CASE STUDY: Batumbakal v.

Dimagiba
Jazreel S. de Vera, BSA III-B

Executive Order No. 248 issued May 29, 2004 prescribing the “Rules and
Regulations and Rates of Allowances for Official, Local, and Foreign Travels of
Government Personnel.” This also provide government personnel on official travel
here and abroad with fairly reasonable means within the financial capability of the
government to enable them to travel in a manner benefitting their representative
capacity.

Coverage: This Executive Order shall govern official local and foreign
travels of government personnel, both national and local, including personnel of
government-owned and/or controlled corporations and government financial
institutions.

Local Travel of Government Personnel

Nature of Travel: Travels and assignments under this Executive Order shall
cover only those which are urgent and extremely necessary, will involve the
minimum expenditure and are beneficial to the agency concerned and/or the
country.

Approval of Travel and Payment of Travel Expenses: Travels of officials and

employees of National Government Agencies for less than thirty (30) days and
payment of travel expenses therefore shall be approved by the head of
office/bureau or equivalent. Travels that will last thirty (30) days or more and
payment of travel expenses therefore shall be approved by the Department
Secretary or his equivalent. The approval of the Department Secretary concerned
shall be construed as equivalent to the approval of the Secretary of Budget and
Management.

Allowable Travel Expenses: The travel expenses of government personnel

regardless of rank and destination shall be in the amount of Eight Hundred Pesos
(P800.00) per day which shall be apportioned as follows: a) fifty percent (50%) for
hotel/lodging, b) thirty percent (30%) for meals and c) twenty percent (20%) for
incidental expenses.

Claims for reimbursement of actual travel expenses in excess of the travel

expenses authorized herein may be allowed upon certification by the head of
agency concerned as absolutely necessary in the performance of an assignment
and presentation of bills and receipts. Provided, that, certification of affidavit of loss
shall not be considered as appropriate replacement for the required hotel/lodging
bills and receipts.
 Entitlement to travel expenses (per diems) shall start only upon arrival at
the place of destination and shall cease upon departure therefrom at the following
percentage:

Particulars Percentage To Cover

Arrival not later than 100% Hotel/lodging

12:00 noon (50%) meals
(30%) and
incidental
expenses (20%)

Arrival after 12:00 80% Hotel/lodging

noon (50%) dinner
(10%) and
incidental
expenses (20%)

Departure before 30% Breakfast (10%)

12:00 noon and incidental
expenses (20%)

Departure at 12:00 40% Breakfast (10%)

noon and later lunch (10%) and
incidental
expenses (20%)

“Claims for payment of travel expenses travel/assignment to places within

the fifty kilometer radius from the last city or municipality covered by the
Metropolitan Manila Area in the case of those whose permanent official station is
in the Metropolitan Manila Area, or the city or municipality wherein their permanent
official station is located in the case of those outside the Metropolitan Manila Area,
shall be allowed only upon presentation of proof, duly supported by bills or
invoices with official receipts of expenses incurred, that they stayed in the place of
their assignment for the whole duration of their official travel. If they commute daily
from the place of their assignment to the place of their residence or permanent
official station, they shall be allowed only the reimbursement of actual fare at the
prevailing rates of the authorized mode of transportation from the permanent
official station to the destination or place of work and back, and a reasonable cost
for meals. The total actual fare and cost of meals and incidental expenses shall in
no case exceed Four Hundred Pesos (P400.00) per day.”
 Official Travel Abroad of Government Personnel

Nature of Travel: Travels and assignments under this Executive Order shall
cover only those which are urgent and extremely necessary, will involve the
minimum expenditure and are expected to bring immediate benefit to the country,
and shall refer only to those under the category of conferences, special missions,
and other non-study trips such as those undertaken for the following purposes:

a) To attend conferences or seminars sponsored by foreign governments

or international government organizations to which the Philippine
Government is committed or invited to send representatives or
participants;
b) To attend conferences or seminars sponsored by private organizations,
whether international or not, invitations to which have been sent through
their respective governments to the Philippine Government;
c) To conduct examinations or investigations of Philippine Government
agencies or affairs;
d) To undertake any other official mission which cannot be assigned to any
other Philippine government official or officials already abroad;
e) To participate in short courses in certain areas of specialization
arranged directly by government agencies with foreign institutions of
learning;
f) To attend training seminars as component of contracts of foreign
suppliers, with or without government funding; and
g) To attend training courses funded from loans secured from foreign
sources.

Transportation: In case officials and employees authorized to travel are not

provided with transportation by the host country or sponsoring organization or
agency, they shall be allowed official transportation, which shall be of the restricted
economy class unless otherwise authorized by the President of the Philippines.

Allowable Travel Expenses: Government personnel who travel abroad shall

be entitled to the Daily Subsistence Allowance (DSA) as provided under the United
Nations Development Program (UNDP) Index, which can be secured from the
Department of Foreign Affairs. The DSA shall be apportioned as follows unless
otherwise stated in the UNDP Index: a) fifty percent (50%) for hotel/lodging; b)
thirty percent (30%) for meals; and c) twenty percent (20%) for incidental
expenses. When the country of destination is not listed in the said Index, the DSA
for the nearest country shall be adopted.

Subject to the approval of the President, claims for reimbursement of actual

travel expenses in excess of the DSA authorized herein may be allowed upon
certification by the head of agency as absolutely necessary in the performance of
an assignment and presentation of bills and receipts. Certification of affidavit of
loss shall not be considered as appropriate replacement for the required hotel
room/lodging bills and receipts.
 Particulars Percentage To Cover

Arrival not later than 100% Hotel/lodging

12:00 noon (50%) meals
(30%) and
incidental
expenses (20%)

Arrival after 12:00 80% Hotel/lodging

noon (50%) dinner
(10%) and
incidental
expenses (20%)

Departure before 30% Breakfast (10%)

12:00 noon and incidental
expenses (20%)

Departure at 12:00 40% Breakfast (10%)

noon and later lunch (10%) and
incidental
expenses (20%)

The Daily Subsistence Allowance authorized herein shall be deemed the

equivalent of the per diems authorized under Section 75 of RA 7157 otherwise
known as the Foreign Service Act of 1991.

Rendition of Account on Cash Advances: Within sixty (60) days after his
return to the Philippines, in the case of official travel abroad, or within thirty (30) days
of his return to his permanent official station in the case of official local travel, every
official or employee shall render an account of the cash advance received by him in
accordance with existing applicable rules and regulations and/or such rules and
regulations as may be promulgated by the Commission on Audit for the purpose.
Refund of excess cash advance may be either in US dollars if allowed by the
Department concerned or in Philippine currency computed at the prevailing bank
rate at the day of refund. In the case of the latter, a bank certification or newspaper
clipping on the bank rate should be submitted. Payment of the salary of any official
or employee who fails to comply with the provisions of this Section shall be
suspended until he complied therewith.

The above stated Executive Order clearly stated that government officials
and employees are allowed to claim travel expenses (per diems) in case of official
travel however due to lack of understanding or confusion, the complainant filed a
case.
 The cases involve the criminal and administrative complaints for
Falsification of Public Documents under Article 171 of the Revised Penal Code
(RPC), Violation of Section 3 (e) of Republic Act (RA) 3019, Grave Misconduct,
Dishonesty, and Conduct Prejudicial to the Best Interest of the Service lodged
against Maria Batumbakal in her capacity as Vice-Mayor with salary grade of 25 of
the Municipality of Basud, Camarines Norte by the complainant Jose Dimagiba of
Purok 4, Barangay Plaridel, Basud, Camarines Norte.

COMPLAINANT’S ALLEGATIONS

On October 5, 2011, respondent sent a letter-request to Mayor Juan dela

Cruz to allow her to go on official travel to Metro Manila to follow-up and submit
resolutions at the Department of Tourism, the National Historical Commission
(NHC), Department of Interior and Local Government (DILG), and other national
offices concerned. The letter-request was favorably endorsed, and the travel order
was approved by the mayor.

Respondent submitted her itinerary of travel to Metro Manila which

indicated, among others, that she would return to Basud, Camarines Norte on
October 15, 2011 at 7:00pm. Respondent collected her per diem on that date
amounting to Php 240.00.

Complainant however received a reliable information that respondent did

not return to Basud, Camarines Norte in October 15, 2011 as indicated in her
submitted itinerary of travel. She instead went on a foreign travel to Hongkong on
October 14, 2011 and returned to Manila only on October 17, 2011. The
complainant has documents attached to prove his allegations: (1) Bureau of
Immigrations (BI) Travel Database File as of March 28, 2012 and (2) Centralized
Query Support System date March 28, 2012 prepared by BI verifier Abdul Fahad
G. Calaca.

Complainant accuses the respondent of Falsification of Public Document

under Article 171 of the RPC for falsifying her itinerary of travel on October 15,
2011 and violation of Sec. 3 (e) of RA 3019 for collecting per diem allowance from
the government on the date that she was in Hongkong and not on her way back to
Basud, Camarines Norte.

Pursuant to the Order dated July 2, 2012, herein respondent filed her
Counter-Affidavit to the Complaint-Affidavit.

RESPONDENT’S ALLEGATIONS

Respondent Batumbakal alleged that the timing of the complaint and the
personality of the complainant who instituted the instant complaint against her is
suspicious on ground that the 2013 local elections is near and the complainant is a
security guard with no personal knowledge of facts that allegedly took place eight
(8) months ago.

The respondent, denying the adverse allegations against her, also averred
that sometime in October 2011, she requested Mayor Juan dela Cruz of Basud,
Camarines Norte for travel authority to Manila from October 11-14, 2011 to
address official government businesses with various public agencies and offices.
The official travel covered periods of October 10-15, 2011 (5 days). Upon approval
of the travel, she caused the preparation of the itinerary of travel numbered 2011-
10-16 and the same was approved by Mayor dela Cruz on October 5, 2011.
Appearance she started her public liaisons on October 11, 2011 with visit to
Philippine Councilor’s League (PCL); on October 2011 at Bureau of Local
Government Supervision of the DILG, NHC, and Department of Tourism; on
October 13, 2011 at DPWH; and on October 14, 2011 at Vice Mayors’ League of
the Philippines.

Before respondent could leave for Basud on October 15, 2011, she left for
Hongkong in the evening of October 14, 2011 (Friday) and stayed in the country
from October 15-16, 2011 (Saturday and Sunday). The respondent left Hongkong
on the evening of October 16, 2011 and returned to Manila at around 12:08 in the
early morning of October 17, 2011 (Monday). Upon her arrival in Manila, she
proceeded to Basud, Camarines Norte.

ISSUES

1. Whether or not probable cause exists to indict respondent for Falsification

of Public Document for allegedly falsifying her itinerary of travel dated
October 5, 2011?
2. Whether or not probable cause exists to indict respondent for violation of
Sec. 3 (e) of RA 3019 for collecting her per diem allowance from the
government on the date that she was in Hongkong and not on her way back
to Basud, Camarines Norte?
3. Whether or not respondent should be held administratively liable for
Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest
of the Service?

DISCUSSION

The complainant contended that respondent committed Falsification of

Public Document based on the itinerary of travel that she submitted before leaving
for Manila.

Upon scrutiny of the documentary evidence submitted by the complainant in

support of his accusations, this Office does not find probable cause to indict
respondent for alleged falsification on the mere basis that she did not return on
October 15, 2011 to Basud, Camarines Norte as was indicated in the subject
itinerary of travel that she submitted on October 5, 2011.
 For falsification of a public document to be established, the following
elements must concur: 1) that the offender is a public officer, employee, or notary
public; 2) that he takes advantage of his official position; and 3) that he falsifies a
document by committing any of the following acts, namely: (a) Counterfeiting or
imitating any handwriting, signature or rubric; (b) Causing it to appear the persons
have participated in any act or proceeding when they did not in fact so participate;
(c) Attributing to persons who have participated in any act or proceeding
statements other than those in fact made by them; (d) Making untruthful
statements in a narration of facts; (e) Altering true dates; (f) Making any alteration
or intercalation in a genuine document which changes its meaning; (g) Issuing in
authenticated form a document purporting to be a copy of an original document
when no such original exists, or including in such copy a statement contrary to, or
different from, that of the genuine original; (h) Intercalating any instrument or note
relative to the issuance thereof in a protocol, registry, or official book.

While it can be said that the first element exists, this Office is constrained to
rule that the complainant failed to allege and prove the facts which would establish
that the respondent committed any act of falsification. Judicious scrutiny of the
instant complaint and the evidence reveals that they lack the constitutive facts of
falsification. For one, there was no reference to the documents or acts allegedly
falsified by the respondent. What is apparent from the records is that the itinerary
of travel submitted by the respondent was prepared on October 5, 2011 before her
actual travel to Manila on October 10, 2011. Even though respondent did not
return to Basud, Camarines Norte in October 15, 2011 as was indicated in the
itinerary, there is no Falsification of Public Document in the instant case on ground
that the subject itinerary of travel was prepared ahead of the incident which
complainant allegedly claimed to have been falsified. It would have been a
different scenario if the respondent submitted her itinerary of travel in the form of
an accomplishment report after her travel to Manila and upon her return to Basud,
Camarines Norte then thereafter, she would indicate the she returned to Basud on
October 15, 2011 when in fact, she left for Hongkong on that date.

In the absence of established facts and circumstances which demand more

than bare suspicion but evidence which would justify the conviction of the
respondent, the charge for falsification must fail.

Anent the second issue, the complainant posited that for collecting her per
diem allowance in the amount of Php 240.00, respondent caused undue injury to
the government in violation of Section 3 (e) or RA 3019.

To justify an indictment under Sec. 3 (e) of RA no. 3019, there must be a

showing of the existence of the following elements: a) that the accused are public
officers or private persons charged in conspiracy with them; b) that said public
officer committed the prohibited acts during the performance of their official duties
or in relation to their public positions; c) that they caused undue injury to any party,
whether the Government or a private party; d) that such injury was caused by
giving unwarranted benefits, advantage or preference to such parties; and e) that
the public officers acted with manifest partiality, evident bad faith or gross
inexcusable negligence.

The Office of the Deputy Ombudsman likewise finds no sufficient evidence

to indict herein respondent for violation of Section 3 (e) of RA no. 3019.

The violation of Sec. 3 (e) of RA 3019, as amended, requires that the undue
injury sustained as an element thereof must be actual and certain. In Santos v.
People, the Court equated undue injury – in the context of Section 3(e) of the Anti-
Graft and Corrupt Practices Act punishing the act of “causing undue injury to any
party – with that civil law concept of “actual damage.” As the Court elaborated in
Llorente vs. Sandiganbayan, to wit: “…Unlike in actions for torts, undue injury in
Sec. 3(e) cannot be presumed even after a wrong or a violation of a right has been
established. Its existence must be proven as one of the elements of the crime. In
fact, the causing of undue injury, or the giving of any unwarranted benefits,
advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence constitutes the very act punished under this section. Thus,
it is required that the undue injury be specified, quantified and proven to the point
of moral certainty.”

Evidence on record shows that respondent did visit the different

government agencies as it was the purpose of her travel to Manila from October
11-14, 2011. Although the respondent did not return to Basud, Camarines Norte
on October 15, 2011 and she instead left for Hongkong on that day, the
complainant failed to show that respondent used government funds to shoulder
her travel expenses in Hongkong. Besides, the Php 240.00 per diem allowance
was approved not for the purpose of returning to Basud on October 15, 2011 per
se but for any expenses that she may incur upon her return to Basud which the
respondent did so October 17, 2011.

Apparently, the complainant’s allegation that the acts of respondent caused

undue injury to the government deserves scant consideration as the complainant
failed to substantiate such claim. The complainant’s allegation was inadequate and
largely speculative which did not satisfy the element of undue injury, as akin to
actual damages. As in civil cases, actual damages, if not supported by evidence
on record, cannot be considered. While it is not necessary that a specific amount
of the damage be proven with absolute certainty, there must be some reasonable
basis by which the court can measure it.

In addition, Sec. 3 (e) of RA 3019 provides the different modes by which the
crime may be committed, that is, through “manifest partiality,” “evident bad faith,”
or “gross inexcusable negligence.” In Uriarte vs. People, the Court explained that
Section 3(e) of RA 3019 may be committed either by dolo, as when the accused
acted with evident bad faith or manifest partiality, or by culpa, as when the
accused committed gross inexcusable negligence. There is “manifest partiality”
when there is a clear, notorious, or plain inclination or predilection to favor one
side or person rather than another. “Evident bad faith” connotes not only bad
judgment but also palpably and patently fraudulent and dishonest purpose to do
moral obliquity or conscious wrongdoing for some perverse motive or ill will.
“Evident bad faith” contemplates a state of mind affirmatively operating with furtive
design or with some motive or self-interest or ill will or for ulterior purposes. “Gross
inexcusable negligence” refers to negligence characterized by the want of even
the slightest care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally, with conscious indifference to
consequences insofar as other persons may be affected.

Apparently, the complainant likewise failed to establish any indication of

manifest partiality, evident bad faith, or gross inexcusable negligence on the part
of the respondent considering that based on record, she did fulfill her public visit to
the PCL National Secretariat Office, DILG, Department of Tourism, DPWH and
Vice Mayors’ League of the Philippines. Similarly, nothing on record established
that the respondent’s acts have resulted to giving any unwarranted benefits,
advantage or preference to any private party.

Under the present factual milieu, the complainant clearly failed to establish
the elements of a violation of Section 3 (e) of the Anti-Graft and Corrupt Practices
Act. A preliminary investigation constitutes a realistic judicial appraisal of the
merits of a case. The complainant must adduce sufficient proof of guilt as basis for
a criminal charge in court. As discussed earlier, herein complainant did not submit
any proof in support of his accusations against the respondent.

The Supreme Court reminds us that “agencies tasked with the preliminary
investigation and prosecution of crimes must always be wary of undertones of
political harassment. They should never forget that the purpose of a preliminary
investigation is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect one from an open and public accusation of a crime,
from the trouble, expense and anxiety of a public trial, and to protect the State
from useless and expensive trial. It is, therefore, imperative upon such agencies to
relieve any person from the trauma of going through a trial once it is ascertained
that the evidence is insufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused.”

The Office of the Deputy Ombudsman is therefore constrained to dismiss

the present criminal case for insufficiency of evidence.

Considering that no probable cause found to indict respondent criminally, it

likewise finds no substantial evidence to hold the respondent administratively liable
for Gross Misconduct and Dishonesty as charged. The complainant failed to rebut
by strong evidence the presumption of regularity in the performance of official
functions on the part of the respondent especially that she fulfilled her tasks to visit
the different government offices while she was in Manila from October 10-14,
2011. Neither the respondent is found to be administratively liable for Conduct
Prejudicial to the Best Interest of the Service since there is no showing that the
government was denied of a committed service due to a public officer in terms of
loss of time to do her regular work when the respondent only left abroad in the
evening of October 14, 2011 (Friday), stayed in Hongkong from October 15-16,
2011 which were both non-working days, and returned to Manila in the early
morning of October 17, 2011 (Monday).

The instant criminal and administrative cases lodged against respondent

Batumbakal has been dismissed for insufficiency of evidence.