioner.

The Ruling of this Court

The petition has no merit.

Civil Case Must be InstitutedBefore the Criminal Case

Section 7, Rule 111 of the 2000 Rules on Criminal Procedure6 provides:

Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action and (b) the resolution of such issue determines whether or not the criminal action may proceed.

The rule is clear that the civil action must be instituted first before the filing of the criminal action. In this case, the Information7 for Frustrated Parricide was dated 30 August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the stamped date of receipt on the Information. The RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner was served summons in Civil Case No. 04-7392 on 7 February 2005.8 Respondent’s petition9 in Civil Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November 2004. Clearly, the civil case for annulment was filed after the filing of the criminal case for frustrated parricide. As such, the requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure was not met since the civil action was filed subsequent to the filing of the criminal action.

Annulment of Marriage is not a Prejudicial Questionin Criminal Case for Parricide

Further, the resolution of the civil action is not a prejudicial question that would warrant the suspension of the criminal action.

There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an issue which must be preemptively resolved before the criminal action may

proceed because howsoever the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal case.10 A prejudicial question is defined as:

x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.11

The relationship between the offender and the victim is a key element in the crime of parricide,12 which punishes any person "who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse."13 The relationship between the offender and the victim distinguishes the crime of parricide from murder14 or homicide.15 However, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused.

The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. In this case, since petitioner was charged with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes independent of petitioner’s will.16 At the time of the commission of the alleged crime, petitioner and respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent.1avvphi1

We cannot accept petitioner’s reliance on Tenebro v. Court of Appeals17 that "the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned x x x." First, the issue in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent marriage on the ground of psychological incapacity on a criminal liability for bigamy. There was no issue of prejudicial question in that case. Second, the Court ruled in Tenebro that "[t]here is x x x a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences."18 In fact, the Court declared in that case that "a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned."19

In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in Criminal Case No. Q-04-130415 may proceed as the resolution of the issue in Civil Case No. 04-7392 is not determinative of the guilt or innocence of petitioner in the criminal case.

WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court of Appeals in CA-G.R. SP No. 91867.

SO ORDERED.

SECOND DIVISION

[A.M. No. MTJ-96-1088. July 19, 1996]

RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY, respondent.

D E C I S I O N

ROMERO, J.:

The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency in office and ignorance of the law.

First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.

Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds

office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte.

In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's "lackey," is overly concerned with his actuations both as judge and as a private person. The same person had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C. Domagtoy," which is still pending.

In relation to the charges against him, respondent judge seeks exculpation from his act of having solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost seven years.i[1] With respect to the second charge, he maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in question.

The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered sufficient for a resolution of the case.ii[2]

Since the countercharges of sinister motives and fraud on the part of complainant have not been sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's answer thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance.

The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar.iii[3] The affidavit was not issued by the latter judge, as claimed by respondent judge, but merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after thirteen years of cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of for almost seven years, thereby giving rise to the presumption that she is already dead.

In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do not agree.

Article 41 of the Family Code expressly provides:

"A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was

already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse." (Emphasis added.)

There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions of law.

In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest error on the part of respondent judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The following marriage shall be void from the beginning: (4) Those bigamous x x x marriages not falling under Article 41."

The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:

"Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;

x x x x x x xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect."

Respondent judge points to Article 8 and its exceptions as the justifications for his having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom only in the following instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario.iv[4]

More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent member of the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Non-compliance herewith will not invalidate the marriage.

A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.v[5]

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil law.

Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law.

The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in instant case.vi[6] It is not too much to expect them to know and apply the law intelligently.vii[7] Otherwise, the system of justice rests on a shaky foundation indeed, compounded by the errors committed by those not learned in the law. While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons.

The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Pearanda.

The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely. Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law.

IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.

i

ii

iii

iv

v

vi

vii

Sy vs. Court of AppealsApril 12, 2000

The case:For review is the decision of the Court of Appeals which affirmed the decision of the regional Trial Court of San Fernando, Pampanga, denying the petition for declaration of absolute nullity of marriage of the spouses Filipina Sy and Fernando Sy.

The facts:Petitioner Filipina Sy and private respondent Fernando Sy contracted marriage on November 15, 1973 at the Church of our Lady of Lourdes in Quezon City. Both were then 22 years old. Their union was blessed with two children. On September 15, 1983, Fernando left their conjugal dwelling. Since then, the spouses lived separately and their two children were in the custody of their mother. On February 11, 1987, Filipina filed a petition for legal separation before the RTC of San Fernando, Pampanga and was later amended to a petition for separation of property. Judgment was rendered dissolving their conjugal partnership of gains and approving a regime of separation of properties based on the Memorandum of Agreement executed by the spouses. In May 1988, Filipina filed a criminal action for attempted parricide against her husband. RTC Manila convicted Fernando only of the lesser crime of slight physical injuries and sentenced him to 20 days imprisonment. Petitioner filed a petition for the declaration of absolute nullity of her marriage to Fernando on the ground of psychological incapacity on August 4, 1992. RTC and Court of Appeals denied the petition and motion for reconsideration. Hence, this appeal by certiorari, petitioner for the first time, raises the issue of the marriage being void for lack of a valid marriage license at the time of its celebration. The date of issue of marriage

license and marriage certificate is contained in their marriage contract which was attached in her petition for absolute declaration of absolute nullity of marriage before the trial court. The date of the actual celebration of their marriage and the date of issuance of their marriage certificate and marriage license are different and incongruous.

The Issues:Whether or not the marriage between petitioner and private respondent is void from the beginning for lack of marriage license at the time of the ceremony?Whether or not private respondent is psychologically incapacitated at the time of said marriage celebration to warrant a declaration of its absolute nullity?

Held:A marriage license is a formal requirement; its absence renders the marriage void ab initio. The pieces of evidence presented by petitioner at the beginning of the case, plainly and indubitably show that on the day of the marriage ceremony, there was no marriage license. The marriage contract also shows that the marriage license number 6237519 was issued in Carmona, Cavite yet neither petitioner nor respondent ever resided in Carmona. From the documents she presented, the marriage license was issued almost one year after the ceremony took place. Article 80 of the Civil Code is clearly applicable in this case, there being no claim of exceptional character enumerated in articles 72-79 of the Civil Code. The marriage between petitioner and private respondent is void from the beginning. The remaining issue on the psychological capacity is now mooted by the conclusion of this court that the marriage of petitioner to respondent is void ab initio for lack of marriage license at the time heir marriage was solemnized. Petition is granted. The marriage celebrated on November 15, 1973 between petitioner Filipina Sy and private respondent Fernando Sy is hereby declared void ab initio for lack of marriage license at the time of celebration.