Case Digest in ConstiLaw 2

Luis A. Tabuena, et al. vs. Sandiganbayan (268 SCRA 332, February 17, 1997)

FACTS:
Then Pres. Ferdinand Marcos instructed Luis Tabuena, General Manager of the Manila International Airport
Authority (MIAA), over the phone to pay directly to the president’s office and in cash what the MIAA owes
the Phil. National Construction Corp. The verbal instruction was reiterated in a Presidential memorandum.
In obedience to Pres. Marcos’ instruction, Tabuena, with the help of Gerardo Dabao and Adolfo Peralta, the
Asst. Gen. Mgr. and the Acting Finance Services Mgr. of MIAA, respectively, caused the release of P55M of
MIAA funds of three (3) withdrawals and delivered the money to Mrs. Fe Roa-Gimenez, private secretary
of Marcos. Gimenez issued a receipt for all the amounts she received from Tabuena. Later, it turned out
that PNCC never received the money.
The case involves two (2) separate petitions for review by Luis Tabuena and Adolfo Peralta. They appeal
the Sandiganbayan decision convicting them of malversation of MIAA funds in the amount of P55M.
Further, petitioners claimed that they were charged with intentional malversation, as alleged in the
amended information, but it would appear that they were convicted for malversation with negligence.
Hence, their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation.

ISSUE:
(1) Whether or not the Sandiganbayan convicted them of a crime not charged in the amended
information; and
(2) Whether or not Tabuena and Peralta acted in good faith.

HELD:
(1) No. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in
the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from
the mode proved, the same offense of malversation is involved.
(2) Yes. Tabuena acted in strict compliance with the MARCOS Memorandum. The order emanated from
the Office of the President and bears the signature of the President himself, the highest official of the
land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum
is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question.
However, a more compelling reason for the ACQUITTAL is the violation of the accused's basic constitutional
right to due process. Records show that the Sandiganbayan actively took part in the questioning of a
defense witness and of the accused themselves. The questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation. Tabuena and Peralta may not have
raised the issue as an error, there is nevertheless no impediment for the court to consider such matter as
additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to
review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of error or not.
The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and
Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. Time
and again the Court has declared that due process requires no less than the cold neutrality of an impartial
judge. That the judge must not only be impartial but must also appear to be impartial, to give added
assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a
minimum guaranty of due process.
HENCE, Luis Tabuena and Adolfo Peralta are acquitted of the crime of malversation.