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 Go’s 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),1 declaring 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 build-operate-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, PIATCO’s 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 Court’s 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 Asia’s 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 match the latter’s 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 latter’s default
specifically Article IV, Section 4.04 (c) in relation to 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 Pesayco’s
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 Pesayco’s 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 Rivera’s Motion
for Judicial Determination (Re-Determination) of Probable Cause and Motion to Dismiss and
petitioner Go’s Motion to Quash.

The Sandiganbayan ruled that, contrary to the prosecution’s submission, it could still entertain
petitioner Go’s Motion to Quash 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 Go’s 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 Go’s 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 Sandiganbayan’s 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 Go’s 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 Go’s simplistic syllogism,
i.e., he is not a public officer ergo he cannot be 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 law’s 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 co-accused 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 Go’s
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 anti-graft 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 Court’s ruling in Marcos in its proper factual backdrop. The
acquittal of the former First Lady should be taken in the context of the Court’s 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 Court’s 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 Lady’s 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
the former First Lady’s 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
Lady’s conviction was based 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 Lady’s 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 Go’s case are, therefore, not exactly on all
fours as those of the former First Lady’s case as to warrant the application of the Marcos ruling in his
case.

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-à-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 "[T]he accused

the government 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

3. The contract or transaction is grossly and manifestly "xxx which ARCA

disadvantageous to the government 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 latter’s
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

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.  While it may indeed be true that
1awphi1.nét

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 Ombudsman’s 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.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
 MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO
Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1
 450 Phil. 744 (2003).

2
 An Act Authorizing the Financing, Construction, Operation and Maintenance of
Infrastructure Projects by the Private Sector.

3
 Supra, note 1, pp. 840-841.

4
 The provision reads:

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.

5
 Rollo, pp. 103-104.
6
 Rollo, p. 63.

7
 Id. at 17.

 Luciano v. Estrella, 145 Phil. 448 (1970); Ingco v. Sandiganbayan, 338 Phil. 1061 (1997);
8

Dans, Jr. v. People, 349 Phil. 434 (1998).

9
 357 Phil. 762 (1998).

10
 Petitioner Go cites, among others, the definition in Section 2 of RA 3019:

Sec. 2. Definition of Terms. – As used in this Act, the term –

(b) "Public Officer" includes elective and appointive officials an employees,

permanent or temporary, whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the government as defined in the
subparagraph."

Article 203 of the Revised Penal Code was also cited:

Art. 203. Who are public officers. – For the purpose of applying the provisions of this
and the preceding titles of the book, any person who by direct provision of the law,
popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee,
agent or subordinate official, of any rank or class, shall be deemed to be a public
officer.

11
 Quoting REYES, THE REVISED PENAL CODE: BOOK TWO (15th ed.), p. 451.

12
 The provision reads:

SEC. 3. x x x

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions 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.

13
 The elements of the offense defined in Section 3(e) of RA 3019 are:

(1) That the accused are public officers or private persons charged in conspiracy with
them;

(2) That the said public officers committed the prohibited acts during the performance
of official duties in relation to their public positions;

(3) That they caused undue injury to any party, whether the government or a private
party;
 (4) That such injury was caused by giving unwarranted benefits, preference or
advantage to such parties; and

(5) That the public officers acted with manifest partiality, evident bad faith or gross
inexcusable negligence. (Citing, among others, Dela Chica v. Sandiganbayan, G.R.
No. 144823, December 8, 2003, 417 SCRA 242).

14
 Supra note 8.

15
 Supra note 8.

16
 Id. at 464-465.

17
 G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348.

18
 G.R. No. 149175, October 25, 2005, 474 SCRA 203.

19
 Id. at 215.

20
 Supra note 9.

21
 Supra note 8.

22
 437 Phil. 117 (2002).

23
 Andres v. Cuevas, G.R. No. 150869, June 9, 2005, 460 SCRA 38.

24
 Singian v. Sandiganbayan, supra note 17.

25
 Domingo v. Sandiganbayan, supra note 18.

26
 Cabrera v. Sandiganbayan, G.R. Nos. 162314-17, October 24, 2004, 441 SCRA 377.

27
 Comment, p. 22; rollo, p. 369.

28
 Rollo, pp. 67-68.

29
 Villanueva v. Ople, G.R. No. 165125, November 18, 2005, 475 SCRA 539.

30
 Id. at 551.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

YNARES-SANTIAGO, J.:
At the outset, it must be stated that the issue here is not whether Republic Act (R.A.) No. 3019
applies as well to private persons. This issue has long been settled considering the avowed purpose
of R.A. No. 3019 which is to repress certain acts of public officers and private persons constituting
graft or corrupt practices or which may lead thereto. The real issue here is whether petitioner Go,
who is a private individual, may be properly indicted under Section 3(g).

I maintain that petitioner Henry T. Go cannot be validly charged with violation of Section 3(g) of R.A.
No. 3019 which provides:

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:

xxxx

(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.

To be indicted of the offense under Section 3(g) of R.A. No. 3019, the following elements must be
present:

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.1

As to the first element, petitioner is not a public officer within the purview of the law. It follows that he
cannot enter into contract or transaction on behalf of the government. In Sajul v.
Sandiganbayan,2 only the public officers were charged with violation of Section 3(g). The private
individuals were not included in the indictment.

To reiterate, this is not to say that R.A. No. 3019 does not punish private individuals. However, it
must be stressed that Section 3 of R.A. No. 3019 refers only to corrupt practices of public
officers whereas Section 4 of the same law provides for the prohibition on private individuals. Under
the last paragraph of Section 3 and Section 4, private persons are liable together with public officers,
for the following specific acts, to wit:

SEC. 3. Corrupt practices of public officers. – xxx

xxxx

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and
(c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or
urging the divulging or untimely release of the confidential information referred to in subparagraph
(k) of this section shall, together with the offending public officer, be punished under Section nine of
this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from
transacting business in any form with the Government.
SEC. 4. Prohibition on private individuals. – (a) It shall be unlawful for any person having family or
close personal relation with any public official to capitalize or exploit or take advantage of such family
or close personal relation by directly or indirectly requesting or receiving any present, gift or material
or pecuniary advantage from any other person having some business, transaction, application,
request or contract with the government, in which such public official has to intervene. Family
relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The
word "close personal relation" shall include close personal relationship, social and fraternal
connections, and professional employment all giving rise to intimacy which assures free access to
such public officer.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any
of the offenses defined in Section 3 hereof.

The information in the instant case does not specify with particularity the violation or prohibited acts
which may have been committed by the petitioner under the abovementioned provisions. Petitioner,
who is a private individual, is only charged with having conspired with Rivera in entering into a
contract which is manifestly and grossly disadvantageous to the government. Aside from this
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.

It is well-settled that penal statutes are strictly construed against the State and liberally for the
accused, so much so that the scope of a penal statute cannot be extended by good intention or by
implication. Evidence of guilt must be premised upon a more knowing, personal and deliberate
participation of each individual who is charged with others as part of a conspiracy.3 Although the
accused are tried jointly, their guilt should remain individual and personal.

There is no question that the Sandiganbayan may exercise jurisdiction over private individuals, but it
may only do so upon information alleging with specificity the precise violations of that private
individual. The liability of private individuals should not be made to depend on whether the facts
alleged in the information against the public officer constituted a crime under Section 3(g) of R.A.
No. 3019. Rather, it should be made to depend on whether the facts alleged in the information
support a prima facie finding that the private individual conspired with the public officer, or that he
knowingly induced the accused public official to commit the crime charged.

In the case of Luciano v. Estrella,4 the information precisely charged accused public officials and
private persons with violation of Sections 3(g) and 4(b). Thus, Jose Gutierrez and Franco A.
Gutierrez, as private persons, were charged with violation of "Section 3(g) and 4(b)," to wit:

On 18 January 1969, Maximo Estrella, Teotimo Gealogo, Justino Ventura, Pedro Ison, Ignacio
Babasa, Bernardo Nonato, Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo, Lutgardo
Ambrosio, Ciriaco Alano, Gualberto San Pedro, Jose Gutierrez, Franco A. Gutierrez were charged
with violation of Section 3-G and 4-B of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act)
in an information reading as follows:

"That on or about July 26, 1967, and for sometime prior and subsequent thereto, in the Municipality
of Makati, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, Maximo Estrella, then the Municipal Mayor of Makati, Rizal; Teotimo
Gealogo, Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato, then Municipal Councilors
of Makati, Rizal; Eduardo S. Francisco, then Municipal Treasurer of Makati, Rizal; Cirilo Delmo, then
Assistant Municipal Treasurer of Makati, Rizal; Lutgardo Ambrosio, then Chief of Traffic Control
Bureau, Makati Police Department; Ciriaco Alano, then confidential Private Secretary to the
Municipal Mayor, Gualberto San Pedro, then Provincial Auditor of the Province of Rizal; Jose
Gutierrez and Franco A. Gutierrez, owner and/or representatives of the JEP Enterprises,
respectively, conspiring and confederating together, did, then and there, willfully, unlawfully and
feloniously, on behalf of the Municipal Government of Makati, Rizal, enter into a contract or
transaction with the JEP Enterprises, represented by Jose Gutierrez and Franco A. Gutierrez, for the
delivery and installation by the JEP Enterprises to the Municipal Government of Makati, Rizal of fifty-
nine (59) units of traffic deflectors valued at ONE THOUSAND FOUR HUNDRED AND TWENTY-
SIX PESOS AND FIFTY CENTAVOS (P1,426.60) each unit, that thirty-four (34) units were
delivered, installed and paid for by the Municipality of Makati in favor of the JEP Enterprises in the
amount FORTY-EIGHT THOUSAND EIGHT HUNDRED FORTY ONE PESOS (P48,841.00), less
ten percent (10%) retention, which contract or transaction is manifestly and grossly disadvantageous
to the Municipal Government of Makati, Rizal, to the damage and prejudice of the latter.

"That Jose Gutierrez and Franco [C.] Gutierrez, being the owner, manager and/or representatives of
the JEP Enterprises, being private persons, did knowingly induce or cause the above-mentioned
public officials and officers to enter into the aforementioned contract or transaction."5 (Underscoring
supplied)

By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of Public
Officials) of the Revised Penal Code. In Direct Bribery, the public officer agrees to perform an act
either constituting or not constituting a crime, in consideration of any offer, promise, gift or present
received by such officer. Significantly, only the public officer may be indicted under and be held
liable for Direct Bribery under Article 210, while the person who conspired with the public officer, who
made the promise, offer, or gave the gifts or presents, may be indicted only under Article 212 for
Corruption of Public Officials, regardless of any allegation of conspiracy.

Indeed, it is axiomatic that all conspirators are criminally liable as co-principals. However, they may
not be necessarily charged with violation of the same offense. The public officer may be charged
under one provision while the private person is indicted under a different provision, although the
offenses originate from the same set of acts. Thus, the public officer may be accused of Direct
Bribery while the private person may be charged with corruption of public officials.

In the same manner, a public officer may be charged with violation of Section 3(g) of R.A. No. 3019
while the private person is charged under Section 4(b) of the same law, based on the same set of
conspiratory acts.

In the instant case, petitioner is charged with conspiring with Rivera when he signed the ARCA
which is manifestly disadvantageous to the government. However, the information is fatally defective
and infirm as far as petitioner is concerned.

Our ruling in Sistoza v. Desierto6 is pertinent, to wit:

It is also too sweeping to conclude the existence of conspiracy from the endorsements made by
petitioner Sistoza to the Department of Justice of the result of the bidding. Fairly evident is the fact
that this action involved the very functions he had to discharge in the performance of his official
duties. Furthermore, contrary to the allegation that petitioner misrepresented key facts to the
Department of Justice, it is clear that his references to the price offered by Elias General
Merchandising and the rejection of the bid of Filcrafts Industries, Inc., were supported by documents
noted in and attached to his endorsements. Hence, there was no way by which the approving
authority, i.e., the Department of Justice, could have been misled by him. Clearly, to prosecute him
for violation of Sec. 3, par. (e), RA 3019, on the basis of his endorsements would be the same as
pegging his criminal liability on a mere signature appearing on the document. In Sabiniano v. Court
of Appeals we held that a signature on a voucher, check or warrant, even if required by law to be
affixed thereon, is not enough to sustain a finding of conspiracy among public officials and
employees charged with defraudation. We further ruled –

x x x Proof, not mere conjectures or assumptions, should be proffered to indicate that the accused
had taken part in, to use this Court's words in Arias v. Sandiganbayan, the "planning, preparation
and perpetration of the alleged conspiracy to defraud the government" for, otherwise, any "careless
use of the conspiracy theory (can) sweep into jail even innocent persons who may have (only) been
made unwitting tools by the criminal minds" really responsible for that irregularity x x x.

There is no dispute that R.A. No. 3019 was enacted in line with the government’s policy to repress
certain acts of public officers as well as private persons. What I am saying, however, is that
petitioner Go may not be validly charged under Sec. 3(g) alone because it covers only the public
officers.

I disagree with the ponencia in holding that petitioner’s reliance on Marcos v. Sandiganbayan7 was
misplaced. In that case, former First Lady Imelda R. Marcos and Jose P. Dans, Jr. were charged
with violation of Section 3(g) of R.A. No. 3019. The Information alleged:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R.
MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman,
respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under
Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their
official functions, taking advantage of their positions and committing the crime in relation to their
offices, did then and there willfully, unlawfully and criminally conspiring with one another, enter on
behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property
located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private
enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.
(Emphasis supplied)

After trial, the Sandiganbayan convicted Marcos and Dans, Jr. of the offense charged. On appeal,
this Court in its Decision dated June 29, 1998, affirmed the conviction of Marcos but acquitted Dans,
Jr. Hence, Marcos filed a motion for reconsideration raising the issue of whether all the elements of
Section 3(g) have been duly substantiated. In acquitting Marcos, the Court noted that the Information
specifically charged Marcos of violation of Section 3(g) because she allegedly signed the subject
Lease Agreement as a public officer in her capacity as Vice-Chairman of the LRTA. However,
perusal of the subject Lease Agreement showed that Marcos signed in her capacity as Chairman of
Philippine General Hospital Foundation, Inc. (PGHFI), a private charitable institution, and not as a
public officer. Thus, the first element of Section 3(g) is wanting. The Court held that:

The pivot of inquiry here is whether all the elements of the offense charged have been duly
substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease
Agreement marked Exhibit "B" as a public officer? As clearly stated on the face of the subject
contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as
Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed
said Contract, as ex-officio Vice-Chairman of LRTA. Although petitioner was the ex-officio Chairman
of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors
of LRTA authorized and approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that
petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA
3019 and, therefore, the first element of the offense charged is wanting.

No less than the Constitution ordains that the accused must be properly and sufficiently informed of
the nature of the accusation filed against him. In the instant case, Go should be charged under
Section 4(b), in relation to Sec. 3(g) of R.A. No. 3019, as it properly pertains to private individuals, to
wit:

Section 4. x x x

(b) It shall be unlawful for any person knowingly to induce or cause any public official to
commit any of the offenses defined in Section 3 hereof. (Emphasis supplied)

An accused’s right to be informed of the nature and cause of the charges against him is
constitutionally enshrined, for an accused cannot be convicted of an offense, unless it is clearly
charged in the complaint or information. To reiterate, the Information lumping the public official,
Former DOTC Secretary Vicente Rivera, and the private individual, petitioner Go, is legally infirm as
Section 3(g) can only be violated by a public officer. Any private individual accused to have
conspired with a public officer in violating Section 3(g), must be charged under the proper provision
of the law. The acts for which private persons can be charged together with the public officials are
enumerated in the last paragraph of Section 3 and Section 4, paragraphs (a) and (b) of R.A. No.
3019. It is reiterated that for the Information against Go to be sufficient in form and substance, he
should be charged with specificity for violation of Section 4(b) in relation to Section 3(g).

Indeed, there is a need to ferret out and expel corrupt public officers8 and to punish the private
individuals who abet their illegal activities. However, the remedy is not to indict and jail every person
who happens to be a signatory in a contract9 as in the instant case, which later on is proved to be
manifestly disadvantageous to the government.

ACCORDINGLY, I vote that the petition be GRANTED and the Resolutions dated December 6,
2005 and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092
be REVERSED and SET ASIDE.

CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes

1
 Singian, Jr. v. Sandiganbayan, G.R. Nos. 160577-94, December 16, 2005, 478 SCRA 348,
359.

2
 G.R. No. 135294, November 20, 2000, 345 SCRA 248.

3
 Sistoza v. Desierto, 437 Phil. 117, 122.

4
 G.R. No. L-31622, August 31, 1970, 34 SCRA 769.
5
 Id. at 771-772.

6
 Supra note 3 136.

7
 357 Phil. 762 (1998).

8
 Sistoza v. Desierto, supra note 3 at 120.

9
 Id.