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Republic of the Philippines

SUPREME COURT

Baguio City

THIRD DIVISION

G.R. No. 130191 April 27, 1998

RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN, petitioners,

vs.THE HONORABLE SANDIGANBAYAN, respondent.

KAPUNAN, J.:

The right to a preliminary investigation is not a mere formal right; it is a

substantive right. To deny the accused of such right would be to deprive him of dueprocess.

In this special civil action for certiorari with preliminary injunction, petitioners

seek to set aside the Order of the Sandiganbayan dated 27 June 1997 denying the

Motion to Quash the information filed against them for violating Sec. 3(g) of R.A.

No. 3019, otherwise known as the Anti-Graft And Corrupt Practices Act. Petitioners

similarly impugn the Resolution of the Sandiganbayan dated 5 August 1997 which

denied their Motion for Reconsideration thereof.

Pertinent to this case are the following facts:

In 1990, the Davao City Local Automation Project was launched by the citygovernment of Davao. The goal of said project was to make Davao City a leading

center for computer systems and technology development. It also aimed to provide

consultancy and training services and to assist all local government units in

Mindanao set up their respective computer systems.

To implement the project, a Computerization Program Committee, composed of the

following was formed:

Chairman : Atty. Benjamin C. de Guzman, City Administrator

Members : Mr. Jorge Silvosa, Acting City Treasurer

Atty. Victorino Advincula, City Councilor

Mr. Alexis Almendras, City Councilor

Atty. Onofre Francisco, City Legal Officer

Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office

Atty. Mariano Kintanar, COA Resident Auditor. 1

The Committee's duty was to "conduct a thorough study of the different computers

in the market, taking into account the quality and acceptability of the products, the

reputation and track record of the manufacturers and/or their Philippine

distributors, the availability of the replacement parts and accessories in the

Philippines, the availability of service centers in the country that can undertake

preventive maintenance of the computer hardwares to ensure a long and

uninterrupted use and, last but not the least, the capability of the manufacturersand/or Philippine distributors to design and put into place the computer system —

complete with the flow of paperwork, forms to be used and personnel required." 2

Following these guidelines, the Committee recommended the acquisition of

Goldstar computers manufactured by Goldstar Information and Communication,

Ltd., South Korea and exclusively distributed in the Philippines by Systems Plus,

Inc. (SPI).

After obtaining prior clearance from COA Auditor Kintanar, the Committee

proceeded to negotiate with SPI, represented by its President Rodolfo V. Jao and

Executive Vice President Manuel T. Asis, for the acquisition and installation of the

computer hardware and the training of personnel for the Electronic Data-

Processing Center. The total contract cost amounted to P11,056,810.00.

On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao

unanimously passed Resolution No. 1402 and Ordinance No. 173 approving the

proposed contract for computerization between Davao City and SPI. TheSanggunian, likewise, authorized the City Mayor (petitioner Duterte) to sign the

said contract for and in behalf of Davao City. 3

On the same day, the Sanggunian issued Resolution No. 1403 and Ordinance No.

174, the General Fund Supplemental Budget No. 07 for CY 1990 appropriating

P3,000,000.00 for the city's computerization project.

Given the go-signal, the contract was duly signed by the parties thereto and on 8

November 1990, petitioner City Administrator de Guzman released to SPI PNB

Check No. 65521 in the amount of P1,748,521.58 as downpayment.



On 27 November 1990, the Office of the Ombudsman-Mindanao received a letter-

complaint from a "concerned citizen," stating that "some city officials are going to

make a killing" in the transaction. 4 The complaint was docketed as OMB-MIN-90-

0425. However, no action was taken thereon. 5

Thereafter, sometime in February 1991, a complaint docketed as Civil Case No.

20,550-91, was instituted before the Regional Trial Court of Davao City, Branch 12

by Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw Foundation, Inc.

against the petitioners, the City Council, various city officials and SPI for the judicial

declaration of nullity of the aforestated resolutions and ordinances and the

computer contract executed pursuant thereto.

On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to

petitioner Duterte for the cancellation of the computerization contract.

Consequently, on 8 April 1991, the Sanggunian issued Resolution No. 449 and

Ordinance No. 53 accepting Goldstar's offer to cancel the computerization contract

provided the latter return the advance payment of P1,748,521.58 to the City

Treasurer's Office within a period of one month. Petitioner Duterte, as city mayor,

was thus authorized to take the proper steps for the mutual cancellation of the said

contract and to sign all documents relevant thereto. 6

Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf

of Davao City, and SPI mutually rescinded the contract and the downpayment was

duly refunded.

In the meantime, a Special Audit Team of the Commission on Audit was tasked to

conduct an audit of the Davao City Local Automation Project to determine if said

contract conformed to government laws and regulations.

On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05

recommending rescission of the subject contract. A copy of the report was sent to

petitioner Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In thelatter's transmittal letter, Chairman Domingo summarized the findings of the

special audit team, thus:

1. The award of the contract for the "Davao City Local AutomationProject" to Systems Plus, Inc., for P11,656,810 was done thru negotiated

contract rather than thru competitive public bidding in violation of

Sections 2 and 8 of PD 526. Moreover, there was no sufficient

appropriation for this particular contract in violation of Sec. 85 of PD

1445.

2. Advance payment of P1.7M was made to Systems Plus, Inc. covering

15% of the contract cost of P11.6M in violation of Sec. 45 of PD 477 and

Sec. 88 of PD 1445.

3. The cost of computer hardware and accessories under contract with

"Systems Plus, Inc. (SPI)" differed from the team's canvass by as much as

1200% or a total of P1.8M.

4. The City had no Information Systems Plan (ISP) prior to the award of

the contract to SPI in direct violation of Malacañang Memo. Order No. 287

and NCC Memo. Circular 89-1 dated June 22, 1989. This omission resulted

in undue disadvantage to the City Government.

5. To remedy the foregoing deficiencies, the team recommends that the

contract with Systems Plus, Inc. be rescinded in view of the questionable

validity due to insufficient funding. Further, the provisions of NCC-MC 89-

1 dated June 22, 1989 regarding procurement and/or installation of

computer hardware/system should be strictly adhered to. 7

The city government, intent on pursuing its computerization plan, decided to

follow the audit team's recommendation and sought the assistance of the NationalComputer Center (NCC). After conducting the necessary studies, the NCC

recommended the acquisition of Philips computers in the amount of

P15,792,150.00. Davao City complied with the NCC's advice and hence, was finally

able to obtain the needed computers.

Subsequently, on 1 August 1991, the Anti-Craft League-Davao City Chapter,

through one Miguel C. Enriquez, filed an unverified complaint with the

Ombudsman-Mindanao against petitioners, the City Treasurer, City Auditor, the

whole city government of Davao and SPI. The League alleged that the respondents,

in entering into the computerization contract, violated R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), PD No. 1445 (Government Auditing Code of the

Philippines), COA circulars and regulations, the Revised Penal Code and other

pertinent penal laws. The case was docketed as OMB-3-91-1768.8

On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the

Office of the Ombudsman sent a letter 9 to COA Chairman Domingo requesting the

Special Audit Team to submit their joint affidavit to substantiate the complaint in

compliance with Section 4, par. (a) of the Rules of Procedure of the Office of the

Ombudsman (A.O. No. 07).

On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil Case

No. 20,550-91. The dispositive portion reads, thus:



WHEREFORE, in view of all the foregoing, this case is hereby dismissed on

the ground of prematurity and that it has become moot and academic

with the mutual cancellation of the contract. The other claims of the

parties are hereby denied. No pronouncement as to costs.

SO ORDERED. 10

On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-91-1768 directing petitioners, Jorge Silvosa (City Treasurer), Mariano Kintanar (City

Auditor) and Manuel T. Asis of SPI to:

. . . file in ten (10) days (1) their respective verified point-by-point

comment under oath upon every allegation of the complaint in Civil Case

No. 20,550-91 in the Regional Trial Court (RTC), Branch 12, Davao City

"Dean Pilar C. Braga, et al. vs. Hon. Rodrigo Duterte," for Judicial

Declaration of Nullity and Illegality of City Council of Davao Resolutions

and Ordinances, and the Computer Contract executed Pursuant Thereto,

for Recovery of Sum of Money, Professional Fees and Costs — with

Injunctive Relief, including the Issuance of a Restraining Order and/or a

Writ of Preliminary Prohibitory Injunction in which they filed a motion to

dismiss, not an answer and (2) the respective comments, also under oath,on the Special Audit Report No. 91-05, a copy of which is attached. 11

On 4 December 1991, the Ombudsman received the affidavits of the Special Audit

Team but failed to furnish petitioners copies thereof.

On 18 February 1992, petitioners submitted a manifestation adopting the

comments filed by their co-respondents Jorge Silvosa and Mariano Kintanar dated

25 November 1991 and 17 January 1992, respectively.

Four years after, or on 22 February 1996, petitioners received a copy of a

Memorandum prepared by Special Prosecution Officer I, Lemuel M. De Guzman

dated 8 February 1996 addressed to Ombudsman Aniano A. Desierto regardingOMB-MIN-90-0425 and OMB-3-91-1768. Prosecutor De Guzman recommended

that the charges of malversation, violation of Sec. 3(e), R.A. No. 3019 and Art. 177,

Revised Penal Code against petitioners and their co-respondents be dismissed. He

opined that any issue pertaining to unwarranted benefits or injury to the

government and malversation were rendered moot and academic by the mutual

rescission of the subject contract before the COA submitted its findings (SAR No.

91-05) or before the disbursement was disallowed. However, Prosecutor De

Guzman recommended that petitioners be charged under Sec. 3(g) of R.A. No. 3019

"for having entered into a contract manifestly and grossly disadvantageous to the

government, the elements of profit, unwarranted benefits or loss to government

being immaterial."12

Accordingly, the following information dated 8 February 1996 was filed against

petitioners before the Sandiganbayan (docketed as Criminal Case No. 23193):

That on or about November 5, 1990, in the City of Davao, Philippines, andwithin the jurisdiction of this Honorable Court, the above-named accused,

both public officers, accused Rodrigo R. Duterte being then the City Mayor

and accused Benjamin C. De Guzman being then the City Administrator of

Davao City, committing the crime herein charged in relation to, while in

the performance and taking advantage of their official functions, and

conspiring and confederating with each other, did then and there

willfully, unlawfully and criminally enter into a negotiated contract for the

purchase of computer hardware and accessories with the Systems Plus,

Incorporated for and in consideration of the amount of PESOS: ELEVEN

MILLION SIX HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED TEN

(P11,656,810.00), which contract is manifestly and grossly

disadvantageous to the government, said accused knowing fully-well that

the said acquisition cost has been overpriced by as much as twelve

hundred (1200%) percent and without subjecting said acquisition to the

required public bidding.

CONTRARY TO LAW. 13

On 27 February 1996, petitioners filed a motion for reconsideration and on 29

March 1996, a Supplemental Motion for Reconsideration on the following grounds:

1. Petitioners were deprived of their right to a preliminary investigation,

due process and the speedy disposition of their case;

2. Petitioner Duterte acted in good faith and was clothed with authority to

enter into the subject contract;

3. There is no contract manifestly and grossly disadvantageous to the

government since the subject contract has been duly rescinded.

On 19 March 1996, the Ombudsman issued a Resolution denying petitioners'

motion for reconsideration.

On 18 June 1997, petitioners filed a Motion to Quash which was denied by the

Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan ruled:

It appears, however, that the accused were able to file motions for the

reconsideration of the Resolution authorizing the filing of the Information

herein with the Ombudsman in Manila. This would mean, therefore, that

whatever decision which might have occurred with respect to thepreliminary investigation would have been remedied by the motion for



reconsideration in the sense that whatever the accused had to say in their

behalf, they were able to do in that motion for reconsideration.

Considering the denial thereof by the Office of the Ombudsman, the Court does not believe itself empowered to authorize a reinvestigation on the

ground of an inadequacy of the basic preliminary investigation nor with

respect to a dispute as to the proper appreciation by the prosecution of

the evidence at that time.

In view hereof, upon further representation by Atty. Medialdea that he

represents not only Mayor Duterte but City Administrator de Guzman as

well, upon his commitment, the arraignment hereof is now set for July 25,

1997 at 8:00 o'clock in the morning. 14

On 15 July 1997, petitioners moved for reconsideration of the above order but the

same was denied by the Sandiganbayan for lack of merit in its Resolution dated 5

August 1997. 15

Hence, the present recourse.

Petitioners allege that:

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN

DENYING PETITIONERS' MOTION TO QUASH AND MOTION FOR

RECONSIDERATION, CONSIDERING THAT:

A

(1) PETITIONERS WERE EFFECTIVELY DEPRIVED OF

THEIR RIGHT TO A PRELIMINARY INVESTIGATION

PURSUANT TO SEC. 4, RULE II OF ADMINISTRATIVE

ORDER NO. 07 (RULES OF PROCEDURE OF THE

OFFICE OF THE OMBUDSMAN); AND

(2) ASSUMING THAT A PRELIMINARY INVESTIGATION

WAS PROPERLY CONDUCTED, THERE WAS AN

INORDINATE DELAY IN TERMINATING THE SAME

THEREBY DEPRIVING THEM OF THEIR RIGHT TO DUE

PROCESS AND SPEEDY DISPOSITION OF THE CASE.

B

THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO CHARGE

PETITIONERS DUTERTE AND DE GUZMAN OF VIOLATING SEC. 3 (G) OF

R.A. 3019 IN THAT:

(1) PETITIONER DUTERTE ACTED IN GOOD FAITH

AND WAS CLOTHED WITH FULL LEGAL AUTHORITY

FROM THE CITY COUNCIL TO ENTER INTO A

CONTRACT WITH SYSTEMS PLUS, INC.;

(2) THERE IS NO CONTRACT MANIFESTLY AND

GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT

TO SPEAK OF AS THE SAME HAS BEEN RESCINDED

AND NO DAMAGE WAS SUFFERED BY THE CITY

GOVERNMENT;

(3) ASSUMING THAT THE CONTRACT WAS NOT

RESCINDED, THE SAME CANNOT BE CONSIDERED AS

MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO

THE GOVERNMENT. 16

On 4 September 1997, the Court issued a Temporary Restraining Order enjoiningthe Sandiganbayan from further proceeding with Criminal Case No. 23193.

The Court finds the petition meritorious.

I

We have judiciously studied the case records and we find that the preliminary

investigation of the charges against petitioners has been conducted not in the

manner laid down in Administrative Order No. 07.

In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were

merely directed to submit a point-by-point comment under oath on the allegations

in Civil Case No. 20,550-91 and on SAR No. 91-05. The said orderwas not accompanied by a single affidavit of any person charging petitioners of any

offense as required by law. 17 They were just required to comment upon the

allegations in Civil Case No. 20,550-91 of the Regional Trial Court of Davao City

which had earlier been dismissed and on the COA Special Audit Report. Petitioners

had no inkling that they were being subjected to a preliminary investigation as in

fact there was no indication in the order that a preliminary investigation was being

conducted. If Graft Investigator Manriquez had intended merely to adopt the

allegations of the plaintiffs in the civil case or the Special Audit Report (whose

recommendation for the cancellation of the contract in question had been complied

with) as his bases for criminal prosecution, then the procedure was plainly



anomalous and highly irregular. As a consequence, petitioners' constitutional right

to due process was violated.

Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) provide:

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating

officer shall recommend whether or not it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) endorsed to the proper government office or agency which has

jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding

investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation

xxx xxx xxx

Sec. 4. Procedure. — The preliminary investigation of cases falling under

the jurisdiction of the Sandiganbayan and Regional Trial Courts shall beconducted in the manner prescribed in Section 3, Rule 112 of the Rules of

Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports,

the investigating officer shall require the complainant or supporting

witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall

issue an order, attaching thereto a copy of the affidavits and other

supporting documents, directing the respondent to submit, within ten

(10) days from receipt thereof, his counter-affidavits and controverting

evidence with proof of service thereof on the complainant. The

complainant may file reply affidavits within ten (10) days after service of

the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating

officer may consider the comment filed by him, if any, as his answer to the

complaint. In any event, the respondent shall have access to the evidence

on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction.Neither may a motion for a bill of particulars be entertained. If

respondent desires any matter in the complainant's affidavit to be

clarified, the particularization thereof may be done at the time of

clarificatory questioning in the manner provided in paragraph (f) of this

section.

e) If the respondent cannot be served with the order mentioned in

paragraph 6 hereof, or having been served, does not comply therewith,

the complaint shall be deemed submitted for resolution on the basis of

the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting

evidences, there are facts material to the case which the investigating

officer may need to be clarified on, he may conduct a clarificatory hearing

during which the parties shall be afforded the opportunity to be present

but without the right to examine or cross-examine the witness being

questioned. Where the appearance of the parties or witnesses isimpracticable, the clarificatory questioning may be conducted in writing,

whereby the questions desired to be asked by the investigating officer or

a party shall be reduced into writing and served on the witness concernedwho shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating

officer shall forward the records of the case together with his resolution

to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling

within the jurisdiction of the Sandiganbayan, or the proper Deputy

Ombudsman in all other cases.

In what passes off as application of the foregoing rules, all that petitioners were

asked to do was merely to file their comment upon every allegation of the

complaint in Civil Case No. 20,550-91 in the Regional Trial Court (RTC) and on the

COA Special Audit Report. The comment referred to in Section 2(b) Rule II, of A.O.

No. 07 is not part of or is equivalent to the preliminary investigation contemplated

in Sec. 4, Rule II, of the same Administrative Order. A plain reading of Sec. 2 would

convey the idea that upon evaluation of the complaint, the investigating officer may

recommend its outright dismissal for palpable want of merit; otherwise, or if the

complaint appears to have some merit, the investigator may recommend action

under any of those enumerated from (b) to (f), that is, the investigator may

recommend that the complaint be: referred to respondent for comment, or



endorsed to the proper government office or agency which has jurisdiction over

the case; or forwarded to the appropriate office or official for fact-finding

investigation; or referred for administrative adjudication; or subjected to

preliminary investigation. Now, if the investigator opts to recommend the filing of a

comment by the respondent, it is presumably because he needs more facts and

information for further evaluation of the merits of the complaint. That being done,

the investigating officer shall again recommend any one of the actions enumerated

in Section 2, which include the conduct of a preliminary investigation.

A preliminary investigation, on the other hand, takes on an adversarial quality and

an entirely different procedure comes into play. This must be so because the

purpose of a preliminary investigation or a previous inquiry of some kind, before

an accused person is placed on trial, is to secure the innocent against hasty,

malicious and oppressive prosecution, and to protect him from an open and public

accusation of a crime, from the trouble, expenses and anxiety of public trial. 18 It is

also intended to protect the state from having to conduct useless and expensive

trials. 19 While the right is s tatutory rather than constitutional in its fundament, it is

a component part of due process in criminal justice. The right to have a preliminary

investigation conducted before being bound over to trial for a criminal offense and

hence formally at risk of incarceration or some other penalty, is not a mere formal

or technical right; it is a substantive right. To deny the accused's claim to a

preliminary investigation would be to deprive him of the full measure of his right todue process. 20

Note that in preliminary investigation, if the complaint is unverified or based only

on official reports (which is the situation obtaining in the case at bar), the

complainant is required to submit affidavits to substantiate the complaint. The

investigating officer, thereafter, shall issue an order, to which copies of thecomplaint-affidavit are attached, requiring the respondent to submit his counter-

affidavits. In the preliminary investigation, what the respondent is required to file

is a counter-affidavit, not a comment. It is only when the respondent fails to file a

counter-affidavit may the investigating officer consider the respondent's comment

as the answer to the complaint. Against the foregoing backdrop, there was a

palpable non-observance by the Office of the Ombudsman of the fundamental

requirements of preliminary investigation.

Apparently, in the case at bar, the investigating officer considered the filing of

petitioner's comment as a substantial compliance with the requirements of a

preliminary investigation. Initially, Graft Investigator Manriquez directed the

members of the Special Audit Team on 9 October 1991 to submit their affidavits

relative to SAR No. 91-05. However, on 12 November 1991, before the affidavits

were submitted, Manriquez required petitioners to submit their respective

comments on the complaint in the civil case and on Special Audit Report (SAR) 91-

05. Even when the required affidavits were filed by the audit team on 4 December

1991, petitioners were still not furnished copies thereof. The Ombudsman

contends that failure to provide petitioners the complaint-affidavits is immaterial

since petitioners were well aware of the existence of the civil complaint and SAR

No. 91-05. We find the Ombudsman's reasoning flawed. The civil complaint and the

COA Special Audit Report are not equivalent to the complaint-affidavits required by

the rules. Moreover, long before petitioners were directed to file their comments,

the civil complaint (Civil Case No. 20,550-91) was rendered moot and academic

and, accordingly, dismissed following the mutual cancellation of the

computerization contract. In SAR No. 91-05, on the other hand, petitioners were

merely advised to rescind the subject contract — which was accomplished even

before the audit report came out. In light of these circumstances, the Court cannot

blame petitioners for being unaware of the proceedings conducted against them.

In Olivas vs. Office of the Ombudsman, 21 this Court, speaking through Justice Vicente

V. Mendoza, emphasized that it is mandatory requirement for the complainant to

submit his affidavit and those of his witnesses before the respondent can be

compelled to submit his counter-affidavits and other supporting documents. Thus:

Even in investigations looking to the prosecution of a party, Rule I, § 3 can

only apply to the general criminal investigation, which in the case at bar

was already conducted by the PCGG. But after the Ombudsman and his

deputies have gathered evidence and their investigation has ceased to be

a general exploratory one and they decide to bring the action against a

party, their proceedings become adversary and Rule II 4(a) then applies.This means that before the respondent can be required to submit

counter-affidavits and other supporting documents, the complaint must

submit his affidavit and those of his witnesses. This is true not only of

prosecutions of graft cases under Rep. Act No. 3019 but also of actions for

the recovery of unexplained wealth under Rep. Act No. 1379, because § 2

of this latter law requires that before a petition is filed there must be a

"previous inquiry similar to preliminary investigation in criminal cases."

Indeed, since a preliminary investigation is designed to screen cases for

trial, only evidence may be considered. While reports and even raw

information may justify the initiation of an investigation, the stage of

preliminary investigation can be held only after sufficient evidence has

been gathered and evaluated warranting the eventual prosecution of thecase in court. As this Court held in Cojuangco, Jr . v . PCGG:

Although such a preliminary investigation is not a trial

and is not intended to usurp the function of the trial

court, it is not a casual affair. The officer conducting the

same investigates or inquires into the facts concerning

the commission of the crime with the end in view of

determining whether or not an information may be

prepared against the accused. Indeed, a preliminary

investigation is in effect a realistic judicial appraisal of

the merits of the case. Sufficient proof of the guilt of the

accused must be adduced so that when the case is

tried, the trial court may not be bound as a matter of



law to order an acquittal. A preliminary investigation

has then been called a judicial inquiry. It is a judicial

proceeding. An act becomes judicial when there is

opportunity to be heard and for the production and

weighing of evidence, and a decision is rendered

thereof.

II

Compounding the deprivation of petitioners of their right to a preliminary

investigation was the undue and unreasonable delay in the termination of the

irregularly conducted preliminary investigation. Petitioners' manifestation

adopting the comments of their co-respondents was filed on 18 February 1992.

However, it was only on 22 February 1996 or four (4) years later, that petitioners

received a memorandum dated 8 February 1996 submitted by Special Prosecutor

Officer I Lemuel M. De Guzman recommending the filing of information against

them for violation of Sec. 3(g) of R.A. No. 3019 (Anti-Graft and Corrupt Practices

Act). The inordinate delay in the conduct of the "preliminary investigation"

infringed upon their constitutionally guaranteed right to a speedy disposition of

their case. 22 In Tatad vs. Sandiganbayan, 23 we held that an undue delay of close to

three (3) years in the termination of the preliminary investigation in the light of the

circumstances obtaining in that case warranted the dismissal of the case:

We find the long delay in the termination of the preliminary investigationby the Tanodbayan in the instant case to be violative of the constitutional

right of the accused to due process. Substantial adherence to the

requirements of the law governing the conduct of preliminary

investigation, including substantial compliance with the time limitation

prescribed by the law for the resolution of the case by the prosecutor, is

part of the procedural due process constitutionally guaranteed by the

fundamental law. Not only under the broad umbrella of the due process

clause, but under the constitutional guarantee of "speedy disposition" of

cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and

1987 Constitution), the inordinate delay is violative of the petitioner'sconstitutional rights. A delay of close to three (3) years can not be deemed

reasonable or justifiable in the light of the circumstances obtaining in the

case at bar. We are not impressed by the attempt of the Sandiganbayan to

sanitize the long delay by indulging in the speculative assumption that

"the delay may be due to a painstaking and grueling scrutiny by the

Tanodbayan as to whether the evidence presented during the preliminary

investigation merited prosecution of a former high-ranking government

official." In the first place, such a statement suggests a double standard of

treatment, which must be emphatically rejected. Secondly, three out of

the five charges against the petitioner were for his alleged failure to file

his sworn statement of assets and liabilities required by Republic Act No.

3019, which certainly did not involve complicated legal and factual issues

necessitating such "painstaking and grueling scrutiny" as would justify a

delay of almost three years in terminating the preliminary investigation.

The other two charges relating to alleged bribery and alleged giving of

unwarranted benefits to a relative, while presenting more substantial

legal and factual issues, certainly do not warrant or justify the period of

three years, which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary

investigation should not be deemed fatal, for even the complete absence

of a preliminary investigation does not warrant dismissal of the

information. True — but the absence of a preliminary investigation can be

corrected by giving the accused such investigation. But an undue delay in

the conduct of the preliminary investigation can not be corrected, for until

now, man has not yet invented a device for setting back time.

In the recent case of Angchangco, Jr . vs. Ombudsman, 24 the Court upheld

Angchangco's right to the speedy disposition of his case. Angchangco was a sheriff

in the Regional Trial Court of Agusan del Norte and Butuan City. In 1990 criminal

complaints were filed against him which remained pending before the Ombudsman

even after his retirement in 1994. The Court thus ruled:

Here, the Office of the Ombudsman, due to its failure to resolve thecriminal charges against petitioner for more than six years, has

transgressed on the constitutional right of petitioner to due process and

to a speedy disposition of the cases against him, as well as theOmbudsman's own constitutional duty to act promptly on complaints

filed before it. For all these past 6 years, petitioner has remained under a

cloud, and since his retirement in September 1994, he has been deprived

of the fruits of his retirement after serving the government for over 42

years all because of the inaction of respondent Ombudsman. If we wait

any longer, it may be too late for petitioner to receive his retirement

benefits, not to speak of clearing his name. This is a case of plain injustice

which calls for the issuance of the writ prayed for. 25

We are not persuaded by the Ombudsman's argument that the Tatad ruling doesnot apply to the present case which is not politically motivated unlike the former,

pointing out the following findings of the Court in the Tatad decision:

A painstaking review of the facts can not but leave the impression that

political motivations played a vital role in activating and propelling the

prosecutorial process in this case. Firstly, the complaint came to life, as it

were, only after petitioner Tatad had a falling out with President Marcos.

Secondly, departing from established procedures prescribed by law for

preliminary investigation, which require the submission of affidavits and

counter-affidavits by the complainant and the respondent and theirwitnesses, the Tanodbayan referred the complaint to the Presidential

Security Command for fact-finding investigation and report.



We find such blatant departure from the established procedure as a

dubious, but revealing attempt to involve an office directly under the

President in the prosecutorial process, lending credence to the suspicion

that the prosecution was politically motivated. We cannot emphasize too

strongly that prosecutors should not allow, and should avoid, giving the

impression that their noble office is being used or prostituted, wittingly or

unwittingly, for political ends, or other purposes alien to, or subversive of ,

the basic and fundamental objective observing the interest of justice

evenhandedly, without fear or favor to any and all litigants alike whetherrich or poor, weak or strong, powerless or mighty. Only by strict

adherence to the established procedure may be public's perception of the

impartiality of the prosecutor be enhanced. 26

The Ombudsman endeavored to distinguish the present suit from the Angchangco

case by arguing that in the latter, Angchangco filed several motions for early

resolution, implying that in the case at bar petitioners were not as vigilant in

asserting or protecting their rights.

We disagree. The constitutional right to speedy disposition of cases does not come

into play only when political considerations are involved. The Constitution makes

no such distinction. While political motivation in Tatad may have been a factor in

the undue delay in the termination of the preliminary investigation therein to

justify the invocation of their right to speedy disposition of cases, the particular

facts of each case must be taken into consideration in the grant of the relief sought.

In the Tatad case, we are reminded:

In a number of cases, this Court has not hesitated to grant the so-called

"radical relief" and to spare the accused from undergoing the rigors and

expense of a full-blown trial where it is clear that he has been deprived of

due process of law or other constitutionally guaranteed rights. Of course,

it goes without saying that in the application of the doctrine enunciated in

those cases, particular regard must be taken of the facts and

circumstances peculiar to its case. 27

In Alviso vs. Sandiganbayan, 28 the Court observed that the concept of speedy

disposition of cases "is a relative term and must necessarily be a flexible concept"

and that the factors that may be considered and balanced are the "length of the

delay, the assertion or failure to assert such right by the accused, and the prejudice

caused by the delay."

Petitioners in this case, however, could not have urged the speedy resolution of

their case because they were completely unaware that the investigation against

them was still on-going. Peculiar to this case, we reiterate, is the fact that

petitioners were merely asked to comment, and not file counter-affidavits which isthe proper procedure to follow in a preliminary investigation. After giving their

explanation and after four long years of being in the dark, petitioners, naturally,

had reason to assume that the charges against them had already been dismissed.

On the other hand, the Office of the Ombudsman failed to present any plausible,special or even novel reason which could justify the four-year delay in terminating

its investigation. Its excuse for the delay — the many layers of review that the case

had to undergo and the meticulous scrutiny it had to entail — has lost its novelty

and is no longer appealing, as was the invocation in the Tatad case. The incident

before us does not involve complicated factual and legal issues, specially in view of

the fact that the subject computerization contract had been mutually cancelled by

the parties thereto even before the Anti-Graft League filed its complaint.

The Office of the Ombudsman capitalizes on petitioners' three motions for

extension of time to file comment which it imputed for the delay. However, the

delay was not caused by the motions for extension. The delay occurred after

petitioners filed their comment. Between 1992 to 1996, petitioners were under no

obligation to make any move because there was no preliminary investigation

within the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in the first

place.

III

Finally, under the facts of the case, there is no basis in law or in fact to charge

petitioners for violation of Sec. 3(g) of R.A. No. 3019. To establish probable cause

against the offender for violation of Sec. 3(g), the following elements must be

present: (1) the offender is a public officer; (2) he entered into a contract or

transaction in behalf of the government; and (3) the contract or transaction is

grossly and manifestly disadvantageous to the government. The second element of

the crime — that the accused public officers entered into a contract in behalf of the

government — is absent. The computerization contract was rescinded on 6 May

1991 before SAR No. 91-05 came out on 31 May 1991 and before the Anti-Graft

League filed its complaint with the Ombudsman on 1 August 1991. Hence, at that

time the Anti-Graft League instituted their complaint and the Ombudsman issued

its Order on 12 November 1991, there was no longer any contract to speak of. Thecontract, after 6 May 1991 became in contemplation of law, non-existent, as if no

contract was ever executed.

WHEREFORE, premises considered, the petition is GRANTED and Criminal Case No.

23193 is hereby DISMISSED. The temporary restraining order issued on 4

September 1997 is made PERMANENT.

SO ORDERED.

Narvasa, C.J., Romero and Purisima, JJ., concur.



Republic of the Philippines

SUPREME COURT

Manila

EN BANC

A.M. No. 2011-04-SC July 5, 2011

Re: Gross Violation of Civil Service Law on the Prohibition Against DualEmployment and Double Compensation in the Government Service

Committed by Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, SecurityDivision, Office of Administrative Services.

R E S O L U T I O N

PER CURIAM:

Before us is an administrative case which arose from the investigation conducted

by the Office of Administrative Services (OAS) in connection with a complaint

against Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, OASfor alleged gross violation of the Civil Service Law on the prohibition against dual

employment and double compensation in the government service.

I. Antecedents

Respondent was appointed by the Court as SC Chief Judicial Staff Officer, Security

Division, OAS on July 14, 2008. His application papers show he has experience and

training as a police officer, having been employed as Chief Inspector of the

Philippine National Police (PNP) Aviation Security Group at the time of his

appointment in the Supreme Court.

Immediately upon his appointment on July 14, 2008, respondent was allowed toassume office and perform his duties, for reasons of exigency in the service

although he has yet to comply with the submission of all the documentary

requirements for his appointment.

During the course of his employment, an anonymous letter1 reached the OAS

reporting the respondent’s gross violation of the Civil Service Law on the

prohibition against dual employment and double compensation in the government

service. The letter alleged that respondent accepted employment, and thusreceived salaries and other benefits, from the Court and also from the PNP of which

he remained an active member.

The OAS’ inquiries on this allegation confirmed that prior to his employment at the

Court, respondent was an active member of the PNP assigned with the Aviation

Security Group – 2nd Police Center for Aviation Security at the Manila Domestic

Airport in Pasay City, with a permanent status and rank of Police Chief Inspector.

Taking the chance to explore his opportunities and skills outside of the police

service, he applied for the position of SC Chief Judicial Staff Officer, Security

Division, OAS. While employed in the Court and receiving his regular

compensation, he continued to be a bonafide member of the PNP assigned with the

Aviation Security Group with the same status and rank of Police Chief Inspectoruntil the date when he optionally retired on September 30, 2009.

The OAS was also informed that the Internal Affairs Office (IAO) of the PNP is

likewise carrying out a separate probe and investigation on respondent for the

same alleged gross violation of the Civil Service Law.

Considering the seriousness of the matter, respondent was preventively suspended

by the Court pending the results of the IAO’s investigations and the separate

administrative investigation of the OAS.2

In the OAS Memorandum dated May 6, 2011,3 respondent was directed to explain

why he should not be administratively charged with gross dishonesty and conduct prejudicial to the best interest of the service for violation of the Civil Service Law

on the prohibition against dual employment and double compensation in the

government service.

In his letter-comment dated May 26, 2011,4 respondent submitted to the findings

of the OAS but "humbly implore your magnanimity not to charge him with gross

dishonesty and conduct prejudicial to the best interest of the service"5 and offered

the following explanation:

2.1 On January 24, 2008, I applied for optional retirement as a member of the Philippine National Police (PNP). At that time, I was informed that my

application would be effective on March 31, 2008, or a period of three (3)

months from its submission date.

2.2. However, I was advised that, as part of the new policy on optional

retirement, the effectivity of my application would be six (6) months from

date of its submission, or on July 14, 2008.

2.3 Pending the approval of my application for optional retirement, I

applied with the Honorable Supreme Court for the position of Chief

Security Officer. In the course of my interview, I declared that the

Philippine National Police (PNP) had yet to formally approve my

application for optional retirement.

http://www.lawphil.net/judjuris/juri2011/jul2011/am_2011-04-sc_2011.html#fnt1






















2.4 Due to the urgent need to fill-in the said vacant position I was hired by

the Honorable Supreme Court as its employee which took effect on July

14, 2008. From then on, and as shall be further discussed hereunder, I

have faithfully discharged my duties and responsibilities in order to

ensure the safety and security of the Honorable Supreme Court, as an

institution; the Honorable Justices; and the court personnel.

2.5 In good faith, and without concealing any material fact from the

Honorable Supreme Court, I submitted all the required documents and

clearances in support of my appointment. At that time, I had no reason to

doubt that my optional retirement would be deemed effective on July 14,

2008-which date actually coincided with the effectivity of my

employment with the Honorable Supreme Court.

2.6 But, then, as fate had it, my application for optional retirement was

not immediately acted upon by the Philippine National Police (PNP)

within the original period of my request. As it is, such application was

bypassed several times, and I was considered optionally retired on

September 30, 2009.

2.7 During the period of almost fourteen (14) months, my employment with the Honorable Supreme Court overlapped with that of the Philippine

National Police (PNP). In the interim, I likewise received my

corresponding monthly salaries from the Philippine National Police(PNP). Not for anything else, I did so for economic reasons.

2.8 Without proffering any justification for may actions, which I now

realize to be totally uncalled for, I was then of the honest impression that I

was still entitled to such monthly salaries pending the approval of my

application for optional retirement which dragged for a longer period of

time with no fault on my part."6

Offering no justification and admitting his fault, and cognizant of the consequences

of his wrong judgment, respondent extends his apologies to the Court and to thePNP. He also informed the OAS that he made arrangements with the PNP for the

return, as in fact he had already returned, the total amount of P 560,982.86

representing his salaries and allowances which he received from the PNP covering

the period July 2008 to September 2009.7 He allegedly made such restitution to

shield the PNP from undue prejudice and to erase the stigma which the incident

has caused upon his person and honor.

Finally, advancing his track record of good performance both in the PNP and the

Court, respondent seeks compassion and prays that the consequences be tempered.

II. Recommendation

In its report to the Court dated June 27, 2011, the OAS presented its findings that

by respondent’s own admission, without offering any justification, his acts have

prejudiced the government. His offer of mitigating circumstance - delay in the

processing of his retirement papers - is unacceptable as records of the PNP will

contradict this. The Service Record issued by the PNP in his favor for retirement

purposes was dated August 26, 2008.8 Likewise, his Certificates of Clearances,

namely: (a) no pending administrative case was dated August 13, 200 89; (b) no

money accountability was dated October 29, 2008 10 and; (c) property

accountability/responsibility was dated October 31, 200811. These documentsclearly show that he only started processing the requirements for his application

for optional retirement when he was already connected with the Court.

The OAS found respondent’s claim that he applied for optional retirement as early

as January 2008 to be merely an afterthought. The OAS further noted that the

vacancy for the position of SC Chief Judicial Staff Officer of the Security Division

existed only after April 30, 2008. Such circumstances lead the OAS to conclude that

respondent first made clear to be appointed to the Court prior to filing his

application for retirement to be sure that he transfers to another government

agency, at the same time enjoying the fruits of his retirement from the PNP. It

should be noted that governing law on retirement of members of the PNP is

different from those with the Court. If t he law is the same, respondent’s

employment with the Court is simply one of "transfer". However, his application toand subsequent appointment to the Court is one of reemployment as evidenced by

his sworn Certificate of Gratuit y12which he submitted to the OAS and where he

clearly indicated that the inclusive dates of employment with the PNP was from

March 29, 1999 to July 13, 2008, and that the cause of his separation was optional

retirement.

The OAS thus found respondent’s indirect claim of good faith unavailing. His

regular receipt of his salaries from the PNP despite presumably exclusively

working with the Court implies a deliberate intent to give unwarranted benefit to

himself and undue prejudice to the government especially so by his regular

submission of monthly/daily time record as a mandatory requirement for inclusion

in the payroll.

The OAS also found that respondent became aware of the approval of his

application for retirement as early as September 30, 2009. Notwithstanding such

knowledge, he did not immediately refund his overpayment, if that was indeed the

case, and that his act of returning his salaries after the period of 20 months was

also a mere afterthought as he did so only because the Court became aware of it

and directed him to explain. Would he have done so if no report of his actuation

was ever brought to the attention of the Court? The lapse of almost 2 years without

him doing so speaks of his intent not to return the same.

Good faith, here understood, is an intangible and abstract quality with no technical

meaning or statutory definition, and it encompasses, among other things, an honest

belief, the absence of malice and the absence of design to defraud or to seek an




























unconscionable advantage. An individual’s personal good faith is a concept of his

own mind and, therefore, may not conclusively be determined by his protestations

alone. It implies honesty of intention, and freedom from knowledge of

circumstances which ought to put the holder upon inquiry. The essence of good

faith lies in an honest belief in the validity of one’s right, ignorance of a superior

claim, and absence of intention to overreach another.13

The OAS found respondent’s actuation even amounts to gross dishonesty. His

receipt of salaries from the PNP despite not rendering any service thereto is a formof deceit. Jurisprudence states that dishonesty implies a "disposition to lie, cheat,

deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty, probity or

integrity in principle; lack of fairness and straightforwardness; disposition to

defraud, deceive or betray."14

That respondent actually rendered services to the PNP, if any, despite employment

in the Court, is inconsequential. The prohibition against government officials and

employees, whether elected or appointed, from concurrently holding any other

office or position in the government is contained in Section 7, Article IX-B of the

1987 Constitution which provides:

x x x

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government, or

any subdivision, agency or instrumentality thereof, including government-owned

or controlled corporations or their subsidiaries.

The prohibition on dual employment and double compensation in the government

service is further specified under Sections 1 and 2, Rule XVIII of the Omnibus Rules

Implementing Book V of E.O. No. 292, viz:

Sec. 1. No appointive official shall hold any other office or employment in the

Government or any subdivision, agency or instrumentality thereof, includinggovernment-owned or controlled corporations with original charters or their

subsidiaries, unless otherwise allowed by law or by the primary functions of his

position.

Sec. 2. No elective or appointive public officer or employee shall receive additional,

double, or indirect compensation, unless specifically authorized by law, xxxxx.

Moreover, Section 5, Canon III of the Code of Conduct for Court Personnel,

specifically provides that:

Sec. 5 The full-time position in the Judiciary of every court personnel shall be thepersonnel’s primary employment. For purposes of this Code, "primary

employment" means the position that consumes the entire normal working hours

of the court personnel and requires the personnel’s exclusive attention in

performing official duties.

Outside employment may be allowed by the head of office provided it complies

with all of the following requirements:

(a) The outside employment is not with a person or entity that practiceslaw before the courts or conducts business with the Judiciary;

(b) The outside employment can be performed outside of normal working

hours and is not incompatible with the performance of the court

personnel’s duties and responsibilities;

(c) The outside employment does not require the practice of law;

Provided, however, that court personnel may render services as

professor, lecturer, or resource person in law schools, review or

continuing education centers or similar institutions;

(d) The outside employment does not require or induce the court

personnel to disclose confidential information acquired while performing

duties; and

(e) The outside employment shall not be with the legislative or executive

branch of government, unless specifically authorized by the Supreme

Court.

Where a conflict of interest exists, may reasonably appear to exist, or where the

outside employment reflects adversely on the integrity of the Judiciary, the court

personnel shall not accept the outside employment.

With the undisputed facts of the case, the OAS considers that there is sufficient

evidence to support a finding that respondent is liable for gross dishonesty andconduct prejudicial to the best interest of the service. His non-disclosure of thematerial fact that he was still employed as an active member of the PNP and

receiving his monthly salaries therein during the period that he is already a Court

employee is considered substantial proof that he tried to cheat/defraud both the

PNP and the Court. This is an affront to the dignity of the Court. Indeed, respondent

has transgressed the Constitution and the Civil Service law on the prohibition on

dual employment and double compensation in the government service.

Thus, after its due investigation, the OAS submitted its report to the Court finding

respondent guilty of the charges and recommending:











a. that Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, Security

Division, Office of Administrative Services, be held liable for gross

dishonesty and conduct prejudicial to the best interest of the service for

not disclosing the fact that despite accepting employment with and

receiving salaries from the Supreme Court, he is still receiving his salaries

and benefits from the Philippine National Police as an active member

thereof; and

b. that he be dismissed from the service with forfeiture of all benefits,except accrued leave credits, if he has any, and with prohibition from

reemployment in any branch, agency or instrumentality of the

government including government-owned or controlled corporations. 15

We fully agree with the findings of the OAS and adopt its recommendations.

All court personnel ought to live up to the strictest standards of honesty and

integrity, considering that their positions primarily involve service to the public.

For knowingly and willfully transgressing the prohibition on dual employment and

double compensation, as well as the Court’s rules for its personnel on conflict of

interest, respondent violated the trust and confidence reposed on him by the Court.

Considering the sensitive and confidential nature of his position, the Court is left with no choice but to declare the respondent guilty of gross dishonesty and

conduct prejudicial to the best interest of the service, which are grave offenses

punished by dismissal.

WHEREFORE, the Court finds respondent Eduardo V. Escala, SC Chief Judicial Staff

Officer, Security Division, OAS GUILTY of gross dishonesty and conduct prejudicial

to the best interest of the service, and imposes on him the penalty

of DISMISSAL from the service and forfeiture of all benefits with prejudice to re-

employment in any government agency, including government-owned and

controlled corporations.

SO ORDERED.

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

TERESITA J. LEONARDO-DECASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

(On leave)DIOSDADO M. PERALTA*

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice







FIRST DIVISION

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 thepayments 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, theSandiganbayan3 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 DocumentaryExhibits 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 delNorte — from April, 1986 to August, 1987 as

OIC Municipal Treasurer.

(b) Municipality of Roxas, Zamboanga delNorte — 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 allegedunjustified 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 withher 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 thetotal 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 theperiod 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 matterbefore 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 askingyou, when you went back

to Sindangan there was

[sic] still problems of the

claims either against you

or against the Municipalityof 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'sclaims 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 enteredinto 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.

xxx xxx xxx

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;

xxx xxx xxx

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, . . . .

xxx xxx xxx

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, Zamboangadel 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).

xxx xxx xxx

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 asassistant 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 ajustifiable 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 publicofficer and are hereby declared to be unlawful:



xxx xxx xxx

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarrantedbenefits, 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 orother 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. People 13 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 tosimply 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 forthe 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 hersalaries 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 whichwere 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 InAlejandro, 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 theclearances which were allegedly necessary for the approval of

vouchers is futile in the light of the foregoing circumstances:

xxx xxx xxx

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 theclearance requirement. Perforce, he could have seen to it that

complainant secured the same in order that he could comply

with the said obligation.

xxx xxx xxx

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 AppropriationOrdinance 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 fai led to submit the required

clearance. This requirement, which the complainant disregarded, waseven 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 casemay 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 supplementalbudget 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 suchdisbursement.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 criminalact, 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.

Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

Footnotes

1 Records, p. 1; the information was signed by Special

Prosecution Officer II Luz L. Quiñones-Marcos of the Office of the

Special Prosecutor.

2 Records, p. 60.

3 First Division is composed of J . Minita Chico-Nazario, ponente;

PJ. Francis E. Garchitorena and J . Jose S. Balajadia, concurring.

4 Rollo, pp. 56-57.

5 Rollo, p. 72.

6 The case was deemed submitted for resolution upon filing of

the memorandum for Respondent Court on December 11, 1997

by the Office of the Ombudsman.

7 Rollo, pp. 39-44.

8 Rollo, pp. 259-266; the memorandum for the petitioner was

signed by Atty. Ruben E. Agpalo.

9 Sec. 318. Preparation of the Budget by the Local Chief Executive.

— Upon receipt of the statements of income and expendituresfrom the treasurer, the budget proposals of the heads of

departments and offices, and estimates of income and budgetary

ceilings from the local finance committee, the local chief

executive shall prepare the executive budget for the ensuing

fiscal year in accordance with the provisions of this Title.

The local chief executive shall submit the said executive budget

to the sanggunian concerned not later than the sixteenth (16th)

of October of the current fiscal year. Failure to submit such

budget on the date prescribed herein shall subject the local chief

executive to such criminal and administrative penalties as

provided for under this Code and other applicable laws.

Sec. 320. Effectivity of Budgets — The ordinance enacting the

annual budget shall take effect at the beginning of the ensuing

calendar year. An ordinance enacting a supplemental budget,

however, shall take effect upon its approval or on the date fixed

therein.

The responsibility for the execution of the annual andsupplemental budgets and the accountability therefor shall be

vested primarily in the local chief executive concerned.



Sec. 444. The Chief Executive: Powers, Duties, Functions and

Compensation — . . . The municipal mayor shall:

(3) xxx xxx xxx

(ii) Prepare and submit to the sanggunian for approval the

executive and supplemental budgets of the municipality for the

[ensuing] calendar years in the manner provided for under Title

Five, Book II of this Code.

10 Rollo, p. 266.

11 Ponce de Leon vs. Sandiganbayan, 186 SCRA 745, 745, June

25, 1990; Pecho vs. Sandiganbayan, 238 SCRA 116, 128,

November 14, 1994; Jacinto vs. Sandiganbayan, 178 SCRA 254,

259, October 2, 1989; and Medija, Jr. vs. Sandiganbayan, 218

SCRA 219, 223, January 29, 1993.

12 Rollo, p. 140; the 30-page Manifestation in Lieu of Comment

of the OSG, dated March 6, 1996, was signed by then Solicitor

General Raul I. Goco, Asst. Solicitor General Romeo C. dela Cruzand Solicitor Karl B. Miranda.

13 170 SCRA 400, 405, February 20, 1989.

14 Supra.

15 Pecho vs. Sandiganbayan, supra at p. 133.

16 Art. 2199, Civil Code; Nolledo, Civil Code of the Philippines,

10th ed., Vol. V, p. 927; and Gonzales-Decano, Notes on Torts and

Damages, 1992 ed., pp. 141 and 144.

17 Tolentino, The Civil Code, Vol. V. 1992 ed., pp. 633-634.

18 Ibid .

19 TSN, August 9, 1994, p. 3.

20 Fuentes, Jr. vs. Court of Appeals, 253 SCRA 430, 438,

February 9, 1996; People vs. Fabrigas, 261 SCRA 436, 448,

September 5, 1996.

21 Jacinto vs. Sandiganbayan, supra at p. 259.

22 Alejandro vs. People, supra at p. 405.

23 Rollo, p. 56.

24 Ibid ., pp. 65-68.

25 Sec. 344. Certification on, and Approval of, Vouchers. — No

money shall be disbursed unless the local budget officer certifies

to the existence of appropriation that has been legally made for

the purpose, the local accountant has obligated said

appropriation, and the local treasurer certifies to the availability

of funds for the purpose. Vouchers and payrolls shall be certified

to and approved by the head of the department or office who has

administrative control of the fund concerned, as to validity,

propriety, and legality of the claim involved. Except in cases of

disbursements involving regularly recurring administrative

expenses such as payrolls for regular or permanent employees, .

. . . approval of the disbursement voucher by the local chief

executive himself shall be required whenever local funds aredisbursed.

xxx xxx xxx

26 Records, p. 219.

27 Records, pp. 322-323.

28 Baldivia vs. Lota, 107 Phil. 1099, 1103 [1960]; and Discanso

vs. Gatmaytan, 109 Phil 816, 920-921 [1960].

29 Marcelo vs. Sandiganbayan, 185 SCRA 346, 349, May 14,

1990.

30 Jacinto vs. Sandiganbayan, supra at p. 260.

31 Alejandro vs. Sandiganbayan, supra at p. 405.

32 Pecho vs. Sandiganbayan, supra, p. 135.

33 Coronada vs. Sandiganbayan, 225 SCRA 406, 409-410, August

18, 1993; and Nessia vs. Fermin, 220 SCRA 615, 621-622, March

30, 1993.



FIRST DIVISION

G.R. Nos. 159017-18 March 9, 2011

PAULINO S. ASILO, JR., Petitioner,

vs.THE PEOPLE OF THE PHILIPPINES and Spouses VISITACION AND CESAR C.

BOMBASI, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 159059

VICTORIA BUETA VDA. DE COMENDADOR, IN REPRESENTATION OFDEMETRIO T. COMENDADOR,Petitioner,

vs.

VISITACION C. BOMBASI AND CESAR C. BOMBASI, Respondents.

D E C I S I O N

PEREZ, J.:

At bench are appeals by certiorari1 from the Decision2 of the Fourth Division of the

Sandiganbayan; (1) finding Demetrio T. Comendador3 (Mayor Comendador) and

Paulino S. Asilo, Jr.4 guilty beyond reasonable doubt of violation of Sec. 3(e) of

Republic Act No. 3019; (2) dismissing the cases against accused Alberto S.

Angeles;5 (3) ordering the defendants Municipality of Nagcarlan, Laguna, Demetrio

T. Comendador and Paulino S. Asilo, Jr. to pay the plaintiffs now respondents

Visitacion C. Bombasi (Visitacion) and Cesar C. Bombasi damages; and (4)

dismissing the cases against the spouses Alida and Teddy Coroza6 and Benita and

Isagani Coronado.7

The factual antecedents of the case are:

On 15 March 1978, Private Respondent Visitacion’s late mother Marciana Vda. De

Coronado (Vda. De Coronado) and the Municipality of Nagcarlan, Laguna

(represented by the then Municipal Mayor Crisostomo P. Manalang) entered into a

lease contract whereby the Municipality allowed the use and enjoyment of

property comprising of a lot and a store located at the corner of Coronado and E.

Fernandez Sts. at Poblacion, Nagcarlan, Laguna, in favor of the respondent’s motherfor a period of twenty (20) years beginning on 15 March 1978 until 15 March 1998,

extendible for another 20 years.8

The lease contract provided that the late Vda. De Coronado could build a firewall on

her rented property which must be at least as high as the store; and in case of

modification of the public market, she or her heir/s would be given preferential

rights.

Visitacion took over the store when her mother died sometime in 1984.9 From then

on up to January 1993, Visitacion secured the yearly Mayor’s permits.10

Sometime in 1986, a fire razed the public market of Nagcarlan. Upon Visitacion’s

request for inspection on 15 May 1986, District Engineer Marcelino B. Gorospe

(Engineer Gorospe) of the then Ministry of Public Works and Highways,11 Regional

Office No. IV-A, found that the store of Visitacion remained intact and stood strong.

This finding of Engineer Gorospe was contested by the Municipality of Nagcarlan.

The store of Visitacion continued to operate after the fire until 15 October 1993.

On 1 September 1993, Visitacion received a letter12 from Mayor Comendador

directing her to demolish her store within five (5) days from notice. Attached to the

letter were copies of Sangguniang Bayan Resolution No. 15613dated 30 August

1993 and a Memorandum issued by Asst. Provincial Prosecutor Marianito

Sasondoncillo of Laguna.

The relevant provisos of the Resolution No. 156 states that:

NOW THEREFORE, be it RESOLVED, as it hereby resolved to authorize Hon.

Demetrio T. Comendador to enforce and o rder the Coronado’s to demolish the

building constructed on the space previously rented to them in order to give way

for the construction of a new municipal market building.

RESOLVED FURTHER, to authorize Demetrio T. Comendador, Honorable Mayor of

Nagcarlan to file an Unlawful Detainer Case with damages for the expenses

incurred due to the delay in the completion of the project if the Coronado’s

continuously resists the order.

On 3 September 1993, Visitacion wrote a reply letter to Mayor Comendador saying

that: (1) the lease contract was still existing and legally binding; (2) she was willing

to vacate the store as long as same place and area would be given to her in the new

public market; and (3) in case her proposals are not acceptable to Mayor

Comendador, for the latter to just file an unlawful detainer case against her

pursuant to Sangguniang Bayan Resolution No. 156. Pertinent portions of the letter

read:

x x x With all due respect to the resolution of the Municipal Council and the opinion

rendered by the Laguna Asst. Provincial Prosecutor, it is my considered view,however, arrived at after consultation with my legal counsel, that our existing lease

http://www.lawphil.net/judjuris/juri2011/mar2011/gr_159017_2011.html#fnt1




















































contract is still legally binding and in full force and effect. Lest I appear to be

defiant, let me reiterate to you and the council that we are willing to vacate the said

building provided that a new contract is executed granting to us the same space or

lot and the same area. I believe that our proposal is most reasonable and fair under

the circumstance. If you are not amenable to the said proposal, I concur with the

position taken by the Council for you to file the appropriate action in court for

unlawful detainer to enable our court to finally thresh out our

differences.141avvphi1

On 15 September 1993, Asst. Provincial Prosecutor Florencio Buyser sent a letter

to Visitacion ordering her to vacate the portion of the public market she was

occupying within 15 days from her receipt of the letter; else, a court action will be

filed against her.

On 11 October 1993, the Sangguniang Bayan of Nagcarlan, Laguna issued

Resolution No. 183 authorizing Mayor Comendador to demolish the store being

occupied by Visitacion using legal means. The significant portion of the Resolution

reads:

Kung kaya ang Sangguniang Bayan ay buong pagkakaisang IPINASIYA: Ang

pagbibigay kapangyarihan kay Kgg. Demetrio T. Comendador na ipagiba anganumang istrakturang nagiging sagabal sa mabilis at maayos na pagbabangon ng

pamilihang bayan.15

On 14 October 1993, Municipal Administrator Paulino S. Asilo, Jr. (Asilo) also sent a

letter16 to Visitacion informing her of the impending demolition of her store the

next day. Within the same day, Visitacion wrote a reply lette r17 to Asilo, alleging

that there is no legal right to demolish the store in the absence of a court order and

that the Resolutions did not sanction the demolition of her store but only the filing

of an appropriate unlawful detainer case against her. She further replied that if the

demolition will take place, appropriate administrative, criminal and civil actions

will be filed against Mayor Comendador, Asilo and all persons who will take part in

the demolition.

On 15 October 1993, Mayor Comendador relying on the strength of Sangguniang

Bayan Resolution Nos. 183 and 156 authorized the demolition of the store with

Asilo and Angeles supervising the work.

Engineer Winston Cabrega (Engineer Cabrega), a licensed civil engineer, estimated

the cost of the demolished property as amounting to P437,900.0018

On 19 August 1994, Visitacion, together with her husband Cesar Bombasi (Spouses

Bombasi) filed with the Regional Trial Court of San Pablo City, Laguna a Civil

Case19 for damages with preliminary injunction against the Municipality of

Nagcarlan, Laguna, Mayor Demetrio T. Comendador, Paulino S. Asilo, Jr., and

Alberto S. Angeles. The complaint was soon after amended to include the Spouses

Benita and Isagani Coronado and Spouses Alida and Teddy Coroza as formal

defendants because they were then the occupants of the contested area.

The spouses prayed for the following disposition:

1. RESTRAINING or ENJOINING defendant Municipality and defendant

Municipal Mayor from leasing the premises subject of lease Annex "A"

hereof, part of which is now occupied by PNP Outpost and by the

Municipal Collectors’ Office, and the equivalent adjacent area thereof, and

to cause the removal of said stalls;

2. UPHOLDING the right of plaintiffs to occupy the equivalent corner area

of the leased areas being now assigned to other persons by defendants

Municipality and/or by defendant Municipal Mayor, and to allow plaintiffs

to construct their stalls thereon;

3. MAKING the injunction permanent, after trial;

4. ORDERING defendants to pay plaintiffs, jointly and severally, the

following –

(a) P437,900.00 for loss of building/store and other items

therein;

(b) P200,000.00 for exemplary damages;

(c) P200,000.00 for moral damages;

(d) P30,.00 for attorney’s fees and P700.00 for every attendance

of counsel in court.

5. GRANTING further reliefs upon plaintiffs as justice and equity maywarrant in the premises.20

Spouses Bombasi, thereafter, filed a criminal complaint 21 against Mayor

Comendador, Asilo and Angeles for violation of Sec. 3(e) of Republic Act No. 3019

otherwise known as the "Anti-Graft and Corrupt Practices Act" before the Office of

the Ombudsman. On 22 February 1996, an Information22 against Mayor

Comendador, Asilo and Angeles was filed, which reads:

That on or about October 15, 1993, at Nagcarlan, Laguna, Philippines, and within

the jurisdiction of this Honorable Court, the above-named accused, all public

officers, accused Demetrio T. Comendador, being then the Municipal Mayor,

accused Paulino S. Asilo, Jr. being then the Municipal Administrator and accused






































Alberto S. Angeles being then the Municipal Planning and Development

Coordinator, all of the Municipality of Nagcarlan, Laguna, committing the crime

herein charged in relation to, while in the performance and taking advantage of

their official functions, conspiring and confederating with each other, and with

evident bad faith, manifest partiality or through gross inexcusable negligence, did

then and there willfully, unlawfully, criminally cause the demolition of a public

market stall leased by the municipal government in favor of one Visitacion

Coronado-Bombasi without legal or justifiable ground therefor, thus, causing

undue injury to the latter in the amount of PESOS: FOUR HUNDRED THIRTY SEVENTHOUSAND AND NINE HUNDRED ONLY (P437,900.00).

Upon their arraignments, all the accused entered their separate pleas of "Not

Guilty."

On 4 March 1997, the Sandiganbayan promulgated a Resolution ordering the

consolidation of Civil Case No. SP-4064 (94)23 with Criminal Case No. 23267

pending before the Third Division pursuant to Section 4, Presidential Decree No.

1606, which pertinently reads:

Any provision of law or Rules of Court to the contrary notwithstanding, the

criminal action and the corresponding civil action for the recovery of civil liability

arising from the offense charged shall at all times be simultaneously instituted

with, and jointly determined in the same proceeding by the Sandiganbayan or the

appropriate courts, the filing of the criminal action being deemed to necessarilycarry with it the filing of the civil action, and no right to reserve the filing of such

civil action separately from the criminal action shall be recognized; Provided,

however, that where the civil action had heretofore been filed separately but

judgment therein has not yet been rendered, and the criminal case is hereafter filed

with the Sandiganbayan or the appropriate court, said civil action shall be

transferred to the Sandiganbayan or the appropriate court as the case may be, for

consolidation and joint determination with the criminal action, otherwise the

separate civil action shall be deemed abandoned.24

During the pendency of the case, Alberto S. Angeles died on 16 November 1997.Accordingly, the counsel of Angeles filed a motion to drop accused Angeles. On 22

September 1999, the Third Division of Sandiganbayan issued an

Order25 DISMISSING the case against Angeles. The germane portion of the Order

reads:

In view of the submission of the death certificate of accused/defendant Alberto S.

Angeles, and there being no objection on the part of the Public Prosecutor, cases

against deceased accused/defendant Angeles only, are hereby DISMISSED.

The death of Mayor Comendador followed on 17 September 2002. As a result, the

counsel of the late Mayor filed on 3 March 2003 a Manifestation before the

Sandiganbayan informing the court of the fact of Mayor Comendador’s death.

On 28 April 2003, the Sandiganbayan rendered a decision, the dispositive portion

of which reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

In Criminal Case No. 23267, the court finds accused Demetrio T. Comendador and

Paulino S. Asilo, Jr. guilty beyond reasonable doubt of violation of Sec. 3(e) of

Republic Act. No. 3019 as amended, and in the absence of aggravating and

mitigating circumstances, applying the Indeterminate Sentence Law, said accused

are sentenced to suffer the indeterminate penalty of 6 years and 2 months

imprisonment as minimum to 10 years and 1 day as maximum.

The order of the court dated September 22, 1999 dismissing the cases against the

accused Alberto S. Angeles, who died on November 16, 1997 is hereby reiterated.

In Civil Case No. 4064, defendants Municipality of Nagcarlan, Laguna, Demetrio T.

Comendador and Paulino S. Asilo, Jr. are hereby ordered jointly and severally to

pay plaintiff P437,900.00 as actual damages for the destruction of the store;

P100,000.00 as moral damages; P30,000.00 as attorney’s fees, and to pay the cost

of the suit. The prayer for exemplary damages is denied as the court found no

aggravating circumstances in the commission of the crime.

In view of this court’s finding that the defendant spouses Alida and Teddy Coroza

are lawful occupants of the subject market stalls from which they cannot be validly

ejected without just cause, the complaint against them is dismissed. The complaint

against defendant spouses Benita and Isagani Coronado is likewise dismissed, it

appearing that they are similarly situated as the spouses Coroza. Meanwhile,

plaintiff Visitacion Bombasi is given the option to accept market space being given

to her by the municipality, subject to her payment of the appropriate rental and

permit fees.

The prayer for injunctive relief is denied, the same having become moot and

academic.

The compulsory counterclaim of defendant Comendador is likewise denied for lack

of merit .26

Within the same day, Asilo, through his counsel, filed a Motion for

Reconsideration27 of the Decision alleging that there was only an error of judgment

when he complied with and implemented the order of his superior, Mayor

Comendador. He likewise alleged that there is no liability when a public officer

commits in good faith an error of judgment. The Sandiganbayan, on its

Resolution28 dated 21 July 2003 denied the Motion for Reconsideration on the

ground that good faith cannot be argued to support his cause in the face of the

court’s finding that bad faith attended the commission of the offense charged. The


























Court further explained that the invocation of compliance with an order of a

superior is of no moment for the "demolition [order] cannot be described as having

the semblance of legality inasmuch as it was issued without the authority and

therefore the same was patently illegal."29

The counsel for the late Mayor also filed its Motion for Reconsideratio n30 on 12

May 2003 alleging that the death of the late Mayor had totally extinguished both his

criminal and civil liability. The Sandiganbayan on its Resolution 31 granted the

Motion insofar as the extinction of the criminal liability is concerned and deniedthe extinction of the civil liability holding that the civil action is an independent

civil action.

Hence, these Petitions for Review on Certiorari.32

Petitioner Asilo argues that in order to sustain conviction under Sec. 3(e) of

Republic Act No. 3019 or "The Anti-Graft and Corrupt Practices Act," the public

officer must have acted with manifest partiality, evident bad faith or gross

negligence. He also contended that he and his co-accused acted in good faith in the

demolition of the market and, thereby, no liability was incurred.

On the other hand, Petitioner Victoria argues that the death of Mayor Comendadorprior to the promulgation of the decision extinguished NOT ONLY Mayor

Comendador’s criminal liability but also his civil liability. She also asserted good

faith on the part of the accused public officials when they performed the demolition

of the market stall. Lastly, she contended that assuming arguendo that there was

indeed liability on the part of the accused public officials, the actual amount of

damages being claimed by the Spouses Bombasi has no basis and was not duly

substantiated.

Liability of the accused public officials

under Republic Act No. 3019

Section 3(e) of Republic Act No. 3019 provides:

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

(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 throughmanifest 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.

The elements of the offense are as follows: (1) that the accused are public officersor private persons charged in conspiracy with them; (2) that said public officers

commit the prohibited acts during the performance of their official duties or in

relation to their public positions; (3) that they caused undue injury to any party,

whether the Government or a private party; (4) OR that such injury is caused by

giving unwarranted benefits, advantage or preference to the other party; and (5)that the public officers have acted with manifest partiality, evident bad

faithor gross inexcusable negligence.33

We sustain the Sandiganbayan in its finding of criminal and civil liabilities against

petitioner Asilo and petitioner Mayor Comendador as here represented by his

widow Victoria Bueta.

We agree with the Sandiganbayan that it is undisputable that the first two

requisites of the criminal offense were present at the time of the commission of the

complained acts and that, as to the remaining elements, there is sufficient amount

of evidence to establish that there was an undue injury suffered on the part of the

Spouses Bombasi and that the public officials concerned acted with evident bad

faith when they performed the demolition of the market stall.

Causing undue injury to any party, including the government, could only mean

actual injury or damage which must be established by evidence.34

In jurisprudence, "undue injury" is consistently interpreted as "actual." 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.35

It is evident from the records, as correctly observed by the Sandiganbayan, that

Asilo and Mayor Comendador as accused below did not deny that there was indeeddamage caused the Spouses Bombasi on account of the demolition. We affirm the

finding that:

xxx. Clearly, the demolition of plaintiff’s store was carried out without a court

order, and notwithstanding a restraining order which the plaintiff was able to

obtain. The demolition was done in the exercise of official duties which apparently

was attended by evident bad faith, manifest partiality or gross inexcusable

negligence as there is nothing in the two (2) resolutions which gave the herein

accused the authority to demolish plaintiff’s store.






























"Evident bad faith" connotes not only bad judgment but also palpably and patently

fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing

for some perverse motive or ill will.36 [It] contemplates a state of mind

affirmatively operating with furtive design or with some motive or self-interest or

ill will or for ulterior purposes.37

It is quite evident in the case at bar that the accused public officials committed bad

faith in performing the demolition.

First, there can be no merit in the contention that respondents’ structure is a public

nuisance. The abatement of a nuisance without judicial proceedings is possible if it

is nuisance per se.38 Nuisance per se is that which is nuisance at all times and under

any circumstance, regardless of location and surroundings.39 In this case, the

market stall cannot be considered as a nuisance per se because as found out by the

Court, the buildings had not been affected by the 1986 fire. This finding was

certified to by Supervising Civil Engineer Wilfredo A. Sambrano of the Laguna

District Engineer Office.40 To quote:

An inspection has been made on the building (a commercial establishment) cited

above and found out the following:

1. It is a two-storey building, sketch of which is attached.

2. It is located within the market site.

3. The building has not been affected by the recent fire.

4. The concrete wall[s] does not even show signs of being exposed to

fire.41

Second, the Sangguniang Bayan resolutions are not enough to justify demolition.

Unlike its predecessor law,42 the present Local Government Code43 does not

expressly provide for the abatement of nuisance.44 And even assuming that thepower to abate nuisance is provided for by the present code, the accused publicofficials were under the facts of this case, still devoid of any power to demolish the

store. A closer look at the contested resolutions reveals that Mayor Comendador

was only authorized to file an unlawful detainer case in case of resistance to obey

the order or to demolish the building using legal means. Clearly, the act of

demolition without legal order in this case was not among those provided by the

resolutions, as indeed, it is a legally impossible provision.

Furthermore, the Municipality of Nagcarlan, Laguna, as represented by the then

Mayor Comendador, was placed in estoppel after it granted yearly business

permit s45 in favor of the Spouses Bombasi. Art. 1431 of the New Civil Code providesthat, through estoppel, an admission or representation is rendered conclusive upon

the person making it, and cannot be denied or disproved as against the person

relying thereon. The representation made by the municipality that the Spouses

Bombasi had the right to continuously operate its store binds the municipality. It is

utterly unjust for the Municipality to receive the benefits of the store operation and

later on claim the illegality of the business.

The bad faith of the petitioners completes the elements of the criminal offense of

violation of Sec. 3(e) of Republic Act No. 3019. The same bad faith serves as the

source of the civil liability of Asilo, Angeles, and Mayor Comendador.

It must be noted that when Angeles died on 16 November 1997, a motion to drop

him as an accused was filed by his counsel with no objection on the part of the

prosecution. The Sandiganbayan acted favorably on the motion and issued an

Order dismissing all the cases filed against Angeles. On the other hand, when Mayor

Comendador died and an adverse decision was rendered against him which

resulted in the filing of a motion for reconsideration by Mayor Comendador’s

counsel, the prosecution opposed the Motion specifying the ground that the civil

liability did not arise from delict, hence, survived the death of the accused. The

Sandiganbayan upheld the opposition of the prosecution which disposition was not

appealed.

We note, first off, that the death of Angeles and of Mayor Comendador during the

pendency of the case extinguished their criminal liabilities.

We now hold, as did the Sandiganbayan that the civil liability of Mayor

Comendador survived his death; and that of Angeles could have likewise survived

had it not been for the fact that the resolution of the Sandiganbayan that his death

extinguished the civil liability was not questioned and lapsed into finality.

We laid down the following guidelines in People v. Bayotas:46

Death of the accused pending appeal of his conviction extinguishes his criminal

liability as well as the civil liability based solely thereon. As opined by Justice

Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and

based solely on the offense committed, i.e., civil liability ex delicto in senso

strictiore."

Corollarily, the claim for civil liability survives notwithstanding the death of (the)

accused, if the same may also be predicated on a source of obligation other than

delict. Article 1157 of the Civil Code enumerates these other sources of obligation

from which the civil liability may arise as a result of the same act or omission:

a) Law















































b) Contracts

c) Quasi-contracts

d) Acts or omissions punished by law; and

e) Quasi-delicts. (Emphasis ours)

Where the civil liability survives, as explained [above], an action for recovery

therefore may be pursued but only by way of filing a separate civil actio n47 and

subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended.

This separate civil action may be enforced either against the

executor/administrator or the estate of the accused, depending on the source of

obligation upon which the same is based as explained above.

Finally, the private offended party need not fear a forfeiture of his right to file this

separate civil action by prescription, in cases where during the prosecution of thecriminal action and prior to its extinction, the private-offended party instituted

together therewith the civil action. In such case, the statute of limitations on the

civil liability is deemed interrupted during the pendency of the criminal case,

conformably with provisions of Article 1155 of the New Civil Code, which shouldthereby avoid any apprehension on a possible privation of right by prescription.

Upon death of the accused pending appeal of his conviction, the criminal action is

extinguished inasmuch as there is no longer a defendant to stand as the accused;

the civil action instituted therein for recovery of civil liability ex delicto is ipso facto

extinguished, grounded as it is on the criminal.48

The New Civil Code provisions under the Chapter, Human Relations, were cited by

the prosecution to substantiate its argument that the civil action based therein is an

independent one, thus, will stand despite the death of the accused during the

pendency of the case.

On the other hand, the defense invoked Section 4 of Presidential Decree No. 1606,as amended by Republic Act No. 8249, in support of its argument that the civil

action was dependent upon the criminal action, thus, was extinguished upon the

death of the accused. The law provides that:

Any provision of law or the Rules of Court to the contrary notwithstanding, the

criminal action and the corresponding civil action for the recovery of civil liability

arising from the offense charged shall at all times be simultaneously instituted

with, and jointly determined in the same proceeding by, the Sandiganbayan, the

filing of the criminal action being deemed to necessarily carry with it the filing of

the civil action, and no right to reserve the filing of such action shall be recognized.(Emphasis ours)

We agree with the prosecution.

Death of Mayor Comendador during the pendency of the case could have

extinguished the civil liability if the same arose directly from the crime committed.However, in this case, the civil liability is based on another source of obligation, the

law on human relations.49 The pertinent articles follow:

Art. 31 of the Civil Code states:

When the civil action is based on an obligation not arising from the act or omission

complained of as a felony, such civil action may proceed independently of the

criminal proceedings and regardless of the result of the latter.

And, Art. 32(6) states:

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 thefollowing rights and liberties of another person shall be liable to the latter for

damages:

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

x x x x

In any of the cases referred to in this article, whether or not the defendant's act or

omission constitutes a criminal offense, the aggrieved 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.

As held in Aberca v. Ver:

It is obvious that the purpose of the above codal provision [Art. 32 of the New Civil

Code] 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. x x x .50

Indeed, the basic facts of this case point squarely to the applicability of the law on

human relations. First, the complaint for civil liability was filed way AHEAD of the

information on the Anti-Graft Law. And, the complaint for damages specifically

invoked defendant Mayor Comendador’s violation of plaintiff’s right to due process.

Thus:

x x x x



















In causing or doing the forcible demolition of the store in question, the individual

natural defendants did not only act with grave abuse of authority but usurped a

power which belongs to our courts of justice; such actuations were done with

malice or in bad faith and constitute an invasion of the property rights of

plaintiff(s) without due process of law.

x x x x

The Court is in one with the prosecution that there was a violation of the right to

private property of the Spouses Bombasi. The accused public officials should have

accorded the spouses the due process of law guaranteed by the Constitution and

New Civil Code. The Sangguniang Bayan Resolutions as asserted by the defense will

not, as already shown, justify demolition of the store without court order. This

Court in a number of decisions51 held that even if there is already a writ of

execution, there must still be a need for a special order for the purpose of

demolition issued by the court before the officer in charge can destroy, demolish or

remove improvements over the contested property.52 The pertinent provisions are

the following:

Before the removal of an improvement must take place, there must be a special

order, hearing and reasonable notice to remove. Section 10(d), Rule 39 of the Rules

of Court provides:

(d) Removal of improvements on property subject of execution. – When the

property subject of execution contains improvements constructed or planted by

the judgment obligor or his agent, the officer shall not destroy, demolish or remove

said improvements except upon special order of the court, issued upon motion of

the judgment obligee after due hearing and after the former has failed to remove

the same within a reasonable time fixed by the court.

The above-stated rule is clear and needs no interpretation. If demolition isnecessary, there must be a hearing on the motion filed and with due notices to the

parties for the issuance of a special order of demolition.53

This special need for a court order even if an ejectment case has successfully been

litigated, underscores the independent basis for civil liability, in this case, where no

case was even filed by the municipality.

The requirement of a special order of demolition is based on the rudiments of

justice and fair play. It frowns upon arbitrariness and oppressive conduct in the

execution of an otherwise legitimate act. It is an amplification of the provision of

the Civil Code that every person must, in the exercise of his rights and in the

performance of his duties, act with justice, give everyone his due, and observe

honesty and good faith.54

Notably, the fact that a separate civil action precisely based on due process

violations was filed even ahead of the criminal case, is complemented by the fact

that the deceased plaintiff Comendador was substituted by his widow, herein

petitioner Victoria who specified in her petition that she has "substituted him as

petitioner in the above captioned case." Section 1, Rule III of the 1985 Rules in

Criminal Procedure mentioned in Bayotas is, therefore, not applicable. Truly, the

Sandiganbayan was correct when it maintained the separate docketing of the civil

and criminal cases before it although their consolidation was erroneously based on

Section 4 of Presidential Decree No. 1606 which deals with civil liability "arisingfrom the offense charged."

We must, however, correct the amount of damages awarded to the Spouses

Bombasi.

To seek recovery of actual damages, it is necessary to prove the actual amount of

loss with a reasonable degree of certainty, premised upon competent proof and on

the best evidence obtainable.55 In this case, the Court finds that the only evidence

presented to prove the actual damages incurred was the itemized list of damaged

and lost items56 prepared by Engineer Cabrega, an engineer commissioned by the

Spouses Bombasi to estimate the costs.

As held by this Court in Marikina Auto Line Transport Corporation v. People of the

Philippines,57

x x x [W]e agree with the contention of petitioners that respondents failed to prove

that the damages to the terrace caused by the incident amounted to P100,000.00.

The only evidence adduced by respondents to prove actual damages claimed by

private respondent were the summary computation of damage made by Engr. Jesus

R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB

Construction and Steel Fabricator to private respondent for P35,000.00

representing cost for carpentry works, masonry, welding, and electrical works.

Respondents failed to present Regal to testify on his estimation. In its five-page

decision, the trial court awardedP150,000.00 as actual damages to private

respondent but failed to state the factual basis for such award. Indeed, the trialcourt merely declared in the decretal portion of its decision that the "sum

of P150,000.00 as reasonable compensation sustained by plaintiff for her damaged

apartment." The appellate court, for its part, failed to explain how it arrived at the

amount of P100,000.00 in its three-page decision. Thus, the appellate court merely

declared:

With respect to the civil liability of the appellants, they contend that there was no

urgent necessity to completely demolish the apartment in question considering the

nature of the damages sustained as a result of the accident. Consequently,

appellants continue, the award of P150,000.00 as compensation sustained by theplaintiff-appellee for her damaged apartment is an unconscionable amount.































Further, in one case,58 this Court held that the amount claimed by the respondent-

claimant’s witness as to the actual amount of damages "should be admitted with

extreme caution considering that, because it was a bare assertion, it should be

supported by independent evidence." The Court further said that whatever claim

the respondent witness would allege must be appreciated in consideration of his

particular self-interest .59 There must still be a need for the examination of the

documentary evidence presented by the claimants to support its claim with regard

to the actual amount of damages.

The price quotation made by Engineer Cabrega presented as an exhibit 60 partakes

of the nature of hearsay evidence considering that the person who issued them was

not presented as a witness.61 Any evidence, whether oral or documentary, is

hearsay if its probative value is not based on the personal knowledge of the witness

but on the knowledge of another person who is not on the witness stand. Hearsay

evidence, whether objected to or not, has no probative value unless the proponent

can show that the evidence falls within the exceptions to the hearsay evidence

rule.62 Further, exhibits do not fall under any of the exceptions provided under

Sections 37 to 47 of Rule 130 of the Rules of Court.

Though there is no sufficient evidence to award the actual damages claimed, this

Court grants temperate damages for P200,000.00 in view of the loss suffered by the

Spouses Bombasi. Temperate damages are awarded in accordance with Art. 2224of the New Civil Code when the court finds that some pecuniary loss has been

suffered but its amount cannot, from the nature of the case, be proven with

certainty. The amount of temperate or moderated damages is usually left to the

discretion of the courts but the same should be reasonable, bearing in mind that

the temperate damages should be more than nominal but less than

compensatory.63 Without a doubt, the Spouses Bombasi suffered some form of pecuniary loss in the impairment of their store. Based on the record of the

case,64 the demolished store was housed on a two-story building located at the

market’s commercial area and its concrete walls remained strong and not affected

by the fire. However, due to the failure of the Spouses Bombasi to prove the exact

amount of damage in accordance with the Rules of Evidence ,65 this court finds

thatP200,000.00 is the amount just and reasonable under the circumstances.

WHEREFORE, the instant appeal is DENIED. Accordingly, the Decision of the

Sandiganbayan dated 28 April 2003 is hereby AFFIRMED WITH MODIFICATION.

The Court affirms the decision finding the accused Paulino S. Asilo, Jr. and Demetrio

T. Comendador guilty of violating Section 3(e) of Republic Act No. 3019. We declare

the finality of the dismissal of both the criminal and civil cases against Alberto S.

Angeles as the same was not appealed. In view of the death of Demetrio T.

Comendador pending trial, his criminal liability is extinguished; but his civil

liability survives. The Municipality of Nagcarlan, Paulino Asilo and Demetrio T.

Comendador, as substituted by Victoria Bueta Vda. De Comendador, are hereby

declared solidarily liable to the Spouses Bombasi for temperate damages in the

amount of P200,000.00 and moral damages in the amount of P100,000.00.

Costs against the petitioners-appellants.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

CONCHITA CAPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions

in the above Decision had been reached in consultation before the case was

assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice



































EN BANC

G.R. No. 102549 August 10, 1992

EDWIN B. JAVELLANA, petitioner,

vs.DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS,SECRETARY, respondents.

Reyes, Lozada and Sabado for petitioner.

GRIÑO-AQUINO, J.:

This petition for review on certiorari involves the right of a public official to engage

in the practice of his profession while employed in the Government.

Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros

Occidental. On October 5, 1989, City Engineer Ernesto C. Divinagracia filed

Administrative Case No. C-10-90 against Javellana for: (1) violation of Department

of Local Government (DLG) Memorandum Circular No. 80-38 dated June 10, 1980

in relation to DLG Memorandum Circular No. 74-58 and of Section 7, paragraph b,

No. 2 of Republic Act No. 6713, otherwise known as the "Code of Conduct and

Ethical Standards for Public Officials and Employees," and (2) for oppression,

misconduct and abuse of authority.

Divinagracia's complaint alleged that Javellana, an incumbent member of the City

Council or Sanggunian Panglungsod of Bago City, and a lawyer by profession, has

continuously engaged in the practice of law without securing authority for that

purpose from the Regional Director, Department of Local Government, as requiredby DLG Memorandum Circular No. 80-38 in relation to DLG Memorandum Circular

No. 74-58 of the same department; that on July 8, 1989, Javellana, as counsel for

Antonio Javiero and Rolando Catapang, filed a case against City Engineer Ernesto C.

Divinagracia of Bago City for "Illegal Dismissal and Reinstatement with Damages"

putting him in public ridicule; that Javellana also appeared as counsel in several

criminal and civil cases in the city, without prior authority of the DLG Regional

Director, in violation of DLG Memorandum Circular No. 80-38 which provides:

MEMORANDUM CIRCULAR NO. 80-38

TO ALL: PROVINCIAL GOVERNORS, CITY AND

MUNICIPALITY MAYORS, KLGCD REGIONAL

DIRECTORS AND ALL CONCERNED

SUBJECT: AMENDING MEMORANDUM CIRCULAR NO.

80-18 ON SANGGUNIAN SESSIONS,PER DIEMS ,

ALLOWANCES, STAFFING AND OTHER RELATED

MATTERS

In view of the issuance or Circular No. 5-A by the Joint

Commission on Local Government Personnel Administration

which affects certain provisions of MC 80-18, there is a need to

amend said Memorandum Circular to substantially conform to

the pertinent provisions of Circular No. 9-A.

xxx xxx xxx

C. Practice of Profession

The Secretary (now Minister) of Justice in an Opinion No. 46

Series of 1973 stated inter alia that "members of local legislativebodies, other than the provincial governors or the mayors, do

not keep regular office hours." "They merely attend meetings or

sessions of the provincial board or the city or municipal council"

and that provincial board members are not even required "to

have an office in the provincial building." Consequently, they are

not therefore to required to report daily as other regular

government employees do, except when they are delegated to

perform certain administrative functions in the interest of public

service by the Governor or Mayor as the case may be. For this

reason, they may, therefore, be allowed to practice their professions provided that in so doing an authority . . . first be

secured from the Regional Directors pursuant to Memorandum

Circular No. 74-58, provided, however , that no government personnel, property, equipment or supplies shall be utilized in

the practice of their professions. While being authorized to

practice their professions, they should as much as possible

attend regularly any and all sessions, which are not very often,

of their Sanggunians for which they were elected as members by

their constituents except in very extreme cases, e.g., doctors who

are called upon to save a life. For this purpose it is desired that

they always keep a calendar of the dates of the sessions, regular or

special of their Sanggunians so that conflicts of attending court

cases in the case of lawyers and Sanggunian sessions can beavoided .



As to members of the bar the authority given for them to

practice their profession shall always be subject to the

restrictions provided for in Section 6 of Republic Act 5185. In all

cases, the practice of any profession should be favorably

recommended by the Sanggunian concerned as a body and by the

provincial governors, city or municipal mayors, as the case may

be. (Emphasis ours, pp. 28-30,Rollo.)

On August 13, 1990, a formal hearing of the complaint was held in Iloilo City inwhich the complainant, Engineer Divinagracia, and the respondent, Councilor

Javellana, presented their respective evidence.

Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to

continue his practice of law for the reasons stated in his letter-request. On the same

date, Secretary Santos replied as follows:

1st Indorsement

September 10, 1990

Respectfully returned to Councilor Erwin B. Javellana, Bago City,

his within letter dated September 10, 1990, requesting for apermit to continue his practice of law for reasons therein stated,

with this information that, as represented and consistent with

law, we interpose no objection thereto, provided that such

practice will not conflict or tend to conflict with his official

functions. (p. 60, Rollo.)

On September 21, 1991, Secretary Luis T. Santos issued Memorandum Circular No.

90-81 setting forth guidelines for the practice of professions by local elective

officials as follows:

TO: All Provincial Governors, City and

Municipal Mayors, Regional Directors and All

Concerned.

SUBJECT: Practice of Profession and Private

Employment of Local Elective Officials

Section 7 of Republic Act No. 6713 (Code of Conduct and Ethical

Standards for Public Officials and Employees), states, in part,

that "In addition to acts and omission of public officials . . . now

prescribed in the Constitution and existing laws, the following

shall constitute prohibited acts and transactions of any public

officials . . . and are hereby declared to be unlawful: . . . (b) Public

Officials . . . during their incumbency shall not : (1) . . . accept

employment as officer, employee, consultant, counsel, broker,

agent, trustee or nominee in any private enterprise regulated,

supervised or licensed by their office unless expressly allowed

by law; (2) Engage in the private practice of their profession

unless authorized by the Constitution or law, provided that such

practice will not conflict or tend to conflict with their official

functions: . . .

xxx xxx xxx

Under Memorandum Circular No. 17 of the Office of the

President dated September 4, 1986, the authority to grant any

permission, to accept private employment in any capacity and to

exercise profession, to any government official shall be granted by

the head of the Ministry (Department) or agency in accordance

with Section 12, Rule XVIII of the Revised Civil Service Rules, which

provides,in part, that:

No officer shall engage directly in any . . .

vocation or profession . . . without a written

permission from the head of the

Department: Provided , that this prohibition

will be absolute in the case of those officers . .

. whose duties and responsibilities requirethat their entire time be at the disposal of the

Government: Provided, further , That if an

employee is granted permission to engage in

outside activities, the time so devoted outside

of office should be fixed by the Chief of the

agency to the end that it will not impair in

anyway the efficiency of the officer or

employee . . . subject to any additional

conditions which the head of the office deems

necessary in each particular case in the

interest of the service, as expressed in thevarious issuances of the Civil Service

Commission.

Conformably with the foregoing, the following guidelines are to be

observed in the grant of permission to the practice of profession

and to the acceptance of private employment of local elective

officials, to wit :

1) The permission shall be granted by theSecretary of Local Government;



2) Provincial Governors, City and Municipal

Mayors whose duties and responsibilities

require that their entire time be at the

disposal of the government in conformity

with Sections 141, 171 and 203 of the Local

Government Code (BP 337), are prohibited to

engage in the practice of their profession and

to accept private employment during their

incumbency:

3) Other local elective officials may be allowed

to practice their profession or engage in

private employment on a limited basis at the

discretion of the Secretary of Local

Government, subject to existing laws and to the

following conditions:

a) That the time so

devoted outside of office

hours should be fixed by

the local chief executive

concerned to the end that it will not impair in any

way the efficiency of the

officials concerned;

b) That no government

time, personnel, funds or

supplies shall be utilized in

the pursuit of one's

profession or private

employment;

c) That no conflict of interests between the

practice of profession or

engagement in private

employment and the official

duties of the concerned

official shall arise thereby;

d) Such other conditions

that the Secretary deems

necessary to impose oneach particular case, in the

interest of public service.

(Emphasis supplied, pp.

31-32, Rollo.)

On March 25, 1991, Javellana filed a Motion to Dismiss the administrative caseagainst him on the ground mainly that DLG Memorandum Circulars Nos. 80-38 and

90-81 are unconstitutional because the Supreme Court has the sole and exclusive

authority to regulate the practice of law.

In an order dated May 2, 1991, Javellana's motion to dismiss was denied by thepublic respondents. His motion for reconsideration was likewise denied on June 20,

1991.

Five months later or on October 10, 1991, the Local Government Code of 1991 (RA

7160) was signed into law, Section 90 of which provides:

Sec. 90. Practice of Profession. — (a) All governors, city and

municipal mayors are prohibited from practicing their

profession or engaging in any occupation other than the exercise

of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engagein any occupation, or teach in schools except during session

hours: Provided, That sanggunian members who are members of

the Bar shall not :

(1) Appear as counsel before any court in any

civil case wherein a local government unit or

any office, agency, or instrumentality of the

government is the adverse party;

(2) Appear as counsel in any criminal case

wherein an officer or employee of the

national or local government is accused of an

offense committed in relation to his office;

(3) Collect any fee for their appearance in

administrative proceedings involving the local

government unit of which he is an official; and

(4) Use property and personnel of the

Government except when the sanggunian

member concerned is defending the interest

of the Government.



(c) Doctors of medicine may practice their profession even

during official hours of work only on occasions of

emergency: Provided , That the officials concerned do not derive

monetary compensation therefrom. (Emphasis ours.)

Administrative Case No. C-10-90 was again set for hearing on November 26, 1991.

Javellana thereupon filed this petition for certiorari praying that DLG Memorandum

Circulars Nos. 80-38 and 90-81 and Section 90 of the new Local Government Code

(RA 7160) be declared unconstitutional and null void because:

(1) they violate Article VIII, Section 5 of the 1987 Constitution, which provides:

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection andenforcement of constitutional rights, pleading, practice, and

procedure in all courts, the admission to the practice of law, the

Integrated Bar, and legal assistance to the underprivileged. Such

rules shall provide a simplified and inexpensive procedure forthe speedy disposition of cases, shall be uniform for all courts of

the same grade, and shall not diminish, increase, or modify

substantive rights. Rules of procedure of special courts

andquasi-judicial bodies shall remain effective unless

disapproved by the Supreme Court.

(2) They constitute class legislation, being discriminatory against the legal and

medical professions for only sanggunian members who are lawyers and doctors

are restricted in the exercise of their profession while dentists, engineers,

architects, teachers, opticians, morticians and others are not so restricted (RA

7160, Sec. 90 [b-1]).

In due time, the Solicitor General filed his Comment on the petition and the

petitioner submitted a Reply. After deliberating on the pleadings of the parties, the

Court resolved to dismiss the petition for lack of merit.

As a matter of policy, this Court accords great respect to the decisions and/or

actions of administrative authorities not only because of the doctrine of separation

of powers but also for their presumed knowledgeability and expertise in the

enforcement of laws and regulations entrusted to their jurisdiction (Santiago vs.

Deputy Executive Secretary, 192 SCRA 199, citing Cuerdo vs. COA, 166 SCRA 657).

With respect to the present case, we find no grave abuse of discretion on the part of

the respondent, Department of Interior and Local Government (DILG), in issuing

the questioned DLG Circulars Nos. 80-30 and 90-81 and in denying petitioner's

motion to dismiss the administrative charge against him.

In the first place, complaints against public officers and employees relating orincidental to the performance of their duties are necessarily impressed with public

interest for by express constitutional mandate, a public office is a public trust. The

complaint for illegal dismissal filed by Javiero and Catapang against City Engineer

Divinagracia is in effect a complaint against the City Government of Bago City, their

real employer, of which petitioner Javellana is a councilman. Hence, judgment against City Engineer Divinagracia would actually be a judgment against the City

Government. By serving as counsel for the complaining employees and assisting

them to prosecute their claims against City Engineer Divinagracia, the petitioner

violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713)

prohibiting a government official from engaging in the private practice of his

profession, if such practice would represent interests adverse to the government.

Petitioner's contention that Section 90 of the Local Government Code of 1991 and

DLG Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the

Constitution is completely off tangent. Neither the statute nor the circular trenches

upon the Supreme Court's power and authority to prescribe rules on the practice of

law. The Local Government Code and DLG Memorandum Circular No. 90-81 simply

prescribe rules of conduct for public officials to avoid conflicts of interest betweenthe discharge of their public duties and the private practice of their profession, in

those instances where the law allows it.

Section 90 of the Local Government Code does not discriminate against lawyers

and doctors. It applies to all provincial and municipal officials in the professions or

engaged in any occupation. Section 90 explicitly provides that sanggunian

members "may practice their professions, engage in any occupation, or teach in

schools expect during session hours." If there are some prohibitions that apply

particularly to lawyers, it is because of all the professions, the practice of law is

more likely than others to relate to, or affect, the area of public service.

WHEREFORE, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado,

Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

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