SEC 3 (g)

In the case ofLuciano v. Estrella,[4]the information precisely charged accused public officials and private persons with violation of Sections 3(g) and 4(b).Thus, Jose Gutierrez and Franco A. Gutierrez, as private persons, were charged with violation of Section 3(g)and 4(b), to wit:On 18 January 1969, Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo, Lutgardo Ambrosio, Ciriaco Alano, Gualberto San Pedro, Jose Gutierrez, Franco A. Gutierrez were charged withviolation of Section 3-G and 4-B of Republic Act No. 3019(Anti-Graft and Corrupt Practices Act) in an information reading as follows:That on or about July 26, 1967, and for sometime prior and subsequent thereto, in the Municipality of Makati, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Maximo Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, then Municipal Councilors of Makati, Rizal; Eduardo S. Francisco, then Municipal Treasurer of Makati, Rizal; Cirilo Delmo, then Assistant Municipal Treasurer of Makati, Rizal; Lutgardo Ambrosio, then Chief of Traffic Control Bureau, Makati Police Department; Ciriaco Alano, then confidential Private Secretary to the Municipal Mayor, Gualberto San Pedro, then Provincial Auditor of the Province of Rizal;Jose Gutierrez and Franco A. Gutierrez, owner and/or representatives of the JEP Enterprises, respectively, conspiring and confederating together, did, then and there, willfully, unlawfully and feloniously, on behalf of the Municipal Government of Makati, Rizal, enter into a contract or transaction with the JEP Enterprises, represented by Jose Gutierrez and Franco A. Gutierrez, for the delivery and installation by the JEP Enterprises to the Municipal Government of Makati, Rizal of fifty-nine (59) units of traffic deflectors valued at ONE THOUSAND FOUR HUNDRED AND TWENTY-SIX PESOS AND FIFTY CENTAVOS (P1,426.60) each unit, that thirty-four (34) units were delivered, installed and paid for by the Municipality of Makati in favor of the JEP Enterprises in the amount FORTY-EIGHT THOUSAND EIGHT HUNDRED FORTY ONE PESOS (P48,841.00), less ten percent (10%) retention, which contract or transaction is manifestly and grossly disadvantageous to the Municipal Government of Makati, Rizal, to the damage and prejudice of the latter.That Jose Gutierrez and Franco [C.] Gutierrez, being the owner, manager and/or representatives of the JEP Enterprises,being private persons, did knowingly induce or cause the above-mentioned public officials and officers to enter into the aforementioned contract or transaction.[5](Underscoring supplied)By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of Public Officials) of the Revised Penal Code.In Direct Bribery, the public officer agrees to perform an act either constituting or not constituting a crime, in consideration of any offer, promise, gift or present received by such officer.Significantly, only the public officer may be indicted under and be held liable for Direct Bribery under Article 210, while the person who conspired with the public officer, who made the promise, offer, or gave the gifts or presents, may be indicted only under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.Indeed, it is axiomatic that all conspirators are criminally liable as co-principals.However, they may not be necessarily charged with violation of the same offense.The public officer may be charged under one provision while the private person is indicted under a different provision, although the offenses originate from the same set of acts.Thus, the public officer may be accused of Direct Bribery while the private person may be charged with corruption of public officials.In the same manner, a public officer may be charged with violation of Section 3(g) of R.A. No. 3019 while the private person is charged under Section 4(b) of the same law, based on the same set of conspiratory acts.In the instant case, petitioner is charged with conspiring with Rivera when he signed the ARCA which is manifestly disadvantageous to the government. However, the information is fatally defective and infirm as far as petitioner is concerned.Our ruling inSistoza v. Desierto[6]is pertinent, to wit:It is also too sweeping to conclude the existence of conspiracy from the endorsements made by petitionerSistoza to the Department of Justice of the result of the bidding.Fairly evident is the fact that this action involved the very functions he had to discharge in the performance of his official duties.Furthermore, contrary to the allegation that petitioner misrepresented key facts to the Department of Justice, it is clear that his references to the price offered by Elias General Merchandising and the rejection of the bid of Filcrafts Industries, Inc., were supported by documents noted in and attached to his endorsements.Hence, there was no way by which the approving authority, i.e., the Department of Justice, could have been misled by him.Clearly, to prosecute him for violation of Sec. 3, par. (e),RA 3019, on the basis of his endorsements would be the same as pegging his criminal liability on a mere signature appearing on the document.InSabinianov. Court of Appealswe held that a signature on a voucher, check or warrant, even if required by law to be affixed thereon, is not enough to sustain a finding of conspiracy among public officials and employees charged with defraudation.We further ruled x x x Proof, not mere conjectures or assumptions, should be proffered to indicate that the accused had taken part in, to use this Court's words inAriasv. Sandiganbayan, the "planning, preparation and perpetration of the alleged conspiracy to defraud the government" for, otherwise, any "careless use of the conspiracy theory (can) sweep into jail even innocent persons who may have (only) been made unwitting tools by the criminal minds" really responsible for that irregularity x x x.There is no dispute that R.A. No. 3019 was enacted in line with the governments policy to repress certain acts of public officers as well as private persons.What I am saying, however, is that petitioner Go may not be validly charged under Sec. 3(g) alone because it covers only the public officers.I disagree with theponenciain holding that petitioners reliance onMarcos v. Sandiganbayan[7]was misplaced.In that case, former First Lady Imelda R. Marcos and Jose P. Dans, Jr. were charged with violation of Section 3(g) of R.A. No. 3019.The Information alleged:That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR.,public officers, being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA),a government corporate entity created under Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there willfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. (Emphasis supplied)After trial, the Sandiganbayan convicted Marcos and Dans, Jr. of the offense charged.On appeal, this Court in its Decision datedJune 29, 1998, affirmed the conviction of Marcos but acquitted Dans, Jr.Hence, Marcos filed a motion for reconsideration raising the issue of whether all the elements of Section 3(g) have been duly substantiated.In acquitting Marcos, the Court noted that the Information specifically charged Marcos of violation of Section 3(g) because she allegedly signed the subject Lease Agreement as a public officer in her capacity as Vice-Chairman of the LRTA.However, perusal of the subject Lease Agreement showed that Marcos signed in her capacity as Chairman of Philippine General Hospital Foundation, Inc. (PGHFI), a private charitable institution, and not as a public officer.Thus, the first element of Section 3(g) is wanting.The Court held that:The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated.As regards the first element, did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit B as a public officer?As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor asex-officioChairman of LRTA.It was Jose P. Dans, Jr. who signed said Contract, asex-officioVice-Chairman of LRTA.Although petitioner was theex-officioChairman of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the Lease Agreement sued upon.In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting.No less than the Constitution ordains that the accused must be properly and sufficiently informed of the nature of the accusation filed against him.In the instant case, Go should be charged under Section 4(b), in relation to Sec. 3(g) of R.A. No. 3019, as it properly pertains to private individuals, to wit:Section 4.x x x(b)It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. (Emphasis supplied)An accuseds right to be informed of the nature and cause of the charges against him is constitutionally enshrined, for an accused cannot be convicted of an offense, unless it isclearly charged in the complaint or information.To reiterate, the Information lumping the public official, Former DOTC Secretary Vicente Rivera, and the private individual, petitioner Go, is legally infirm as Section 3(g) can only be violated by a public officer.Any private individual accused to have conspired with a public officer in violating Section 3(g),must be charged under the proper provision of the law.The acts for which private persons can be charged together with the public officials are enumerated in the last paragraph of Section 3 and Section 4, paragraphs (a) and (b) of R.A. No. 3019.It is reiterated that for the Information against Go to be sufficient in form and substance, he should be charged with specificity for violation ofSection 4(b) in relation to Section 3(g).Indeed, there is a need to ferret out and expel corrupt public officers[8]and to punish the private individuals who abet their illegal activities.However, the remedy is not to indict and jail every person who happens to be a signatory in a contract[9]as in the instant case, which later on is proved to be manifestly disadvantageous to the government.

SEC 3 (h)In view of the definition of the offense, the charge herein would specifically pertain to Mayor Caballero, with the two other petitioners, Nerita Cuento and Theresa Caballero, being charged as co-conspirators of the mayor.That petitioner Eugenio Caballero is a public officer is undisputed. He was, in fact, the mayor of Manukan, Zamboanga del Norte at the time the letter-complaint was lodged by complainant Crisologo Decierdo with the Office of the Auditor, Zamboanga del Norte. There is thus no question that the first element is present in this case.The second element requires the public officer to have a direct or indirect financial or pecuniary interest in any business, contract or transaction. The informations stated that GPs Food Catering Services and Genty General Merchandise were registered in the name of Mayor Caballeros wife, Theresa. The element that the mayor must have a direct pecuniary interest in the said businesses was sufficiently alleged in the informations because, even if these entities were registered in his wifes name and not in his own name, still Mayor Caballero would have a direct interest thereon because they remained married to each other and as such their property relations can be presumed to be under the regime of conjugal partnership of gains, in the absence of evidence to the contrary. Article 116 of the Family Code provides that all property of the marriage is presumed to belong to the conjugal partnership unless it be proved that it pertains exclusively to the husband or to the wife. Too, Article 106 of the same Code declares that all the properties of the conjugal partnership of gains are owned in common by the husband and wife. Thus, Mayor Caballero had a direct interest in GPs Food Catering Services and Genty General Merchandise.The third element enumerates the two modes by which a public officer who has a direct or indirect financial or pecuniary interest in any business, contract, or transaction may violate Section 3(h) of the Anti-Graft Law. Thefirst modeis when the public officer intervenes or takes part in his official capacity in connection with his financial or pecuniary interest in any business, contract or transaction. Thesecond modeis when he is prohibited from having such an interest by the Constitution or by law.The informations alleged that Mayor Caballero willfully, unlawfully and feloniously approved the award to GPs Food Catering Services and Genty General Merchandise which were both registered in the name of Ma. Theresa Caballero, the wife of Mayor Caballero. A reading of the informations would disclose that the third element of the offense was not sufficiently alleged. As it were, the informations failed to state the mode by which Mayor Caballero supposedly violated Section 3(h) of the Anti-Graft Law. While it may be deduced therefrom that Mayor Caballero was indictedviathe first mode, that is, by intervening or taking part in his official capacity in connection with his financial or pecuniary interest in the subject transactions, still there was no statement in the said informations that Mayor Caballero actually intervened in awarding the contract in favor of his wifes businesses,which is an element necessary to constitute a violation of Section 3(h) ofRA No. 3019.It is essential that the information states the ultimate facts needed to constitute the offense charged, so that the accused may be properly apprised of the nature and cause of the accusation against him.[15]