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Republic of the Philippines Supreme Court Baguio City

SECOND DIVISION P/INSP. ARIEL S. ARTILLERO, Petitioner, G.R. No. 190569

Present: - versus CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ.

ORLANDO C. CASIMIRO, Overall Deputy Ombudsman, Office of the Deputy Ombudsman; BERNABE D. DUSABAN, Provincial Prosecutor, Office of the Provincial Prosecutor of Iloilo; EDITO AGUILLON, Brgy. Capt., Brgy. Lanjagan, Ajuy, Iloilo, Respondents.

Promulgated: APRIL 25, 2012

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECISION SERENO, J.:

This case pertains to the criminal charge filed by Private Inspector Ariel S. Artillero (petitioner) against Barangay Captain Edito Aguillon (Aguillon) for violation of Presidential Decree No. (P.D.) 1866[1] as amended by Republic Act No. (R.A.) 8249.

Petitioner is the Chief of Police of the Municipal Station of the Philippine National Police (PNP) in Ajuy, Iloilo. [2] According to him, on 6 August 2008, at about 6:45 in the evening, the municipal station received information that successive gun fires had been heard in Barangay Lanjagan, Ajuy Iloilo. Thus, petitioner, together with Police Inspector Idel Hermoso (Hermoso), and Senior Police Officer (SPO1) Arial Lanaque (Lanaque), immediately went to the area to investigate. [3]

Upon arriving, they saw Paquito Panisales, Jr. (Paquito)[4] standing beside the road, wearing a black sweat shirt with a Barangay Tanod print.[5] They asked Paquito if he had heard the alleged gunshots, but he answered in the negative.

Petitioner, Hermoso, and Lanaque decided to investigate further, but before they could proceed, they saw that Paquito had turned his back from us that seems like bragging his firearm to us flagrantly displayed/tucked in his waist whom we observed to be under the influence of intoxicating odor.[6] Then, they frisked him to verify the firearm and its supporting documents. [7] Paquito then presented his Firearm License Card and a Permit to Carry Firearm Outside Residence (PTCFOR).

Thereafter, they spotted two persons walking towards them, wobbling and visibly drunk. They further noticed that one of them, Aguillon, was openly carrying a rifle, and that its barrel touched the concrete road at times. [8] Petitioner and Hermoso disarmed Aguillon. The rifle was a Caliber 5.56 M16 rifle with Serial Number 101365 and with 20 live ammunitions in its magazine.

According to petitioner and Hermoso, although Aguillon was able to present his Firearm License Card, he was not able to present a PTCFOR.

Petitioner arrested Paquito, Aguillon and his companion Aldan Padilla, and brought them to the Ajuy Municipal Police Station. [9]

Paquito was released on the same night, because he was deemed to have been able to comply with the requirements to possess and carry firearm.[10] Thereafter, Aguillon was detained at the police station, but was released from custody the next day, 7 August 2008, after he posted a cash bond in the amount of 80,000. The present Petition does not state under what circumstances or when Pa dilla was released.

On 12 August 2008, petitioner and Hermoso executed a Joint Affidavit [11] alleging the foregoing facts in support of the filing of a case for illegal possession of firearm against Aguillon. Petitioner also endorsed the filing of a Complaint against Aguillon through a letter[12] sent to the Provincial Prosecutor on 12 August 2008.

For his part, Aguillon executed an Affidavit swearing that petitioner had unlawfully arrested and detained him for illegal possession of firearm, even though the former had every right to carry the rifle as evidenced by the license he had surrendered to petitioner. Aguillon further claims that he was duly authorized by law to carry his firearm within his barangay. [13]

According to petitioner, he never received a copy of the Counter-Affidavit Aguillon had filed and was thus unable to give the necessary reply.[14]

In a Resolution[15] dated 10 September 2008, the Office of the Provincial Prosecutor of Iloilo City recommended the dismissal of the case for insufficiency of evidence. Assistant Provincial Prosecutor Rodrigo P. Camacho (Asst. Prosecutor) found that there was no sufficient ground to engender a well-founded belief that Aguillon was probably guilty of the offense charged. The Asst. Prosecutor also recommended that the rifle, which was then under the custody of the PNP Crime Laboratory, be returned to Aguillon. Petitioner claims that he never received a copy of this Resolution.

Thereafter, Provincial Prosecutor Bernabe D. Dusaban (Provincial Prosectuor Dusaban) forwarded to the Office of the Deputy Ombudsman the 10 September 2008 Resolution recommending the approval thereof.[16]

In a Resolution[17] dated 17 February 2009, the Office of the Ombudsman, through Overall Deputy Ombudsman Orlando C. Casimiro (Deputy Ombudsman Casimiro), approved the recommendation of Provincial Prosectuor Dusaban to dismiss the case. It ruled that the evidence on record proved that Aguillon did not commit the crime of illegal possession of firearm since he has a license for his rifle. Petitioner claims that he never received a copy of this Resolution either.[18]

On 13 April 2009, Provincial Prosectuor Dusaban received a letter from petitioner requesting a copy of the following documents: 1. Copy of the Referral letter and the resolution if there is any which was the subject of the said referral to the Office of the Ombudsman, Iloilo City; and Copy of the counter affidavit of respondent, Edito Aguillon and/or his witnesses considering that I was not furnished a copy of the pleadings filed by said respondent.[19]

2.

On 22 June 2009, petitioner filed a Motion for Reconsideration (MR) [20] of the 17 February 2009 Resolution, but it was denied through an Order dated 23 July 2009.[21] Thus, on 8 December 2009, he filed the present Petition for Certiorari[22] via Rule 65 of the Rules of Court.

According to petitioner, he was denied his right to due process when he was not given a copy of Aguillons Counter-affidavit, the Asst. Prosecutors 10 September 2008 Resolution, and the 17 February 2009 Resolution of the Office of the Ombudsman. Petitioner also argues that public respondents act of dismissing the criminal Complaint against Aguillon, based solely on insufficiency of evidence, was contrary to the provisions of P.D. 1866 and its Implementing Rules and Regulations (IRR). [23] He thus claims that the assailed Resolutions were issued contrary to law, and/or jurisprudence and with grave abuse of discretion amounting to lack or excess of jurisdiction.[24] The present Petition contains the following prayer:

WHEREFORE, premises considered petitioner most respectfully prays: 1. 2. That this Petition for Certiorari be given due course; That a Decision be rendered granting the petition by issuing the following:

a. Writ of Certiorari nullifying and setting aside the Order dated July 23, 2009 and dated February 17, 2009 both of the Office of the Ombudsman in OMB V-08-0406-J and the Resolution dated September 10, 2008 of the Office of the Provincial Prosecutor of Iloilo in I.S. No. 2008-1281 (Annexes A, C and D, respectively); b. To reverse and set aside said Orders and Resolution (Annexes A, C and D, respectively) finding PROBABLE CAUSE of the crime of Violation of Presidential Decree No. 1866 as amended by R.A. 8294 and other applicable laws and to direct the immediate filing of the information in Court against private respondent EDITO AGUILLON. Such other relief just and equitable are likewise prayed for.[25] (Emphasis in the original.)

In his Comment,[26] Aguillon submits that the present Petition should not be given due course based on the following grounds: a. b. c. d. The Deputy Ombudsman found that there was no sufficient evidence to warrant the prosecution for violation of P.D. No. 1866 as amended; The present Petition is frivolous and manifestly prosecuted for delay; [27] The allegations raised are too unsubstantial to merit consideration, because Petitioner failed to specifically allege the manner in which the alleged Grave Abuse was committed by Respondent Deputy Ombudsman; [28] and The Deputy Ombudsmans findings are supported by substantial evidence.

Petitioner claims that Provincial Prosecutor Dusaban should have given him a copy of Aguillons Counter -affidavit. In support of this claim, petitioner cites Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, which reads: (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

Petitioner faults the Asst. Prosecutor and the Office of the Ombudsman for supposedly committing grave abuse of discretion when they failed to send him a copy of the 10 September 2008 and 17 February 2009 Resolutions.

A perusal of the records reveal that in both the 10 September 2008 and 17 February 2009 Resolutions, the PNP Crime Laboratory and petitioner were included in the list of those who were furnished copies of the foregoing Resolutions.[29] Even though his name was listed in the copy furnished section, petitioner never signed to signi fy receipt thereof. Thus, none of herein respondents raise this fact as a defense. In fact, they do not even deny the allegation of petitioner that he never received a copy of these documents.

Aguillon does not deny that he never sent a copy of his counter-affidavit to petitioner. For his part, Provincial Prosecutor Dusaban explained in his Comment,[30] that he was not able to give petitioner a copy of Aguillons Counter-affidavit and the 10 September 2008 Resolution, because when petitioner was asking for them, the record of the case, including the subject Resolution, was sent to the Office of the Ombudsman for the required approval.[31]

As further proof that petitioner was not sent a copy of the 10 September 2008 Resolution, it can be seen from the document itself that one Atty. Jehiel Cosa signed in a care of capacity to signify his receipt thereof on behalf of petitioner, only on 23 June 2009 or after the latters 12 April 2009 letter-request to Provincial Prosecutor Dusaban.

Nevertheless, the provincial prosecutor is of the opinion that petitioner was never deprived of his due process rights, to wit: 8. Even granting that private respondent Edito Aguillion failed to furnish the petitioner with a copy of his counter-affidavit as required of him by the Rules, petitioner was never deprived of anything. As aptly said by the Office of the Overall Deputy Ombudsman in its Order dated 23 July 2009, Complainant added that he was never furnished copies of the Counter-Affidavit of respondent nor of the Resolution of the Office of the Provincial Posecutor, Iloilo City.

Anent the claim of the complainant that he was not furnished with a copy of the Resolution dated 10 September 2008 of the Office of the Provincial Prosecutor, Iloilo City, said Resolution did not attain finality until approved by the Office of the Ombudsman. Nevertheless, complainant was not deprived of due process, he can still avail to file a Motion for Reconsideration, which he did, to refute respondents defense. [32] We agree. Petitioner insists that Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, was created in order not to depri ve party litigants of their basic constitutional right to be informed of the nature and cause of accusation against them.[33]

Deputy Ombudsman Casimiro contradicts the claim of petitioner and argues that the latter was not deprived of due process, just because he was not able to file his Reply to the Counter-affidavit. The constitutional right to due process according to the Deputy Ombudsman, is guaranteed to the accused, and not to the complainant. [34]

Article III, Section 14 of the 1987 Constitution, mandates that no person shall be held liable for a criminal offense without due process of law. It further provides that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him.[35] This is a right that cannot be invoked by petitioner, because he is not the accused in this case. The law is vigilant in protecting the rights of an accused. Yet, notwithstanding the primacy put on the rights of an accused in a criminal case, even they cannot claim unbridled rights in Preliminary Investigations. In Lozada v. Hernandez,[36] we explained the nature of a Preliminary Investigation in relation to the rights of an accused, to wit: It has been said time and again that a preliminary investigation is not properly a trial or any part thereof but is merely preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is probable cause to believe the accused guilty thereof. (U.S. vs. Yu Tuico, 34 Phil. 209; People vs. Badilla, 48 Phil. 716). The right to such investigation is not a fundamental right guaranteed by the constitution. At most, it is statutory. (II Moran, Rules of Court, 1952 ed., p. 673). And rights conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured, rather than upon the phrase "due process of law". (U.S. vs. Grant and Kennedy, 18 Phil., 122).[37] It is therefore clear that because a preliminary investigation is not a proper trial, the rights of parties therein depend on the rights granted to them by law and these cannot be based on whatever rights they believe they are entitled to or those that may be derived from the phrase due process of law.

A complainant in a preliminary investigation does not have a vested right to file a Replythis right should be granted to him by law. There is no provision in Rule 112 of the Rules of Court that gives the Complainant or requires the prosecutor to observe the right to file a Reply to the accuseds counter-affidavit. To illustrate the non-mandatory nature of filing a Reply in preliminary investigations, Section 3 (d) of Rule 112 gives the prosecutor, in certain instances, the right to resolve the Complaint even without a counter-affidavit, viz: (d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant. Provincial Prosecutor Dusaban correctly claims that it is discretionary on his part to require or allow the filing or submission of reply-affidavits.[38]

Furthermore, we agree with Provincial Prosecutor Dusaban that there was no need to send a copy of the 10 September 2008 Resolution to petitioner, since it did not attain finality until it was approved by the Office of the Ombudsman. It must be noted that the rules do not state that petitioner, as complainant, was entitled to a copy of this recommendation. The only obligation of the prosecutor, as detailed in Section 4 of Rule 112, was to forward the record of the case to the proper officer within five days from the issuance of his Resolution, to wit: SEC. 4. Resolution of investigating prosecutor and its review.If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Even though petitioner was indeed entitled to receive a copy of the Counter-affidavit filed by Aguillon, whatever procedural defects this case suffered from in its initial stages were cured when the former filed an MR. In fact, all of the supposed defenses of petitioner in this case have already been raised in his MR and adequately considered and acted on by the Office of the Ombudsman. The essence of due process is simply an opportunity to be heard. What the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of opportunity to be heard. [39] We have said that where a party has been given a chance to be heard with respect to the latters motion for reconsideration there is sufficient compliance with the requirements of due pro cess.[40] At this point, this Court finds it important to stress that even though the filing of the MR cured whatever procedural defect may have been present in this case, this does not change the fact that Provincial Prosecutor Dusaban had the duty to send petitioner a copy of Aguillons Counter-affidavit. Section 3(c), Rule 112 of the Revised Rules on Criminal Procedure, grants a complainant this right, and the Provincial Prosecutor has the duty to observe the fundamental and essential requirements of due process in the cases presented before it. That the requirements of due process are deemed complied with in the present case because of the filing of an MR by Complainant was simply a fortunate turn of events for the Office of the Provincial Prosecutor.

It is submitted by petitioner that in dismissing Aguillons Complaint, public respondents committed grave abuse of discretion by failing to consider Memorandum Circular No. 2000-016, which was supposedly the IRR issued by the PNP for P.D. 1866.[41]

Petitioner fails to persuade this Court.

The original IRR[42] of P.D. 1866 was issued by then Lieutenant General of the Armed Forces of the Philippines (AFP) Fidel V. Ramos on 28 October 1983. The IRR provides that, except when specifically authorized by the Chief of Constabulary, lawful holders of firearms are prohibited from carrying them outside their residences, to wit: SECTION 3. Authority of Private Individuals to Carry Firearms Outside of Residence. a. As a rule, persons who are lawful holders of firearms (regular license, special permit, certificate of registration or M/R) are prohibited from carrying their firearms outside of residence. b. However, the Chief of Constabulary may, in meritorious cases as determined by him and under such conditions as he may impose, authorize such person or persons to carry firearm outside of residence. c. Except as otherwise provided in Secs. 4 and 5 hereof, the carrying of firearm outside of residence or official station in pursuance of an official mission or duty shall have the prior approval of the Chief of Constabulary.

By virtue of R.A. 6975,[43] the PNP absorbed the Philippine Constabulary. Consequently, the PNP Chief succeeded the Chief of the Constabulary and, therefore, assumed the latters licensing authority. [44]

On 31 January 2003, PNP Chief Hermogenes Ebdane issued Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of Residence (Guidelines). In these Guidelines, the PNP Chief revoked all PTCFOR previously issued, thereby prohibiting holders of licensed firearms from carrying these outside their residences, to wit: 4. Specific Instructions on the Ban on the Carrying of Firearms: a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered with valid PTCFOR may re-apply for a new PTCFOR in accordance with the conditions hereinafter prescribed. All holders of licensed or government firearms are hereby prohibited from carrying their firearms outside their residence except those covered with mission/letter orders and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD 1866, provided, that the said exception shall pertain only to organic and regular employees.

b.

Section 4 of the IRR lists the following persons as those authorized to carry their duty-issued firearms outside their residences, even without a PTCFOR, whenever they are on duty:

SECTION 4. Authority of Personnel of Certain Civilian Government Entities and Guards of Private Security Agencies, Company Guard Forces and Government Guard Forces to Carry Firearms. The personnel of the following civilian agencies commanding guards of private security agencies, company guard forces and government guard forces are authorized to carry their duty issued firearms whenever they are on duty detail subject to the specific guidelines provided in Sec. 6 hereof: a. Guards of the National Bureau of Prisons, Provincial and City Jails; b. Members of the Bureau of Customs Police, Philippine Ports Authority Security Force, and Export Processing Zones Authority Police Force; and x c. Guards of private security agencies, company guard forces, and government guard forces.

Section 5 of the guidelines, on the other hand, enumerates persons who have the authority to carry firearms outside their residences, viz: 5. The following persons may be authorized to carry firearms outside of residence. a. All persons whose application for a new PTCFOR has been approved, provided, that the persons and security of those so authorized are under actual threat, or by the nature of their position, occupation and profession are under imminent danger. All organic and regular employees with Mission/Letter Orders granted by their respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only for the duration of the official mission which in no case shall be more than ten (10) days. All guards covered with Duty Detail Orders granted by their respective security agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such DDO shall in no case exceed 24-hour duration.

b.

c.

d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and competition, provided, that such firearms while in transit must not be loaded with ammunition and secured in an appropriate box or case detached from the person. e. Authorized members of the Diplomatic Corps.

It is true therefore, that, as petitioner claims, a barangay captain is not one of those authorized to carry firearms outside their residences unless armed with the appropriate PTCFOR under the Guidelines. [45]

However, we find merit in respondents contention that the authority of Aguillon to carry his firearm outside his residence was not based on the IRR or the guidelines of P.D. 1866 but, rather, was rooted in the authority given to him by Local Government Code (LGC). In People v. Monton,[46] the house of Mariano Montonthe Barrio Captain of Bacao, General Trias, Cavitewas raided, and an automatic carbine with one long magazine containing several rounds of ammunition was found hidden under a pillow covered with a mat. He was charged with the crime of illegal possession of firearm, but this Court acquitted him on the basis of Section 88(3) of Batas Pambansa Bilang 337(B.P. 337), the LGC of 1983, which reads: In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearms within his territorial jurisdiction subject to existing rules and regulations on the possession and carrying of firearms. Republic Act No. 7160, the LGC of 1991, repealed B.P. 337. It retained the foregoing provision as reflected in its Section 389 (b), viz: CHAPTER 3 - THE PUNONG BARANGAY SEC. 389. Chief Executive: Powers, Duties, and Functions. xxx xxx xxx

(b) In the performance of his peace and order functions, the punong barangay shall be entitled to possess and carry the necessary firearm within his territorial jurisdiction, subject to appropriate rules and regulations. Provincial Prosecutor Dusabans standpoint on this matter is correct. All the guidelines and rules cited in the instant Petit ion refers to civilian agents, private security guards, company guard forces and government guard forces. These rules and guidelines should not be applied to Aguillon, as he is neither an agent nor a guard. As barangay captain, he is the head of a local government unit; as such, his

powers and responsibilities are properly outlined in the LGC. This law specifically gives him, by virtue of his position, the authority to carry the necessary firearm within his territorial jurisdiction. Petitioner does not deny that when he found Aguillon openly carrying a rifle, the latter was within his territorial jurisdiction as the captain of the barangay. In the absence of a clear showing of arbitrariness, this Court will give credence to the finding and determination of probable cause by prosecutors in a preliminary investigation.[47]

This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman's investigatory powers.[48] It is incumbent upon petitioner to prove that such discretion was gravely abused in order to warrant this Courts reversal of th e Ombudsmans findings.[49] This, petitioner has failed to do.

The Court hereby rules that respondent Deputy Ombudsman Casimiro did not commit grave abuse of discretion in finding that there was no probable cause to hold respondent Aguillon for trial.

The Dissent contends that probable cause was already established by facts of this case, which show that Aguillon was found carrying a licensed firearm outside his residence without a PTCFOR. Thus, Deputy Ombudsman Casimiro committed grave abuse of discretion in dismissing the criminal Complaint. However, even though Aguillon did not possess a PTCFOR, he had the legal authority to carry his firearm outside his residence, as required by P.D. 1866 as amended by R.A. 8294. This authority was granted to him by Section 389 (b) of the LGC of 1991, which specifically carved out an exception to P.D. 1866.

Following the suggestion of the Dissent, prosecutors have the authority to disregard existing exemptions, as long as the requirements of the general rule apply. This should not be the case. Although the Dissent correctly declared that the prosecutor cannot peremptorily apply a statutory exception without weighing it against the facts and evidence before him, we find that the facts of the case prove that there is no probable cause to charge Aguillon with the crime of illegal possession of firearm.

In interpreting Section 389 (b) of the LGC of 1991, the Dissent found that the factual circumstances of the present case show that the conditions set forth in the law have not been met. Thus, the exemption should not apply.

Contrary to the allegation of the dissent, there is no question as to the fact that Aguillon was within his territorial jurisdiction when he was found in possession of his rifle.

The authority of punong barangays to possess the necessary firearm within their territorial jurisdiction is necessary to enforce their duty to maintain peace and order within the barangays. Owing to the similar functions, that is, to keep peace and order, this Court deems that, like police officers, punong barangays have a duty as a peace officer that must be discharged 24 hours a day. As a peace officer, a barangay captain may be called by his constituents, at any time, to assist in maintaining the peace and security of his barangay.[50] As long as Aguillon is within his barangay, he cannot be separated from his duty as a punong barangayto maintain peace and order.

As to the last phrase in Section 389 (b) of the LGC of 1991, stating that the exception it carved out is subject to appropri ate rules and regulations, suffice it to say that although P.D. 1866 was not repealed, it was modi fied by the LGC by specifically adding to the exceptions found in the former. Even the IRR of P.D. 1866 was modified by Section 389 (b) of the LGC as the latter provision already existed when Congress enacted the LGC. Thus, Section 389 (b) of the LGC of 1991 added to the list found in Section 3 of the IRR of P.D. 1866, which enumerated the persons given the authority to carry firearms outside of residence without an issued permit. The p hrase subject to appropriate rules and regulations found in the LGC re fers to those found in the IRR of the LGC itself or a later IRR of P.D. 1866 and not those that it has already amended.

Indeed, petitioners mere allegation does not establish the fact that Aguillon was drunk at the time of his arrest. This Cour t, however, is alarmed at the idea that government officials, who are not only particularly charged with the responsibility to maintain peace and order within their barangays but are also given the authority to carry any form of firearm necessary to perform their duty, could be the very same person who would put their barangays in danger by carelessly carrying high-powered firearms especially when they are not in full control of their senses. While this Court does not condone the acts of Aguillon, it cannot order the prosecutor to file a case against him since there is no law that penalizes a local chief executive for imbibing liquor while carrying his firearm. Neither is there any law that restricts the kind of firearms that punong barangays may carry in the performance of their peace and order functions. Unfortunately, it also appears that the term peace and order function has not been adequately defined by law or appropriate regulations.

WHEREFORE, we DISMISS the Petition. We AFFIRM the Resolution of the Office of the Provincial Prosecutor dated 10 September 2008, as well as the Resolution and the Order of the Office of the Ombudsman dated 17 February 2009 and 23 July 2009, respectively.

Let a copy of this Decision be served on the President of the Senate and the Speaker of the House of Representatives for whatever appropriate action they may deem warranted by the statements in this Decision regarding the adequacy of laws governing the carrying of firearms by local chief executives.

No costs.

VICENTE AGOTE Y MATOL, petitioner, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, respondents. DECISION GARCIA, J.: In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit: 1. Resolution dated September 14, 1999,[1] dismissing the Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 8294 [2]; and, 2. Resolution dated February 8, 2000,[3] denying petitioners motion for reconsideration. As culled from the pleadings on record, the following are the undisputed factual antecedents: Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866[4] and violation of COMELEC Resolution No. 2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows: CRIMINAL CASE NO. 96-149820 That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor. CONTRARY TO LAW. CRIMINAL CASE NO. 96-149821 That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban). CONTRARY TO LAW. On arraignment, petitioner pleaded Not Guilty to both charges. Thereafter, the two (2) cases were tried jointly. Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96149821 (violation of the COMELEC Resolution on gun ban). Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved into law. Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court. In its order dated July 15, 1999,[7] however, the trial court denied petitioners motion, saying: While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: The trial court and the respondent court are bound to apply the governing law at the time of the appellants commission of the offense for it is a rule that law s are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK. In the herein assailed resolution dated September 14, 1999,[8] the appellate court dismissed petitioners recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court.

With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000,[9] petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious. At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said courts legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals:[10] For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Considering that judgments of regional trial courts in the exercise of their original juris diction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions of fact and law, whileappeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law [11], petitioner should have appealed the trial courts ruling to this Cour t by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,[12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law,[13] the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.[14] As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioners case is worse compounded by the fact that even his period f or appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial courts order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court. Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicaliti es in the Rules and hold the bull by its horns, so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority,[15] we held: Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx xxx We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case. Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term xxx xxx

ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied) When Rep. Act No. 8294 took effect on July 6, 1997,[16] the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied) Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,[17] the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson[18] to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that no other crime was committed must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here. As early as August 1997, the month after Rep. Act No. 8294 took effect, [19] this Court has pronounced in Gonzales vs. Court of Appeals[20] that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.[21] For sure, in People vs. Valdez,[22] where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations , this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.[23] Yet, in other cases,[24] although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was used to commit the crime of murder or homicide, the Court did not appreciate this use of such unlicensed firearm as an aggravating circumstance as provided therein, when the use of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure. In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not used or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually used and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged. Let us take a look at the jurisprudence once again. In Cupcupin vs. People,[25] the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida,[26] however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement: Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied) In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being used in the commission of an offense.

Given this Courts aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually used or discharged in committing the other offense? In People vs. Walpan M. Ladjaalam,[27] this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held: xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxx xxx xxx

xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was co mmitted by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.(Emphasis supplied). The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia,[28] where the judgment of conviction of the accused-appellants for illegal possession of firearms was set aside there being another crime kidnapping for ransom which they were perpetrating at the same time; People vs. Bernal,[29] where the Court retroactively applied Rep. Act No. 8294 in accused-appellants favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante,[30] where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms. Guided by the foregoing, the Court cannot but set aside petitioners conviction in Criminal Case No. 96 -149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban. Admittedly, this ruling is not without misgivings considering that it would mean petitioners acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam:[31] xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent Peoples contention that the use of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word use never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Courts hands are now tied and it cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294. As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually used. For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida. WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause. SO ORDERED.

Republic of the Philippines Supreme Court Manila SECOND DIVISION

TEOFILO EVANGELISTA, Petitioner,

G.R. No. 163267

Present: CARPIO, J., Chairperson, BRION, DEL CASTILLO, ABAD, and PEREZ, JJ.

- versus-

Promulgated: THE PEOPLE OF THE PHILIPPINES, Respondent. May 5, 2010 x-------------------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive possession or the subjection of the thing to the owners control.[1]

This Petition for Review on Certiorari[2] assails the October 15, 2003 Decision[3] of the Court of Appeals (CA) in CA-G.R. CR No. 21805 which affirmed the January 23, 1998 Decision[4] of the Regional Trial Court (RTC) of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,[5] as amended, as well as the April 16, 2004 Resolution which denied petitioners Motion for Reconsideration.

Factual Antecedents

In an Information[6] dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as follows: That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously have in his possession, custody and control the following items: 1. 2. 3. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines; Nineteen (19) 9mm bullets.

without the corresponding permit or license from competent authority. CONTRARY TO LAW.

After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding of A Preliminary Investigation.[7] The RTC granted the motion and, accordingly, the State Prosecutor conducted the preliminary investigation.

In a Resolution[8] dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended the reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw Information[9] was filed but it was denied by the trial court in an Order[10] dated March 26, 1996, viz: Acting on the Motion to Withdraw Information filed by State Prosecutor Aida Macapagal on the ground that [there exists] no probable cause to indict the accused, the Information having been already filed in Court, the matter should be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is hereby denied. Let the arraignment of the accused proceed.

When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued.

Version of the Prosecution

In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner. Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where the firearms and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated. In open court, Acierto identified the firearms and ammunitions.

During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel in Dubai. Upon inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office[11] nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but his effort yielded no record to show that the firearms were legally purchased. Among the documents Bustos had gathered during his investigation were the Arrival Endorsement Form[12] and Customs Declaration Form.[13] A referral letter[14] was prepared endorsing the matter to the Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms in Angola.

SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO, upon verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification[15] to that effect which he identified in court as Exhibit A.

After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence,[16] the resolution of which was deferred pending submission of petitioners evidence.[17]

Version of the Defense

The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as follows: x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was being detained as he was found in possession of firearms; that if said passenger will not be able to board the airplane, he would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of PAL would accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the firearms and the passenger, herein appellant, so that the latter could

leave Dubai. The firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport authorities.

Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager in Dubai, the prosecution and the defense agreed and stipulated on the following points: 1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions were found in the luggage of a Filipino passenger coming from Angola going to the Philippines; That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in command of PAL Flight 657; That the subject firearms [were] turned over at Dubai; That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin Nadurata who has already testified; That [these are] the same firearms involved in this case.[18]

2.

3. 4.

5.

Ruling of the Regional Trial Court

On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty (20) Years. The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.[19]

On April 4, 1997, petitioner filed a Motion for New Trial[20] which the RTC granted.[21] Forthwith, petitioner took the witness stand narrating his own version of the incident as follows:

On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated him and forced him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to the policemen in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he denied ownership of the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. He declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the Duty Free area for his flight going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign a Customs Declaration Form without reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA where he was investigated. During the investigation, he was not represented by counsel and was forced to accept ownership of the guns. He denied ownership of the guns and the fact that he admitted having bought the same in Angola.

Ruling of the Regional Trial Court

After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive portion of the Decision dated January 23, 1998 reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00. The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.[22]

Ruling of the Court of Appeals

On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the stipulations during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that Capt. Naduratas custody during the flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession.

Petitioner moved for reconsideration[23] but it was denied by the appellate court in its April 16, 2004 Resolution.

Hence, this petition.

Issues

Petitioner assigns the following errors: a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. 1866, Illegal Possession of Firearms. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged against him. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.[24]

b.

c. d.

We find the appeal devoid of merit.

At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme Court.[25] In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we are inclined to delve into the merits of the present petition.

In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in custody and possession of any firearm or ammunition when he arrived in thePhilippines. Thus, the conclusion of the appellate court that he was in constructive possession of the subject firearms and ammunitions is erroneous.

We are not persuaded. As correctly found by the CA: Appellants argument that he was never found in possession of the subject firearms and ammunitions within Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn, turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof, however, appellants signature on the Customs Declaration Form, which contains the entry 2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE, proves that he was the one who brought the guns to Manila. While appellant claims that he signed the Customs Declaration Form without reading it because of his excitement, however, he does not claim that he was coerced or persuaded in affixing his signature thereon. The preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Moreover, it cannot be said that appellant had already been arrested when he signed the Customs Declaration Form. He was merely escorted by Special Agent Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for investigation. Consequently, appellant was in constructive possession of the subject firearms. As held in People v. Dela Rosa, the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. Animus possidendi is a state of mind. As such, what goes on into the mind of the accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30, 1996, testified that he accepted custody of the firearms and of appellant in order that the latter, who was being detained inDubai for having been found in possession of firearms, would be released from custody. In other words, Capt. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant.[26]

We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory questioning by the trial court: Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on your flight to Manila, is that correct? A: Yes, your honor. Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will bring the guns and ammunitions with you? Is that the condition of the Dubai Police? A: Yes, your honor. Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and this arrangement was made by the PAL Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor, who interceded in his behalf with the Dubai Police for his flight in the Philippines.[27]

To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made.[28] No such controversion is extant on record.

Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the excuse that he was excited. Hardly can we accept such pretension.

We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody.

The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs requirement which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Petitioner was among those passengers. Compliance with the constitutional procedure on custodial investigation is, therefore, not applicable in this case. Moreover, it is improbable that the customs police were the ones who filled out the declaration form. As will be noted, it provides details that only petitioner could have possibly known or supplied. Even assuming that there was prior accomplishment of the form which contains incriminating details, petitioner could have easily taken precautionary measures by not affixing his signature thereto. Or he could have registered his objection thereto especially when no life threatening acts were being employed against him upon his arrival in the country.

Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in constructive possession of subject firearms and ammunitions. Emphasis was also given on the stipulations and admissions made during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items.

Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a crime within the Philippines.

Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.[29] In order for the courts to acquire jurisdiction in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.[30]

Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in the Philippines.

And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said firearms. It bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of license to possess the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm. Since it has been shown that petitioner was already in the Philippines when he was found in possession of the subject firearms and determined to be without any authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines.

Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this case, the information specifically and categorically alleged that on or aboutJanuary 30, 1996 petitioner was in possession, custody and control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory within the jurisdiction of the trial court.

In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may be well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership of the firearms. Furthermore, there is no record of

any criminal case having been filed against petitioner in Dubai in connection with the discovered firearms. Since there is no pending criminal case when he left Dubai, it stands to reason that there was no crime committed in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.[31]

Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a preliminary investigation.

Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul[32] that once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar Team Entertainment, Inc v. Judge How[33] we held: It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case.

Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to be conducted.

In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner possessed, albeit constructively, the subject firearms and ammunition when he arrived in the Philippines on January 30, 1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered would have altered the outcome of the case.

In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements in People v. Eling[34] to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.

In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject firearms and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by petitioner when he entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not appear in the list of registered firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond reasonable doubt the second element.[35] A final point. Republic Act (RA) No. 8294[36] took effect on June 6, 1997 or after the commission of the crime on January 30, 1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is concerned.

Section 1 of PD 1866, as amended by RA 8294 provides: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as affirmed by the CA is proper.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 21805 affirming the January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty of imprisonment of six years and one day to eight years and to pay a fine of P30,000.00 is AFFIRMED. SO ORDERED.

G.R. No. 174629

February 14, 2008

REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), petitioner, vs. HON. ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34, PANTALEON ALVAREZ and LILIA CHENG, respondents. DECISION TINGA, J.: The present petition for certiorari and prohibition under Rule 65 assails the orders and resolutions issued by two different courts in two different cases. The courts and cases in question are the Regional Trial Court of Manila, Branch 24, which heard SP Case No. 06-1142001 and the Court of Appeals, Tenth Division, which heared CA-G.R. SP No. 95198.2 Both cases arose as part of the aftermath of the ruling of this Court in Agan v. PIATCO3 nullifying the concession agreement awarded to the Philippine International Airport Terminal Corporation (PIATCO) over the Ninoy Aquino International Airport International Passenger Terminal 3 (NAIA 3) Project. I. Following the promulgation of Agan, a series of investigations concerning the award of the NAIA 3 contracts to PIATCO were undertaken by the Ombudsman and the Compliance and Investigation Staff (CIS) of petitioner Anti-Money Laundering Council (AMLC). On 24 May 2005, the Office of the Solicitor General (OSG) wrote the AMLC requesting the latter s assistance "in obtaining more evidence to completely reveal the financial trail of corruption surrounding the [NAIA 3] Project," and also noting that petitioner Republic of the Philippines was presently defending itself in two international arbitration cases filed in relation to the NAIA 3 Project.4 The CIS conducted an intelligence database search on the financial transactions of certain individuals involved in the award, including respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC Technical Committee, NAIA-IPT3 Project.5 By this time, Alvarez had already been charged by the Ombudsman with violation of Section 3(j) of R.A. No. 3019.6 The search revealed that Alvarez maintained eight (8) bank accounts with six (6) different banks.7 On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005,8 whereby the Council resolved to authorize the Executive Director of the AMLC "to sign and verify an application to inquire into and/or examine the [deposits] or investments of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo Liongson, and Cheng Yong, and their related web of accounts wherever these may be found, as defined under Rule 10.4 of the Revised Implementing Rules and Regulations;" and to authorize the AMLC Secretariat "to conduct an inquiry into subject accounts once the Regional Trial Court grants the application to inquire into and/or examine the bank accounts" of those four individuals.9 The resolution enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad (Trinidad), Alfredo Liongson (Liongson) and Cheng Yong which were to be the subject of the inquiry.10 The rationale for the said resolution was founded on the cited findings of the CIS that amounts were transferred from a Hong Kong bank account owned by Jetstream Pacific Ltd. Account to bank accounts in the Philippines maintained by Liongson and Cheng Yong.11 The Resolution also noted that "[b]y awarding the contract to PIATCO despite its lack of financial capacity, Pantaleon Alvarez caused undue injury to the government by giving PIATCO unwarranted benefits, advantage, or preference in the discharge of his official administrative functions through manifest partiality, evident bad faith, or gross inexcusable negligence, in violation of Section 3(e) of Republic Act No. 3019."12 Under the authority granted by the Resolution, the AMLC filed an application to inquire into or examine the deposits or investments of Alvarez, Trinidad, Liongson and Cheng Yong before the RTC of Makati, Branch 138, presided by Judge (now Court of Appeals Justice) Sixto Marella, Jr. The application was docketed as AMLC No. 05-005.13 The Makati RTC heard the testimony of the Deputy Director of the AMLC, Richard David C. Funk II, and received the documentary evidence of the AMLC.14 Thereafter, on 4 July 2005, the Makati RTC rendered an Order (Makati RTC bank inquiry order) granting the AMLC the authority to inquire and examine the subject bank accounts of Alvarez, Trinidad, Liongson and Cheng Yong, the trial court being satisfied that there existed "[p]robable cause [to] believe that the deposits in various bank accounts, details of which appear in paragraph 1 of the Application, are related to the offense of violation of Anti-Graft and Corrupt Practices Act now the subject of criminal prosecution before the Sandiganbayan as attested to by the Informations, Exhibits C, D, E, F, and G."15 Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to inquire and examine the deposits, investments and related web accounts of the four.16 Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-Ignacio, wrote a letter dated 2 November 2005, requesting the AMLC to investigate the accounts of Alvarez, PIATCO, and several other entities involved in the nullified contract. The letter adverted to probable cause to believe that the bank accounts "were used in the commission of unlawful activities that were committed" in relation to the criminal cases then pending before the Sandiganbayan. 17Attached to the letter was a memorandum "on why the investigation of the [accounts] is necessary in the prosecution of the above criminal cases before the Sandiganbayan."18 In response to the letter of the Special Prosecutor, the AMLC promulgated on 9 December 2005 Resolution No. 121 Series of 2005,19 which authorized the executive director of the AMLC to inquire into and examine the accounts named in the letter, including one maintained by Alvarez with DBS Bank and two other accounts in the name of Cheng Yong with Metrobank. The Resolution characterized the memorandum attached to the Special Prosecutors letter as "extensively justif[ying] the existence of probable cause that the bank accounts of the persons and entities mentioned in the letter are related to the unlawful activity of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019, as amended."20

Following the December 2005 AMLC Resolution, the Republic, through the AMLC, filed an application21 before the Manila RTC to inquire into and/or examine thirteen (13) accounts and two (2) related web of accounts alleged as having been used to facilitate corruption in the NAIA 3 Project. Among said accounts were the DBS Bank account of Alvarez and the Metrobank accounts of Cheng Yong. The case was raffled to Manila RTC, Branch 24, presided by respondent Judge Antonio Eugenio, Jr., and docketed as SP Case No. 06-114200. On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry order) granting the Ex Parte Application expressing therein "[that] the allegations in said application to be impressed with merit, and in conformity with Section 11 of R.A. No. 9160, as amended, otherwise known as the Anti-Money Laundering Act (AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing Rules and Regulations."22 Authority was thus granted to the AMLC to inquire into the bank accounts listed therein. On 25 January 2006, Alvarez, through counsel, entered his appearance23 before the Manila RTC in SP Case No. 06-114200 and filed an Urgent Motion to Stay Enforcement of Order of January 12, 2006. 24 Alvarez alleged that he fortuitously learned of the bank inquiry order, which was issued following an ex parte application, and he argued that nothing in R.A. No. 9160 authorized the AMLC to seek the authority to inquire into bank accounts ex parte.25 The day after Alvarez filed his motion, 26 January 2006, the Manila RTC issued an Order26 staying the enforcement of its bank inquiry order and giving the Republic five (5) days to respond to Alvarezs motion. The Republic filed an Omnibus Motion for Reconsideration27 of the 26 January 2006 Manila RTC Order and likewise sought to strike out Alvarezs motion that led to the issuance of said order. For his part, Alvarez filed a Reply and Motion to Dismiss 28 the application for bank inquiry order. On 2 May 2006, the Manila RTC issued an Omnibus Order29 granting the Republics Motion for Reconsideration, denying Alvarezs motion to dismiss and reinstating "in full force and effect" the Order dated 12 Januar y 2006. In the omnibus order, the Manila RTC reiterated that the material allegations in the application for bank inquiry order filed by the Republic stood as "the probable cause for the investigation and examination of the bank accounts and investments of the respondents."30 Alvarez filed on 10 May 2006 an Urgent Motion31 expressing his apprehension that the AMLC would immediately enforce the omnibus order and would thereby render the motion for reconsideration he intended to file as moot and academic; thus he sought that the Republic be refrained from enforcing the omnibus order in the meantime. Acting on this motion, the Manila RTC, on 11 May 2006, issued an Order32 requiring the OSG to file a comment/opposition and reminding the parties that judgments and orders become final and executory upon the expiration of fifteen (15) days from receipt thereof, as it is the period within which a motion for reconsideration could be filed. Alvarez filed his Motion for Reconsideration 33 of the omnibus order on 15 May 2006, but the motion was denied by the Manila RTC in an Order34 dated 5 July 2006. On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation35 wherein he manifested having received reliable information that the AMLC was about to implement the Manila RTC bank inquiry order even though he was intending to appeal from it. On the premise that only a final and executory judgment or order could be executed or implemented, Alvarez sought that the AMLC be immediately ordered to refrain from enforcing the Manila RTC bank inquiry order. On 12 July 2006, the Manila RTC, acting on Alvarezs latest motion, issued an Order36 directing the AMLC "to refrain from enforcing the order dated January 12, 2006 until the expiration of the period to appeal, without any appeal having been filed." On the same day, Alvarez filed a Notice of Appeal37 with the Manila RTC. On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for Clarification.38 Therein, he alleged having learned that the AMLC had began to inquire into the bank accounts of the other persons mentioned in the application for bank inquiry order filed by the Republic.39 Considering that the Manila RTC bank inquiry order was issued ex parte, without notice to those other persons, Alvarez prayed that the AMLC be ordered to refrain from inquiring into any of the other bank deposits and alleged web of accounts enumerated in AMLCs application with the RTC; and that the AMLC be directed to refrain fr om using, disclosing or publishing in any proceeding or venue any information or document obtained in violation of the 11 May 2006 RTC Order. 40 On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued an Order41 wherein it clarified that "theEx Parte Order of this Court dated January 12, 2006 can not be implemented against the deposits or accounts of any of the persons enumerated in the AMLC Application until the appeal of movant Alvarez is finally resolved, otherwise, the appeal would be rendered moot and academic or even nugatory."42 In addition, the AMLC was ordered "not to disclose or publish any information or document found or obtained in [v]iolation of the May 11, 2006 Order of this Court." 43 The Manila RTC reasoned that the other persons mentioned in AMLCs application were not served with the courts 12 January 2006 Order. This 25 July 2006 Manila RTC Order is the first of the four rulings being assailed through this petition. In response, the Republic filed an Urgent Omnibus Motion for Reconsideration44 dated 27 July 2006, urging that it be allowed to immediately enforce the bank inquiry order against Alvarez and that Alvarezs notice of appeal be expunged from the records since appeal from an order of inquiry is disallowed under the Anti money Laundering Act (AMLA). Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition for Certiorari, Prohibition and Mandamus with Application for TRO and/or Writ of Preliminary Injunction45 dated 10 July 2006, directed against the Republic of the Philippines through the AMLC, Manila RTC Judge Eugenio, Jr. and Makati RTC Judge Marella, Jr.. She identified herself as the wife of Cheng Yong46 with whom she jointly owns a conjugal bank account with Citibank that is covered by the Makati RTC bank inquiry order, and two conjugal bank accounts with Metrobank that are covered by the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on the part of the Makati and Manila RTCs in granting AMLCs ex parte applications for a bank inquiry order, arguing among others that the ex parte applications violated her constitutional right to due process,

that the bank inquiry order under the AMLA can only be granted in connection with violations of the AMLA and that the AMLA can not apply to bank accounts opened and transactions entered into prior to the effectivity of the AMLA or to bank accounts located outside the Philippines.47 On 1 August 2006, the Court of Appeals, acting on Lilia Chengs petition, issued a Temporary Restraining Order48enjoining the Manila and Makati trial courts from implementing, enforcing or executing the respective bank inquiry orders previously issued, and the AMLC from enforcing and implementing such orders. On even date, the Manila RTC issued an Order 49 resolving to hold in abeyance the resolution of the urgent omnibus motion for reconsideration then pending before it until the resolution of Lilia Chengs petition for certiorari with the Court of Appeals. The Court of Appeals Resolution directing the issuance of th e temporary restraining order is the second of the four rulings assailed in the present petition. The third assailed ruling50 was issued on 15 August 2006 by the Manila RTC, acting on the Urgent Motion for Clarification51 dated 14 August 2006 filed by Alvarez. It appears that the 1 August 2006 Manila RTC Order had amended its previous 25 July 2006 Order by deleting the last paragraph which stated that the AMLC "should not disclose or publish any information or document found or obtained in violation of the May 11, 2006 Order of this Court." 52 In this new motion, Alvarez argued that the deletion of that paragraph would allow the AMLC to implement the bank inquiry orders and publish whatever information it might obtain thereupon even before the final orders of the Manila RTC could become final and executory.53 In the 15 August 2006 Order, the Manila RTC reiterated that the bank inquiry order it had issued could not be implemented or enforced by the AMLC or any of its representatives until the appeal therefrom was finally resolved and that any enforcement thereof would be unauthorized.54 The present Consolidated Petition55 for certiorari and prohibition under Rule 65 was filed on 2 October 2006, assailing the two Orders of the Manila RTC dated 25 July and 15 August 2006 and the Temporary Restraining Order dated 1 August 2006 of the Court of Appeals. Through an Urgent Manifestation and Motion56 dated 9 October 2006, petitioner informed the Court that on 22 September 2006, the Court of Appeals hearing Lilia Chengs petition had granted a writ of preliminary injunction in her favor.57 Thereafter, petitioner sought as well the nullification of the 22 September 2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling assailed in the instant petition.58 The Court had initially granted a Temporary Restraining Order59 dated 6 October 2006 and later on a Supplemental Temporary Restraining Order60 dated 13 October 2006 in petitioners favor, enjoining the implementation of the assailed rulings of the Manila RTC and the Court of Appeals. However, on respondents motion, the Court, through a Resolution 61dated 11 December 2006, suspended the implementation of the restraining orders it had earlier issued. Oral arguments were held on 17 January 2007. The Court consolidated the issues for argument as follows: 1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15 August 2006 which deferred the implementation of its Order dated 12 January 2006, and the Court of Appeals, in issuing its Resolution dated 1 August 2006, which ordered the status quo in relation to the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, both of which authorized the examination of bank accounts under Section 11 of Rep. Act No. 9160 (AMLA), commit grave abuse of discretion? (a) Is an application for an order authorizing inquiry into or examination of bank accounts or investments under Section 11 of the AMLA ex-parte in nature or one which requires notice and hearing? (b) What legal procedures and standards should be observed in the conduct of the proceedings for the issuance of said order? (c) Is such order susceptible to legal challenges and judicial review? 2. Is it proper for this Court at this time and in this case to inquire into and pass upon the validity of the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, considering the pendency of CA G.R. SP No. 95-198 (Lilia Cheng v. Republic) wherein the validity of both orders was challenged? 62 After the oral arguments, the parties were directed to file their respective memoranda, which they did,63 and the petition was thereafter deemed submitted for resolution. II. Petitioners general advocacy is that the bank inquiry orders issued by the Manila and Makati RTCs are valid and immediately enforceable whereas the assailed rulings, which effectively stayed the enforcement of the Manila and Makati RTCs bank inquiry orders, are sullied with grave abuse of discretion. These conclusions flow from the posture that a bank inquiry order, issued upon a finding of probable cause, may be issued ex parte and, once issued, is immediately executory. Petitioner further argues that the information obtained following the bank inquiry is necessarily beneficial, if not indispensable, to the AMLC in discharging its awesome responsibility regarding the effective implementation of the AMLA and that any restraint in the disclosure of such information to appropriate agencies or other judicial fora would render meaningless the relief supplied by the bank inquiry order.

Petitioner raises particular arguments questioning Lilia Chengs right to seek injunctive relief before the Court of Appeals, noting that not one of the bank inquiry orders is directed against her. Her "cryptic assertion" that she is the wife of Cheng Yong cannot, according to petitioner, "metamorphose into the requisite legal standing to seek redress for an imagined injury or to maintain an action in behalf of another." In the same breath, petitioner argues that Alvarez cannot assert any violation of the right to financial privacy in behalf of other persons whose bank accounts are being inquired into, particularly those other persons named in the Makati RTC bank inquiry order who did not take any step to oppose such orders before the courts. Ostensibly, the proximate question before the Court is whether a bank inquiry order issued in accordance with Section 10 of the AMLA may be stayed by injunction. Yet in arguing that it does, petitioner relies on what it posits as the final and immediately executory character of the bank inquiry orders issued by the Manila and Makati RTCs. Implicit in that position is the notion that the inquiry orders are valid, and such notion is susceptible to review and validation based on what appears on the face of the orders and the applications which triggered their issuance, as well as the provisions of the AMLA governing the issuance of such orders. Indeed, to test the viability of petitioners argument, the Court will have to be satisfied that the subject inquiry orders are valid in the first place. However, even from a cursory examination of the applications for inquiry order and the orders themselves, it is evident that the orders are not in accordance with law. III. A brief overview of the AMLA is called for. Money laundering has been generally defined by the International Criminal Police Organization (Interpol) `as "any act or attempted act to conceal or disguise the identity of illegally obtained proceeds so that they appear to have originated from legitimate sources."64 Even before the passage of the AMLA, the problem was addressed by the Philippine government through the issuance of various circulars by the Bangko Sentral ng Pilipinas. Yet ultimately, legislative proscription was necessary, especially with the inclusion of the Philippines in the Financial Action Task Forces list of non-cooperative countries and territories in the fight against money laundering.65 The original AMLA, Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003. Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the proceeds of an unlawful activity as [defined in the law] are transacted, thereby making them appear to have originated from legitimate sources." 66 The section further provides the three modes through which the crime of money laundering is committed. Section 7 creates the AMLC and defines its powers, which generally relate to the enforcement of the AMLA provisions and the initiation of legal actions authorized in the AMLA such as civil forefeiture proceedings and complaints for the prosecution of money laundering offenses. 67 In addition to providing for the definition and penalties for the crime of money laundering, the AMLA also authorizes certain provisional remedies that would aid the AMLC in the enforcement of the AMLA. These are the "freeze order" authorized under Section 10, and the "bank inquiry order" authorized under Section 11. Respondents posit that a bank inquiry order under Section 11 may be obtained only upon the pre-existence of a money laundering offense case already filed before the courts.68 The conclusion is based on the phrase "upon order of any competent court in cases of violation of this Act," the word "cases" generally understood as referring to actual cases pending with the courts. We are unconvinced by this proposition, and agree instead with the then Solicitor General who conceded that the use of the phrase "in cases of" was unfortunate, yet submitted that it should be interpreted to mean "in the event there are violations" of the AMLA, and not that there are already cases pending in court concerning such violations. 69 If the contrary position is adopted, then the bank inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and wholly inutile as a means for the government to ascertain whether there is sufficient evidence to sustain an intended prosecution of the account holder for violation of the AMLA. Should that be the situation, in all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus would become less circumspect in filing complaints against suspect account holders. After all, under such set-up the preferred strategy would be to allow or even encourage the indiscriminate filing of complaints under the AMLA with the hope or expectation that the evidence of money laundering would somehow surface during the trial. Since the AMLC could not make use of the bank inquiry order to determine whether there is evidentiary basis to prosecute the suspected malefactors, not filing any case at all would not be an alternative. Such unwholesome set-up should not come to pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has established and encourage the unfounded initiation of complaints for money laundering. Still, even if the bank inquiry order may be availed of without need of a pre-existing case under the AMLA, it does not follow that such order may be availed of ex parte. There are several reasons why the AMLA does not generally sanction ex parteapplications and issuances of the bank inquiry order. IV. It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex parte of the bank inquiry order. We quote the provision in full: SEC. 11. Authority to Inquire into Bank Deposits. Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non bank financial institution upon order of any competent

court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activity as defined in Section 3(i) hereof or a money laundering offense under Section 4 hereof, except that no court order shall be required in cases involving unlawful activities defined in Sections 3(i)1, (2) and (12). To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into or examine any deposit of investment with any banking institution or non bank financial institution when the examination is made in the course of a periodic or special examination, in accordance with the rules of examination of the BSP. 70 (Emphasis supplied) Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a judicial order in cases where there is probable cause that the deposits or investments are related to kidnapping for ransom,71 certain violations of the Comprehensive Dangerous Drugs Act of 2002,72 hijacking and other violations under R.A. No. 6235, destructive arson and murder. Since such special circumstances do not apply in this case, there is no need for us to pass comment on this proviso. Suffice it to say, the proviso contemplates a situation distinct from that which presently confronts us, and for purposes of the succeeding discussion, our reference to Section 11 of the AMLA excludes said proviso. In the instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued that this silence does not preclude the ex parte issuance of the bank inquiry order since the same is not prohibited under Section 11. Yet this argument falls when the immediately preceding provision, Section 10, is examined. SEC. 10. Freezing of Monetary Instrument or Property. The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court.73 Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed such intent in the law, as it did with the freeze order under Section 10. Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the same time, through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not the Court of Appeals, which had authority to issue a freeze order, whereas a bank inquiry order always then required, without exception, an order from a competent court. 74 It was through the same enactment that ex parte proceedings were introduced for the first time into the AMLA, in the case of the freeze order which now can only be issued by the Court of Appeals. It certainly would have been convenient, through the same amendatory law, to allow a similar ex parte procedure in the case of a bank inquiry order had Congress been so minded. Yet nothing in the provision itself, or even the available legislative record, explicitly points to anex parte judicial procedure in the application for a bank inquiry order, unlike in the case of the freeze order. That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the passage of R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications for freeze orders be filed ex parte,75 but no similar clearance is granted in the case of inquiry orders under Section 11. 76 These implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities and Exchange Commission,77 and if it was the true belief of these institutions that inquiry orders could be issued ex parte similar to freeze orders, language to that effect would have been incorporated in the said Rules. This is stressed not because the implementing rules could authorize ex parte applications for inquiry orders despite the absence of statutory basis, but rather because the framers of the law had no intention to allow such ex parte applications. Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC78 to enforce the provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders under Section 1079 but make no similar authorization with respect to bank inquiry orders under Section 11. The Court could divine the sense in allowing ex parte proceedings under Section 10 and in proscribing the same under Section 11. A freeze order under Section 10 on the one hand is aimed at preserving monetary instruments or property in any way deemed related to unlawful activities as defined in Section 3(i) of the AMLA. The owner of such monetary instruments or property would thus be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the dissipation of such funds even before the order could be issued. On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical seizure of property of the account holder. What the bank inquiry order authorizes is the examination of the particular deposits or investments in banking institutions or non-bank financial institutions. The monetary instruments or property deposited with such banks or financial institutions are not seized in a physical sense, but are examined on particular details such as the account holders record of deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected under a bank inquiry order cannot be physically seized or hidden by the account holder. Said records are in the possession of the bank and therefore

cannot be destroyed at the instance of the account holder alone as that would require the extraordinary cooperation and devotion of the bank. Interestingly, petitioners memorandum does not attempt to demonstrate before the Court that the bank inquiry order under Section 11 may be issued ex parte, although the petition itself did devote some space for that argument. The petition argues that the bank inquiry order is "a special and peculiar remedy, drastic in its name, and made necessary because of a public necessity [t]hus, by its very nature, the application for an order or inquiry must necessarily, be ex parte." This argument is insufficient justification in light of the clear disinclination of Congress to allow the issuance ex parte of bank inquiry orders under Section 11, in contrast to the legislatures clear inclination to allow the ex parte grant of freeze orders under Section 10. Without doubt, a requirement that the application for a bank inquiry order be done with notice to the account holder will alert the latter that there is a plan to inspect his bank account on the belief that the funds therein are involved in an unlawful activity or money laundering offense.80 Still, the account holder so alerted will in fact be unable to do anything to conceal or cleanse his bank account records of suspicious or anomalous transactions, at least not without the whole-hearted cooperation of the bank, which inherently has no vested interest to aid the account holder in such manner. V. The necessary implication of this finding that Section 11 of the AMLA does not generally authorize the issuance ex parte of the bank inquiry order would be that such orders cannot be issued unless notice is given to the owners of the account, allowing them the opportunity to contest the issuance of the order. Without such a consequence, the legislated distinction between ex parte proceedings under Section 10 and those which are not ex parte under Section 11 would be lost and rendered useless. There certainly is fertile ground to contest the issuance of an ex parte order. Section 11 itself requires that it be established that "there is probable cause that the deposits or investments are related to unlawful activities," and it obviously is the court which stands as arbiter whether there is indeed such probable cause. The process of inquiring into the existence of probable cause would involve the function of determination reposed on the trial court. Determination clearly implies a function of adjudication on the part of the trial court, and not a mechanical application of a standard pre-determination by some other body. The word "determination" implies deliberation and is, in normal legal contemplation, equivalent to "the decision of a court of justice." 81 The court receiving the application for inquiry order cannot simply take the AMLCs word that probable cause exists that the deposits or investments are related to an unlawful activity. It will have to exercise its own determinative function in order to be convinced of such fact. The account holder would be certainly capable of contesting such probable cause if given the opportunity to be apprised of the pending application to inquire into his account; hence a notice requirement would not be an empty spectacle. It may be so that the process of obtaining the inquiry order may become more cumbersome or prolonged because of the notice requirement, yet we fail to see any unreasonable burden cast by such circumstance. After all, as earlier stated, requiring notice to the account holder should not, in any way, compromise the integrity of the bank records subject of the inquiry which remain in the possession and control of the bank. Petitioner argues that a bank inquiry order necessitates a finding of probable cause, a characteristic similar to a search warrant which is applied to and heard ex parte. We have examined the supposed analogy between a search warrant and a bank inquiry order yet we remain to be unconvinced by petitioner. The Constitution and the Rules of Court prescribe particular requirements attaching to search warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional warrant requires that the judge personally examine under oath or affirmation the complainant and the witnesses he may produce, 82 such examination being in the form of searching questions and answers.83 Those are impositions which the legislative did not specifically prescribe as to the bank inquiry order under the AMLA, and we cannot find sufficient legal basis to apply them to Section 11 of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it contemplates a direct object but not the seizure of persons or property. Even as the Constitution and the Rules of Court impose a high procedural standard for the determination of probable cause for the issuance of search warrants which Congress chose not to prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry order. We can discern that in exchange for these procedural standards normally applied to search warrants, Congress chose instead to legislate a right to notice and a right to be heard characteristics of judicial proceedings which are not ex parte. Absent any demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy choices. VI. The Courts construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy considerations. If sustained , petitioners argument that a bank account may be inspected by the government following an ex parteproceeding about which the depositor would know nothing would have significant implications on the right to privacy, a right innately cherished by all notwithstanding the legally recognized exceptions thereto. The notion that the government could be so empowered is cause for concern of any individual who values the right to privacy which, after all, embodies even the right to be "let alone," the most comprehensive of rights and the right most valued by civilized people. 84

One might assume that the constitutional dimension of the right to privacy, as applied to bank deposits, warrants our present inquiry. We decline to do so. Admittedly, that question has proved controversial in American jurisprudence. Notably, the United States Supreme Court in U.S. v. Miller85 held that there was no legitimate expectation of privacy as to the bank records of a depositor.86 Moreover, the text of our Constitution has not bothered with the triviality of allocating specific rights peculiar to bank deposits. However, sufficient for our purposes, we can assert there is a right to privacy governing bank accounts in the Philippines, and that such right finds application to the case at bar. The source of such right is statutory, expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is enshrined in Section 2 of that law, to wit: SECTION 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation. (Emphasis supplied) Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in the Philippines.87Subsequent laws, including the AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of privacy recognized by our laws. 88 The framers of the 1987 Constitution likewise recognized that bank accounts are not covered by either the right to information 89 under Section 7, Article III or under the requirement of full public disclosure90 under Section 28, Article II.91 Unless the Bank Secrecy Act is repealed or amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank deposits. Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by "any person, government official, bureau or office"; namely when: (1) upon written permission of the depositor; (2) in cases of impeachment; (3) the examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials; and (4) the money deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been recognized by this Court as constituting an additional exception to the rule of absolute confidentiality, 92 and there have been other similar recognitions as well.93 The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may inquire into a bank account upon order of any competent court in cases of violation of the AMLA, it having been established that there is probable cause that the deposits or investments are related to unlawful activities as defined in Section 3(i) of the law, or a money laundering offense under Section 4 thereof. Further, in instances where there is probable cause that the deposits or investments are related to kidnapping for ransom,94 certain violations of the Comprehensive Dangerous Drugs Act of 2002, 95 hijacking and other violations under R.A. No. 6235, destructive arson and murder, then there is no need for the AMLC to obtain a court order before it could inquire into such accounts. It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11 of the AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is when "the money deposited or invested is the subject matter of the litigation." The orientation of the bank inquiry order is simply to serve as a provisional relief or remedy. As earlier stated, the application for such does not entail a full-blown trial. Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it does not mean that the later law has dispensed with the general principle established in the older law that "[a]ll deposits of whatever nature with banks or banking institutions in the Philippines x x x are hereby considered as of an absolutely confidential nature." 96Indeed, by force of statute, all bank deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions referred to above. There is disfavor towards construing these exceptions in such a manner that would authorize unlimited discretion on the part of the government or of any party seeking to enforce those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former. Such a stance would persist unless Congress passes a law reversing the general state policy of preserving the absolutely confidential nature of Philippine bank accounts. The presence of this statutory right to privacy addresses at least one of the arguments raised by petitioner, that Lilia Cheng had no personality to assail the inquiry orders before the Court of Appeals because she was not the subject of said orders. AMLC Resolution No. 75, which served as the basis in the successful application for the Makati inquiry order, expressly adverts to Citibank Account No. 88576248 "owned by Cheng Yong and/or Lilia G. Cheng with Citibank N.A.," 97 whereas Lilia Chengs petition before the Court of Appeals is accompanied by a certification from Metrobank that Account Nos. 300852436-0 and 700149801-7, both of which are among the subjects of the Manila inquiry order, are accounts in the name of "Yong Cheng or Lilia Cheng."98 Petitioner does not specifically deny that Lilia Cheng holds rights of ownership over the three said accounts, laying focus instead on the fact that she was not named as a subject of either the Makati or Manila RTC inquiry orders. We are reasonably convinced that Lilia Cheng has sufficiently demonstrated her joint ownership of the three accounts, and such conclusion leads us to acknowledge that she has the standing to assail via certiorari the inquiry orders authorizing the examination of her bank accounts as the orders interfere with her statutory right to maintain the secrecy of said accounts.

While petitioner would premise that the inquiry into Lilia Chengs accounts finds root in Section 11 of the AMLA, it cannot b e denied that the authority to inquire under Section 11 is only exceptional in character, contrary as it is to the general rule preserving the secrecy of bank deposits. Even though she may not have been the subject of the inquiry orders, her bank accounts nevertheless were, and she thus has the standing to vindicate the right to secrecy that attaches to said accounts and their owners. This statutory right to privacy will not prevent the courts from authorizing the inquiry anyway upon the fulfillment of the requirements set forth under Section 11 of the AMLA or Section 2 of the Bank Secrecy Act; at the same time, the owner of the accounts have the right to challenge whether the requirements were indeed complied with. VII. There is a final point of concern which needs to be addressed. Lilia Cheng argues that the AMLA, being a substantive penal statute, has no retroactive effect and the bank inquiry order could not apply to deposits or investments opened prior to the effectivity of Rep. Act No. 9164, or on 17 October 2001. Thus, she concludes, her subject bank accounts, opened between 1989 to 1990, could not be the subject of the bank inquiry order lest there be a violation of the constitutional prohibition against ex post facto laws. No ex post facto law may be enacted,99 and no law may be construed in such fashion as to permit a criminal prosecution offensive to the ex post facto clause. As applied to the AMLA, it is plain that no person may be prosecuted under the penal provisions of the AMLA for acts committed prior to the enactment of the law on 17 October 2001. As much was understood by the lawmakers since they deliberated upon the AMLA, and indeed there is no serious dispute on that point. Does the proscription against ex post facto laws apply to the interpretation of Section 11, a provision which does not provide for a penal sanction but which merely authorizes the inspection of suspect accounts and deposits? The answer is in the affirmative. In this jurisdiction, we have defined an ex post facto law as one which either: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Emphasis supplied)100 Prior to the enactment of the AMLA, the fact that bank accounts or deposits were involved in activities later on enumerated in Section 3 of the law did not, by itself, remove such accounts from the shelter of absolute confidentiality. Prior to the AMLA, in order that bank accounts could be examined, there was need to secure either the written permission of the depositor or a court order authorizing such examination, assuming that they were involved in cases of bribery or dereliction of duty of public officials, or in a case where the money deposited or invested was itself the subject matter of the litigation. The passage of the AMLA stripped another layer off the rule on absolute confidentiality that provided a measure of lawful protection to the account holder. For that reason, the application of the bank inquiry order as a means of inquiring into records of transactions entered into prior to the passage of the AMLA would be constitutionally infirm, offensive as it is to the ex post facto clause. Still, we must note that the position submitted by Lilia Cheng is much broader than what we are willing to affirm. She argues that the proscription against ex post facto laws goes as far as to prohibit any inquiry into deposits or investments included in bank accounts opened prior to the effectivity of the AMLA even if the suspect transactions were entered into when the law had already taken effect. The Court recognizes that if this argument were to be affirmed, it would create a horrible loophole in the AMLA that would in turn supply the means to fearlessly engage in money laundering in the Philippines; all that the criminal has to do is to make sure that the money laundering activity is facilitated through a bank account opened prior to 2001. Lilia Cheng admits that "actual money launderers could utilize the ex post facto provision of the Constitution as a shield" but that the remedy lay with Congress to amend the law. We can hardly presume that Congress intended to enact a self-defeating law in the first place, and the courts are inhibited from such a construction by the cardinal rule that "a law should be interpreted with a view to upholding rather than destroying it."101 Besides, nowhere in the legislative record cited by Lilia Cheng does it appear that there was an unequivocal intent to exempt from the bank inquiry order all bank accounts opened prior to the passage of the AMLA. There is a cited exchange between Representatives Ronaldo Zamora and Jaime Lopez where the latter confirmed to the former that "deposits are supposed to be exempted from scrutiny or monitoring if they are already in place as of the time the law is enacted." 102That statement does indicate that transactions already in place when the AMLA was passed are indeed exempt from scrutiny through a bank inquiry order, but it cannot yield any interpretation that records of transactions undertaken after the enactment of the AMLA are similarly exempt. Due to the absence of cited authority from the legislative record that unqualifiedly supports respondent Lilia Chengs thesis, there is no cause for us to sustain her interpretation of the AMLA, fatal as i t is to the anima of that law.

IX. We are well aware that Lilia Chengs petition presently pending before the Court of Appeals likewise assails the validity of the subject bank inquiry orders and precisely seeks the annulment of said orders. Our current declarations may indeed have the effect of preempting that0 petition. Still, in order for this Court to rule on the petition at bar which insists on the enforceability of the said bank inquiry orders, it is necessary for us to consider and rule on the same question which after all is a pure question of law. WHEREFORE, the PETITION is DISMISSED. No pronouncement as to costs. SO ORDERED.

FIRST DIVISION JUANITO T. MERENCILLO, Petitioner, G.R. Nos. 142369-70 Present: PUNO, C.J., Chairperson, - versus SANDOVAL-GUTIERREZ, CORONA, AZCUNA and GARCIA, JJ.

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated: April 13, 2007

x------------------------------------------x CORONA, J.: DECISION

This petition for review[1] assails the June 18, 1999 decision[2] of the Sandiganbayan in A.R. Case Nos. 004005 affirming[3] the omnibus decision[4] of the Regional Trial Court (RTC) of Tagbilaran City, Branch 47, in Criminal Case Nos. 9482-83 finding petitioner Juanito T. Merencillo guilty of violating Section 3(b) of RA 3019 [5] and Article 210[6] of the Revised Penal Code. The information charging petitioner for violation of Section 3(b) of RA 3019 in Criminal Case No. 9482 read:

That, on or about the 28th day of September, 1995, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then a public official connected with the Bureau of Internal Revenue as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and with intent of personal gain, directly demand and extort from a certain Mrs. Maria Angeles Ramasola Cesar the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, in connection, in consideration and in exchange for the release of the certification of her payment of the capital gains tax for the land purchased by the Ramasola [Superstudio] Inc. from one Catherine Corpuz Enerio, a transaction wherein the aforesaid accused has to intervene in his official capacity, and to which the said Mrs. Maria Angeles Ramasola Cesar reluctantly agreed but upon prior consultation with the military authorities particularly the elements of the 702nd Criminal Investigation Command [CIC] who set up the accused for a possible entrapment resulting to ( sic) his being caught in the act of receiving an envelope supposedly containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but consisting only of four (4) marked one hundred peso bills and the rest all bogus (paper) monies, to the damage and prejudice of the said Mrs. Maria Angeles Ramasola Cesar in particular and the public and the government in general in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Section 3(b) of [RA] 3019.[7] On the other hand, the information for direct bribery penalized under Article 210 of the Revised Penal Code in Criminal Case No. 9483 charged: That, on or about the 28th day of September, 1995 in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then a public official connected with the performance of official duty as its Group Supervising Examiner, did then and there willfully, unlawfully and feloniously and with intent of personal gain, demand, extort and agree to perform an act constituting a crime, an act which is in violation of the Anti-Graft and Corrupt Practices Act, that is that the certification for payment of the capital gains tax relative to the land purchased by the Ramasola Superstudio Incorporated from Catherine Corpus Enerio be released by him only upon payment of an additional under the table transaction in the amount of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, which Mrs. Maria Angeles Ramasola Cesar reluctantly agreed, but upon prior consultation with the military authorities particularly the elements of the 702nd Criminal [Investigation] Command (CIC) who set up the accused for a possible entrapment resulting to (sic) his being caught in the act of receiving an envelope supposedly containing the amount of TWENTY THOUSAND PESOS (P20,000.00) but, consisting only of four (4) marked one hundred pesos bills and the rest all bogus (paper) monies, an act performed by the accused in his official capacity as Group Supervising Examiner of the BIR, to the damage and prejudice of Mrs. Maria Angeles Ramasola Cesar in particular and the public and the government in general in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Article 210 of the Revised Penal Code of the Philippines.[8]

Petitioner pleaded not guilty to both charges when arraigned. Thereafter trial ensued and the cases were tried jointly.

THE FACTS ESTABLISHED BY THE PROSECUTION In the morning of September 13, 1995, Lucit Estillore went to the Bureau of Internal Revenue (BIR) office in Tagbilaran City to ask for the computation of taxes due on the sale of real property to Ramasola Superstudio, Inc. and to apply for a certificate authorizing registration (CAR).[9] At the BIR office, she was entertained by revenue examiner Lourdes Fuentes who computed the documentary stamp tax (P37,500) and capital gains tax (P125,000) due on the transaction. The computation was approved by petitioner in his capacity as group supervisor. Estillore paid the taxes in the bank and returned to apply for a CAR. She submitted the application together with relevant documents to Fuentes for processing. Fuentes prepared the revenue audit reports and submitted them together with the application for the CAR to petitioner for preliminary approval. [The application was to be forwarded thereafter to the Revenue District Officer (RDO) for final approval.] Fuentes advised Estillore that the CAR would be released after seven days. At around 10:00 a.m. of the same day, private complainant Maria Angeles Ramasola Cesar [10] (Cesar) received a call from Estillore. She was told that petitioner wanted to see her for some negotiation. She proceeded to petitioners office where the latter demanded P20,000 in exchange for the approval of the CAR. Cesar replied that she needed to confer with her two brothers who were her business associates. The following day, on September 14, 1995, Cesar received a call from petitioner who was following up his demand. Later that day, Cesar received another call from petitioner who told her that she could get the CAR after four or five days. Cesar was able to return to the BIR only on September 20, 1995. When petitioner saw her, he repeated his demand for P20,000 although the CAR had in fact been signed by RDO Galahad Balagon the day before, on September 19, 1995, and was therefore ready for release. On Cesars inquiry, the releasing clerk, Susan Cabangon, informed Cesar that she (Cabangon) was still waiting for petitioners go signal to release the document. On September 22, 1995, Cesar visited RDO Balagon and complained about petitioners refusal to release the CAR unless his demand was met. RDO Balagon assured Cesar that he would look into her complaint. Subsequently, Cesar received a call from petitioner informing her that she could get the CAR but reminded her of his demand. He told her that he was willing to accept a lesser amount. It was at this point that Cesar decided to report the matter to the authorities. She sought the help of the Provincial Director of the Philippine National Police (PNP) in Bohol, Senior Superintendent Dionaid Baraguer. The following day, Sr. Supt. Baraguer referred Cesars complaint to the chief of police of Tagbilaran City who coordinated with Cesar for the entrapment of petitioner. Cesar was instructed to prepare two bundles of bogus money by putting a one-hundred peso bill on each side of each of the two bundles to make it appear that the two bundles amounted toP10,000 each or a total of P20,000. After the serial numbers of the four one-hundred peso bills were recorded, the entrapment was set for September 28, 1995. On the appointed day, Cesar called petitioner and pleaded for the release of the CAR as well as for the reduction of petitioners demand. Petitioner cautiously told Cesar not to talk about the matter on the phone and asked her to see him instead. Cesar went to petitioners office with the two bundles of bogus money inside a white envelope. Petitioner was entertaining a lady visitor when Cesar arrived. The members of the PNP entrapment team were already in petitioners office posing as civilians. On seeing Cesar, petitioner handed the CAR to her and, as she was signing the acknowledgment for the release of the CAR, he informed her that he was going down to the second floor. Cesar took this as a cue for her to follow. As petitioner left his office, he held the door open for Cesar to follow. On reaching the third floor lobby, petitioner uttered Here only. Cesar handed the envelope containing the two bundles of marked money to petitioner who, upon receiving it, asked Why is this thick? Before Cesar could answer, a member of the PNP entrapment team photographed petitioner holding the envelope. Petitioner panicked, hid the envelope behind his back and turned towards the window at the back of the BIR building. On seeing that the window was closed, he turned around towards the open window facing the street. He threw the envelope towards the window but it hit the ceiling instead, bounced and fell to the first floor of the BIR building.[11] The PNP entrapment team then introduced themselves to petitioner and invited him to go with them to their headquarters. Charges were filed against petitioner. During the trial, petitioners evidence consisted of nothing more than a general denial of the charges against him. He claimed that he never asked for money and that the allegations of demand for money existed only in Cesars mind after she was told that there was a misclassification of the asset and additional taxes had to be paid. He was surprised when policemen suddenly arrested him as soon as Cesar handed him a white envelope the contents of which he suspected to be money. After trial, the RTC found petitioner guilty as charged. The dispositive portion of the decision read:

WHEREFORE, premises considered, the Court finds the accused Juanito T. Merencillo, guilty beyond reasonable doubt as principal by direct participation, defined and penalized by Section 3(b) of [RA] 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and sentences him to suffer the indeterminate penalty of imprisonment for eight (8) years and one (1) month as minimum to fifteen (15) years as maximum, there being aggravating circumstances considered under Section 3(e) and Section (f) of [RA] 3019 in relation to Article 14(1) and (11) of the [RPC] in the sense that the offender have taken advantage of his public position, and that the crime was committed in consideration of a price or promise, without any mitigating or extenuating circumstances to neutralize or offset any of the aggravating circumstances, with perpetual disqualification from public office, and the Court further finds the accused guilty beyond reasonable doubt as principal by direct participation, for the crime of Direct Bribery defined and penalized by Article 210 of the Revised Penal Code and sentences him to suffer the indeterminate penalty of four (4) years and one (1) day as minimum to eight (8) years of prision mayor as maximum and a fine of Sixty Thousand (P60,000.00) Pesos, all as mandated by law. The accused Juanito T. Merencillo likewise is ordered to indemnify private complainant [Cesar] to pay moral damages in the amount of P50,000.00 and attorneys fees in the amount of Five Thousand (P5,000.00) Pesos. Costs shall also be taxed against the accused. CONTRARY TO LAW.[12] Petitioner appealed the RTC decision to the Sandiganbayan. The Sandiganbayan, however, denied the appeal and affirmed the RTC decision with modification reducing the penalty of imprisonment for violation of Section 3(b) of RA 3019 to an indeterminate sentence of six years and one month of prision mayor, as minimum, to ten years of prision mayor, as maximum.[13] Thus, this petition. Petitioner basically raises two points: (1) the Sandiganbayans refusal to believe his evidence over that of the prosecutions and (2) the Sandiganbayans failure to recognize that he was placed in double jeopardy. Petitioner faults the Sandiganbayan for affirming the RTC decision and disregarding his evidence. He claims that, had the RTC and the Sandiganbayan not ignored the inconsistencies in the testimonies of the prosecutions witnesses,[14] he would have been acquitted. He also asserts that he was placed twice in jeopardy when he was prosecuted for violation of Section 3(b) of RA 3019 and for direct bribery. Petitioner is wrong. TRIAL COURTS EVALUATION EVIDENCE WILL NOT BE DISTURBED OF

Both the RTC and the Sandiganbayan found the testimonies of the p rosecutions witnesses (that petitioner demanded and received money from private complainant Cesar for the release of the CAR) sufficient and credible enough to sustain conviction. This notwithstanding, petitioner now asks this Court to review the entire evidence anew, re-evaluate the credibility of witnesses and make another factual determination of the case a course of action clearly improper given the nature of the instant petition.[15] Questions of fact cannot generally be raised for the consideration of this Court. The calibration of evidence and the relative weight thereof belongs to the appellate court. [16] Its findings and conclusions cannot be set aside by this Court unless there is no evidence on record to support them. [17] In this case, however, the findings of fact of the Sandiganbayan, affirming the factual findings of the RTC, were amply supported by evidence and the conclusions therein were not against the law and jurisprudence. There is no reason to disturb the congruent findings of the trial and appellate courts. Moreover, findings and conclusions of the trial court on the credibility of witnesses enjoy the respect of appellate courts because trial courts have the distinct advantage of observing the demeanor of witnesses as they testify.[18] In the absence of any arbitrariness in the trial courts findings and evaluation of evidence tending to show that it overlooked certain material facts and circumstances, its findings and evaluation of evidence should be respected on review.[19] The presiding judge of the trial court had the opportunity to actually observe the conduct and demeanor of the witnesses on the witness stand on direct examination by the prosecution, cross-examination by the defense as well as during clarificatory questioning by the trial judge himself.[20] Between the trial judge and this Court, the former was concededly in a better position to determine whether or not a witness was telling the truth.[21] Based on the records, we find no reason to disagree with the trial courts assessment and to discredit the prosecutions witnesses. Contrary to petitioners contention, the RTC and the Sandiganbayan considered the alleged inconsistencies in the testimonies of the prosecution witnesses. Both courts, however, ruled that the inconsistencies referred only to minor details that did not detract from the truth of the prosecutions testimonial evidence. We agree. Witnesses testifying on the same event do not have to be consistent in each and every detail. Differences in the recollection of the event are inevitable and inconsequential variances are commonly regarded as signs of truth instead of falsehood. Inconsistencies in the testimonies of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity or the weight of their

testimony.[22] In fact, such minor flaws may even enhance the worth of a testimony for they guard against memorized falsities.[23] Minor discrepancies or inconsistencies do not impair the essential integrity of the prosecutions evidence as a whole or reflect on the witnesses honesty.[24] The test is whether the testimonies agree on essential facts and whether the respective versions corroborate and substantially coincide with each other so as to make a consistent and coherent whole.[25] Thus, inconsistencies and discrepancies in details which are irrelevant to the elements of the crime cannot be successfully invoked as grounds for acquittal.[26] The RTC and the Sandiganbayan correctly ruled that the inconsistencies pointed out by petitioner were neither material nor relevant to the elements of the offenses for which he was charged. For instance, whether or not it was petitioner himself who handed the CAR to private respondent was immaterial. The fact was that petitioner demanded and received money in consideration for the issuance of the CAR. PETITIONER WAS NOT PLACED IN DOUBLE JEOPARDY Section 3 of RA 3019 begins with the following statement:

Sec. 3. In addition to acts or omissions of public officers already penalized by existing law, the following [acts] shall constitute corrupt practices of any public officer and are hereby declared unlawful: xxx xxx xxx (emphasis supplied)

One may therefore be charged with violation of RA 3019 in addition to a felony under the Revised Penal Code for the same delictual act, that is, either concurrently or subsequent to being charged with a felony under the Revised Penal Code.[27] There is no double jeopardy if a person is charged simultaneously or successively for violation of Section 3 of RA 3019 and the Revised Penal Code. The rule against double jeopardy prohibits twice placing a person in jeopardy of punishment for the same offense.[28] The test is whether one offense is identical with the other or is an attempt to commit it or a frustration thereof; or whether one offense necessarily includes or is necessarily included in the other, as provided in Section 7 of Rule 117 of the Rules of Court.[29] An offense charged necessarily includes that which is proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter; and an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.[30] A comparison of the elements of the crime of direct bribery defined and punished under Article 210 of the Revised Penal Code and those of violation of Section 3(b) of RA 3019 shows that there is neither identity nor necessary inclusion between the two offenses. Section 3(b) of RA 3019 provides: Sec. 3. 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 unlawful: xxx xxx xxx

(b) Directly or indirectly requesting or receiving any gift, present, share percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. xxx xxx xxx

The elements of the crime penalized under Section 3(b) of RA 3019 are: (1) the offender is a public officer; (2) (3) (4) he requested or received a gift, present, share, percentage or benefit; he made the request or receipt on behalf of the offender or any other person; the request or receipt was made in connection with a contract or transaction with the government and he has the right to intervene, in an official capacity under the law, in connection with a contract or transaction has the right to intervene.[31]

(5)

On the other hand, direct bribery has the following essential elements: (1) (2) (3) the offender is a public officer; the offender accepts an offer or promise or receives a gift or present by himself or through another; such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do and the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.[32]

(4)

Clearly, the violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do. Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two separate and distinct offenses. No double jeopardy attached since there was a variance between the elements of the offenses charged.[33] The constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one.[34] WHEREFORE, the petition is hereby DENIED. The June 18, 1999 decision of the Sandiganbayan in A.R. Case Nos. 004-005 is AFFIRMED. Costs against petitioner. SO ORDERED.

THIRD DIVISION

ROLANDO E. SISON,

G.R. Nos. 170339, Petitioner, 170398-403

Present:

- versus -

CORONA, J., Chairperson, VELASCO, JR., NACHURA, PERALTA and MENDOZA, JJ.

PEOPLE OF THE PHILIPPINES, Respondent. Promulgated:

March 9, 2010

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

DECISION

CORONA, J.:

The requirements of the law on government procurements should never be taken for granted because grave consequences await those who violate them.

Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro, a fourth-class municipality,[1] from July 1, 1992 to June[2] 30, 1995, while Rigoberto de Jesus was the municipal treasurer. On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit investigation which revealed that during petitioners incumbency, no public bidding was conducted for the purchase of a Toyota Land Cruiser, 119 bags of Fortune cement, an electric generator set, certain construction materials, two Desert Dueler tires, and a computer and its accessories. Pajayon also found out that there were irregularities in the documents supporting the acquisitions.

Thus, on June 4, 1998, petitioner and de Jesus were indicted before the Sandiganbayan in seven separate Informations[3] for seven counts of violation of Section 3(e) of Republic Act (RA) 3019.[4]

On June 24, 1999, petitioner pleaded not guilty to all the Informations. Accused de Jesus has remained at large.

Trial on the merits ensued. Pajayon was the lone witness for the prosecution. She narrated the States version of the facts as above stated. The prosecution thereafter rested its case and formally offered its exhibits. When it was the turn of the defense to present evidence, petitioner was called to the witness stand where he admitted that indeed, no public bidding was conducted insofar as the purchases he was being accused of were concerned. When asked how the purchases were made, he answered that they were done through personal canvass. When prodded why personal canvass was the method used, he retorted that no public bidding could be conducted because all the dealers of the items were based in Manila. It was therefore useless to invite bidders since nobody would bid anyway. The defense thereafter rested its case and formally offered its exhibits.

On November 14, 2005, the Sandiganbayan found petitioner guilty as charged.[5] As such, he was meted in each Information an imprisonment term ranging from six years and one month as minimum to ten years as maximum and perpetual disqualification from holding public office. The Sandiganbayan also ordered that an alias warrant of arrest be issued against accused de Jesus.

Petitioner appealed[6] to this Court, praying for an acquittal because his guilt was allegedly not proven beyond reasonable doubt.

We dismiss the appeal.

NON-COMPLIANCE WITH THE REQUIREMENTS OF PERSONAL CANVASS

RA 7160[7] explicitly provides that, as a rule, acquisitions of supplies by local government units shall be through competitive bidding.[8] By way of exception, no bidding is required in the following instances:

(1) personal canvass of responsible merchants; (2) emergency purchase; (3) negotiated purchase; (4) direct purchase from manufacturers or exclusive distributors and (5) purchase from other government entities.[9]

Since personal canvass (the method availed of by petitioner) is an exception to the rule requiring public bidding, Section 367 of RA 7160 provides for limitations on the resort to this mode of procurement:

Sec. 367. Procurement through Personal Canvass.Upon approval by the Committee on Awards, procurement of supplies may be affected after personal canvass of at least three (3) responsible suppliers in the locality by a committee of three (3) composed of the local general services officer or the municipal or barangay treasurer, as the case may be, the local accountant, and the head of office or department for whose use the supplies are being procured. The award shall be decided by the Committee on Awards.

Purchases under this Section shall not exceed the amounts specified hereunder for all items in any one (1) month for each local government unit:

xxx

Municipalities:

First Class Second and

First Class Third Class

One hundred fifty thousand pesos Forty thousand pesos (P40,000.00)

Fourth Class and Below Twenty thousand pesos (P20,000.00) (emphasis supplied)

In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.There shall be in every province, city or municipality a Committee on Awards to decide the winning bids and questions of awards on procurement and disposal of property.

The Committee on Awards shall be composed of the local chief executive as chairman, the local treasurer, the local accountant, the local budget officer, the local general services officer, and the head of office or department for whose use the supplies are being procured, as members. In case a head of office or department would sit in a dual capacity a member of the sanggunian elected from among its members shall sit as a member. The Committee on Awards at thebarangay level shall be the sangguniang barangay. No national official shall sit as member of the Committee on Awards. (emphasis supplied)

Note that the law repeatedly uses the word shall to emphasize the mandatory nature of its provisions.

This Court is not a trier of facts. The resolution of factual issues is a function exercised by lower courts, whose findings on these matters are received with respect and are in fact binding on the Court except only where it is shown that the case falls under the accepted exceptions.[10] Petitioner failed to establish that his case falls under those exceptions. Hence, we have no other option but to uphold the Sandiganbayans factual findings.

Insofar as the purchase of the Toyota Land Cruiser[11] is concerned, the Sandiganbayan found that the personal canvass was effected solely by petitioner, without the participation of the municipal accountant and petitioners co-accused de Jesus, the municipal treasurer. Worse, there was no showing that that the award was decided by the Committee on Awards. Only an abstract of canvass supported the award, signed by petitioner and de Jesus, without the required signatures of the municipal accountant and budget officer.

To reiterate, RA 7160 requires that where the head of the office or department requesting the requisition sits in a dual capacity, the participation of a Sanggunian member (elected from among the members of the Sanggunian) is necessary. Petitioner clearly disregarded this requirement because, in all the purchases made, he signed in a dual capacityas chairman and member (representing the head of office for whose use the supplies were being procured). That is strictly prohibited. None of the regular members of the Committee on Awards may sit in a dual capacity. Where any of the regular members is the requisitioning party, a special member from the Sanggunian is required. The prohibition is meant to check or prevent conflict of interest as well as to protect the use of the procurement process and the public funds for irregular or unlawful purchases.

The same flaws attended the procurement of 119 bags of Fortune cement,[12] electric power generator set,[13] various construction materials,[14] two Desert Dueler tires[15] and a computer and its accessories.[16]

With the kind of items purchased by petitioner, he also clearly spent more than P20,000or beyond the threshold amount per month allowed by Section 367 of RA 7160 as far as purchases through personal canvass by fourth-class municipalities (like Calintaan) are concerned.

VIOLATION OF SECTION 3(E) OF RA 3019

Section 3(e) of RA 3019 provides:

Section 3. Corrupt practices of public officersIn 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:

xxx

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest impartiality, evident bad faith or gross inexcusable negligence. xxx. (emphasis supplied)

To be found guilty under said provision, the following elements must concur:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officers official, administrative or judicial functions;

(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.[17] (emphasis supplied)

It is undisputed that the first two elements are present in the case at bar. The only question left is whether the third and fourth elements are likewise present. We hold that they are.

The third element of Section 3 (e) of RA 3019 may be committed in three ways, i.e., through manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of these three in connection with the prohibited acts mentioned in Section 3(e) of RA 3019 is enough to convict.[18]

Explaining what partiality, bad faith and gross negligence mean, we held:

Partiality is synonymous with bias which excites a disposition to see and report matters as they are wished for rather than as they are. 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. Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. [19] (citations omitted)

In the instant case, petitioner was grossly negligent in all the purchases that were made under his watch. Petitioners admission that the canvass sheets sent out by de Jesus to the suppliers already contained his signatures because he pre-signed these forms[20] only proved his utter disregard of the consequences of his actions. Petitioner also admitted that he knew the provisions of RA 7160 on personal canvass but he did not follow the law because he was merely following the practice of his predecessors.[21] This was an admission of a mindless disregard for the law in a tradition of illegality. This is totally unacceptable, considering that as municipal mayor, petitioner ought to implement the law to the letter. As local chief executive, he should have been the first to follow the law and see to it that it was followed by his constituency. Sadly, however, he was the first to break it.

Petitioner should have complied with the requirements laid down by RA 7160 on personal canvass, no matter how strict they may have been. Dura lex sed lex. The law is difficult but it is the law. These requirements are not empty words but were specifically crafted to ensure transparency in the acquisition of government supplies, especially since no public bidding is involved in personal canvass. Truly, the requirement that the canvass and awarding of supplies be made by a collegial body assures the general public that despotic, irregular or unlawful transactions do not occur. It also guarantees that no personal preference is given to any supplier and that the government is given the best possible price for its procurements.

The fourth element is likewise present. While it is true that the prosecution was not able to prove any undue injury to the government as a result of the purchases, it should be noted that there are two ways by which Section 3(e) of RA 3019 may be violated the first, by causing undue injury to any party, including the government, or the second, by giving any private party any unwarranted benefit, advantage or preference. Although neither mode constitutes a distinct offense,[22] an accused may be charged under either mode or both.[23] The use of the disjunctive or connotes that the two modes need not be present at the same time. In other words, the presence of one would suffice for conviction.[24]

Aside from the allegation of undue injury to the government, petitioner was also charged with having given unwarranted benefit, advantage or preference to private suppliers.[25] Under the second mode, damage is not required.

The word unwarranted means lacking adequate or official support; unjustified; unauthorized[26] or without justification or adequate reason.[27] Advantage means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action.[28] Preference signifies priority or higher evaluation or desirability; choice or estimation above another. [29]

In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. Petitioner did just that. The fact that he repeatedly failed to follow the requirements of RA 7160 on personal canvass proves that unwarranted benefit, advantage or preference was given to the winning suppliers. These suppliers were awarded the procurement contract without the benefit of a fair system in determining the best possible price for the government. The private suppliers, which were all personally chosen by respondent, were able to profit from the transactions without showing proof that their prices were the most beneficial to the government. For that, petitioner must now face the consequences of his acts. PROPRIETY OF THE PENALTY

Any person guilty of violating Section 3 (e) of RA 3019 is punishable with imprisonment for not less than six years and one month nor more than fifteen years and perpetual disqualification from public office.[30]Thus, the penalty imposed by the Sandiganbayan which is an imprisonment term ranging from six years and one month as minimum to ten years as maximum and perpetual disqualification from holding public office for each count of the offense, is in accord with law.

WHEREFORE, the petition is hereby DENIED. Petitioner Rolando E. Sison is hereby found guilty of seven counts of violation of Section 3(e) of RA 3019. As such, he is hereby sentenced for each count of the offense with imprisonment of six years and one month as minimum to ten years as maximum and perpetual disqualification from holding public office.

Costs against petitioner.

SO ORDERED.

FIRST DIVISION RUPERTO A. AMBIL, JR., Petitioner, G.R. No. 175457

- versus -

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x ALEXANDRINO R. APELADO, SR., Petitioner, G.R. No. 175482 Present: CORONA,C.J., Chairperson, CARPIO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ. Promulgated: July 6, 2011 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: Before us are two consolidated petitions for review on certiorari filed by petitioner Ruperto A. Ambil, Jr. [1] and petitioner Alexandrino R. Apelado Sr.[2] assailing the Decision[3] promulgated on September 16, 2005 and Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case No. 25892. The present controversy arose from a letter[5] of Atty. David B. Loste, President of the Eastern Samar Chapter of the Integrated Bar of the Philippines (IBP), to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 for murder, from the provincial jail of Eastern Samar to the residence of petitioner, then Governor Ruperto A. Ambil, Jr. In a Report[6] dated January 4, 1999, the National Bureau of Investigation (NBI) recommended the filing of criminal charges against petitioner Ambil, Jr. for violation of Section 3(e)[7] of Republic Act (R.A.) No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, as amended. On September 22, 1999, the new President of the IBP, Eastern Samar Chapter, informed the Ombudsman that the IBP is no longer interested in pursuing the case against petitioners. Thus, he recommended the dismissal of the complaint against petitioners.[8] Nonetheless, in an Information[9] dated January 31, 2000, petitioners Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon reinvestigation, the Office of the Ombudsman issued a Memorandum[10] dated August 4, 2000, recommending the dismissal of the complaint as regards Balano and the amendment of the Information to include the charge of Delivering Prisoners from Jail under Article 156 [11] of the Revised Penal Code, as amended, (RPC) against the remaining accused. The Amended Information[12] reads: That on or about the 6th day of September 1998, and for sometime prior [or] subsequent thereto, [in] the Municipality of Borongan, Province of Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, [the] above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, being then the Provincial Warden of Eastern Samar, both having been public officers, duly elected, appointed and qualified as such, committing the offense in relation to office, conniving and confederating together and mutually helping x x x each other, with deliberate intent, manifest partiality and evident bad faith, did then and there wilfully, unlawfully and criminally order and cause the release from the Provincial Jail of detention prisoner Mayor Francisco Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said detention prisoner (Mayor Francisco Adalim) under accused RUPERTO A. AMBIL, JR.s custody, by allowing said Mayor Adalim to stay at accused Ambils residence for a period of Eighty-Five (85) days, more or less which act was done without any court order, thus accused in the performance of official functions had given unwarranted benefits and advantage to detainee Mayor Francisco Adalim to the prejudice of the government. CONTRARY TO LAW. BAIL BOND RECOMMENDED: P30,000.00 each.[13]

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the Information. They reason, however, that Adalims transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. According to petitioners, Adalims sister, Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail where Mayor Adalim was to be held. Consequently, the prosecution no longer offered testimonial evidence and rested its case after the admission of its documentary exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence with Reservation to Present Evidence in Case of Denial [14] but the same was denied. At the trial, petitioners presented three witnesses: petitioner Ambil, Jr., Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim. Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar from 1998 to 2001. According to him, it was upon the advice of Adalims lawyers that he directed the transfer of Adalims detention to his home. He cites poor security in the provincial jail as the primary reason for taking personal custody of Adalim considering that the latter would be in the company of inmates who were put away by his sister and guards identified with his political opponents.[15] For her part, Atty. White stated that she is the District Public Attorney of Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor Adalim was arrested while they were attending a wedding in Sulat, Eastern Samar, on September 6, 1998. According to Atty. White, she sought the alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado, Sr. failed to guarantee the mayors safety.[16] Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft, Eastern Samar. He confirmed his arrest on September 6, 1998 in connection with a murder case filed against him in the Regional Trial Court (RTC) of Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he spotted inmates who served as bodyguards for, or who are associated with, his political rivals at the provincial jail. He also noticed a prisoner, Roman Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for almost three months before he posted bail after the charge against him was downgraded to homicide.[17] Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was contesting the legality of Mayor Adalims arrest and arguing with the jail guards against booking him for detention. At the provincial jail, petitioner was confronted by Atty. White who informed him that he was under the governor, in the latters capacity as a provincial jailer. Petitioner claims that it is for this reason that he submitted to the governors order to relinquish custody of Adalim. [18] Further, petitioner Apelado, Sr. described the physical condition of the jail to be dilapidated and undermanned. According to him, only two guards were incharge of looking after 50 inmates. There were two cells in the jail, each housing 25 inmates, while an isolation cell of 10 square meters was unserviceable at the time. Also, there were several nipa huts within the perimeter for use during conjugal visits. [19] On September 16, 2005, the Sandiganbayan, First Division, promulgated the assailed Decision [20] finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The court ruled that in moving Adalim to a private residence, petitioners have conspired to accord him unwarranted benefits in the form of more comfortable quarters with access to television and other privileges that other detainees do not enjoy. It stressed that under the Rules, no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.[21] The Sandiganbayan brushed aside petitioners defense that Adalims transfer was made to ensure his safety. It observed that petitioner Ambil, Jr. did not personally verify any actual threat on Adalims life but relied simply on the advice of Adalims l awyers. The Sandiganbayan also pointed out the availability of an isolation cell and nipa huts within the 10-meter-high perimeter fence of the jail which could have been used to separate Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the Department of Interior and Local Government. Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. In favor of petitioner Apelado, Sr., the court appreciated the incomplete justifying circumstance of obedience to a superior order and sentenced him to imprisonment for six (6) years and one (1) month to nine (9) years and eight (8) months. Hence, the present petitions. Petitioner Ambil, Jr. advances the following issues for our consideration: I WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED, APPLIES TO PETITIONERS CASE BEFORE THE SANDIGANBAYAN.

II WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS AMENDED. III WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN THE CONTEXT OF SAID SECTION 3(e). IV WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION PRISONER. V WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A RIGHT OR OFFICE. VI WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT. [22]

For his part, petitioner Apelado, Sr. imputes the following errors on the Sandiganbayan: I THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL. II IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL CODE. III THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM UNWARRANTED BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT IS, AT THE MOST, SPECULATIVE.[23] The issues raised by petitioner Ambil, Jr. can be summed up into three: (1) Whether he is guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019; (2) Whether a provincial governor has authority to take personal custody of a detention prisoner; and (3) Whether he is entitled to the justifying circumstance of fulfillment of duty under Article 11(5) [24] of the RPC. Meanwhile, petitioner Apelado, Sr.s assignment of errors can be condensed into two: (1) Whether he is guilty beyond reasonab le doubt of violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the justifying circumstance of obedience to an order issued by a superior for some lawful purpose under Article 11(6)[25] of the RPC. Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No. 3019 does not apply to his case because the provision contemplates only transactions of a pecuniary nature. Since the law punishes a public officer who extends unwarranted benefits to a private person, petitioner avers that he cannot be held liable for extending a favor to Mayor Adalim, a public officer. Further, he claims good faith in taking custody of the mayor pursuant to his duty as a Provincial Jailer un der the Administrative Code of 1917. Considering this, petitioner believes himself entitled to the justifying circumstance of fulfillment of duty or lawful exercise of duty. Petitioner Apelado, Sr., on the other hand, denies allegations of conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr. defends that he was merely following the orders of a superior when he transferred the detention of Adalim. As well, he invokes immunity from criminal liability.

For the State, the Office of the Special Prosecutor (OSP) points out the absence of jurisprudence that restricts the application of Section 3(e), R.A. No. 3019 to transactions of a pecuniary nature. The OSP explains that it is enough to show that in performing their functions, petitioners have accorded undue preference to Adalim for liability to attach under the provision. Further, the OSP maintains that Adalim is deemed a private party for purposes of applying Section 3(e), R.A. No. 3019 because the unwarranted benefit redounded, not to his person as a mayor, but to his person as a detention prisoner accused of murder. It suggests further that petitioners were motivated by bad faith as evidenced by their refusal to turn over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also reiterates petitioners lack of authority to take custody of a detention prisoner without a court order. Hence, it concludes that petitioners are not entitled to the benefit of any justifying circumstance. After a careful review of this case, the Court finds the present petitions bereft of merit. Petitioners were charged with violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and Corrupt Practices Act which provides: Section. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In order to hold a person liable under this provision, the following elements must concur: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and (3) his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. [26] As to the first element, there is no question that petitioners are public officers discharging official functions and that jurisdiction over them lay with the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers charged with violation of the Anti-Graft Law is provided under Section 4 of Presidential Decree No. 1606, [27] as amended by R.A. No. 8249.[28] The pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows: SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758),specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads[;] xxxx In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdiction as provided in Batas Pambansa Blg. 129, as amended. xxxx

Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is beyond question. The same is true as regards petitioner Apelado, Sr. As to him, a Certification[29] from the Provincial Government Department Head of the HRMO shows that his position as Provincial Warden is classified as Salary Grade 22. Nonetheless, it is only when none of the accused are occupying positions corresponding to salary grade 27 or higher shall exclusive jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was charged as a coprincipal with Governor Ambil, Jr., over whose position the Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly with said public officer in the proper court which had exclusive original jurisdiction over them the Sandiganbayan.

The second element, for its part, describes the three ways by which a violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. In Sison v. People,[30] we defined partiality, bad faith and gross negligence as follows: Partiality is synonymous with bias which excites a disposition to see and report m atters as they are wished for rather than as they are. 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. Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property. x x x[31]

In this case, we find that petitioners displayed manifest partiality and evident bad faith in transferring the detention of Mayor Adalim to petitioner Ambil, Jr.s house. There is no merit to petitioner Ambil, Jr.s contention that he is authorized to transfer the detention of prisoners by virtue of his power as the Provincial Jailer of Eastern Samar. Section 28 of the Local Government Code draws the extent of the power of local chief executives over the units of the Philippine National Police within their jurisdiction: SEC. 28. Powers of Local Chief Executives over the Units of the Philippine National Police.The extent of operational supervision and control of local chief executives over the police force, fire protection unit, and jail management personnel assigned in their respective jurisdictions shall be governed by the provisions of Republic Act Numbered Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as The Department of the Interior and Local Government Act of 1990, and the rules and regulations issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975 [32] on the Bureau of Jail Management and Penology provides: Sec. 61. Powers and Functions. - The Jail Bureau shall exercise supervision and control over all city and municipal jails. The provincial jails shall be supervised and controlled by the provincial government within its jurisdiction, whose expenses shall be subsidized by the National Government for not more than three (3) years after the effectivity of this Act.

The power of control is the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. [33] An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.[34] On the other hand, the power of supervision means overseeing or the authority of an officer to see to it that the subordinat e officers perform their duties.[35] If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. Essentially, the power of supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. [36] The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay down the rules, nor does he have discretion to modify or replace them. [37] Significantly, it is the provincial government and not the governor alone which has authority to exercise control and supervision over provincial jails. In any case, neither of said powers authorizes the doing of acts beyond the parameters set by law. On the contrary, subordinates must be enjoined to act within the bounds of law. In the event that the subordinate performs an act ultra vires, rules may be laid down on how the act should be done, but always in conformity with the law. In a desperate attempt to stretch the scope of his powers, petitioner Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on Provincial jails in support. Section 1731 provides: SEC. 1731. Provincial governor as keeper of jail.The governor of the province shall be charged with the keeping of the provincial jail, and it shall be his duty to administer the same in accordance with law and the regulations prescribed for the government of provincial prisons. The immediate custody and supervision of the jail may be committed to the care of a jailer to be appointed by the provincial governor. The position of jailer shall be regarded as within the unclassified civil service but may be filled in the manner in which classified positions are filled, and if so filled, the appointee shall be entitled to all the benefits and privileges of classified employees, except that he shall hold office only during the term of office of the appointing governor and until a successor in the office of the jailer is appointed and qualified, unless sooner separated. The provincial governor shall, under the direction of the provincial board and at the expense of the province, supply proper food and clothing for the prisoners; though the provincial board may, in its discretion, let the contract for the feeding of the prisoners to some other person. (Emphasis supplied.)

This provision survived the advent of the Administrative Code of 1987. But again, nowhere did said provision designate the provincial governor as the provincial jailer, or even slightly suggest that he is empowered to take personal custody of prisoners. What is clear from the cited provision is that the provincial governors duty as a jail keeper is confined to th e administration of the jail and the procurement of food and clothing for the prisoners. After all, administrative acts pertain only to those acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body or such as are devolved upon it[38] by the Constitution. Therefore, in the exercise of his administrative powers, the governor can only enforce the law but not supplant it. Besides, the only reference to a transfer of prisoners in said article is found in Section 1737 [39] under which prisoners may be turned over to the jail of the neighboring province in case the provincial jail be insecure or insufficient to accommodate all provincial prisoners. However, this provision has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal Procedure, as amended. Section 3, Rule 114 provides: SEC. 3. No release or transfer except on court order or bail. -No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.

Indubitably, the power to order the release or transfer of a person under detention by legal process is vested in the court, not in the provincial government, much less the governor. This was amply clarified by Asst. Sec. Ingeniero in his communication[40] dated October 6, 1998 addressed to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote: 06 October 1996 GOVERNOR RUPERTO AMBIL Provincial Capitol Borongan, Eastern Samar Dear Sir: This has reference to the letter of Atty. Edwin B. Docena, and the reports earlier received by this Department, relative to your alleged action in taking into custody Mayor Francisco Aising Adalim of Taft, that province, who has been previously arrested by virtue by a warrant of arrest issued in Criminal Case No. 10963. If the report is true, it appears that your actuation is not in accord with the provision of Section 3, Rule 113 of the Rules of Court, which mandates that an arrested person be delivered to the nearest police station or jail. Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of the accused municipal mayor is misplaced. Said section merely speaks of the power of supervision vested unto the provincial governor over provincial jails. It does not, definitely, include the power to take in custody any person in detention. In view of the foregoing, you are hereby enjoined to conduct yourself within the bounds of law and to immediately deliver Mayor Adalim to the provincial jail in order to avoid legal complications. Please be guided accordingly. Very truly yours, (SGD.) JESUS I. INGENIERO Assistant Secretary

Still, petitioner Ambil, Jr. insisted on his supposed authority as a provincial jailer. Said petitioners usurpation of the court's authority, not to mention his open and willful defiance to official advice in order to accommodate a former political party mate,[41] betray his unmistakable bias and the evident bad faith that attended his actions. Likewise amply established beyond reasonable doubt is the third element of the crime. As mentioned above, in order to hold a person liable for violation of Section 3(e), R.A. No. 3019, it is required that the act constituting the offense consist of either (1) causing undue injury to any party, including the government, or (2) giving any private party any unwarranted benefits, advantage or preference in the discharge by the accused of his official, administrative or judicial functions. In the case at hand, the Information specifically accused petitioners of giving unwarranted benefits and advantage to Mayor Adalim, a public officer charged with murder, by causing his release from prison and detaining him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the applicability of Section 3(e), R.A. No. 3019 in this case on two points. First, Section 3(e) is not applicable to him allegedly because the last sentence thereof provides that the provision shall apply to officers and employ ees of offices or government corporations charged with the grant of licenses, permits or other concession s and he is not such government officer or employee. Second, the purported unwarranted benefit was accorded not to a private party but to a public officer. However, as regards his first contention, it appears that petitioner Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution for violation of Section 3(e) of the Anti-Graft Law will lie

regardless of whether or not the accused public officer is charged with the grant of licenses or permits or other concessions. Following is an excerpt of what we said in Mejorada, Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers (sic) declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph [Section 3] (e) is intended to make clear the inclusion of officers and employees of officers (sic) or government corporations which, under the ordinary concept of public officers may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.[43](Italics supplied.)

In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a prosecution for violation of said provision will lie regardless of whether the accused public officer is charged with the grant of licenses or permits or other concessions. [45] Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section 2(b) of R.A. No. 3019 defines a public officer to in clude elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal from the government. Evidently, Mayor Adalim is one. But considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public officer of unwarranted benefits to a private party, does the fact that Mayor Adalim was the recipient of such benefits take petitioners case beyond the ambit of said law? We believe not. In drafting the Anti-Graft Law, the lawmakers opted to use private party rather than private person to describe the recipient of the unwarranted benefits, advantage or preference for a reason. The term party is a technical word having a precise meaning in legal parlance[46] as distinguished from person which, in general usage, refers to a human being. [47] Thus, a private person simply pertains to one who is not a public officer. While a private party is more comprehensive in scope to mean either a private person or a public officer acting in a private capacity to protect his personal interest. In the present case, when petitioners transferred Mayor Adalim from the provinc ial jail and detained him at petitioner Ambil, Jr.s residence, they accorded such privilege to Adalim, not in his official capacity as a mayor, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. Moreover, in order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another in the exercise of his official, administrative or judicial functions. [48] The word unwarranted means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. Advantage means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. Preference signifies priority or higher evaluation or desirability; choice or estimation above another.[49] Without a court order, petitioners transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Petitioners readily extended these benefits to Adalim on the mere representation of his lawyers that the mayors life would be put in danger insi de the provincial jail. As the Sandiganbayan ruled, however, petitioners were unable to establish the existence of any risk on Adalims safety. To be sure, the latter would not be alone in having unfriendly company in lockup. Yet, even if we treat Akyatans gesture of raising a closed fist at Adalim as a threat of aggression, the same would still not constitute a special and compelling reason to warrant Adalims det ention outside the provincial jail. For one, there were nipa huts within the perimeter fence of the jail which could have been used to separate Adalim from the rest of the prisoners while the isolation cell was undergoing repair. Anyhow, such repair could not have exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s house. More importantly, even if Adalim could have proven the presence of an imminent peril on his person to petitioners, a court order was still indispensable for his transfer. The foregoing, indeed, negates the application of the justifying circumstances claimed by petitioners. Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of fulfillment of duty or lawful exercise of right or office. Under paragraph 5, Article 11 of the RPC, any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office does not incur any criminal liability. In order for this justifying circumstance to apply, two requisites must be satisfied: (1) the accused acted in the performance of a duty or in the lawful exercise of a right or office; and (2) the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. [50] Both requisites are lacking in petitioner Ambil, Jr.s case. As we have earlier determined, petitioner Ambil, Jr. exceeded his authority when he ordered the transfer and detention of Adalim at his house. Needless to state, the resulting violation of the Anti-Graft Law did not proceed from the due performance of his duty or lawful exercise of his office.

In like manner, petitioner Apelado, Sr. invokes the justifying circumstance of obedience to an order issued for some lawful purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.[51] Only the first requisite is present in this case. While the order for Adalims transfer emanated from petitioner Ambil, Jr., who was then Governor, neither said order nor the means employed by petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed with a court order, transported him to the house of petitioner Ambil, Jr. This makes him liable as a principal by direct participation under Article 17(1)[52] of the RPC. An accepted badge of conspiracy is when the accused by their acts aimed at the same object, one performing one part of and another performing another so as to complete it with a view to the attainment of the same object, and their acts although apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. [53] Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s willful cooperation in executing petitioner Ambil, Jr.s order to move Adalim from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance of the law. The Rule requiring a court order to transfer a person under detention by legal process is elementary. Truth be told, even petitioner governor who is unschooled in the intricacies of the law expressed reservations on his power to transfer Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr. resulting in the violation charged, makes them equally responsible as conspirators. As regards the penalty imposed upon petitioners, Section 9(a) of R.A. No. 3019 punishes a public officer or a private person who violates Section 3 of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1) month to not more than fifteen (15) years and perpetual disqualification from public office. Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as amended by Act No. 4225, if the offense is punished by a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months is in accord with law. As a co-principal without the benefit of an incomplete justifying circumstance to his credit, petitioner Apelado, Sr. shall suffer the same penalty. WHEREFORE, the consolidated petitions are DENIED. The Decision of the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an indeterminate penalty of imprisonment for nine (9) years, eight (8) months and one (1) day to twelve (12) years and four (4) months. With costs against the petitioners. SO ORDERED.

EN BANC G.R. No. 166510 Present:

PEOPLE OF THE PHILIPPINES, Petitioner,

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, - versus CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, LEONARDO-DE CASTRO,and BRION, JJ. BENJAMIN KOKOY T. ROMUALDEZ and THE SANDIGANBAYAN (FIRST DIVISION), Respondents. Promulgated:

July 23, 2008 x---------------------------------------------------------------------------------------------- x DECISION BRION, J.: We resolve the Petition for Certiorari filed under Rule 65 of the Revised Rules of Court by the People of the Philippines (People), assailing the Resolutions dated 22 June 2004[1] and 23 November 2004[2] of the Sandiganbayan in CRIMINAL CASE NO. 26916 entitled People of the Philippines versus Benjamin Kokoy Romualdez, on the ground of grave abuse of discretion and/or lack or excess of jurisdiction. The first assailed Resolution granted the motion to quash filed by private respondent Benjamin Kokoy Romualdez (Romualdez); the second assailed Resolution, on the other hand, denied the Peoples motion for reconsideration of the first assailed Resolution. ANTECEDENTS The Office of the Ombudsman (Ombudsman) charged Romualdez before the Sandiganbayan with violation of Section 3 (e) of Republic Act No. 3019 (RA 3019), as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The Information[3] reads: That on or about and during the period from 1976 to February 1986 or sometime prior or subsequent thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused Benjamin Kokoy Romualdez, a public officer being then the Provincial Governor of the Province of Leyte, while in the

performance of his official function, committing the offense in relation to his Office, did then and there willfully, unlawfully and criminally with evident bad faith, cause undue injury to the Government in the following manner: accused public officer being then the elected Provincial Governor of Leyte and without abandoning said position, and using his influence with his brother-in-law, then President Ferdinand E. Marcos, had himself appointed and/or assigned as Ambassador to foreign countries, particularly the Peoples Republic of China (Peking), Kingdom of Saudi Arabia (Jeddah), and United States of America (Washington D.C.), knowing fully well that such appointment and/or assignment is in violation of the existing laws as the Office of the Ambassador or Chief of Mission is incompatible with his position as Governor of the Province of Leyte, thereby enabling himself to collect dual compensation from both the Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred Seventy-six Thousand Nine Hundred Eleven Dollars and 56/100 (US $276,911.56), US Currency or its equivalent amount of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine Currencies, respectively, to the damage and prejudice of the Government in the aforementioned amount of P5,806,709.50. CONTRARY TO LAW. Romualdez moved to quash the information[4] on two grounds, namely: (1) that the facts alleged in the information do not constitute the offense with which the accused was charged; and (2) that the criminal action or liability has been extinguished by prescription. He argued that the acts imputed against him do not constitute an offense because: (a) the cited provision of the law applies only to public officers charged with the grant of licenses, permits, or other concessions, and the act charged receiving dual compensation is absolutely irrelevant and unrelated to the act of granting licenses, permits, or other concessions; and (b) there can be no damage and prejudice to the Government considering that he actually rendered services for the dual positions of Provincial Governor of Leyte and Ambassador to foreign countries. To support his prescription argument, Romualdez posited that the 15-year prescription under Section 11 of RA 3019 had lapsed since the preliminary investigation of the case for an offense committed on or about and during the period from 1976 to February 1986 commenced only in May 2001 after a Division of the Sandiganbayan referred the matter to the Office of the Ombudsman. He argued that there was no interruption of the prescriptive period for the offense because the proceedings undertaken under the 1987 complaint filed with the Presidential Commission on Good Government (PCGG) were null and void pursuant to the Supreme Courts ruling in Cojuangco Jr. v. PCGG[5] and Cruz Jr [sic].[6] He likewise argued that the Revised Penal Code provision[7] that prescription does not run when the offender is absent from the Philippines should not apply to his case, as he was charged with an offense not covered by the Revised Penal Code; the law on the prescription of offenses punished under special laws (Republic Act No. 3326) does not contain any rule similar to that found in the Revised Penal Code. The People opposed the motion to quash on the argument that Romualdez is misleading the court in asserting that Section 3 (e) of RA 3019 does not apply to him when Section 2 (b) of the law states that corrupt practices may be committed by public officers who include elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government.[8] On the issue of prescription, the People argued that Section 15, Article XI of the Constitution provides that the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or estoppel, and that prescription is a matter of technicality to which no one has a vested right. Romualdez filed a Reply to this Opposition.[9] The Sandiganbayan granted Romualdez motion to quash in the first Resolution assailed in this petition. The Sandiganbayan stated: We find that the allegation of damage and prejudice to the Government in the amount of P5,806,709.50 representing the accuseds compensation is without basis, absent a showing that the accused did not actually render services for his two concurrent positions as Provincial Governor of the Province of Leyte and as Ambassador to the Peoples Republic of China, Kingdom of Saudi Arabia, and United States of America. The accused alleges in the subject Motion that he actually rendered services to the government. To receive compensation for actual services rendered would not come within the ambit of improper or illegal use of funds or properties of the government; nor would it constitute unjust enrichment tantamount to the damage and prejudice of the government. Jurisprudence has established what evident bad faith and gross negligence entail, thus: In order to be held guilty of violating Section 3 (e), R. A. No. 3019, the act of the accused that caused undue injury must have been done with evident bad faith or with gross inexcusable negligence. But bad faith per se is not enough for one to be held liable under the law, the bad faith must be evident. xxx xxx xxx

xxx. Gross negligence is characterized by the want of even slight care, acting or omitting to act in a willful or omitting to act in a willful or intentional manner displaying a conscious indifference to consequences as far as other persons may be affected. (Emphasis supplied) The accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but such inefficiency is not enough to hold him criminally liable under the Information charged against him, given the elements of the crime and the standards set by the Supreme Court quoted above. At most, any liability arising from the holding of both positions by the accused may be administrative in nature.

xxx However, as discussed above, the Information does not sufficiently aver how the act of receiving dual compensation resulted to undue injury to the government so as to make the accused liable for violation of Section 3 (e) of R.A. No. 3019.[10] The Sandiganbayan found no merit in Romualdez prescription argument. The People moved to reconsider this Resolution, citing reversible errors that the Sandiganbayan committed in its ruling.[11] Romualdez opposed the Peoples motion, but also moved for a partial reconsideration of the Resolutions ruling on prescription.[12] The People opposed Romualdez motion for partial reconsideration.[13] Thereafter, the Sandiganbayan denied via the second assailed Resolution[14] the Peoples motion for reconsideration under the following terms The Court held in its Resolution of June 22, 2004, and so maintains and sustains, that assuming the averments of the foregoing information are hypothetically admitted by the accused, it would not constitute the offense of violation of Section 3 (e) of RA 3019 as the elements of (a) causing undue injury to any party, including the government, by giving unwarranted benefits, advantage or preference to such parties, and (b) that the public officer acted with manifest partiality, evident bad faith or gross inexcusable negligence, are wanting. As it is, a perusal of the information shows that pertinently, accused is being charged for: (a) having himself appointed as ambassador to various posts while serving as governor of the Province of Leyte and (b) for collecting dual compensation for said positions. As to the first, the Court finds that accused cannot be held criminally liable, whether or not he had himself appointed to the position of the ambassador while concurrently holding the position of provincial governor, because the act of appointment is something that can only be imputed to the appointing authority. Even assuming that the appointee influenced the appointing authority, the appointee only makes a passive participation by entering into the appointment, unless it is alleged that he acted in conspiracy with his appointing authority, which, however, is not so claimed by the prosecution in the instant case. Thus, even if the accuseds appointment was contrary to law or the constitution, it is the appointing authority that should be responsible therefor because it is the latter who is the doer of the alleged wrongful act. In fact, under the rules on payment of compensation, the appointing authority responsible for such unlawful employment shall be personally liable for the pay that would have accrued had the appointment been lawful. As it is, the appointing authority herein, then President Ferdinand E. Marcos has been laid to rest, so it would be incongruous and illogical to hold his appointee, herein accused, liable for the appointment. Further, the allegation in the information that the accused collected compensation in the amounts of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred Ninety-three Thousand Three Hundred Forty Eight Pesos and 86/100 (P293,348.86) cannot sustain the theory of the prosecution that the accused caused damage and prejudice to the government, in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits, advantage or preference to any party and to acting with manifest partiality, evident bad faith or gross inexcusable negligence. Besides receiving compensation is an incident of actual services rendered, hence it cannot be construed as injury or damage to the government. It likewise found no merit in Romualdez motion for partial reconsideration.

THE PETITION AND THE PARTIES SUBMISSIONS The People filed the present petition on the argument that the Sandiganbayan committed grave abuse of discretion in quashing the Information based on the reasons it stated in the assailed Resolutions, considering that: a. Romualdez cannot be legally appointed as an ambassador of the Republic of the Philippines during his incumbency as Governor of the Province of Leyte; thus, to draw salaries for the two positions is to cause undue injury to the government under Section 3 (e) of RA 3019; b. Romualdez cannot receive compensation for his illegal appointment as Ambassador of the Republic of the Philippines and for his services in this capacity; thus, to so pay him is to make illegal payment of public funds and cause undue injury to the government under Section 3 (e) of RA 3019; and c. The Sandiganbayan went beyond the ultimate facts required in charging a violation of Section 3 (e) of RA 3019 and delved into matters yet to be proven during trial. Required to comment on the petition, Romualdez filed a Motion to Dismiss with Comment Ad Cautelam.[15] He argued that the filing of the present Rule 65 petition is improper, as a petition filed under Rule 45, instead of Rule 65, of the Revised Rules of Court is the proper remedy, considering that the assailed Resolutions are appealable. He cited in support of this contention the ruling that an order granting a motion to quash, unlike one of denial, is a final order; it is not merely interlocutory and is therefore immediately appealable .[16] He further argued that the present petition was belatedly filed, as the People filed it beyond the 15-day reglementary filing period for a Rule 45

petition. On the substantive issues raised in the petition, he argued that the factual averments in the Information do not constitute the offense charged and that the criminal action or liability has been extinguished by prescription.

The People, on the other hand, asserted in reply[17] that while a petition for certiorari under Rule 65 may be availed of only when there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, or that certiorari is not a substitute for the lost remedy of an appeal, the rule may be relaxed when the issue raised is purely legal, when public interest is involved, and in case of urgency. It also argued thatcertiorari may also be availed of where an appeal would be slow, inadequate, and insufficient; and that it is within this Courts power to suspend or exempt a particular case from the operation of the rules when its strict application will frustrate rather than promote justice. Thus, the People asked for a review of the case based on substantial justice and the claimed merits of the instant petition.

Romualdez countered in his Rejoinder[18] that the assailed Resolutions, being final, can no longer be questioned, re-opened, or reviewed; that public policy and sound practice demand that at the risk of occasional errors, judgments of courts become final and irrevocable at some definite date fixed by law. Citing the express provision of Section 7 of Republic Act No. 1606, as amended by Republic Act No. 8249 (which provides that decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court) , he argued that certiorari cannot be availed of because of the availability of appeal.

These submissions bring to the fore the threshold issue of whether the present petition may be given due course given the Rule 65 mode of review that the People used. As will be seen below, our examination of this threshold issue leads to the consideration of the grave abuse of discretion issue.

OUR RULING

The Threshold Issue

The Sandiganbayan ruling granting Romuldez motion to quash the Information shall, upon finality, close and terminate the proceedings against Romuldez; hence, it is a final ruling that disposes of the case and is properly reviewable by appeal. [19] The appeal, as Romualdez correctly maintains, is through Section 7 of Presidential Decree No. 1606 (as amended by Section 5 of Republic Act No. 8249), which provides that decisions and final orders of the Sandiganbayan are appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45.

Significantly, the People does not deny at all that the mode of review to question a Sandiganbayan final ruling is by way of Rule 45, as the above cited provision requires. It only posits that this requirement does not foreclose the use of a Rule 65 petition for certiorari premised on grave abuse of discretion when the issue is purely legal, when public interest is involved, or in case of urgency. In short, the People asks us to relax the application of the rules on the modes of review.

The purpose and occasion for the use of Rules 45 and 65 as modes of review are clearly established under the Rules of Court[20] and related jurisprudence.[21] Rule 45 provides for the broad process of appeal to the Supreme Court on pure errors of law committed by the lower court. Rule 65, on the other hand, provides a completely different basis for review through the extraordinary writ of certiorari. The writ is extraordinary because it solely addresses lower court actions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. By express provision, Rule 65 is the proper remedy when there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. Thus, the remedies of appeal and certiorari are mutually exclusive and not alternative or successive; certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy; a petition for certiorari cannot likewise be a substitute for a lost appeal.[22]

Cases on the choice between the Rule 45 and Rule 65 modes of review are not novel. Because of the spirit of liberality that pervades the Rules of Court[23] and the interest of substantial justice that we have always believed should be upheld, [24] we have had occasions to relax the strict rules regulating these modes of review. However, these occasions are few and far between and have always been attended by exceptional circumstances; otherwise, the exceptions would displace the general rule, rendering useless the distinctions painstakingly established through the years to foster procedural orderliness.

In Filoteo v. Sandiganbayan[25] we allowed a Rule 65 petition, notwithstanding that the proper remedy is a Rule 45 appeal, to review a Sandiganbayan Decision in view of the importance of the issues raised in the case. We similarly allowed a review under Rule 65 in Republic v. Sandiganbayan (Third Division)[26] and Republic v. Sandiganbayan (Special First Division)[27] cases on ill-gotten wealth on the reasoning that the nature of the cases was endowed with public interest and involved public policy concerns. In the latter Republic v. Sandiganbayan case, we added that substantial justice to the Filipino people and to all parties concerned, not mere legalisms or perfection of form, should be relentlessly and firmly pursued. In the past, we have likewise allowed a similar treatment on the showing that an appeal was an inadequate remedy.[28] That we can single out for special treatment cases involving grave abuse of discretion is supported by no less than the second paragraph of Article VIII, Section 1 of the 1987 Constitution which provides:

Judicial power includes the duty of the courts of justice to settle actual controversy involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Under this provision, action on grave abuse of discretion is not only a power we can exercise; more than this, it is a duty we must discharge.

In the spirit embodied in this constitutional provision and in the interest of substantial justice, we will not hesitate to deviate from the strict application of our procedural rules when grave abuse of discretion amounting to lack or excess of jurisdiction is properly and substantially alleged in a petition filed after the lapse of the period for appeal under Rule 45 but prior to the lapse of the period for filing a Rule 65 petition. Conceptually, no major deviation from the rules in fact transpires in doing this. Under established jurisprudence, decisions and rulings rendered without or with lack or excess of jurisdiction are null and void,[29] subject only to the procedural limits on the right to question them provided under Rule 65.[30] It is for this reason that a decision that lapses to finality fifteen (15) days after its receipt can still be questioned, within sixty (60) days therefrom, on jurisdictional grounds, although the decision has technically lapsed to finality. The only deviation in terms of strict application of the Rules is from what we have discussed above regarding the basic nature of a petition for certiorari as expressly laid down by Rule 65; it is available only when there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, and thus is not allowed as a substitute when a party fails to appeal a judgment or final order despite the availability of that remedy.[31]

Under these terms, if the Sandiganbayan merely legally erred while acting within the confines of its jurisdiction, then its ruling, even if erroneous, is properly the subject of a petition for review on certiorari under Rule 45, and any Rule 65 petition subsequently filed will be for naught. The Rule 65 petition brought under these circumstances is then being used as a substitute for a lost appeal. If, on the other hand, the Sandiganbayan ruling is attended by grave abuse of discretion amounting to lack or excess of jurisdiction, then this ruling is fatally defective on jurisdictional ground and we should allow it to be questioned within the period for filing a petition for certiorari under Rule 65, notwithstanding the lapse of the period of appeal under Rule 45. To reiterate, the rulings jurisdictional defect and the demands of substantial justice that we believe should receive primacy over the strict application of rules of procedure, require that we so act.

The Grave Abuse of Discretion Issue

Romualdez

motion

to

quash

that

gave

rise

to

the

present

case

was

anchored on Section 3 (a) of Rule 117 of the Revised Rules of Court which provides: Section 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; xxxx The determinative test in appreciating a motion to quash under this rule is the sufficiency of the averments in the information, that is, whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense as defined by law without considering matters aliunde.[32] As Section 6, Rule 117 of the Rules of Criminal Procedure requires, the information only needs to state the ultimate facts;[33] the evidentiary and other details can be provided during the trial.[34]

The legal provision under which Romuldez stands charged Section 3 (e) of RA 3019 on the other hand provides: Sec. 3. Corrupt practices by public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practice of any public officer and are hereby declared to be unlawful:

xxxx

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

Reduced to its elements, a violation under this provision requires that:[35] 1. The accused must be a public officer discharging administrative, judicial or official functions;

2.

He must have acted with manifest partiality, evident bad faith or inexcusable negligence in the discharge of his functions; and

3.

His action caused undue injury to any party, including the government, or gave a private party unwarranted benefits, advantage or preference.

Whether the Sandiganbayan acted correctly, or committed errors of law while in the exercise of its jurisdiction, or gravely abused its discretion in quashing the information, are to be determined based on the application of the standards in evaluating a motion to quash, in light of the elements and terms of the offense with which the accused stands charged. The Sandiganbayan acts correctly or commits errors of law depending on its conclusions if based solely on the four corners of the information as jurisprudence mandates,[36] independently of any evidence whether prima facie or conclusive, and hypothetically assuming the truth of all the allegations in the Information it rules on whether all the elements of the offense as defined by law are present. On the other hand, it acts with grave abuse of discretion if its ruling is a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction; or if it rules in an arbitrary or despotic manner by reason of passion or personal hostility; or if it acts in a manner so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform the duty enjoined, or to action outside the contemplation of law.[37]

Our reading of the Information, based on the elements of the offense, shows us that the first element of the offense is reflected in the allegation that the accused BENJAMIN KOKOY ROMUALDEZ, a public officer being then the Provincial Governor of the Province of Leyte, while in the performance of his official function, committing the offense in relation to his Office . In plain terms, the accused was then a public officer discharging official functions.

The second element appears in the averment that the accused willfully, unlawfully and criminally with evident bad faith and the more particular averment that accused public officer being then the elected Provincial Governor of Leyte and without abandoning said position, and using his influence with his brother-in-law, then President Ferdinand E. Marcos, had himself appointed and/or assigned as Ambassador to foreign countries, particularly the People s Republic of China (Peking), Kingdom of Saudi Arabia (Jeddah), and United States of America (Washington D.C.), knowing fully well that such appointment and/or assignment is in violation of the existing laws as the Office of the Ambassador or Chief of Mission is incompatible with his position as Governor of the Province of Leyte. In short, while being the elected Governor and in evident bad faith, he had himself appointed to the incompatible position of ambassador.

Finally, the last element corresponds to the allegation that the accused cause[d] undue injury to the Government, supported further by the particular allegation thereby enabling himself to collect dual compensation from both the Department of Foreign Affairs and the Provincial Government of Leyte in the amount of Two Hundred Seventy-six thousand Nine Hundred Eleven Dollars and 56/100 (US $276,911.56), US Currency or its equivalent amount of Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine Currencies, respectively, to the damage and prejudice of the Government in the aforementioned amount of P5,806,709.50. Thus, attended by and as a result of the second element, the accused caused undue injury to the government by collecting dual compensation from the two incompatible positions he occupied.

In its first Resolution, the Sandiganbayan concluded that (1) the allegation of damage and prejudice to the Government . . . is without basis, absent a showing that the accused did not actually render services for his two concurrent positions. . . and that (2) [T]he accused alleges in the subject Motion that he actually rendered service to the government. To receive compensation for actual services rendered would not come within the ambit of improper or illegal use of funds or properties.[38] After citing jurisprudence defining evident bad faith and gross negligence, it went on to state that (3) the accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but such inefficiency is not enough to hold him criminally liable under the Information charged against him, given the elements of the crime and the standards set by the Supreme Court . At most, any liability arising from the holding of both positions by the accused may be administrative in nature.[39] [underscoring supplied]

In the second Resolution, on the other hand, the Sandiganbayan concluded: (1) on the allegation that Romualdez had himself appointed as Ambassador while concurrently serving as Provincial Governor, that it finds that accused cannot be held criminally liable, whether or not he had himself appointed to the position because the act of appointment is something that can only be impute d to the appointing authority Even assuming that the appointee influenced the appointing authority, the appointee only makes a passi ve participation by entering into the appointment, unless it is alleged that he acted in conspiracy with his appointing authority ;[40] and (2) on the matter of dual compensation, that the allegation cannot sustain the theory of the prosecution that the accused caused damage and prejudice to the government, in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits, advantage or preference to any party and to acting with manifest partiality, evident bad faith or gross excusable negligence; besides,receiving compensation is an incident of actual services rendered, hence it cannot be construed as injury or damage to the government.[41]

To put our discussions in perspective, we are not here primarily engaged in evaluating the motion to quash that Romualdez filed with the Sandiganbayan. Rather, we are evaluating on the basis of the standards we have defined above the propriety of the action of the Sandiganbayan in quashing the Information against Romualdez.

Based on these considerations, we hold that the Sandiganbayans actions grossly violated the defined standards. Its conclusio ns are based on considerations that either not appropriate in evaluating a motion to quash; are evidentiary details not required to be stated in an Information; are matters of defense that have no place in an Information; or are statements amounting to rulings on the merits that a court cannot issue before trial.

To illustrate, in the first Resolution, the Sandiganbayan saw no basis for the allegation of damage and prejudice for the failure of the Information to state that Romualdez did not render service in the two positions which he occupied. The element of the offense material to the damage and prejudice that the Sandiganbayan refers to is the undue injury caused to the government by Romualdez receipt of compensation for the incompatible positions that he could not simultaneously occupy. The allegation of undue injury in the Information, consisting of the extent of the injury and how it was caused, is complete. Beyond this allegation are matters that are already in excess of what a proper Information requires. To restate the rule, an Information only needs to state the ultimate facts constituting the offense, not the finer details of why and how the illegal acts alleged amounted to undue injury or damage matters that are appropriate for the trial. Specifically, how the two positions of Romualdez were incompatible with each other and whether or not he can legally receive compensation for his two incompatible positions are matters of detail that the prosecution should adduce at the trial to flesh out the ultimate facts alleged in the Information. Whether or not compensation has been earned through proper and commensurate service is a matter in excess of the ultimate facts the Information requires and is one that Romualdez, not the Information, should invoke or introduce into the case as a matter of defense.

From another perspective, the Sandiganbayans view that the Information should have alleged that services were not rendered assumes that Romualdez can occupy two government positions and can secure compensation from both positions if services were rendered. At the very least, these are legally erroneous assumptions that are contrary to what the then prevailing laws provided. Article XII (B), Section 4 of the 1973 Constitution provides that:

Unless otherwise provided by law, no elective official shall be eligible for appointment to any office or position during his tenure except as Member of the Cabinet.

On the other hand, Presidential Decree No. 807 Providing for the Organization of the Civil Service Commission states in its Section 44 that

Limitation on Appointment. No elective official shall be eligible for appointment to any office or position during his term of office.

On the matter of double compensation, the 1973 Constitution likewise has a specific provision Article XV, Section 5 which states:

SEC. 5. No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law, nor accept, without the consent of the Batasang Pambansa, any present, emolument, office or title of any kind from any foreign state. Neither the Sandiganbayan nor Romuladez has pointed to any law, and we are not aware of any such law, that would exempt Romualdez from the prohibition of the above-cited provisions.

In the context of ruling on a motion to quash, the allegation that services were not rendered that the Sandiganbayan wished to require, not being a fact material to the elements of the offense, is an extraneous matter that is inappropriate for the Sandiganbayan to consider for inclusion in the Information. That the Sandiganbayan has a fixation on this approach is patent from a reading of the second assailed Resolution when the Sandiganbayan, following the same line of thought, once more insisted that receiving compensation is an incident of actual services rendered, hence it cannot be construed as injury or damage to the government. Thus again, the Sandiganbayan grossly erred in the same manner it did in the first Resolution.

For the Sandiganbayan to assume, too, and to conclude, that there was no damage and prejudice since there was no illegality in being compensated for actual services rendered, is to pass upon the merits of the case a task premature for the Sandiganbayan to undertake at the motion-to-quash stage of the case. In so doing, the Sandiganbayan prematurely ruled on at least two matters. First, the Sandiganbayan either assumed as correct, or admitted for purposes of the motion to quash, the defense allegation that Romualdez rendered services, when this is a disputed evidentiary matter that can only be established at the trial. Second, and as already mentioned above, the legal status of the receipt of compensation for each of two incompatible offices is, at best, legally debatable. The Sandiganbayan repeated this premature ruling on the merits of the case in its subsequent statement in the first Resolution that the accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but such inefficiency is not enough to hold him criminally liable under the Information charged against him, given the elements of the crime and the standards set by the Supreme Court At most, any liability arising from the holding of both positions by the accused may be administrative in nature.[42]

Worse than the premature ruling it made in the above-quoted conclusion was the patent speculation that the Sandiganbayan undertook in considering inefficiency and arriving at its conclusion. Still much worse was its misreading of what a violation of Section 3(e), R.A. 3019 involves. Correctly understood, it is not the holding of two concurrent positions or the attendant efficiency in the handling of these positions, but thecausing of undue injury to the government that is at the core of a Section 3(e) violation. The same misreading was evident when the Sandiganbayan stated in its second Resolution that the accused cannot be held criminally liable, whether or not he had himself appointed to the position of the ambassador, while concurrently holding the position of provincial governor, because the act of appointment is something that can only be imputed to the appointing authority.

The Sandiganbayan fared no better and similarly gravely abused its discretion in the second Resolution when it concluded that that there could be no damage and prejudice to the government in the absence of any contention that receipt of such was tantamo unt to giving unwarranted benefits, advantage or preference to any party and to acting with manifest partiality, evident bad faith or gross excusable negligence. That no allegation of giving unwarranted benefits, advantage or preference to any party appears in the Information is due obviously to the fact that this allegation is not necessary. Giving a private party unwarranted benefits, advantage or preference is not an element that must necessarily be alleged to complete the recital of how Section 3 (e) is violated because it is only one of two alternative modes of violating this provision, the other being causing undue injury to any party, including the government. In short, the Information is complete solely on the basis of the undue injury allegation.

Even a cursory examination of the Information would show that an allegation of evident bad faith was expressly made, complete with a statement of how the bad faith was manifested, that is, being then the elected Provincial Governor of Leyte and without abandoning such position, and using his influence with his brother-in-law, then President Ferdinand E. Marcos, [Romualdez] had himself appointed and/or assigned as Ambassador to foreign countries.... Whether this allegation can be successfully proven by evidence or established through an analysis of the nature of the power of appointment remains to be seen after trial, not at the motion-to-quash stage of the case. At this earlier stage, all that is required is for this allegation to be an ultimate fact directly providing for an element of the offense.

In light of all these, we conclude that the Sandiganbayan grossly and egregiously erred in the considerations it made and in the conclusions it arrived at when it quashed the Information against Romualdez, to the point of acting outside its jurisdiction through the grave abuse of discretion that attended its actions. Its errors are so patent and gross as to amount to action outside the contemplation of law. Thus, the declaration of the nullity of the assailed Sandiganbayan Resolutions is in order. WHEREFORE, premises considered, we hereby GRANT the petition and accordingly ANNUL the Sandiganbayans Resolutions dated 22 June 2004 and 23 November 2004 in CRIM. CASE NO. 26916 entitledPeople of the Philippines versus Benjamin Kokoy Romualdez. The Sandiganbayan is hereby ORDERED TO PROCEED with the trial on the merits of the case on the basis of the Information filed. Costs against the private respondent Benjamin Kokoy Romualdez. SO ORDERED.

G.R. No. 172602

April 13, 2007

HENRY T. GO, Petitioner, vs. THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents. DECISION CALLEJO, SR., J.: Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by Henry T. Go seeking to nullify the Resolution dated December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of the Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Gos motion for reconsideration. The factual and procedural antecedents of the case are as follows: On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air Terminals Co., Inc. (PIATCO),1declaring as null and void the 1997 Concession Agreement, the Amended and Restated Concession Agreement (ARCA), and the Supplemental Contracts entered into between the Government, through the Department of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA), and PIATCO. By the aforementioned contracts (collectively known as the PIATCO contracts), the Government awarded in favor of PIATCO the project for the development of the Ninoy Aquino International Airport Passenger Terminal III (NAIA IPT III) under a buildoperate-and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA 7718 (BOT Law). 2 The Court ruled that Paircargo Consortium, PIATCOs predecessor-in-interest, was not a qualified bidder as it failed to meet the financial capability requirement under the BOT Law. Moreover, the PIATCO contracts were declared null and void for being contrary to public policy. The penultimate paragraph of the Courts Decision states thus: CONCLUSION In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains material and substantial amendments, which amendments had the effect of converting the 1997 Concession Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is similarly null and void for being contrary to public policy. The provisions under Section 4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are likewise null and void.3 Subsequently, an affidavit-complaint, later amended, was filed with the Office of the Ombudsman by Ma. Cecilia L. Pesayco, Corporate Secretary of Asias Emerging Dragon Corporation (AEDC), charging several persons in connection with the NAIA IPT III project. The AEDC was the original proponent thereof which, however, lost to PIATCO when it failed to m atch the latters bid price. After conducting a preliminary investigation thereon, the Office of the Ombudsman filed with the Sandiganbayan the Information dated January 13, 2005 charging Vicente C. Rivera, as then DOTC Secretary, and petitioner Go, as Chairman and President of PIATCO, with violation of Section 3(g)4 of RA 3019, also known as the Anti-Graft and Corrupt Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the Philippines vs. Vicente C. Rivera, Jr. and Henry T. Go. The Information reads: INFORMATION The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR. and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows: On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and feloniously enter into an Amended and Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the event of the latters default specifically Article IV, Section 4.04 (c) in relation t o Article I,

Section 1.06 of the ARCA which term is more beneficial to PIATCO and in violation of the BOT law, and manifestly and grossly disadvantageous to the government of the Republic of the Philippines. CONTRARY TO LAW.5 On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty. On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera and petitioner Go. On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty." On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of Probable Cause and Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of ten (10) days within which to file a comment thereon. On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the view advanced by Rivera, petitioner Go harped on the alleged "missing documents," including Pesaycos amended affidavit -complaint and those others that were mentioned in the resolution of the Office of the Deputy Ombudsman finding probable cause against Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go maintained that apart from the bare allegations contained in Pesaycos affidavit-complaint, there was no supporting evidence for the finding of the existence of probable cause against him and Rivera. Petitioner Go further alleged that he could not be charged under Section 3(g) of RA 3019 because he is not a public officer and neither is he capacitated to enter into a contract or transaction on behalf of the government. At least one of the important elements of the crime under Section 3(g) of RA 3019 is not allegedly present in his case. On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the Comment with Motion to Quash, which the prosecution, through the Office of the Ombudsman, opposed. On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Riveras Motion for Judicial Determination (Re-Determination) of Probable Cause and Motion to Dismiss and petitioner Gos Motion to Quash. The Sandiganbayan ruled that, contrary to the prosecutions submission, it could still entertain petitioner Gos Motion to Qu ash even after his arraignment considering that it was based on the ground that the facts charged do not constitute an offense. Nonetheless, the Sandiganbayan denied petitioner Gos Motion to Quash holding that, contrary to his claim, the allegations in the Information actually make out the offense charged. More particularly, the allegations that accused Rivera, as DOTC Secretary, in conspiracy with petitioner Go, entered into the ARCA with petitioner Go/PIATCO, which agreement was manifestly and grossly disadvantageous to the government, are constitutive of the elements of the offense charged as defined under Section 3(g) of RA 3019. The Sandiganbayan explained that petitioner Gos contentions that he is not a public officer, he did not conspire with Rivera in the execution of the ARCA and, in any case, the said agreement cannot be said to be manifestly and grossly disadvantageous to the government, could not be properly considered for the purpose of quashing the Information on the ground relied upon by him. According to the Sandiganbayan, these matters raised by petitioner Go have to be proved during trial. The decretal portion of the assailed Sandiganbayan Resolution reads: WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-Determination) of Probable Cause and Motion to Dismiss" and the "Motion to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively, are hereby DENIED. SO ORDERED.6 Petitioner Go filed a motion for reconsideration thereof but it was denied by the Sandiganbayan in the Resolution dated March 24, 2006. Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges that: A. The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in not ruling that Section 3(g) does not embrace a private person within its proviso. B. The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in not ruling that there is no probable cause to hold petitioner for trial.7

Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication or intendment to bring within its limited scope private persons. The said provision of law allegedly punishes only public officers as it penalizes the act of "entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby." As a private person, he could not allegedly enter into a contract "on behalf of the government," there being no showing of any agency relations or special authority for him to act for and on behalf of the government. Citing several cases,8 petitioner Go enumerates the following elements of Section 3(g) of RA 3019: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. He also cites Marcos v. Sandiganbayan9 where the Court acquitted then First Lady Imelda R. Marcos of the charge of violation of Section 3(g) of RA 3019 as it found that she did not sign the subject Lease Agreement, entered into between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court held that the first element of the offense charged, i.e., that the accused is a public officer, was wanting. Petitioner Go claims that, in the same manner, the first element of the offense charged against him is absent because he is not a public officer who is authorized by law to bind the government through the act of "entering into a contract." He also points out that, similar to his case, in Marcos, the Information also alleged that the former First Lady conspired with a public officer, then Minister Jose P. Dans of the Ministry of Transportation and Communications, in entering into a contract. Nonetheless, the Court therein dismissed the allegation of conspiracy. Petitioner Go maintains that by any of its definition,10 he cannot be considered a "public officer." Further, only a public officer can enter into a contract in representation of the government. He stresses that the first element of the offense, i.e., that the accused is a public officer, is an essential ingredient of the crime under Section 3(g) of RA 3019. He likens it to the crime of parricide where the essential element is the relationship of the offender to the victim and, citing a criminal law book author, a stranger who cooperates in the execution of the offense is not allegedly guilty of this crime. The stranger is allegedly either liable for homicide or murder but never by "conspiracy to commit parricide."11 By parity of reasoning, according to petitioner Go, the first essential element of the crime penalized under Section 3(g) of RA 3019 is that the offender must be a public officer. Since he is not a public officer, one of the essential elements of the offense is lacking; hence, there is no other recourse but to quash the Information. Section 9 of RA 3019 was also cited which reads: SEC. 9. Penalties for violation. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished with imprisonment for not less than six years and one month or fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. xxx Petitioner Go posits that had it been the intention of the lawmakers to penalize private persons who supposedly "conspired" with public officers in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the conjunctive "and," not "or," between the terms "public officer" and "private person" in Section 9 thereof. Petitioner Go takes exception to the Sandiganbayans pronouncement that even as a private individual he is not excluded from the coverage of Section 3(g) of RA 3019 because he is not being accused singly but as someone who conspired with a public officer in violating the said law. According to petitioner Go, this proposition applies only to Section 3(e)12 of RA 3019, the elements of which include that "the accused are public officers or private persons charged in conspiracy with them." 13 He stresses that, unlike Section 3(e) of RA 3019, Section 3(g) thereof penalizes only public officers as the operative phrase in the latter provision is "on behalf of the government." Petitioner Go vigorously asserts that there is no basis for the finding of probable cause against him for violation of Section 3(g) of RA 3019. In particular, he insists that the allegation of conspiracy between Rivera and himself is not supported by any evidence. He makes an issue out of those documents that were mentioned in the resolution of the Deputy Ombudsman finding probable cause against him but were not in the records of the Sandiganbayan. His mere signing of the ARCA does not allegedly establish culpability for violation of RA 3019. Further, he faults the Sandiganbayan for invoking the doctrine of non-

interference by the courts in the determination by the Ombudsman of the existence of probable cause. It is petitioner Gos view that the Sandiganbayan should have ordered the quashal of the Information for palpable want of probable cause coupled with the absence of material documents. The petition is bereft of merit. For clarity, Section 3(g) of RA 3019 is quoted below anew: SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. As earlier mentioned, the elements of this offense are as follows: (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government.14 Contrary to the contention of petitioner Go, however, the fact that he is not a public officer does not necessarily take him out of the ambit of Section 3(g) of RA 3019. Petitioner Gos simplistic syllogism, i.e., he is not a public officer ergo he cannot b e charged with violation of Section 3(g) of RA 3019, goes against the letter and spirit of the avowed policy of RA 3019 as embodied in Section 1 thereof: SEC. 1. Statement of policy. - It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto. As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella, 15 the Court had ascertained the scope of Section 3(g) of RA 3019 as applying to both public officers and private persons: x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the nature of malum prohibitum; it is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the provision has been violated. And this construction would be in consonance with the announced purpose for which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices act or which may lead thereto.16 Like in the present case, the Information in the said case charged both public officers and private persons with violation of Section 3(g) of RA 3019. Section 9 of RA 3019 buttresses the conclusion that the anti-graft laws application extends to both public officers and private persons. The said provision, quoted earlier, provides in part that: SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. xxx The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a public officer" does not necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring with public officers in the commission of the offense thereunder. The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case, Gregorio Singian, Jr., a private person who was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan accommodations that the said bank extended to ISI which were characterized as behest loans.

A total of eighteen Informations were filed against Singian and his co-accused by the Office of the Ombudsman before the Sandiganbayan corresponding to the nine loan accommodations granted to ISI. Each loan was subject of two Informations alleging violations of both Section 3(e) and (g), respectively. In other words, nine Informations charged Singian and his coaccused with violation of Section 3(e) of RA 3019 and the other nine charged them with violation of paragraph (g) of the same provision. Singian filed with the Sandiganbayan a motion for re-determination of existence of probable cause but the same was dismissed. He then filed with the Court a petition for certiorari but it was likewise dismissed as the Court held that the Ombudsman and the Sandiganbayan had not committed grave abuse of discretion when they respectively found probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019. Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be indicted and, if found guilty, held liable for violation of Section 3(g) of RA 3019. Another case, Domingo v. Sandiganbayan,18 may likewise be applied to this case by analogy. In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together with Jaime Domingo, then municipal mayor of San Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared that he was used by Domingo as a dummy to cover up his business transaction with the municipality. Section 3(h) of the anti-graft law reads: SEC.3. Corrupt practices of public officers. x x x (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having an interest. The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; (3) he either: (a) intervenes or takes part in his official capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by law. 19 Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a private individual, as well as that of Domingo, who was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so holding, the Court established that Domingo and Garcia acted in conspiracy with one another in the commission of the offense. Domingo thus also serves to debunk petitioner Gos theory that where an offense has as one of its elements that the accused is a public officer, it necessarily excludes private persons from the scope of such offense. The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case, is that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the avowed policy of the antigraft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto. Reliance by petitioner Go on Marcos v. Sandiganbayan20 is not quite appropriate. To recall, upon her motion for reconsideration, the Court therein acquitted former First Lady Imelda Marcos of the charge of violation of Section 3(g) of RA 3019 in its Resolution dated October 6, 1998. Her acquittal was based on the finding that she signed the subject lease agreement as a private person, not as a public officer. As such, the first element, i.e., that the accused is a public officer was wanting. Petitioner Go, however, failed to put the Courts ruling in Marcos in its proper factual backd rop. The acquittal of the former First Lady should be taken in the context of the Courts Decision dated January 29, 1998, in Dans, Jr. v. People, 21 which the former First Lady sought to reconsider and, finding merit in her motion, gave rise to the Courts Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose P. Dans, Jr., then Minister of Transportation and Communications, for violation of Section 3(g) of RA 3019, alleged that they were both public officers and, conspiring with each other, entered into the subject lease agreement covering the LRTA property with the PGHFI, a private entity, under terms and conditions manifestly and grossly disadvantageous to the government. The Court in its original decision affirmed the former First Ladys conviction for violation of Section 3(g) of RA 3019 but acquitted her co-accused, Dans, Jr., of the said offense. As stated earlier, upon t he former First Ladys motion for reconsideration, the Court reversed her conviction in its Resolution in Marcos. It can be gleaned from the entire context of Marcos and Dans that the reversal of the former First Ladys conviction was base d on the fact that it was later held that she signed the subject lease agreement as a private person, not a public officer. However, this acquittal should also be taken in conjunction with the fact that the public officer with whom she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In other words, the element that the accused is a public officer, was totally wanting in the former First Ladys case because Dans, the public officer with whom she had allegedly conspired in committing Section 3(g) of RA 3019, had already been acquitted. Obviously, the former First Lady could not be convicted, on her own as a private person, of the said offense. In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is not being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the DOTC Secretary. The

case against both of them is still pending before the Sandiganbayan. The facts attendant in petitioner Gos cas e are, therefore, not exactly on all fours as those of the former First Ladys case as to warrant the application of the Marcos ruling in his c ase. Anent the allegation of conspiracy, it is posited by the dissenting opinion that the Information is infirm as far as petitioner Go is concerned because it failed to mention with specificity his participation in the planning and preparation of the alleged conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the Information failed to mention any act as to how petitioner had taken part in the planning and preparation of the alleged conspiracy. Mere allegation of conspiracy in the Information does not necessarily mean that the criminal acts recited therein also pertain to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction over private individuals, it submits that it may do so only "upon Information alleging with specificity the precise violations of the private individual." By way of conclusion, the dissenting opinion cites Sistoza v. Desierto22 where the Court stated that a signature appearing on a document is not enough to sustain a finding of conspiracy among officials and employees charged with defrauding the government. These asseverations, however, are unpersuasive. It is well established that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits.23 In the same manner, the absence (or presence) of any conspiracy among the accused is evidentiary in nature and is a matter of defense, the truth of which can be best passed upon after a full-blown trial on the merits.24 Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Rivera in violating Section 3(g) of RA 3019 as well as the details on how petitioner Go had taken part in the planning and preparation of the alleged conspiracy need not be set forth in the Information as these are evidentiary matters and, as such, are to be shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish conspiracy, direct proof of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It may be inferred from the acts of the accused before, during or after the commission of the crime which, when taken together, would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently made by evidence of a chain of circumstances. Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of them, for in contemplation of the law the act of one is the act of all."25 In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8, Rule 110 of the Rules of Court are complied with: SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule 117 on the grounds that the facts charged do not constitute an offense. In such a case, the fundamental test in determining the sufficiency of the material averments of an Information is whether or not the facts alleged therein, which are hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or matters extrinsic of the Information are not to be considered.26 As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if admitted hypothetically, establish all the elements of Section 3(g) of RA 3019 vis--vis petitioner Go: ELEMENTS ALLEGATIONS 1a\^/phi1.net 1. The offender is a public officer [T]he accused VICENTE C. RIVERA, JR., Secretary of Department of Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused HENRY T. GO, Chairman and President of Philippine International Air Terminals, Co., xxx"

2. He entered into a contract or transaction in behalf of the government

"[T]he accused VICENTE C. RIVERA, JR., xxx in conspiracy with accused HENRY T. GO xxx did then and there, willfully & unlawfully and feloniously entered into an Amended and Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO xxx "xxx which ARCA substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957, as amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the event of the latters default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the ARCA which terms are more beneficial to PIATCO and in violation of the BOT Law and manifestly grossly disadvantageous to the government of the Republic of the Philippines."27

3. The contract or transaction is grossly and manifestly disadvantageous to the government

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated thus: The rule is that the determination of probable cause during the preliminary investigation is a function that belongs to the public prosecutor, the Office of the Ombudsman in this case. Such official is vested with authority to determine whether or not a criminal case must be filed in court and the concomitant function of determining as well the persons to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise of such function is a matter that the trial court itself does not and may not be compelled to pass upon, consistent with the policy of non-interference by the courts in the determination by the Ombudsman of the existence of probable cause. Accordingly, upon the foregoing premises, we believe and so hold that any and all questions relating to the finding of probable cause by the Office of the Ombudsman should be addressed to the said office itself, then to the Court of Appeals and, ultimately, to the Supreme Court.

On the matter of the judicial determination of probable cause, we stand by our finding that the same exists in this case, the said finding we arrived at upon a personal determination thereof which we did for the purpose of and before the issuance of the warrant of arrest.1awphi1.nt While it may indeed be true that the documents mentioned by accused-movant as being absent in the records are missing, we nevertheless had for our perusal other documents assiduously listed down by accused Rivera in his motion, including the information, which we found to constitute sufficient basis for our determination of the existence of probable cause. It must be emphasized that such determination is separate and distinct from that made by the Office of the Ombudsman and which we did independently therefrom.28 The determination of probable cause during a preliminary investigation is a function of the government prosecutor, which in this case is the Ombudsman. As a rule, courts do not interfere in the Ombudsmans exercise of discretion in determining probable cause, unless there are compelling reasons.29 Mindful of this salutary rule, the Sandiganbayan nonetheless made its own determination on the basis of the records that were before it. It concluded that there was sufficient evidence in the records for the finding of the existence of probable cause against petitioner Go. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.30 Clearly, in the light of the foregoing disquisition, grave abuse of discretion cannot be imputed on the Sandiganbayan when it held that there exists probable cause against petitioner Go. ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated December 6, 2005 and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto. SO ORDERED.