Tabuena V Sandiganbayan
Tabuena V Sandiganbayan
Tabuena V Sandiganbayan
x x x.
Same; Same; Same; Same; While a criminal negligent act is not
a simple modality of a willful crime, but a distinct crime, designated
as a quasi-offense in the Penal Code, it may however be said that a
conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the
theory that the greater includes the lesser offense.·In Samson vs.
Court of Appeals, et al., we held that an accused charged with
willful or intentional
_______________
* EN BANC.
333
334
335
at
336
bench, 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. Obedientia est legis essentia.
Same; Same; Due Process; Criminal Procedure; An appeal in a
criminal case 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.·But what appears to be a more
compelling reason for their acquittal is the violation of the accusedÊs
basic constitutional right to due process. „Respect for the
Constitution,‰ to borrow once again Mr. Justice CruzÊs words, „is
more important than securing a conviction based on a violation of
the rights of the accused.‰ While going over the records, we were
struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves.
Tabuena and Peralta may not have raised this as an error, there is
nevertheless no impediment for us 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.
Same; Same; Same; Words and Phrases; „Confrontation,‰
„Probing,‰ and „Insinuation,‰ Explained.·Confrontation.·
Confrontation consists of confronting the witness with damaging
facts which he cannot deny and which are inconsistent with his
evidence. It is a destructive technique, but when it fails to destroy it
may still succeed in weakening. Probing.·Probing consists of
337
when the court assumes the dual role of magistrate and advocate.
·This Court has acknowledged the right of a trial judge to question
witnesses with a view to satisfying his mind upon any material
point which presents itself during the trial of a case over which he
presides. But not only should his examination be limited to asking
„clarificatory‰ questions, the right should be sparingly and
judiciously used; for the rule is that the court should stay out of it
as much as possible, neither interfering nor intervening in the
conduct of the trial. Here, these limitations were not observed.
Hardly in fact can one avoid the impression that the
Sandiganbayan had allied itself with, or to be more precise, had
taken the cudgels for the prosecution in proving the case against
Tabuena and Peralta when the Justices cross-examined the
witnesses, their cross-examinations supplementing those made by
Prosecutor Viernes and far exceeding the latterÊs questions in
length. 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.
Same; Same; Same; Supreme Court; Constitutional Law; As
between a mere apprehension of a „dangerous precedent‰ and an
actual violation of constitutionally enshrined rights, it is definitely
the latter that merits the Supreme CourtÊs immediate attention.·
Furthermore, as between a mere apprehension of a „dangerous
338
339
340
the President was entitled to receive the same. They rely on the
case of People v. Fabian, which declared that „(g)ood faith in the
payment of public funds relieves a public officer from the crime of
malversation.‰ But the very same decision also cites Article 217 to
the effect that
341
asked by the court a quo should have been scrutinized for any
possible influence it may have had in arriving at the assailed
decision. The true test for the appropriateness or inappropriateness
of court queries is not their quantity but their quality, that is,
whether the defendant was prejudiced by such questioning. To
repeat, petitioners did not feel prejudice by the trial courtÊs actions;
otherwise, they would have raised this issue in the instant petition.
342
that the P55 million was a due and demandable debt x x x.‰ This
Court has never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the old, familiar case of
People vs. Ah Chong, Mr. Justice Carson explained that ignorance
or mistake of fact, if such ignorance or mistake of fact is sufficient
to negative a particular intent which under the law is a necessary
ingredient of the offense charged (e.g., in larceny animus furandi, in
murder, malice, etc.), cancels the presumption of intent and works
an acquittal, except in those cases where the circumstances demand
a conviction under the penal provisions touching criminal
negligence. Hence, Ah Chong was acquitted when he mistook his
houseboy as a robber and the evidence showed that his mistake of
fact was not due to negligence. In the case at bar, the negligence of
the petitioners screams from page to page of the records of the case.
Petitioners themselves admitted that the payments they made were
„out of the ordinary‰ and „not based on normal procedure.‰
Same; Constitutional Law; Justifying Circumstances;
343
FRANCISCO, J.:
1
Through their separate petitions for review, Luis A.
Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for
short) appeal
2
the Sandiganbayan decision dated October
12, 1990,
3
as well as the Resolution dated December 20,
1991
____________________________
344
345
„That on or about the 10th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena
and Gerardo G. Dabao, both public officers, being then the General
Manager and Assistant General Manager, respectively, of the
Manila International Airport Authority (MIAA), and accountable
for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government,
take and misappropriate the amount of TWENTY FIVE MILLION
PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a managerÊs check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAÊs Savings
Account No. 274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City, purportedly as partial
payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there
was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managerÊs check, accused Luis
A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.‰
xxx
„That on or about the 16th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines and within the
346
Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of
the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the
only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by
applying for the issuance of a managerÊs check for said amount in
the name of accused Luis A. Tabuena chargeable against MIAAÊs
Savings Account No. 274-500-354-3 in the PNB Extension Office at
the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and
after the issuance of the above-mentioned managerÊs check, accused
Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their
personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.‰
xxx
„That on or about the 29th day of January, 1986, and for sometime
subsequent thereto, in the City of Pasay, Philippines, and within
the jurisdiction of this Honorable Court, accused Luis A. Tabuena
and Adolfo M. Peralta, both public officers, being then the General
Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA),
and accountable for public funds belonging to the MIAA, they being
the only ones authorized to make withdrawals against the cash
347
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the
Philippine National Construction Corporation, thru
this Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of
MIAAÊs account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to this
Office dated January 7, 1985 and duly approved by
this Office on February 4, 1985. Your immediate
compliance is appreciated. 4
(Sgd.) FERDINAND MARCOS.‰
____________________________
348
„MEMORANDUM
F o r : The President
F r o m: Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for
Partial Deferment of Repayment of PNCCÊs
Advances
for MIA Development Project
May I request your approval of the attached
recommendations of Minister Jesus S. Hipolito for
eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of
Air Transport (BAT) and Philippine National
349
stages of approval/evaluation:
____________________________
350
„Malacañang
Manila
Jan. 10 · P25,000,000.00
Jan. 16 · 25,000,000.00
Jan. 30 · 5,000,000.00
(Sgd.) Fe Roa-Gimenez‰
351
____________________________
„A
352
_______________
ber 27, 1953); and in ignoring several material pieces of evidence abused its
discretion (Buyco vs. People, 51 OG 7927).
Erred and committed reviewable error in ruling that petitioner was in bad
faith when he complied with the presidential order to pay; in thus concluding
the Sandiganbayan indulged in speculations and conjectures (Joaquin vs.
Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs.
Alco, L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that
petitioner is entitled to justifying circumstance under Par. 6, Art. 11, and/or the
exempting circumstance provided under Pars. 5 and 6 of Art. 12 of the Revised
Penal Code.
Erred and committed reviewable error in ruling that petitioner was unable
to account for the money. In so doing, the Sandiganbayan contradicted the
ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in holding petitioner
accountable for acts not charged in the amended informations, and in so doing
convicted him without jurisdiction.
Erred and committed reviewable error in ruling that petitioner was not
entitled to immunity as provided by Sec. 17, Article VII of the 1973
Constitution. The Sandiganbayan therefore had no jurisdiction to try the cases.
353
____________________________
ly shifted the burden of proof and denied petitioner the benefits of the
presumption of innocence, of Secs. 1 and 2, Rule 131, and the absence of
demand under the last paragraph of Art. 217 of the Revised Penal Code.‰
Peralta for his part claim that:
354
„x x x xxx xxx
On the contrary, what the evidence shows is that accused
Tabuena delivered the P55 Million to people who were not entitled
thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted
____________________________
7 Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
8 Citing Tubb v. People, 101 Phil. 114.
9 197 SCRA 94.
355
356
„To constitute a crime, the act must, except in certain crimes made
such by statute, be accompanied by a criminal intent, or by such
negligence or indifference to duty or to consequences as, in law, is
equivalent to criminal intent. The maxim is actus non facit reum,
nisi mens sit rea·a crime is not committed if the mind of the
person performing the act complained of is innocent.‰
12
The rule was reiterated in „People v. Pacana,‰ although
this case involved falsification of public documents and
estafa:
„Ordinarily, evil intent must unite with an unlawful act for there to
be a crime. Actus non facit reum, nisi mens sit rea. There can be no
crime when the criminal mind is wanting.‰
____________________________
10 18 Phil. 504.
11 24 Phil. 230.
12 47 Phil. 48.
13 Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221
Ind. 101, 46 N.E. [2d] 592; State v. Schmidt, 72 N. Dak.
357
____________________________
719, 10 N.W. [2d] 868. UnderhillÊs Criminal Evidence, 5th Ed., Book 3,
p. 1421.
14 Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.
15 Section 8, Article VII of the 1973 Constitution provides:
358
Thus:
Âx x x
To allow PNCC to collect partially its billings, and in consideration of
its pending escalation billings, may we request for His ExcellencyÊs
approval for a deferment of repayment of PNCCÊs advances to the extent of
_______________
359
„ATTY. ANDRES
Q Can you please show us in this Exhibit „7‰ and „7-a‰
where it is indicated the receivables from MIA as of
December 31, 1985?
A As of December 31, 1985, the receivables from MIA is
shown on page 2, marked as Exhibit „7-a,‰ sir,
P102,475,392.35.
19
xxx xxx x x x.‰
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations
represent?
____________________________
360
WITNESS
A These obligations represent receivables on the basis of
our billings to MIA as contract-owner of the project that
the Philippine National Construction Corporation
constructed. These are billings for escalation mostly,
sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to
____________________________
361
____________________________
principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte,
no crea por si solo ninguna responsabilidad. Si antes de insertar dicha palabra
en el referido documento, o al tiempo de hacerlo, el recurrente hubiese sabido o
sospechado de alguna manera que era para justificar un acto impropio de su
principal, cosa que, pro cierto, no se ha probado, ni puede desprenderse de la
decision impugnada, indudablemente podria hacersele responsable a dicho
recurrente, de la falsificacion cometida, si no como coautor, por lo menos como
25 Decision, p. 45.
362
____________________________
363
_______________
364
____________________________
29 People v. Fabian, No. 10790-CR, March 12, 1973, 69 O.G. 12150, No.
53.
365
„No conspiracy between the appellant and his secretary has been
shown in this case, nor did such conspiracy appear in the case
against Urbina. No guilty knowledge of the theft committed by the
secretary was shown on the part of the appellant in this case, nor
does it appear that he in any way participated in the fruits of the
crime. If the secretary stole the money in question without the
knowledge or consent of the appellant and without negligence on
his part, then certainly the latter can not be convicted of embezzling
32
the same money or any part thereof.‰
____________________________
30 18 Phil. 428.
31 197 SCRA 262.
32 Supra, p. 431.
366
there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt
by the MWSS, must be converted into evidence before conviction
33
beyond reasonable doubt may be imposed.‰
„We reject history in arbitrarily assuming that the people were free
during the era and that the judiciary was independent and fearless.
We know it was not; even the Supreme Court at that time was not
free. This is an undeniable fact that we can not just blink away.
Insisting on the contrary would only make our sincerity sus-
____________________________
33 Supra, p. 273.
367
pect and even provoke scorn for what can only be described as our
34
incredible credulity.‰
____________________________
368
(MONERA)
____________________________
38 See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
39 See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
40 Confrontation.·Confrontation consists of confronting the witness
with damaging facts which he cannot deny and which are inconsistent
with his evidence. It is a destructive technique, but when it fails to
destroy it may still succeed in weakening.
Probing.·Probing consists of inquiring thoroughly into the details of
the story to discover the flaws.
Insinuation.·Insinuation consists of leading or forcing the witness by
369
370
*AJ AMORES
*Q Were there partial payments made by MIA on these
escalation billings?
A Based on records available as of today, the P102
million was reduced to about P56.7 million, if my
recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986,
since Mr. Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but
I think the payments were made before the entry of
our President, your Honor. Actually, the payment was
in the form of: assignments to State Investment of
about P23 million; and then there was P17.8 million
application against advances made or formerly given;
and there were payments to PNCC of about P2.6
million and there was a payment for application on
withholding and contractual stock of about P1 million;
that summed up to P44.4 million all in all. And you
deduct that from the P102 million, the remaining
balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made
on this P102 million, only P2 million had been
payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts,
assignments of accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your
Honor, but the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less,
by which the basic account has been reduced. These
reductions, whether by adjustment or assignment or
actual delivery of cash, were made after December 31,
1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and
payments were made?
A Yes, your Honor.
371
*AJ AMORES
*Q You said there were partial payments before of these
escalation billings. Do we get it from you that there
was an admission of these escalation costs as computed
by you by MIA, since there was already partial
payments?
A Yes, your Honor.
*Q How were these payments made before February 1986,
in cash or check, if there were payments made?
A The P44 million payments was in the form of
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372
373
374
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash
equivalent or of adjustment of account, or by
assignment, or by offsets, when did these payments
begin?
A Per ledger card, there were payments in 1985, prior to
December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a
375
PJ GARCHITORENA
The witness is excused.
41
Thank you very much Mr.
Monera. x x x.‰
(TABUENA)
____________________________
41 TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.
376
receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it
is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this
Exhibit „3‰?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt
Exhibit „3‰?
377
378
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and
second deliveries?
A Because I know that the delivery was not completeÊ
yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was
P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr.
Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we
will also present the accused, your Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the PresidentÊs
memorandum marked Exhibit „1‰? Or more precisely,
who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what purpose the
money was being asked?
A The money was in payment for the debt of the MIA
Authority to PNCC, your Honor.
*Q If it was for the payment of such obligation why was
there no voucher prepared to cover such payment? In
other words, why was the delivery of the money not
covered by any voucher?
A The instruction to me was to give it to the Office of the
President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover
this particular disbursement?
379
WITNESS
A No, your Honor, I was just following the Order to me of
the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the manner with
which such payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I
followed, your Honor.
*Q Before receiving this memorandum Exhibit „1,‰ did the
former President Marcos discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he
wants to me pay what I owe the PNCC directly to his
office in cash, your Honor.
*PJ GARCHITORENA
*Q By „I OWE,‰ you mean the MIAA?
WITNESS
380
*Q And was that the last time also that you received such
a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least
from Mrs. Gimenez why this procedure has to be
followed instead of the regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an „I OWE YOU‰?
381
independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18
years?
WITNESS
A Yes, your Honor.
382
*Q And prior to your joining the MIA, did you ever work
for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA
in 1968 as its Manager was your first employment with
the government?
A Yes, your Honor.
Q While you were Manager of MIA, did you have other
subsequent concurrent positions in the government
also?
A I was also the Chairman of the Games and
Amusement Board, your Honor.
*Q But you were not the executive or operating officer of
the Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and
Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you
occupy that time?
A I was also Commissioner of the Game Fowl
Commission, your Honor.
*PJ GARCHITORENA
383
384
your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas
Boulevard with P25 million in the trunk of you car?
385
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car;
only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only.
How much more with P5 million inside the trunk of
your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused.
x x42
x.‰
(PERALTA)
____________________________
42 TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.
386
387
388
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes,
sir.
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was
placed at the trunk of the car of Mr. Tabuena, I was
left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at
passed 5:00 oÊclock in the afternoon?
A I started counting it I think at around 4:30, sir. It was
after office hours. But then I was there at around 4:00
oÊclock and we started counting at around 4:30 p.m.
because they have to place it in a room, which is the
office of the Manager at that time.
Q And Mr. Tabuena left for Malacañang after 5:00
oÊclock in the afternoon of that date?
A Yes, sir. After we have counted the money, it was
placed in the peerless boxes and Mr. Tabuena left for
Malacañang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over–stayed for one (1) or two (2) hours just
to finish the paper works in the office, sir.
Q So, even if it was already after 5:00 oÊclock in the
afternoon, you still went back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation
with the PNCC had to be paid in cash?
389
WITNESS
A Based on the order of President Marcos that we should
pay in cash, it was not based on the normal procedure,
your Honor.
*Q And, as Acting Financial Services Manager, you were
aware that all disbursements should be covered by
vouchers?
A Yes, your Honor, the payments should be covered by
vouchers. But then, inasmuch as what we did was to
pre pare a request to the PNB, then this can be
covered by Journal Voucher also.
390
391
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why
did you allow a disbursement by means of check in
favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena
because that was the order of President Marcos to pay
PNCC through the Office of the President and it
should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you
consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the
question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may
answer.
WITNESS
A The order of president Marcos was legal at that time
because the order was to pay PNCC the amount of P5
million through the Office of the President and it
should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D.
wherein the President of the Republic of the
Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at
that time.
*AJ HERMOSISIMA
392
393
394
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but
he was not an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have
different officers and different officials in any company
either government or private, which are supposed to
check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they
are made by authority of not only one person alone so
that nobody will restrain him?
A Yes, your Honor.
395
396
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43 TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
44 US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v.
Binayao, 35 Phil. 23.
45 People v. Opida, 142 SCRA 295.
46 York v. US, 299 Fed. 778.
397
398
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in
the Journals to correct certain statements of accounts
earlier made in the same journal?
xxx
*Q In other words, really what you are telling us is that, a
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purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each
other?
*Q In your case, you would be the counter check for Mr.
Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager,
you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, „I am
sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it.‰, if in your
opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise
your judgment as to the propriety of a particular
transaction?
*Q And this is something you know by the nature of your
position and because
47
you are a Certified Public
Accountant?‰
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47 TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.
48 People v. Opida, supra.
402
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403
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404
405
DISSENTING OPINION
In the case at bench, 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. Obedientia est legis essentia . . . .
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406
I
I shall first take up the third.
The ponencia admits that the appellants did not raise as
an issue the SandiganbayanÊs violation of their right to due
process; nevertheless, it ruled that such failure is not an
impediment to the consideration of the violation „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
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407
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4 Citing People v. Olfindo, 47 Phil. 1 (1924), citing U.S. vs. Abijan, 1 Phil. 83
[1902]; People vs. Borbano, 76 Phil. 703 [1946]; Perez v. Court of Appeals, 127
SCRA 636 [1984].
408
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409
every conceivable right, it is the general rule that a person may waive
any matter which affects his property, and any alienable right or
privilege of which he is the owner or which belongs to him or to which he
is legally entitled, whether secured by contract, conferred with statute, or
guaranteed by constitution, provided such rights and privileges rest in
the individual, are intended for his sole benefit, do not infringe on the
rights of others, and further provided the waiver of the right or privilege
is not forbidden by law, and does not contravene public policy; and the
principle is recognized that everyone has a right to waive, and agree to
waive, the advantage of a law or rule made solely for the benefit and
protection of the individual in his private capacity, if it can be dispensed
with and relinquished without infringing on any public right, and
without detriment to the community at large. x x x
Although the general rule is that any right or privilege conferred by
statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would be
against public policy or morals and the public interest may be waived.
While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitution may be waived, it has also
been said that constitutional provisions intended to protect property may
be waived, and even some of the constitutional rights created to secure
8
personal liberty are subjects of waiver.
9
In Commonwealth vs. Petrillo, it was held:
____________________________
410
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411
II
I also disagree with the view of the majority that all the
requisites of the sixth justifying circumstance in Article 11
of the Revised Penal Code are present. I submit that the 8
January 1986 Memorandum of President Marcos can by no
means be considered a „lawful‰ order to pay P55 million to
the PNCC as alleged partial payment of the MIAAÊs
account to the former. The alleged basis of such
Memorandum is the 7 January 1985 Memorandum of
Trade and Industry Minister Roberto Ongpin, which even
confirms the absence of any factual basis for the order of
payment of P55 million:
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412
There has been no funding allocation for any of the above escalation
claims due to budgetary constraints.
The MIA Project has been completed and operational as far back
as 1982 and yet residual amounts due to PNCC have not been paid,
resulting in undue burden to PNCC due to additional cost of money
to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in
consideration of its pending escalation billings, may we request for
His ExcellencyÊs approval for a deferment of the repayment of
PNCCÊs advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which
P32.5 million has been officially recognized by MIADP consultants
but could not be paid due to lack of fundings.
Our proposal will allow BAT to pay PNCC the amount of P34.5
million out of existing MIA Project funds. This amount represents
the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million.
413
III
Not an iota of good faith was shown in the conduct of the
appellants.
Being responsible accountable officers of the MIAA, they
were presumed to know that, in light of „the undeferred
portion of the repayment‰ of PNCCÊs advances in the
amount of P63.9 million, the MIAAÊs unpaid balance was
only P34.5 million. They also ought to know the procedure
to be followed in the payment of contractual obligations.
First and foremost there were the submission by the PNCC
of its claims with the required supporting documents and
the approval of the claims by the appropriate approving
authority of MIAA. When then President Marcos ordered
immediate payment, he should not have been understood
as to order suspension of the accepted budgeting,
accounting, and auditing rules on the matter.
414
DISSENTING OPINION
ROMERO, J.:
415
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416
____________________________
3 Reyes, The Revised Penal Code, I, 1993, pp. 203-204; Kapunan and
Faylona, Criminal Law, 1993, p. 82.
417
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418
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419
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420
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421
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422
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423
424
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425
426
427
428
429
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26 Supra.
27 ART. 217. Malversation of public funds or property.·Presumption of
malversation.·Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, . . . .
(Emphasis supplied)
430
„x x x xxx xxx
When they begin to think of how much power they possess, help
them to know the many things that are beyond their power·the
change of seasons, sun and rain, moonlight and starlight and all the
wonders of Your creation;
When they are led to believe that they are exempt from public
accountability, help them to know that they are ultimately
accountable to You, the God of truth and justice and mercy;
xxx xxx x x x.‰
counsels propounded.
While such numbers unduly disturbed the ponente, it
cannot be gainsaid that such action by the members of the
First
431
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432
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433
DISSENTING OPINION
PUNO, J.:
I
It should be immediately stressed that petitioners were
convicted of the crime of malversation by negligence. The
felony was committed by petitioners not by means of deceit
(dolo) but by fault (culpa). According to Article 3 of the
Revised Penal Code, there is fault when the wrongful act
results from imprudence, negligence, lack of foresight, or
lack of skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that committed
by fault in this wise: „x x x In intentional crimes, the act
itself is punished; in negligence or imprudence, what is
principally penalized is the mental attitude or condition
behind the act, the dangerous
434
recklessness,
1
lack of care or foresight, the imprudencia
punible.‰
In light of this well-carved distinction, the long discourse
of the majority decision hailing petitionersÊ good faith or
lack of intent to commit malversation is off-line. To justify
the acquittal of petitioners, the majority should strive to
show that petitioners did not commit any imprudence,
negligence, lack of foresight or lack of skill in obeying the
order of former President Marcos. This is nothing less than
a mission impossible for the totality of the evidence proves
the utter carelessness of petitioners in the discharge of
their duty as public officials. The evidence and their
interstices are adequately examined in the dissent of
Madame Justice Romero and they need not be belabored.
____________________________
435
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436
II
The determination of the degree of participation that
should be allowed to a judge in the questioning of a witness
is a slippery slope in constitutional law. To a certain extent,
I agree with the majority that some of the questions
propounded by the justices of the respondent Court crossed
the limits of propriety. Be that as it may, I am not prepared
to conclude with certainty that the text and tone of the
questions denied petitioners the right to an impartial trial.
Bias is a state of mind which easily eludes evidence. On the
basis of the evidence before us, we cannot hold that we
have plumbed the depth of prejudice of the justices and
have unearthed their partiality. The more telling evidence
against the petitioners are documentary in nature. They
are not derived from the answers elicited by questions from
the justices which the majority, sua sponte, examined and
condemned as improper.
III
Finally, I can not but view with concern the probability that
the majority decision will chill complaints against graft
pending before the respondent Court. From the majority
decision, it is crystalline that petitioners blindly obeyed the
Marcos Memorandum despite its fatal and facial flaws. The
majority even quotes 4 these inculpatory admissions of
petitioner Tabuena, viz:
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437
„x x x
„AJ del Rosario
„x x x
„Q If it was for the payment of such obligation why was
there no voucher to cover such payment? In other
words, why was the delivery of the money not covered
by any voucher?
„A The instruction to me was to give it to the Office of the
President, your Honor.
„PJ Garchitorena
„Q Be that as it may, why was there no voucher to cover
this particular disbursement?
„A I was just told to bring it to the Office of the President,
your Honor.
„AJ del Rosario
„Q Was that normal procedure for you to pay in cash to
the Office of the President for obligations of the MIAA
in payment of its obligation to another entity?
„A No, you Honor, I was just following the Order to me of
the President.
„PJ Garchitorena
„Q So the Order was out of the ordinary?
„A Yes, your Honor.
„AJ del Rosario
„Q Did you file any written protest with the manner with
which such payment was being ordered?
„A No, your Honor.
„Q Why not?
„A Because with that instruction of the President to me, I
followed your Honor.
„x x x
„AJ Hermosisima
438
DISSENTING OPINION
PANGANIBAN, J.:
439
1
dated October 1, 1946, forcefully debunked this Nazi
argument and clearly ruled that „(t)he true test x x x is
not the existence of the order but whether moral choice
was in fact possible.‰
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440
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lion,‰ explained Mr. Ongpin. Even if the P30 million advances which
Pres. Marcos is claimed to have authorized PNCC to retain, is added to
this „net amount due‰ of P4.5 million, the total would run up to only
P34.5 million·still P20.5 million shy of the P55 million actually
disbursed.
4 In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were
admonished to follow „established laws, doctrines and precedents.‰
Hence, „once a case has been decided one way, then another case
involving exactly the same point at issue should be decided in the same
manner.‰ Tay Chun Suy vs. Court of Appeals, 229 SCRA 151, 163,
January 7, 1994.
5 In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court
expressly held that Section 19, Article VII of the present Constitution
prohibits the presidential grant of pardon unless there is „conviction by
final judgment‰ of the accused.
441
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