CRIMINAL LAW REVIEW

CASE DIGESTS

MIDTERMS

PART I. DANGEROUS DRUGS CASES

PEOPLE OF THE PHILIPPINES vs. SUSANA NAPAT-A LOSS OF EXHIBITS IS INCONSEQUENTIAL— The subsequent loss of exhibits (box and marijuana leaves) did not affect the case for the trial court had described the evidence in the records. In People vs Mate, 103 SCRA 484, we ruled that "even without the exhibits which have been incorporated into the records of the case, the prosecution can still establish the case because the witnesses properly identified those exhibits and their testimonies are recorded." Furthermore, in this case, appellant's counsel had cross-examined the prosecution witnesses who testified on those exhibits.

SR. INSP. JERRY C. VALEROSO vs. THE PEOPLE OFTHE PHILIPPINESIn illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the samedoes not have the corresponding license for it.

The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. The prosecution more than complied when it presented both.

Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence.

We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence.

THE PEOPLE OF THE PHILIPPINES vs. ANSON ONGFor the prosecution of illegal sale of drugs to prosper, the following elements must be proved: (1) the identity of the buyer and seller, the object, and the consideration;and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction actually took place, coupled with the presentation before the court of the corpus delicti.

In determining the credibility of prosecution witnesses regarding the conduct of buybust operation, the "objective test," as laid down in People v. Doria, 28 is utilized. It has been held that it is the duty of the prosecution to present a complete picture detailing the buy-bust operation — from the initial contact between the poseurbuyer and the pusher, the offer to purchase, the promise or payment of the consideration, until the consummation of the sale by the delivery of the illegal subject of sale. The manner by which the initial contact was made, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug must be the subject of strict scrutiny by courts to ensure that law abiding citizens are not unlawfully induced to commit an offense.

In the case at bar, the evidence for the prosecution failed to prove all the material details of the buy-bust operation. The details of the meeting with the informant, the alleged source of the information on the sale of illegal drugs, appear hazy.

MICHAEL PADUA vs. PEOPLE OF THE PHILIPPINESPadua was charged and convicted for violation of Section 5, Article II of Rep. Act No. 9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug trafficking cannot avail of the privilege of probation.

Padua cannot argue that his right under Rep. Act

No. 9344, the "Juvenile Justice and Welfare Act of 2006" was violated. Nor can he argue that Section 32 of A.M. No. 02-1-18-SC otherwise known as the "Rule on Juveniles in Conflict with the Law" has application in this case. Section 68 36 of Rep. Act No. 9344 and Section 32 of A.M. No. 02-1-18-SC both pertain to suspension of sentence and not probation.

Furthermore, suspension of sentence under Section 38 37 of Rep. Act No. 9344 could no longer be retroactively applied for petitioner's benefit. Section 38 of Rep. Act No. 9344 provides that once a child under 18 years of age is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence. Section 40 38 of Rep.Act No. 9344, however, provides that once the child reaches 18 years of age, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21 years. Petitioner has already reached 21 years of age or over and thus, could no longer be considered a child 39 for purposes of applying Rep. Act 9344. Thus, the application of Sections 38 and 40 appears moot and academic as far as his case is concerned.

PEOPLE OF THE PHILIPPINES vs. NORBERTODEL MONTE y GAPAY @ OBETAt the outset, it must be stated that appellant raised the police officers' alleged noncompliance with Section 21 of Republic Act No. 9165 for the first time on appeal. This, he cannot do. It is too late in the day for him to do so. In People v. Sta. Maria in which the very same issue was raised, we ruled:

The law excuses non-compliance under justifiable grounds. However, whatever justifiable grounds may excuse the police officers involved in the buy-bust operation in this case from complying with Section 21 will remain unknown, because appellant did not question during trial the safekeeping of the items seized from him. Indeed, the police officers' alleged violations of Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were instead raised for the first time on appeal. In no instance did appellant least intimate at the trial court that there were lapses in the safekeeping of seized items that affected their integrity and evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection he cannot raise the question for the first time on appeal. (Emphases supplied.)

We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence.

The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.

All these elements have been shown in the instant case. The prosecution clearly showed that the sale of the drugs actually happened and that the shabu subject of the sale was brought and identified in court. The poseur buyer positively identified appellant as the seller of the shabu. Per Chemistry Report No. D-728-2002 ofForensic Chemical Officer Nellson Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought by PO1 Tolentino from appellant in consideration of P300.00, was examined and found to be methamphetamine hydrochloride (shabu).

PEOPLE OF THE PHILIPPINES vs. MARK DELA CRUZThe elements necessary for the prosecution of illegal sale of drugs are: (1) the identities of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti.

The corpus delicti should be identified with unwavering exactitude. This Court believes that the prosecution failed to clearly establish the chain of custody of the seized plastic sachets containing shabu from the time they were first allegedly received until they were brought to the police investigator.

As a general rule, the testimony of the police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly. However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed.

COCA-COLA BOTTLERS, PHILS., INC. (CCBPI) vs. QUINTIN J. GOMEZ, a.k.a. "KIT" GOMEZ andDANILO E. GALICIA, a.k.a. "DANNY GALICIA"Is the hoarding of a competitor's product containers punishable as unfair competition under the Intellectual Property Code (IP Code, Republic Act No. 8293) that would entitle the aggrieved party to a search warrant against the hoarder?We resolve to deny the petition for lack of merit.

Articles 168.1 and 168.2 of the IP Code, provide the concept and general rule on the definition of unfair competition. The law does not thereby cover every unfair act committed in the course of business; it covers only acts characterized by "deception or any other means contrary to good faith" in the passing off of goods and services as those of another who has established goodwill in relation with these goods or services, or any other act calculated to produce the same result.

From jurisprudence, unfair competition has been defined as the passing off (or palming off) or attempting to pass off upon the public the goods or business of one person as the goods or business of another with the end and probable effect of deceiving the public. It formulated the "true test" of unfair competition: whether the acts of defendant are such as are calculated to deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the particular trade to which the controversy relates. One of the essential requisites in an action to restrain unfair competition is proof of fraud; the intent to deceive must be shown before the right to recover can exist. The advent of the IP Code has not significantly changed these rulings as they are fully in accord with what Section 168 of the Code in its entirety provides. Deception, passing off and fraud upon the public are still the key elements that must be present for unfair competition to exist.

A first test that should be made when a question arises on whether a matter is covered by the Code is to ask if it refers to an intellectual property as defined in the Code. If it does not, then coverage by the Code may be negated. A second test, if a disputed matter does not expressly refer to an intellectual property right as defined above, is whether it falls under the general "unfair competition" concept and definition under Sections 168.1 and 168.2 of the Code.

The question then is whether there is "deception" or any other similar act in "passing off" of goods or services to be those of another who enjoys established goodwill.

Based on the foregoing, we conclude that the RTC correctly ruled that the petitioner's search warrant should properly be quashed for the petitioner's failure to show that the acts imputed to the respondents do not violate the cited offense.There could not have been any probable cause to support the issuance of a search warrant because no crime in the first place was effectively charged.

ERLINDA K. ILUSORIO vs. MA. ERLINDA I. BILDNER, LILY F. RAQUEÑO, SYLVIA K. ILUSORIO, MA. CRISTINA A. ILUSORIO, AND AURORA I. MONTEMAYORThere are thus four elements to be taken into account "in determining whether there is a prima facie case" of perjury, viz.:(a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and (d) that the sworn statement or affidavit

containing the falsity is required by law or made for a legal purpose. (Citation omitted)

It is the deliberate making of untruthful statements upon any material matter, however, before a competent person authorized to administer an oath in cases in which the law so requires, which is imperative in perjury.

Venue, in criminal cases, being jurisdictional, the action for perjury must be instituted and tried in the municipality or territory where the deliberate making of an untruthful statement upon any matter was made, in this case, in Makati and Tagaytay.

It was in Makati and Tagaytay where the intent to assert an alleged falsehood became manifest and where the alleged untruthful statement finds relevance or materiality in deciding the issue of whether new owner's duplicate copies of the CCT and TCTs may issue.

Whether the perjurious statements contained in the four petitions were subscribed and sworn in Pasig is immaterial, the gist of the offense of perjury being the intentional giving of false statement.

NORGIE CRUZ y CASTRO vs. PEOPLE OF THEPHILIPPINESA buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. For the successful prosecution of the illegal sale of shabu, the following elements must be established: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and its payment. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. Thus, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked money successfully consummate the buy-bust transaction.

The failure of the poseur-buyer to testify on the actual purchase is not fatal to the prosecution's cause.

The failure to present the buy-bust money is likewise not fatal. The marked money used in the buy-bust operation is not indispensable but merely corroborative in nature. In the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drugs is adequately proven and the drug subject of the transactionis presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation. What is material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence. The prosecution duly established both in this case.

Settled is the rule that prior surveillance is not a prerequisite for the validity of an entrapment operation especially so if the buy-bust team is accompanied by the informant, as in this case. The police officers may decide that time is of the essence and dispense with the need of prior surveillance. The absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation.

PEOPLE OF THE PHILIPPINES vs. RUIZ GARCIA Section 21 (a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e., "non-compliance with these requirements under justifiable grounds as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." In Sanchez, we clarified that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds. We also stressed in Sanchez, that in such case, the prosecution must show that the integrity and evidentiary value of the evidence seized have been preserved.

These conditions were not met in the present case, as the prosecution, in the first place, did not even recognize the

procedural lapses the police committed in handling the seized items. Had the prosecution done so, it would not have glossed over the deficiencies and would have, at the very least, submitted an explanation and proof showing that the integrity and evidentiary value of the seized items have been preserved.

In the present case, while PO1 Garcia duly testified on the identity of the buyer and seller, on the consideration that supported the transaction, and on the manner the sale took place, the prosecution's evidence failed to establish the chain that would have shown that the marijuana presented in court was the very item seized from Ruiz at the time of his arrest.

Given the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized marijuana that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. As we pointed out in the opening statement of our Ruling, this brings the case to a situation where the defense does not even need to present evidence as it has no viable case to meet. We need not therefore discuss the specific defenses raised. Nor do we need to discuss the lower courts' misplaced reliance on the presumption of regularity in the performance of official duties, except to state that the presumption only arises in the absence of contrary details in the case that raise doubt on the regularity in the performance of official duties. Where, as in the present case, the police officers failed to comply with the standard procedures prescribed by law, there is no occasion to apply the presumption.

LIBERATA AMBITO, BASILIO AMBITO, and CRISANTO AMBITO vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALSThe elements of violation of B.P. Blg. 22 are: (1) making, drawing, and issuance of any check to apply on account or for value; (2) knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3)subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The gravamen of the offense punished by B.P. Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the nonpayment of an obligation which the law punishes. Thus, the mere act of issuing a worthless check — whether as a deposit, as a guarantee or even as evidence of preexisting debt — is malum prohibitum.

Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed,within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. Absent proof that the accused received such notice, a prosecution for violation of the Bouncing Checks Law cannot prosper.

In the case at bar, there is nothing in the records that would indicate that co-petitioner Basilio Ambito was given any notice of dishonor by PSI or by Manila Bank, the drawee bank, when the subject checks were dishonored for insufficiency of funds upon presentment for payment. In fact, all that the OSG can aver regarding this matter is that co-petitioner Basilio Ambito had been notified of the fact of dishonor since PSI filed a collection case against petitioners more than three (3) years before the same filed the criminal cases before this Court.

While, indeed, Section 2 of B.P. Blg. 22 does not state that the notice of dishonor be in writing, taken in conjunction, however with Section 3 of the law, i.e., "that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal," a mere oral notice or demand to pay would appear to be insufficient for conviction under the law. The Court has previously held that both the spirit and letter of the Bouncing Checks Law would require for the act to be punished thereunder not only that the accused issued a check that is dishonored, but that likewise the accused has actually been notified in writing of the fact of dishonor.

There being no proof that co-petitioner Basilio Ambito was given any written notice either by PSI or by Manila Bank informing him of the fact that his checks were dishonored and giving him five (5) banking days within which to make arrangements for payment of the said checks, the rebuttable presumption that he had knowledge of the insufficiency of his funds has no application in the present case.

The elements of Estafa by means of deceit, whether committed by false pretenses or concealment, are the following — (a) that there must be a false pretense, fraudulent act or fraudulent means. (b) That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneous with the commission of the fraud. (c) That the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means. (d) That as a result thereof, the offended party suffered damage.

In the prosecution for Estafa under Article 315, paragraph 2 (a) of the RPC, it is indispensable that the element of deceit, consisting in the false statement or fraudulent representation of the accused, be made prior to, or at least simultaneously with, the delivery of the thing by the complainant.

The false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for prosecution for estafa under the said provision.

As borne by the records and the pleadings, it is indubitable that petitioners' representations were outright distortions of the truth perpetrated by them for the sole purpose of inducing PSI to sell and deliver to co-petitioner Basilio Ambito machineries and equipments. Petitioners knew that no deposits were ever made with RBBI and RBLI under the name of PSI, as represented by the subject CCTDs, since they did not intend to deposit any amount to pay for the machineries. PSI was an innocent victim of deceit, machinations and chicanery committed by petitioners which resulted in its pecuniary damage and, thus, confirming the lower courts' finding that petitioners are guilty of the complex crime of Estafa through Falsification of Commercial Documents.

The pronouncement by the appeals court that a complex crime had been committed by petitioners is proper because, whenever a person carries out on a public, official or commercial document any of the acts of falsification enumerated in Article 171 of the RPC as a necessary means to perpetrate another crime, like Estafa, Theft, or Malversation, a complex crime is formed by the two crimes.

Under Article 171, paragraph 4 of the RPC, the elements of falsification of public documents through an untruthful narration of facts are: (1) the offender makes in a document untruthful statements in a narration of facts; (2) the offender has a legal obligation to disclose the truth of the facts narrated; (3) the facts narrated by the offender are absolutely false; and (4) the perversion of truth in the narration of facts was made with the wrongful intent to injure a third person.

As earlier discussed, the issuance of the falsified CCTDs for the sole purpose of obtaining or purchasing various machinery and equipment from PSI amounts to the criminal offense of Estafa under Article 315 (2) (a) of the RPC. The petitioners falsified the subject CCTDs, which are commercial documents, to defraud PSI. Since the falsification of the CCTDs was the necessary means for the commission of Estafa, the assailed judgment of the appeals court convicting petitioners of the complex crime of Estafa through Falsification of Commercial Documents is correct.

SUSAN SALES Y JIMENA vs. PEOPLE OF THEPHILIPPINESIn all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of the crime of violation of the said Act. It is thus essential that the prohibited

drug confiscated or recovered from the suspect is the very same substance offered in court as exhibit; and that the identity of said drug be established with the same unwavering exactitude as that requisite to make a finding of guilt. The "chain of custody" requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.

The Court finds that neither was physical inventory nor photograph of the sachet and buy-bust money taken in the presence of petitioner, or her representative or counsel, a representative from the media and the Department of Justice, as required by law, was taken. No justification whatsoever was proffered by the apprehending team for its failure to observe the legal safeguards. In fine, the prosecution failed to establish petitioner's guilt beyond reasonable doubt. Her acquittal is thus in order.

PEOPLE OF THE PHILIPPINES vs. JOSEPH EJERCITO ESTRADA and THE HONORABLE SPECIAL DIVISION OF THE SANDIGANBAYANTo our mind, the repeated use of an alias within a single day cannot be deemed "habitual", as it does not amount to a customary practice or use. This reason alone dictates the dismissal of the petition.

We agree, with the Sandiganbayan position that the rule in the law of libel — that mere communication to a third person is publicity — does not apply to violations of CA No. 142. Our close reading of Ursua — particularly, the requirement that there be intention by the user to be culpable and the historical reasons we cited above — tells us that the required publicity in the use of alias is more than mere communication to a third person; the use of the alias, to be considered public, must be made openly, or in an open manner or place, or to cause it to become generally known. In order to be held liable for a violation of CA No. 142, the user of the alias must have held himself out as a person who shall publicly be known under that other name. In other words, the intent to publicly use the alias must be manifest.

To our mind, the presence of Lacquian and Chua when Estrada signed as Jose Velarde and opened Trust Account No. C-163 does not necessarily indicate his intention to be publicly known henceforth as Jose Velarde. In relation to Estrada, Lacquian and Chua were not part of the public who had no access to Estrada's privacy and to the confidential matters that transpired in Malacañang where he sat as President; Lacquian was the Chief of Staff with whom he shared matters of the highest and strictest confidence, while Chua was a lawyer-friend bound by his oath of office and ties of friendship to keep and maintain the privacy and secrecy of his affairs. Thus, Estrada could not be said to have intended his signing as Jose Velarde to be for public consumption by the fact alone that Lacquian and Chua were also inside the room at that time. The same holds true for Estrada's alleged representations with Ortaliza and Dichavez, assuming the evidence for these representations to be admissible. All of Estrada's representations to these people were made in privacy and in secrecy, with no iota of intention of publicity.

The nature, too, of the transaction on which the indictment rests, affords Estrada a reasonable expectation of privacy, as the alleged criminal act related to the opening of a trust account — a transaction that R.A. No. 1405 considers absolutely confidential in nature.

We have consistently ruled that bank deposits under R.A. No. 1405 (the Secrecy of Bank Deposits Law) are statutorily protected

or recognized zones of privacy. Given the private nature of Estrada's act of signing the documents as "Jose Velarde" related to the opening of the trust account, the People cannot claim that there was already a public use of alias when Ocampo and Curato witnessed the signing. We need not even consider here the impact of the obligations imposed by R.A. No. 1405 on the bank officers; what is essentially significant is the privacy situation that is necessarily implied in these kinds of transactions. This statutorily guaranteed privacy and secrecy effectively negate a conclusion that the transaction was done publicly or with the intent to use the alias publicly.

In finding the absence of the requisite publicity, we simply looked at the totality of the circumstances obtaining in Estrada's use of the alias "Jose Velarde" vis-à-vis the Ursua requisites. We do not decide here whether Estrada's use of an alias when he occupied the highest executive position in the land was valid and legal; we simply determined, as the Sandiganbayan did, whether he may be made liable for the offense charged based on the evidence the People presented. As with any other accused, his guilt must be based on the evidence and proof beyond reasonable doubt that a finding of criminal liability requires. If the People fails to discharge this burden, as they did fail in this case, the rule of law requires that we so declare. We do so now in this review and accordingly find no reversible error of law in the assailed Sandiganbayan ruling.

PEOPLE OF THE PHILIPPINES vs. JASON SYIn dealing with prosecutions for the illegal sale of drugs, what is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug as evidence. Jurisprudence has firmly entrenched the following as elements in the crime of illegal sale of prohibited drugs: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that what he had sold and delivered was a dangerous drug.

In the instant case, the Court finds that the testimonies of the prosecution witnesses adequately establish these elements. The trial court's assessment of the credibility of witnesses must be accorded the highest respect, because it had the advantage of observing their demeanor and was thus in a better position to discern if they were telling the truth or not. The Court has no reason to doubt the assessment of the trial court regarding the credibility of the prosecution and defense witnesses. The testimony of the buy-bust team established than an entrapment operation against accused-appellant was legitimately and successfully carried out on 3 December 2000, where accused-appellant was caught selling 987.32265 grams of methamphetamine hydrochloride or shabu. A scrutiny of the accounts of PO3 Ricardo Amontos, PO2 Christian Trambulo and Senior Inspector Culili, detailing how PO2 Trambulo negotiated, thru cellphone, with accused-appellant on the purchase price and the amount of shabu to be delivered, actual delivery of the shabu, the giving to the accused the marked and boodle money and the subsequent arrest of the accused show that these were testified to in a clear, straightforward manner. Their testimonies are further bolstered by the physical evidence consisting of the shabu presented as evidence before the court.

What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. The existence of the dangerous drug is a condition sine qua non for conviction for the illegal sale of dangerous drugs. SPO2 Trambulo, the poseur-buyer, testified that upon confiscation of the box with the shabu, he affixed his initials CVT and the date of confiscation of the box. Thereafter, he placed the evidence in his car until they reached the CIDG office, whereupon he showed the same to P/Inspector Culili and the evidence was inventoried as well. Culili then instructed him to bring the evidence to the crime laboratory for examination. When the duty officer received the evidence at the crime laboratory, Senior Inspector Maria Luisa Gundran-David conducted the laboratory examination.

What is material is the delivery of the prohibited drug to the buyer which, in this case, was sufficiently proved by the prosecution through the testimony of the poseur-buyer and the presentation of the article itself before the court.The Court finds no material inconsistencies in the testimonies of the prosecution witnesses. The fact that Mana, Culili and Tupil

were shown to have committed abduction with extortion in the Go Lip Tse case does not mean that they committed the same in this operation, nor does it negate the fact that accused-appellant did not commit the offense.

JUANITO R. RIMANDO vs. COMMISSION ON ELECTIONS AND NORMA O. MAGNOIn the case at bar, the cause of the confusion appears to be the fact that the security guards who were being charged with violation of the election gun ban were bearing firearms within the immediate vicinity of their place of work, but their place of work happened to be a residential subdivision where they were guarding the residences of private persons.

Indeed, this seeming conflict between the general rule (which allows the bearing of arms within the immediate vicinity of the security personnel's place of work) and the exception (which states that prior written approval from the COMELEC is necessary when security personnel are guarding private residences or offices) can be harmonized if we interpret the exceptions as pertaining to instances where the security personnel are outside the immediate vicinity of their place of work or where the boundaries of their place of work cannot be easily determined. Applying this interpretation to the case at bar, prior written approval from the COMELEC is only required when a member of a security agency is guarding private residences outside the immediate vicinity of his place of work, or where the exact area of his assignment is not readily determinable.

The confusion in the interpretation of this proscription lies in the peculiar circumstances under which security guards perform their duties. There are security guards hired to escort individuals. Since they are mobile, their place of work cannot be determined with exactitude hence, the need for an authority from the Comelec for them to carry their firearms. There are also guards hired to secure the premises of offices, or residences. And because these offices adjoin other offices or that these residences adjoin other houses, the actual place of work or its immediate vicinity cannot be fixed with ease, there is also a need for these guards to secure authority from the Comelec. Lastly, there are guards assigned to secure all the houses in a subdivision, or all offices in one compound, or all factories within a complex, or all stores within a mall. In this case, the place of work of the guards therein detailed can be easily determined by the visible boundaries. And because the place of work can be determined, the Gun Ban exemption is required only when the firearms are brought outside said subdivision, or compound, or complex, or mall.

From the provisions of COMELEC Resolution No. 3328, one of the prohibited acts is for a member of a privately owned or operated security agency to bear firearms outside the immediate vicinity of his place of work. Such prohibition shall not apply 1) when the member of the security agency is in the actual performance of his duty in the specific area of his assignment with prior written authority from the Commission, and 2) when such member is guarding private residences, buildings or offices with prior written authority from the Commission.However, these two instances presuppose that the member of the security agency was undertaking his duties in such a manner that the boundaries of his place of work cannot be determined with exactitude.

Here, it is undisputed that security guards Carag and Enaya were bearing licensed firearms while performing their assigned task as guards inside the subdivision, which was their place of work. That being the case, there was no need to secure a written authority from the COMELEC under Section 261 (s) of the Omnibus ElectionCode. Hence, there was no violation at all of that particular provision. We, thus, concur with petitioner that he did not commit an election offense on February 27, 2001, the day the shooting incident happened within the premises of Sta. Rosa Homes at Santa Rosa, Laguna.

PEOPLE OF THE PHILIPPINES vs. ZENAIDA QUEBRAL y MATEO, FERNANDO LOPEZ y AMBUS and MICHAEL SALVADOR y JORNACIONThe police officers had information that two men and a woman on board an owner type jeep would arrive in Balagtas and hand over a consignment of shabu at a gas station in town to a known drug dealer whose name was on the police watch list. When these things unfolded before their eyes as they watched from a

distance, the police came down on those persons and searched them, resulting in the discovery and seizure of a quantity of shabu in their possession. In such a case, the search is a valid search justifying the arrest that came after it.

It would have been impractical for the police to apply with the appropriate court for a search warrant since their suspicion found factual support only at the moment accused Eusebio Quebral, Fernando Lopez, and Zenaida Quebral rendezvoused with Michael Salvador at the Petron gas station for the handover of the drugs. An immediate search was warranted since they would have gone away by the time the police could apply for a search warrant. The drugs could be easily transported and concealed with impunity.

This Court has ruled that the report of an official forensic chemist regarding a recovered prohibited drug enjoys the presumption of regularity in its preparation. Corollarily, under Section 44 of Rule 130, Revised Rules of Court, entries in official records made in the performance of official duty are prima facie evidence of the facts they state. Therefore, the report of Forensic Chemical Officer Sta. Maria that the five plastic sachets PO3 Galvez gave to her for examination contained shabu is conclusive in the absence of evidence proving the contrary.

As the trial court correctly observed, the accused-appellants failed to provide any reason why of all the people plying through the roads they had taken, the police chose to frame them up for the crime. They also failed to explain why the police would plant such huge amount of shabu if a small quantity would be sufficient to send them to jail. No arresting officer would plant such quantity of shabu solely to incriminate the accused who have not been shown to be of good financial standing.

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC. vs. ANTI-TERRORISM COUNCILBefore the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, 1 signed into law on March 6, 2007.

Petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statute's future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED.

ELENITA C. FAJARDO vs. PEOPLE OF THE PHILIPPINESIn dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v. De Gracia are instructive:

The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must

be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866.

Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof:(1) possesses a firearm or a part thereof;(2) lacks the authority or license to possess the firearm.

We find that petitioner was neither in physical nor constructive possession of the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers were thrown. None of the witnesses saw petitioner holding the receivers, before or during their disposal. At the very least, petitioner's possession of the receivers was merely incidental because Valerio, the one in actual physical possession, was seen at the rooftop of petitioner's house. Absent any evidence pointing to petitioner's participation, knowledge or consent in Valerio's actions, she cannot be held liable for illegal possession of the receivers. Petitioner's apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into concrete evidence.

The gun allegedly seen tucked in petitioner's waistband was not identified with sufficient particularity; as such, it is impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in petitioner's house. It is not unlikely then that the receivers later on discarded were components of the two (2) pistols seen with Valerio. These findings also debunk the allegation in the information that petitioner conspired with Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to commit the criminal act committed by Valerio.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the subject firearm; and (b) the fact that the accused who possessed the same does not have the corresponding license for it.

By analogy then, a successful conviction for illegal possession of part of a firearm must yield these requisites: (a) the existence of the part of the firearm; and(b) the accused who possessed the same does not have the license for the firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The subject receivers — one with the markings "United States Property" and the other bearing Serial No. 763025 — were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the firearm parts he retrieved after Valerio discarded them. His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the receivers. Anent the lack of

authority, SPO1 Tan testified that, upon verification, it was ascertained that Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms. To substantiate his statement, he submitted a certification to that effect and identified the same in court. The testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the second element.

PEOPLE OF THE PHILIPPINES vs. LUIS PAJARIN y DELA CRUZ and EFREN PALLAYA y TUVIERAThe Court has held in numerous cases that the failure of the police to comply with the procedure laid down in R.A. 9165 would not render void the seizure of the prohibited substance for as long as the apprehending officers give justifiable reason for their imperfect conduct and show that the integrity and evidentiary value of the confiscated items had not been compromised.

Here, the prosecution failed to show that the substances allegedly seized from the accused were the same substances presented in court to prove their guilt. Usually, the seized article changes hands from the police officer who takes it from the accused, to the supervising officer at their station, to the messenger who brings them to the police crime laboratory, and then to the court where it is adduced as evidence. Since custody and possession change over time, it has been held indispensable that the officer who seized the article places it in a plastic container unless it is already in one, seals it if yet unsealed, and puts his marking on the cover. In this way there is assurance, upon inspection, that the substance reaches the laboratory in the same condition it was seized from the accused.

Here, the police officers did not mark the sealed plastic sachets to show that they were the same things they took from the accused. Rather, the marking on the items were done by the station investigator who would have no way of knowing that the substances were really seized from the accused. The marking of captured items immediately after they are seized from the accused is the starting point in the custodial link. This step is vital because succeeding handlers of the specimens will use the markings as reference. Failure to place such markings paves the way for swapping, planting, and contamination of the evidence. These lapses seriously cast doubt on the authenticity of the corpus delicti, warranting acquittal on reasonable doubt.

Further, as a rule, the police chemist who examines a seized substance should ordinarily testify that he received the seized article as marked, properly sealed and intact; that he resealed it after examination of the content; and that he placed his own marking on the same to ensure that it could not be tampered pending trial. In case the parties stipulate to dispense with the attendance of the police chemist, they should stipulate that the latter would have testified that he took the precautionary steps mentioned. Here, the record fails to show this.

ROSALIO S. GALEOS vs. PEOPLE OF THE PHILIPPINESPetitioners were charged with falsification of public document under Article 171, paragraph 4 of the Revised Penal Code, as amended, which states: Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:1. Counterfeiting or imitating any handwriting, signature or rubric;2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;4. Making untruthful statements in a narration of facts

The elements of falsification in the above provision are as follows:(a) the offender makes in a public document untruthful statements in a narration of facts;(b) he has a legal obligation to disclose the truth of the facts narrated by him; (c) the facts narrated by him are absolutely false.

In addition to the afore-cited elements, it must also be proven that the public officer or employee had taken advantage of his official position in making the falsification. In falsification of public document, the offender is considered to have taken advantage of

his official position when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies. Likewise, in falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed.

All the elements of falsification of public documents by making untruthful statements have been established by the prosecution. Statements concerning relationship may be proved as to its truth or falsity, and thus do not amount to expression of opinion. When a government employee is required to disclose his relatives in the government service, such information elicited therefore qualifies as a narration of facts contemplated under Article 171 (4) of the Revised Penal Code, as amended.

As chief executive and the proper appointing authority, Ong is deemed to have issued the certification recommending to the CSC approval of Galeos' appointment although he admitted only the authenticity and due execution of Exhibit "I". Since Ong was duty bound to observe the prohibition on nepotistic appointments, his certification stating compliance with Section 79 41 of R.A. No. 7160 constitutes a solemn affirmation of the fact that the appointee is not related to him within the fourth civil degree of consanguinity or affinity. Having executed the certification despite his knowledge that he and Rivera were related to each other within the fourth degree of affinity, as in fact Rivera was his cousin-in-law because the mother of Rivera's wife is the sister of Ong's mother, Ong was guilty of falsification of public document by making untruthful statement in a narration of facts. He also took advantage of his official position as the appointing authority who, under the Civil Service rules, is required to issue such certification.

PEOPLE OF THE PHILIPPINES vs. MANUEL PALOMA y ESPINOSATo prove the crime of illegal sale of drugs under Section 5, Article II of R.A. 9165, the prosecution is required to prove (a) the identity of the buyer and the seller as well as the object and consideration of the sale; and (b) the delivery of the thing sold and the payment given for the same. Further, the prosecution must present in court evidence of corpus delicti.

Under the "objective" test set by the Court in People v. Doria, the prosecution must clearly and adequately show the details of the purported sale, namely, the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration, and, finally, the accused's delivery of the illegal drug to the buyer, whether the latter be the informant alone or the police officer. This proof is essential to ensure that law-abiding citizens are not unlawfully induced to commit the offense.

Here, PO2 Amigo's testimony miserably failed to establish the required details of the supposed illegal drug sale.

While law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption is disputable by contrary proof and cannot prevail over the constitutional right of the accused to be presumed innocent. The totality of the evidence presented in this case does not support Paloma's conviction for violation of Section 5, Article II of R.A. 9165, since the prosecution failed to prove beyond reasonable doubt all the elements of the offense.

PEOPLE OF THE PHILIPPINES vs. ALBERTOBACUS ALCUIZARThe dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the offense and in sustaining a conviction under Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This requirement necessarily arises from the illegal drug's unique characteristic that renders it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually recovered from the accused-appellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails.

The chain of custody rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence.

SPO1 Agadier admitted that he only marked the seized items at the police station. While the rule allows marking of evidence to be done in the nearest police station, this contemplates a case of warrantless searches and seizures. In this case, the police officers were able to secure a search warrant prior to their operation. SPO1 Agadier did not offer an explanation or a justification on why he did not immediately mark the plastic packs of shabu seized inside appellant's house notwithstanding that an inventory receipt was even prepared while the police officers were still inside the house of appellant. They were given sufficient time and opportunity to prepare for its implementation. Thus, failure to comply with the marking of evidence immediately after confiscation constitutes a first gap in the chain of custody. Also, failure of the police officers to mark the dangerous drugs immediately after their seizure and the vague recollection of SPO1 Agadier concerning the custody of the drugs from the residence of appellant up to the time it was submitted to the crime laboratory constitute a huge and significant gap in the chain of custody which substantially affects the identity of the corpus delicti.

To successfully prosecute a case of illegal possession of dangerous drugs, the following elements must be established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.

The Court of Appeals ruled that appellant is presumed to have been in possession of the prohibited drugs when they were found in his house. While this presumption may be true, it is certainly not conclusive and may be rebutted by contrary evidence. It is worthy to reiterate that this Court entertains serious doubts as to whether the prohibited drugs were indeed found in appellant's house considering that there were no other witnesses presented to prove it. And it is by the same doubt that constrains this Court to acquit appellant.

PEOPLE OF THE PHILIPPINES vs. ROLANDO S.DELOS REYES, alias "Botong," and RAYMUNDO G. REYES, alias "Mac-Mac"In the instant case, SPO1 Lectura, PO3 Santiago, and PO3 Yumul uniformly testified before the RTC that they brought the arrested suspects to the police office for investigation. SPO1 Lectura and PO3 Santiago were vague as to how they ascertained as shabu the contents of the box inside the white plastic bag, immediately after seizing the same from accused-appellant Reyes and before proceeding to the police office; while PO3 Yumul explicitly testified on cross- examination that he saw the shabu for the first time at the police office. At any rate, all three police officers recounted that the shabu was marked by SPO1 Benjamin David only at the police office. Without valid justification for the in flagrante delicto arrests of accused-appellants, the search of accused-appellants' persons incidental to said arrests, and the eventual seizure of the shabu from accused-appellants' possession, are also considered unlawful and, thus, the seized shabu is excluded in evidence as fruit of a poisonous tree. Without the corpus delicti for the crime charged, then the acquittal of accused-appellants is inevitable.

All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the illegality of the arrest and consequent warrantless search of accused-appellant. Neither can the presumption of regularity of performance of function be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution.

The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because, first, the presumption is precisely just that — a mere presumption. Once challenged by evidence, as in this case, . . . [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.

PEOPLE OF THE PHILIPPINES vs. MARCOSSABADLAB y NARCISOIn the case at bar, accused-appellant failed to prove his allegation of denial and frame-up by strong and convincing evidence. He, in fact, presented no evidence to prove the same, and instead relied on the alleged irregularity in the buy-bust operation brought about by the inexact name mentioned in the Pre-operation Report from the Makati Police Station and the Certificate of Coordination from the PDEA. On this matter, the accused-appellant argued that the buy-bust operation was illegal as it was made without a close coordination with PDEA.

As this Court held in People v. Berdadero, the Internal Rules and Regulations, "is silent as to the consequences of the failure on the part of the law enforcers to seek the authority of the PDEA prior to conducting a buy-bust operation . . . . [T]his silence cannot be interpreted as a legislative intent to make an arrest without the participation of PDEA illegal or evidence obtained pursuant to such an arrest inadmissible." In the case at bar, even if we assume for the sake of argument that Narciso Sabadlab and accused-appellant Marcos Sabadlab y Narciso alias Bong Pango could have been different persons, the established fact remains that it was accused-appellant who was caught in flagrante delicto by the buy-bust team. Following the aforementioned jurisprudence, even the lack of participation of PDEA would not make accused-appellant's arrest illegal or the evidence obtained pursuant thereto inadmissible.

Neither is prior surveillance a necessity for the validity of the buy-bust operation.

ROGELIO S. REYES vs. THE HONORABLE COURT OF APPEALSThe burden rests in the Prosecution to see to it that the evidence of guilt satisfies the standard of moral certainty demanded in all criminal prosecutions. The standard demands that all the essential elements of the offense are established as to leave no room for any doubt about the guilt of the accused. The courts should unfailingly impose the standard in order to prevent injustice from being perpetrated against the accused.

Guided by the standard, we acquit petitioner.

This appeal involves two distinct drug-related offenses, namely: illegal sale of dangerous drugs, and illegal possession of dangerous drugs. The successful prosecution of illegal sale of dangerous drugs requires: (a) proof that the transaction or sale took place, and (b) the presentation in court as evidence of the corpus delicti, or the dangerous drugs themselves. On the other hand, the prosecution of illegal possession of dangerous drugs necessitates the following facts to be proved, namely: (a) the accused was in possession of dangerous drugs, (b) such possession was not authorized by law, and (c) the accused was freely and consciously aware of being in possession of dangerous drugs. For both offenses, it is crucial that the Prosecution establishes the identity of the seized dangerous drugs in a way that the integrity thereof has been well preserved from the time of seizure or confiscation from the accused until the time of presentation as evidence in court. Nothing less than a faithful compliance with this duty is demanded of all law enforcers arresting drug pushers and drug possessors and confiscating and seizing the dangerous drugs and substances from them.

Here, the Prosecution failed to demonstrate a faithful compliance by the arresting lawmen of the rule on chain of custody. To start with, the fact that the dangerous drugs were inventoried and photographed at the site of arrest upon seizure in the presence of petitioner, a representative of the media, a representative of the Department of Justice (DOJ), and any elected public official, was not shown. As such, the arresting lawmen did not at all comply with the further requirement to have the attending representative of the media, representative of the DOJ, and elected public official sign the inventory and be furnished a copy each of the inventory. Instead, the records show that PO2 Payumo placed the markings of "RRS-1" on the sachet allegedly received from petitioner and "RRS-2" on the two sachets allegedly seized from petitioner's hand already at the police station with only petitioner present. Yet, the Prosecution did not also present any witness to establish that an inventory of the seized articles at least signed by petitioner at that point was prepared.

We clarified in People v. Sanchez that in compliance with Section 21 of R.A. No. 9165, supra, the physical inventory and photographing of the seized articles should be conducted, if practicable, at the place of seizure or confiscation in cases of warrantless seizure. But that was true only if there were indications that petitioner tried to escape or resisted arrest, which might provide the reason why the arresting team was not able to do the inventory or photographing at petitioner's house; otherwise, the physical inventory and photographing must always be immediately executed at the place of seizure or confiscation.

In People v. Pringas, the non-compliance by the buy-bust team with Section 21, supra, was held not to be fatal for as long as there was justifiable ground for it, and for as long as the integrity and the evidentiary value of the confiscated or seized articles were properly preserved by the apprehending officer or team. The Court further pronounced therein that such non-compliance would not render an accused's arrest illegal or the items seized or confiscated from him inadmissible, for what was of utmost importance was the preservation of the integrity and the evidentiary value of the seized or confiscated articles, considering that they were to be utilized in the determination of the guilt or innocence of the accused.However, the omissions noted herein indicated that the State did not establish the identity of the dangerous drugs allegedly seized from petitioner with the same exacting certitude required for a finding of guilt.

SATURNINO C. OCAMPO vs. HON. EPHREM S. ABANDOOn 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry Brigade of the Philippine Army at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte. The mass grave contained skeletal remains of individuals believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the Communist Party of the Philippines/New People's Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) to purge their ranks of suspected military informers.

Issue: Whether the murder charges against petitioners should be dismissed under the political offense doctrine

The political offense doctrine is not a ground to dismiss the charge against petitioners prior to a determination by the trial court that the murderswere committed in furtherance of rebellion.

Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political offense, are divested of their character as "common" offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty."

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion. Thus, when a killing is committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political complexion of rebellion as its mere ingredient and must be prosecuted and punished as rebellion alone.

However, this is not to say that public prosecutors are obliged to consistently charge respondents with simple rebellion instead of common crimes. No one disputes the well-entrenched principle in criminal procedure that the institution of criminal charges, including whom and what to charge, is addressed to the sound discretion of the public prosecutor. But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act to be conclusively demonstrated.

We had already ruled that the burden of demonstrating political motivation must be discharged by the defense, since motive is a state of mind which only the accused knows. The proof showing political motivation is adduced during trial where the accused is assured an opportunity to present evidence supporting his defense. It is not for this Court to determine this factual matter in the instant petitions.

Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the trial court shall dismiss the murder charges upon the filing of the Information for simple rebellion, as long as petitioners would not be placed in double jeopardy.

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and penalized under Article 134 in relation to Article 135 of the Revised Penal Code, docketed as Criminal Case No. 06-944 was filed before the RTC Makati against petitioners and several others. However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the indictment for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition before this Court to seek the nullification of the Orders of the DOJ denying their motion for the inhibition of the members of the prosecution panel due to lack of impartiality and independence. When the indictment was filed, petitioners Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944. We eventually ordered the dismissal of the rebellion case. It is clear then that a first jeopardy never had a chance to attach.

CRISTE B. VILLANUEVA vs. THE HON. SECRETARY OF JUSTICE and HORST-KESSLER VON SPRENGEISENThe pivotal issue in this case is factual — whether or not, based on the records, there was probable cause for the private respondent's indictment for perjury.

Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter. The elements of the felony are: (a) That the accused made a statement under oath or executed an affidavit upon a material matter. (b)That the statement or affidavit was made before a competent officer, authorized to receive and administer oath. (c) That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood. (d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose. A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful. Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from inadvertent acts. It must appear that the accused knows his statement to be false or as consciously ignorant of its truth. Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a statement is an adequate defense. A false statement which is obviously the result of an honest mistake is not perjury.

There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; and (2) it must be proven that the defendant did not believe those statements to be true. Knowledge by the accused of the falsity of his statement is an internal act. It may be proved by his admissions or by circumstantial evidence. The state of mind of the accused may be determined by the things he says and does, from proof of a motive to lie and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know. A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement.

URBANO M. MORENO vs. COMMISSION ONELECTIONS and NORMA L. MEJESNorma L. Mejes filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998. Moreno filed an answer averring that the petition states no cause of action because he was already granted probation.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period imposed upon Moreno were similarly suspended upon the grant of probation. It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.

We agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While the Local Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Probation Law is a special legislation which applies only to probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.

REPUBLIC OF THE PHILIPPINES, represented by the ANTIMONEY LAUNDERING COUNCIL vs. GLASGOW CREDIT AND COLLECTION SERVICES, INC. and CITYSTATE SAVINGS BANK, INC.On July 18, 2003, the Republic filed a complaint in the RTC Manila for civil forfeiture of assets (with urgent plea for issuance of temporary restraining order [TRO] and/or writ of preliminary injunction) against the bank deposits in account number CA-005- 10-000121-5 maintained by Glasgow in CSBI.

The petition essentially presents the following issue: whether the complaint for civil forfeiture was correctly dismissed on grounds of improper venue, insufficiency in form and substance and failure to prosecute.

Under Section 3, Title II of the Rule of Procedure in Cases of Civil Forfeiture, therefore, the venue of civil forfeiture cases is any RTC of the judicial region where the monetary instrument, property or proceeds representing, involving, or relating to an unlawful activity or to a money laundering offense are located. Pasig City, where the account sought to be forfeited in this case is situated, is within the National Capital Judicial Region (NCJR). Clearly, the complaint for civil forfeiture of the account may be filed in any RTC of the NCJR. Since the RTC Manila is one of theRTCs of the NCJR, it was a proper venue of the Republic's complaint for civil forfeiture of Glasgow's account.

Whether or not there is truth in the allegation that account no. CA-005-10-000121-5 contains the proceeds of unlawful activities is an evidentiary matter that may be proven during trial. The complaint, however, did not even have to show or allege that Glasgow had been implicated in a conviction for, or the commission of, the unlawful activities of estafa and violation of the Securities Regulation Code. A criminal conviction for an unlawful activity is not a prerequisite for the institution of a civil forfeiture proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an essential element of civil forfeiture. Thus, regardless of the absence, pendency or outcome of a criminal prosecution for the unlawful activity or for money laundering, an action for civil forfeiture may be separately and independently prosecuted and resolved.

While there was admittedly a delay in the proceeding, it could not be entirely or primarily ascribed to the Republic. That Glasgow's whereabouts could not be ascertained was not only beyond the Republic's control, it was also attributable to Glasgow which left its principal office address without informing the Securities and Exchange Commission or any official regulatory body (like the Bureau of Internal Revenue or the Department of Trade and Industry) of its new address. Moreover, as early as October 8, 2003, the Republic was already seeking leave of court to serve summons by publication. We see no pattern or scheme on the part of the Republic to delay the disposition of the case or a

wanton failure to observe the mandatory requirement of the rules. The trial court should not have so eagerly wielded its power to dismiss the Republic's complaint.

In Republic v. Sandiganbayan, this Court declared that the rule is settled that forfeiture proceedings are actions in rem. While that case involved forfeiture proceedings under RA 1379, the same principle applies in cases for civil forfeiture under RA 9160, as amended, since both cases do not terminate in the imposition of a penalty but merely in the forfeiture of the properties either acquired illegally or related to unlawful activities in favor of the State.

As an action in rem, it is a proceeding against the thing itself instead of against the person. In actions in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to conferring jurisdiction on the court, provided that the court acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant in order to satisfy the requirements of due process. For this purpose, service may be made by publication as such mode of service is allowed in actions in rem and quasi in rem. WHEREFORE, the petition is hereby GRANTED.

ANGEL CELINO, SR. vs. COURT OF APPEALS, CEBUThe accused can be convicted of illegal possession of firearms, provided no other crime was committed by the person arrested. The word "committed" taken in its ordinary sense, and in light of the Constitutional presumption of innocence, necessarily implies a prior determination of guilt by final conviction resulting from successful prosecution or voluntary admission. In the present case, however, petitioner has only been accused of committing a violation of the COMELEC gun ban. As accusation is not synonymous with guilt, there is yet no showing that petitioner did in fact commit the other crime charged.

In sum, when the other offense involved is one of those enumerated under R.A. 8294, any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide, or absorbed as an element of rebellion, insurrection, sedition or attempted coup d'etat. Conversely, when the other offense involved is not one of those enumerated under R.A. 8294, then the separate case for illegal possession of firearm should continue to be prosecuted.

PART II.

LAUREL VS DESIERTOThe Evaluation and Preliminary Investigation Bureau of

the Office of the Ombudsman directed petitioner, Chairman of the National Centennial Commission (NCC), to submit his counter affidavit on the charges of anomalies found by the Senate Blue Ribbon and Saguisag Committees. The Blue Ribbon Committee recommended his prosecution for violation of the rules on public bidding on the award of centennial contracts and manifest bias in the issuance of the Notice to Proceed in the absence of a valid contract, while the Saguisag Committee recommended the further investigation of petitioner for violations of Section 3 (e) of RA. No. 3019, Section 4 (a) in relation to Section 11 of R.A. 6713, and Article 217 of the Revised Penal Code. Petitioner moved to dismiss on ground of lack of jurisdiction claiming that he is not a public officer and that NCC is a private organization. The motion was denied by the Ombudsman, hence, the instant recourse.

The NCC was created under Administrative Order No. 223 and Executive Order No. 128 to ensure a more coordinated and synchronized celebrations of the Philippine Centennial and wider participation from the government and nongovernment or private organizations. It aims to implement the state policies on the promotion of the nation's historical and cultural heritage and resources. It is thus a public office performing executive functions. Thus, the Chairman of this Committee is a public officer who may be investigated by the Office of the Ombudsman.

A definition of public officers cited in jurisprudence is that provided by Mechem, a recognized authority on the subject: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the

government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

In the Court's decision in Uy, we held that "it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercise prosecutorial powers only in cases cognizable by the Sandiganbayan." The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal. The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee.

HANNAH EUNICE SERANA VS SANDIGANBAYANCAN the Sandiganbayan try a government scholar **

accused, along with herbrother, of swindling government funds?

Sandiganbayan has jurisdiction over the offense of estafa. Section 4 (B) of P.D. No. 1606 reads:

B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to exclude estafa as one of the offenses included in Section 4 (B) of P.D. No. 1606. Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4 (A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.

Petitioner UP student regent is a public officer. Petitioner contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that we will be called upon to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer. 39 The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence.

Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No.1606. In Geduspan v. People, 43 We held that while the first part of Section 4 (A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.

Section 4 (A) (1) (g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government owned or controlled corporations, state universities or educational institutions or foundations. Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. 45 By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606. Moreover, it is well established that compensation is not an essential element of public office. 46 At most, it is merely incidental to the public office. 47 Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer. 48

The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate

governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training. 49 Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit. The offense charged was committedin relation to public office, according to the Information.

Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. It is axiomatic that jurisdiction is determined by the averments in the information. More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash. Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.

In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., "while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government." (Underscoring supplied) Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground.

Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estrada's private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that "petitioner requested the amount of FifteeN Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00)." Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.

TECSON VS SANDIGANBAYANClaiming that Demetrio Tecson, then mayor of

Prosperidad, Agusan del Sur, solicited and received P4,000.00 as consideration of the issuance of a business permit in her favor, Salvacion Luzana filed an administrative complaint against Tecson before the Sangguniang Panlalawigan. A complaint for violation of the "Anti-Graft and Corrupt Practices Act" was likewise filed with the OMBUDSMAN. The administrative case was dismissed on October 23, 1991. On June 30, 1995, the Sandiganbayan rendereda decision convicting Tecson. Hence, this petition wherein Tecson interposed res judicata and double jeopardy, among others.

Res judicata is a doctrine of civil law. It has no bearing in the criminal proceedings before the Sandiganbayan. A public officer may be held civilly, criminally and administratively liable for a wrongful doing. Thus, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the object of the administrative complaint.

The proceedings conducted by the Sanggunian were not criminal but administrative in nature. Hence, double jeopardy will not lie. Absent a showing that the prosecution witnesses were actuated by any improper motive, their testimony is entitled to full faith and credit. Recourse to the records showed that no error of law or abuse of discretion was committed by the respondent court when it gave credence to the positive testimony of the prosecution's witness as opposed to petitioner's bare denials. Denial, like alibi, is a weak defense, which becomes even weaker in the face of positive testimony by prosecution witnesses. The petition was denied.

Having been exonerated by the Sangguniang Panlalawigan of Agusan del Sur in the administrative case, he now submits the same is res judicata and thus bars the Sandiganbayan from hearing his case. Petitioner's theory has no leg to stand on. First, it must be pointed out that res judicata is a doctrine of civil law. It thus has no bearing in the criminal proceedings before the

Sandiganbayan. Second, it is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. Thus, the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts, which were the subject of the administrative complaint. We conclude, therefore, that the decision of the Sangguniang Panlalawigan of Agusan del Sur exonerating petitioner in Administrative Case No. SP 90-01 is no bar to the criminal prosecution before the Sandiganbayan.

ESPINOSA VS OFFICE OF OMBUDSMANPetitioner Francisco Enriquez was Municipal Treasurer,

while petitioner Carmencita G. Espinosa was Administrative Officer and Acting Municipal Cashier of the Office of the Municipal Treasurer of Pasig. By virtue of Local Government Audit Order No. 88- 01-3, an audit examination of the cash and accounts of the Pasig Treasury covering the period from May 4, 1987 to November 30, 1987 was conducted. The audit disclosed, among other things, that Enriquez's accounts contained a shortage amounting to P3,178,777.41, which shortage was mainly due to a dishonored China Banking Check No. 303100 dated October 7, 1987 in the amount of P3,267,911.10. Said check was deposited with the Quezon City Treasury as part of the collections of the Pasig Treasury. The check was dishonored for several reasons. A demand for the restitution of the value of the dishonored check was made on Enriquez. However, Enriquez denied responsibility for the shortage. He claimed that it was Espinosa, the custodian of the check, who was responsible for the alleged shortage. Enriquez and Espinosa were charged, tried and convicted of the crime of malversation of public funds by the Sandiganbayan. The Sandiganbayan found that petitioners, in conspiracy with each other, misappropriated public funds in their custody and sought to cover up the shortages already existing in the municipal treasury's collections by depositing the subject check. The Sandiganbayan found the denials of the accused and their acts of shifting the blame and passing the responsibility for the dishonored check to each other as unacceptable and indicative of their guilt.

After an assiduous scrutiny of the pleadings and the evidence, testimonial and documentary, the Supreme Court acquitted the petitioners. The evidence in this case has not been proven beyond reasonable doubt that the accused were guilty of the crime charged for the following reasons: First, there was no evidence to prove that the Pasig Treasury incurred a cash shortage in the amount of P3,178,777.41. Second, there was no evidence that Enriquez or Espinosa had received such an amount, which they could no longer produce or account for at the time of the audit.Third, there was no showing that the subject check was received by the Pasig Treasury in an official capacity; that there was a duty to receive or collect the said amount, and that there was an obligation to account for the same. The evidence submitted, would point out that the subject check was not issued in payment of taxes or obligations due to the municipality and, consequently, no official receipt was issued for it. Indeed, the subject check never formed a portion of the public funds of the municipality for which either Enriquez or Espinosa are accountable for.

The crime of malversation for which ENRIQUEZ and ESPINOSA had been charged is defined under Article 217 of the Revised Penal Code. The elements of malversation under the above penal provision are: (a) That the offender is a public officer. (b) That he has the custody or control of funds or property by reason of the duties of his office. (c) That those funds or property are public funds or property for which he is accountable. (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

We are constrained to conclude that the prosecution, upon whose burden was laden the task of establishing proof beyond reasonable doubt that petitioners had committed the

offense charged, failed to discharge this obligation. The Sandiganbayan found the denials of the accused and their acts of shifting the blame and passing the responsibility for the dishonored check to each other as unacceptable and indicative of their guilt. However, it must be emphasized that although the evidence for the defense may be characterized as weak, criminal conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. We are not convinced that the evidence in this case has proven beyond reasonable doubt that the accused are guilty of the crime charged.

There is no evidence to prove that the PasigTreasury incurred a cash shortage in the amount of P3,178,777.41, which amount, incidentally, is even less than the amount of the dishonored check. As per report of the audit team, the alleged shortage was computed and based on the value of the dishonored check. As stated in the assailed decision, it was only the drawn check, based on the audit examination that brought about the shortage. It was palpable error for the Sandiganbayan to conclude that the check which the audit team had pinpointed as the shortage due to its dishonor was at the same time, intended and used by ENRIQUEZ and ESPINOSA to "cover up" shortages in the funds allegedly in their custody. The shortage must be clearly established as a fact, i .e., that over and above the funds found by the auditor in the actual possession of the accountable officers, there is an additional amount of P3,178,771.42 which could no longer be produced or accounted for at the time of audit. Evidence of shortage is necessary before there could be any taking, appropriation, conversion, or loss of public funds that would amount to malversation. It makes no sense for any bogus check to be produced to "cover up" an inexistent malversation. Indeed, no less than the sole witness for the prosecution, audit team leader, Carmelita Antasuda, who conducted the cash count and cash examination of the Pasig Treasury, testified that based on their audit examination, it was only the subject check that brought about the shortage.

The Sandiganbayan relied on the statutory presumption that the "failure of a public officer to have duly forthcoming any public funds with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses." It must be emphasized that the prima facie presumption arises only if there is no issue as to the accuracy, correctness, and regularity of the audit findings and if the fact that funds are missing is indubitably established. In the instant case, audit team leader Carmelita Antasuda could not even equivocally state whether it was cash or check that was lost, if at all there was any, belying the accuracy and correctness of the team's audit report.

There is no showing that the subject check was received by the Pasig Treasury in an official capacity; that there was a duty to receive or collect the said amount; and that there was an obligation to account for the same. The evidence submitted, just to the contrary, would point out that the subject check was not issued in payment of taxes or obligations due to the municipality and consequently no official receipt was issued for it. Indeed, the subject check never formed a portion of the public funds of the municipality for which either ENRIQUEZ or ESPINOSA are accountable for.

There would appear to have been lapses or deficiencies in the observance of auditing rules and regulations in the handling of the funds of the municipal treasury e.g. delay in deposits of collections, cash balances exceeding cash reserve limit, loose controls and no control records, etc. as pointed out by the audit team, and questions as to how a private check was bundled together with legitimate collections of the Pasig Treasury for transmittal to the Quezon City Treasury, but the same do not warrant a finding of criminal culpability, which requires proof beyond reasonable doubt on the part of ENRIQUEZ and ESPINOSA. However, the Chairman of the Commission on Audit should be apprised of this decision for whatever action he may deem appropriate.

LACSON VS THE EXECUTIVE SECRETARY, SANDIGANBAYANThis is a petition for prohibition and mandamus filed by

petitioner Panfilo M. Lacson and petitioners-intervenors Romeo Acop and Francisco Zubia, Jr. questioning the constitutionality of

Sections 4 and 7 of Republic Act 8249 — an Act which further defines the jurisdiction of the Sandiganbayan. They also seek to prevent the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 against them on the ground of lack of jurisdiction. They further argued that if the case is tried before the Sandiganbayan, their right to procedural due process would violate as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under RA 7975, before recourse to the Supreme Court.

The Court ruled that the challengers of Sections 4 and 7 of RA 8249 failed to rebut the presumption of constitutionality and reasonableness of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under RA 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. Since it is within the power of the Congress to define the jurisdiction of courts subject to the constitutional limitations, it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Moreover, petitioner's and intervenor's contention that their right to a two-tiered appeal which they acquired under RA 7975 has been diluted by the enactment of RA 8249 is incorrect. The same contention had already been rejected by the Court considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law.The mode of procedure provided for in the statutory right to appeal is not included in the prohibition against ex post facto law. RA 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law.

Anent the issue of jurisdiction, the Court ruled that for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of those accused PNP officers, the offense charged in the subject criminal cases is plain murder and therefore, within the exclusive jurisdiction of the Regional Trial Court, not the Sandiganbayan. Accordingly, the constitutionality of Sections 4 and 7 of RA 8249 is sustained and the Addendum to the March 5, 1997 resolution of the Sandiganbayan is reversed.

A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office.

Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of [Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's official functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender — that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of

the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.

The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or information, and not by the evidence presented by the parties at the trial. As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by public officers and employees, including those in government-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new [1987] Constitution when it declared in Section 4 thereof that the Sandiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law."

The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: "It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. "In (People vs. Montejo (108 Phil. 613 [1960]), wherethe amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policemen and . . . special policemen appointed and provided by him with pistols and high power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed, entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who died in consequence thereof. We held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. "Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose, they spot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factualallegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the

offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, not the Sandiganbayan.

ROMUALDEZ VS SANDIGANBAYAN

QUINON VS PEOPLEFor failure to return the two super caliber .38 pistol

and their magazines and one 12-gauge shotgun that were issued to him during his incumbency and by reason of his function as Station Commander of Calinog, Iloilo PC/INP, Pablo N. Quiñon was convicted by the Sandiganbayan of the crime of Malversation of Public Property. Thus, he interposed this petition for review claiming that the Sandiganbayan erred in holding that he is an accountable public officer. The Court ruled that Article 217 of the Revised Penal Code is designed to protect the government and to penalize erring public officials and conspiring private individuals responsible for the loss of public funds and property by reason of corrupt motives or neglect or disregard of duty. Its all encompassing provision cannot be limited by petitioner's absurd interpretation of the provisions of the Administrative Code restricting the application thereof only to government funds and to bonded public officials. Accordingly, the decision of the Sandiganbayan was affirmed.

The elements of malversation, essential for the conviction of an accused under the above penal provision are: 1. That the offender is a public officer; 2. That he has the custody or control of funds or property by reason of the duties of his office; 3. That the funds or property are public funds or property for which he is accountable; and 4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them.

An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. To be liable for malversation, an accountable officer need not be a bonded official. The name or relative importance of the office or employment is not the controlling factor. What is decisive is the nature of the duties that he performs and that as part of, and by reason of said duties, he receives public money or property which he is bound to account.

In the case at bar, the delivery to petitioner of the firearms belonging to the Government, by reason of his office as Station Commander of Calinog, Iloilo, PC-INP, necessarily entailed the obligation on his part to safely keep the firearms, use them for the purposes for which they were entrusted to him, and to return them to the proper authority at the termination of his tenure as commander, or on demand by the owner, the duty to account for said firearms. Thus, in Felicilda v. Grospe, the Court held a police officer accountable for the firearms issued to him and consequently convicted him for malversation of public property when he failed to produce said firearms upon demand by the proper authority.

Article 217 of the Revised Penal Code is designed toprotect the government and to penalize erring public officials and conspiring private individuals responsible for the loss of public funds and property by reason of corrupt motives or neglect or disregard of duty. Its all encompassing provision cannot be limited by petitioner's absurd interpretation of the provisions of the Administrative Code restricting the application thereof only to government funds and to bonded public officials.

Under Article 217 of the Code, the failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. Considering that petitioner failed to adduce evidence on why he failed to produce, after the expiration of his term and despite lawful demand, the two .38 caliber pistols with Serial Nos. 310136 and 310150 issued to him by reason of his duties as Station Commander of the Calinog, Iloilo, PC-INP, the Sandiganbayan correctly convicted him of malversation of public property.

MENESES VS SANDIGANBAYANArticle 217 of the Revised Penal Code provides that 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, shall be guilty of the misappropriation or malversation of such funds or property(Emphasis supplied).

The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate a such practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against "vale" or chits given in exchange by the borrowers. On the other hand, in Cabello vs. Sandiganbayan, we held that the giving of "vales" by public officers out of their accountable funds is prohibited by P.D. No. 1145, otherwise known as the Government Auditing Code of the Philippines and Memorandum Circular No. 570, dated June 24, 1968 of the General Auditing Office.

CABRERA ET. AL VS MARCELO

TABUENA VS SANDIGANBAYANTabuena and Peralta stress that they were being charged with intentional malversation. But they were convicted of malversation by negligence. Their theory is that such variance is a reversible flaw.We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan " where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: ". . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper."

Good faith is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior — the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. In other words, Marcos had a say in matters involving intergovernment agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose." The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). The MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. Thus, even if the order is

illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of theP55 Million of the MIAA funds.

There is no denying that the disbursement, whichTabuena admitted as "out of the ordinary," did not comply with certain auditing rules and regulations. But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditingprocedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal.

The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC. We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office,the sum of FIFTY FIVE MILLION . . .," and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President in as much as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money.

Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million.

MENDIOLA VS PEOPLEREPUBLIC ACT NO. 3019, AS AMENDED (ANTI-GRAFT

LAW); KNOWINGLY GRANTING LICENSE OR PERMIT TO UNQUALIFIED PERSONS, AND CAUSING UNDUE INJURY TO ANY PARTY; A SUBSTANTIAL QUESTION OF LAW MAY BE THE BASIS OF GOOD FAITH; GOOD FAITH, VALID DEFENSE, IN CASE AT BAR. The information for violation of Section 3(j) of R.A. No. 3019, as amended, alleged that Ortillada, Rosales and Blanco were not legally entitled to "building permits for market stalls" for the reason that "the place or location to where these permits were issued is already covered by a valid and existing building permit previously by accused on March 12, 1987 in favor of the Municipality of Angono, Rizal." The evidence at the trial, showed that when petitioner issued the building permit for the new or Phase II building, he noted the encroachment of the proposed building upon the Phase I market stalls of Ortillada, Rosales and Blanco and had precisely required that the building plan be corrected. The factors tending to show good faith on the part of petitioner Mendiola include the following: Firstly, the permits issued by petitioner to Ortillada, Rosales and Blanco upon their application were merely temporary renovation permits that authorized the renovation of the stalls demolished by the Phase II contractor. As pointed out earlier, these renovation permits were qualified by the terms of an accompanying transmittal letter issued by petitioner Mendiola stating that the renovation permits would become ineffective should the courts or proper higher authority restrain the three (3) permittees from renovating their makeshift market stalls. Secondly, the three (3) permittees were long-time stallholders, having been so at least since the fire which had destroyed the old Angono Public Market. They were not strangers to the Angono Public Market, since they were stallholders, with temporary stalls, in APM-Phase I. Thirdly, the

three (3) permittees had outstanding and paid-up municipal business permits when petitioner issued them their stall renovation permits. Fourthly, the permittees' temporary stalls had been demolished without prior hearing or a court order, or a demolition order from the authorized building official which was petitioner Mendiola himself. Thus, whether Ortillada, Rosales and Blanco were legally entitled to the temporary renovation permits presented a substantial question of law and it is well to recall that mistake on a doubtful or difficult question of law may be the basis of good faith. There are other factors, environmental in nature, tending to show good faith on the part of petitioner Mendiola which relate to Resolution No. 7-1987 of theAngono Municipal Council, the enabling Resolution which lay at the heart of the boiling controversy between the Phase I stallholders and the Phase II awardees. Firstly, as already pointed out, the validity of Resolution No. 7-1987 was being litigated before the courts. The record shows that there were at least three (3) cases before the Regional Trial Court of Binangonan involving the validity or enforceability of Resolution No. 7-1987. What was brought up before the Court of Appeals on a petition for certiorari was an interlocutory order of the trial court in one of the cases denying a preliminary writ of injunction stopping the construction of the new building. Secondly, the decision dated 31 August 1988 of the Secretary, DPWH, was not really final since the applicable statute itself provided for an appeal by way of a petition for review before the Office of the President. Contrary to the submission of the Solicitor General, we believe and so hold that all the above factors support the claim of good faith in respect of both the first and second charges against petitioner Mendiola. The question of validity and enforceability of Resolution No. 7-1987 was all pervasive and inevitably affected both the entitlement of the three (3) Phase I stallholders to the temporary renovation permits issued by petitioner Mendiola and the entitlement of the contractor and Phase II awardees to a certificate of partial occupancy of the admittedly incomplete new building. The facts or events surrounding the first charge are so intertwined with those surrounding the second charge as to render it very difficult to separate them, even conceptually.

CAUSING UNDUE INJURY TO ANY PARTY; EVIDENT BAD FAITH, NOT ESTABLISHED IN CASE AT BAR; ABSENCE OF ANY ALLEGATION THAT ACCUSEDRECEIVED MONEY FOR ISSUING THE QUESTIONED RENOVATION PERMIT. Section 3(e) of R.A. No. 3019, as amended, requires proof of "manifest partiality" or "evident bad faith" or "gross inexcusable negligence." The information for violation of Section 3(e) alleged only "evident bad faith." We believe that, in the totality of the circumstances of this case, the prosecution failed to show beyond reasonable doubt the presence of any of these three (3) elements. Indeed, it appears that the prosecution failed to overcome the presumption of good faith to which every public official, acting in discharge of his official duties, is entitled. The petitioner, caught between two (2) contending groups was constantly trying to specify in writing the reasons for his acts. While one need not agree with all his acts or stated reasons therefor or the wisdom thereof, one cannot say that they were so obviously and palpably sham justifications for merely arbitrary and capricious acts as to warrant a finding of "evident bad faith." No one had claimed that petitioner received any money for issuing the renovation permits or refraining from issuing the demanded certificate(s) of partial occupancy.

ABSENCE OF UNDUE INJURY TO ANY PARTY IN CASE AT BAR. There is also substantial doubt whether the element of "undue injury to any party" required in Section 3(e) was adequately shown by the prosecution. The respondent Sandiganbayan apparently overlooked the circumstance that the Phase II awardees had in fact entered and occupied their respective stalls in the new building, without waiting for the certificate(s) of partial occupancy which they demanded from petitioner Mendiola and without paying heed to Resolution No. 097-1988 of the new Municipal Council warning them not to open up their stalls in the still incomplete new building. The record strongly suggests that petitioner Mendiola had the misfortune of getting caught in the middle of a heated controversy between two (2) local interest groups and between the outgoing OIC municipal officials and the incoming newly elected set of municipal officials. In the course of requiring complete compliance with all formal and documentary requirements for issuance of a certificate of occupancy or partial occupancy, he was charged with violation of R.A. No. 3019 as amended, doubtless at the behest of the Phase II

awardees, the contractor and the old or OIC set of municipal officials. Had he in fact issued the demanded certificate(s) of partial occupancy, he in all probability would have been charged criminally by the Samahan of Phase I stallholders and the newly elected municipal officials, probably under the same statutory provisions. The Court of Appeals decision did not pass upon the merits of the question of validity of Resolution No. 7-1987; it merely assumed the validity of that Resolution which was precisely being controverted before the trial court. The DPWH Secretary did not pass upon the grounds relating to Resolution No. 7-1987 urged in the motion for reconsideration of petitioner Mendiola and the new Mayor. Under these circumstances, the filing of the two (2) criminal informations appears quite unfortunate. We note also that, so far as the record would show, petitioner Mendiola was, curiously, the only person or public official criminally charged in connection with the whole affair. That the three (3) Phase I stallholders on whose stalls the new building encroached happened to be relatives or friends of petitioner, appears to us as essentially if not completely co-incidental; the ruling of the Sandiganbayan that petitioner deliberately chose to protect the interests of his relatives and friend and not the interests of the general community appears bereft of basis and as speculative. The standard of proof beyond reasonable doubt was not met.

LAYNO VS PEOPLEThe law on nepotism, as provided in Section 49(a) of

PD No. 807, prohibits the appointing or recommending authority from making any appointment in the national, provincial, city or municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, in favor of his (appointing or recommending authority's) relative within the third degree of consanguinity or affinity. Thus, in order to guarantee that the law is duly observed, it is required, among others, that the appointment paper should be accompanied by a certification of the appointing or recommending authority stating therein that he is not related to the appointee within the third degree of consanguinity or affinity. Although Section. 49(a) of PD No. 807 does not explicitly provide that the appointing or recommending authority shall disclose his true relationship with the appointee in the form of a certification, nonetheless, in the light of the rulings in People vs. Po Giok To (196 Phil. 913) and People vs. Kho, (CA G.R. No. 03618-CR), the legal obligation of the appointing or recommending authority to state the true facts required to be stated in the certification is inherent in the law on prohibition against nepotism and the nature and purpose of such certification. In the case at bar, since the petitioner was the appointing authority when he made the appointment in favor of his son, Fernando T. Layno, as meat inspector in the office of the municipal treasurer of Lianga, Surigao del Sur, he had the legal obligation to disclose in the certification his true relationship with the appointee.

FALSIFICATION OF PUBLIC DOCUMENTS; DEFENSE OF GOOD FAITH UNAVAILING IN CASE AT BAR. This Court has indeed ruled that good faith is a valid defense in a charge of falsification of public documents by making untruthful statements in a narration of facts. In the present case, however, the petitioner's claim of good faith is unavailing as it is inconsistent with his very defense that he did not sign nor issue the certification in question. As held by the Sandiganbayan — "The plea cannot be accepted. He expressly admitted that Fernando Y. Layno was his legitimate son. Nevertheless, he deliberately disregarded that fact, brazenly certifying that he was not related to him within the third degree of consanguinity. The perversion was designed to conceal his father-son relationship from the Civil Service Commission and thereby deceived it, as it was in fact deceived, in approving the appointment he extended to him. The criminal intent is not only obvious, but is also presumed, from the untruthful narration of fact. The crime of falsification having already been committed, no acts showing subsequent repentance and abandonment of purpose, even if true, can relieve the accused of his penal liability."

FALSIFICATION BY PUBLIC OFFICER; MAKING UNTRUTHFUL STATEMENTS IN A NARRATION OF FACT; REQUISITES; CASE AT BAR. In Syquian vs. The People of the Philippines, (171 SCRA 223), this Court held that: "The offense of falsification by a public officer under Article 171 of the Revised Penal Code is committed by 'any public officer, employee or notary who, taking advantage of his official position, shall falsify a

document by committing any of the following acts: . .. 4. Making untruthful statements in a narration of fact; . . .' It is settled that in this fourth kind of falsification, the following requisites must concur: (a) That the offender makes in a document untruthful statements in a narration of facts; (b) That he has a legal obligation to disclose the truth of the facts narrated by him; and (c) That the facts narrated by the offender are absolutely false (Cabigas v. People, G.R. No. 67472, July 3, 1987, 152 SCRA 18.)" After a thorough review of the records, the Court finds that all the elements of the crime of falsification of public document under Article 171, par. 4, of the Revised Penal Code are present in the case at bar. The petitioner was a public officer being then the incumbent mayor of the Municipality of Lianga, Surigao del Sur, when he issued on 16 March 1980 the appointment in favor of Fernando Y. Layno as a meat inspector in the office of the municipal treasurer of Lianga. In connection with the said appointment, the petitioner taking advantage of his official position, issued the certification (Exh. B)— a public document — stating therein that he is not related to the appointee within the third degree of consanguinity or affinity; but, as previously discussed, he had the legal obligation to disclose his true relationship with the appointee. The facts narrated by the petitioner in the said certification are absolutely false because the bare fact and naked truth is that the appointee Fernando Y. Layno is his legitimate son.

INTERNATIONAL HARVESTER VS COURT OF APPEALS

BANCO FILIPINO VS PURISIMAANTI-GRAFT AND CORRUPT PRACTICES ACT;

ADDITIONAL EXCEPTIONS TO RULE AGAINST DISCLOSURE OF BANK DEPOSITS UNDER REPUBLIC ACT NO. 1405. Section 8 of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, on dismissal due to unexplained wealth, is an additional exception under Republic Act No. 1405.

INQUIRY INTO ILLEGALLY ACQUIRED PROPERTY; EXTENDS TO PROPERTY RECORDED IN THE NAME OF OTHER PERSON. The inquiry into illegally acquired property - or property NOT "legitimately acquired" - extends to cases where such property is concealed by being held by or recorded in the name of other persons. This proposition is made clear by R.A. No. 3019 which quite categorically states that the term, "legitimately acquired property of a public officer or employee shall not include . . . property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, respondent's spouse, ascendants, descendants, relatives or any other persons.

RATIONALE. To restrict the inquiry only to property held by or in the name of the government official or employee, or his spouse and unmarried children, would make available to persons in government who illegally acquire property an easy and fool-proof means of evading investigation and prosecution; all they would have to do would be to place the property in the possession or name of persons other than their spouse and unmarried children.

CLARO VS SANDIGANBAYANANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 2

(b) THEREOF; PUBLIC OFFICER DEFINED AND CLASSIFIED; APPLICATION IN CASE AT BAR. Petitioner misconstrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof "includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government. . .." The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service by PD 807 providing for the organization of the Civil Service Commission and by the Administrative Code of 1987. Non-career service in particular is characterized by — (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose

employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. It is quite evident that petitioner fails under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of office became unessential considerations in view of the above-mentioned provision of law clearly including petitioner within the definition of a public officer.

SECTION 3 (b) THEREOF; COMMITTED BY MERE DEMAND; CASE AT BAR. Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, when he could have just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his percentage share of P200,000.00 whether from the contractor's project engineer, Engr. Alexander Resoso or directly from the contractor himself Engr. Jaime Sta. Maria, Sr. That petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently established by the testimony of Engr. Resoso.

ESTABLISHED IN CASE AT BAR. Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his intervention "was not required by law but in the performance of a contract of services entered into by him as a private individual contractor," is erroneous. As discussed above, petitioner falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the contract of services are subsumed under the phrase "wherein the public officer in his official capacity has to intervene under the law." Petitioner's allegation, to borrow a cliche, is nothing but a mere splitting of hairs. Among petitioner's duties as project manager is to evaluate the contractor's accomplishment reports/billings hence, as correctly ruled by the Sandiganbayan he has the "privilege and authority to make a favorable recommendation and act favorably in behalf of the government," signing acceptance papers and approving deductives and additives are some examples. All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore, present. Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit. Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges against him should be rejected for being improbable, unbelievable and contrary to human nature. We disagree. Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral certainty is required or "that degree of proof which produces conviction in an unprejudiced mind." We have extensively reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan.

BERONA VS SANDIGANBAYAN

DOROMAL VS SANDIGANBAYANWHEN THE CHARGE HAS BEEN CHANGED; RIGHT OF

THEACCUSED IS SUBSTANTIAL. The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure. That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial error, in that it subjects the accused tothe loss of life, liberty, or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666).

ACCUSED ALONE MAY WAIVE THE RIGHT. The Solicitor

General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists. Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it.

ABSENCE OF, IS NOT A GROUND TO QUASH THE COMPLAINT; CASE MUST BE REMANDED FOR PRELIMINARY INVESTIGATION. As the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in theSandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus we did rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile, 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4.

ANTI-GRAFT AND CORRUPT PRACTICES ACT; PRESENCE OF A SIGNED DOCUMENT, NOT A SINE QUA NON FOR THE PETITIONER TO BE CHARGED. The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed document bearing the signature of accused Doromal as part of the application to bid . . . . is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be charged . . . with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107-108, Rollo)

PARTICIPATION OF PUBLIC OFFICIALS IN ANY BUSINESS; BAN IS SIMILAR TO THE PROHIBITION IN THE CIVIL SERVICE LAW. Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-President, the members of the Cabinet and their deputies or assistants shall not . . . during (their) tenure, . . . directly or indirectly . . . participate in any business." The constitutional ban is similar to the prohibition in the CivilService Law (PD No. 807, Sec. 36, subpar. 24) that "pursuit of private business . . . without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service.

VIOLATION OF PROHIBITION COMMANDS SUSPENSION FROM OFFICE; LEAVE OF ABSENCE IS NOT A BAR TO PREVENTIVE SUSPENSION. Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent.

CIVIL SERVICE; PREVENTIVE SUSPENSION; MAXIMUM PERIOD IS 90 DAYS. As we held in Layno, Sr. vs. Sandiganbayan , 136 SCRA 536 (1985), a preventive suspension for an indefinite period of time, such as one that would last until the case against the incumbent official shall have been finally terminated, would "outrun the bounds of reason and result in sheer oppression" and a denial of due process. The petitioner herein is no less entitled to similar protection. Since his preventive suspension has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted.

BOLASTIG VS SANDIGANBAYANREPUBLIC ACT NO. 3019; PREVENTIVE SUSPENSION

UNDER SECTION 13 THEREOF MANDATORY. It is now settled that Sec. 13 of Republic Act No. 3019 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law. Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property is filed. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended he may

frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court.

NINETY-DAY PERIOD OF PREVENTIVE SUSPENSION; EXPLAINED. It is indeed true that in some of our decisions the expression "the maximum period of ninety (90) days" is used. But that is only for the purpose of emphasizing that the preventive suspension therein involved, which were for more than ninety (90) days, were excessive and unreasonable. It is to be noted that the ninety-day period of preventive suspension is not found in Sec. 13 of Republic Act No. 3019 but was adopted from Sec. 42 of the Civil Service Decree (P.D. NO. 807), which is now Sec. 52 of the Administrative Code of 1987. . . . The duration of preventive suspension is thus coeval with the period prescribed for deciding administrative disciplinary cases. If the case is decided before ninety days, then the suspension will last less than ninety days, but if the case is not decided within ninety days, then the preventive suspension must be up to ninety days only. Similarly, as applied to criminal prosecutions under Republic Act No. 3019, preventive suspension will last for less than ninety days only if the case is decided within that period; otherwise, it will continue for ninety days. The duration of preventive suspension will, therefore, vary to the extent that it is contingent on the time it takes the court to decide the case but not on account of any discretion lodged in the court, taking into account the probability that the accused may use his office to hamper his prosecution.

CONTENTION THAT SUSPENSION WILL DEPRIVE PETITIONER'S CONSTITUENCY OF HIS SERVICES NOT SUFFICIENT BASIS FOR REDUCING MANDATORY PERIOD. The fact that petitioner's preventive suspension may deprive the people of Samar of the services of an official elected by them, at least temporarily, is not a sufficient basis for reducing what is otherwise a mandatory period prescribed by law. The vice governor, who has likewise been elected by them, will act as governor. Indeed, even the Constitution authorizes the suspension for not more than sixty days of members of Congress found guilty of disorderly behavior, thus rejecting the view expressed in one case that members of the legislature could not be suspended because in the case of suspension, unlike in the case of removal, the seat remains filled but the constituents are deprived of representation.

CABAL VS KAPUNANANTI-GRAFT LAW; FORFEITURE OF UNEXPLAINED

WEALTH; NATURE OF FORFEITURE AS PENALTY. — The purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti- Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property. Such forfeiture has been held, however, to partake of the nature of a penalty.

EXEMPTION OF DEFENDANTS FROM OBLIGATION TO BE WITNESS AGAINST THEMSELVES. Proceedings for forfeiture of property are deemed criminal or penal, and hence, the exemption of defendants in criminal cases from the obligation to be witness against themselves are applicable thereto.

FORFEITURE OF PROPERTY IN SUBSTANCE IS A CRIMINAL PROCEEDING FOR THE PURPOSE OF PROTECTION OF THE RIGHTS OF THE DEFENDANT AGAINST SELF-INCRIMINATION; CASE OF BOYD vs. U.S. and THURSTON vs. CLARK, CITED. In Boyd vs. U.S. (116 U.S. 616, 29 L. ed., 746), it was held that the information, in a proceeding to declare a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding, is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason of criminal proceedings for the purposes of that portion of the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435,

437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecuted is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is an action, suit or cause instituted to punish an infraction of the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case . . . ."

CASE OF ALMEDA vs. PEREZ, DISTINGUISHED. In Almeda vs. Perez, L-18428 (August 30, 1962) the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding is civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing on the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination.

REPUBLIC VS SANDIGANBAYAN (2002)The Presidential Commission on Good Government

(PCGG) issued a sequestration writ against all the assets, shares of stock, property records and bank deposits of Hans Menzi Holdings and Management, Inc. (HMHMI). The estate of Hans M. Menzi, in behalf of HMHMI, filed with the Sandiganbayan a motion to lift freeze order which was granted by the Sandiganbayan. Thereafter, the Republic of the Philippines filed with the Supreme Court a petition for review assailing the resolution of the Sandiganbayan lifting the freeze order. The Court set aside the Sandiganbayan resolution and remanded the case back to the Sandiganbayan to resolve the issue of the issuance of the writ of sequestration. The Sandiganbayan lifted the writ of sequestration reasoning that there was no prima facie factual basis for its issuance. The Sandiganbayan denied petitioner's motion for reconsideration. Hence, this petition.

The Supreme Court ruled that the Sandiganbayan has full authority to decide on all incidents in the ill-gotten case, including the propriety of the writs of sequestration that the PCGG initially issued. In the absence of competent evidence showing thus far that President Marcos or his cronies ever acquired Bulletin shares of the late Hans M. Menzi or HMHMI that might be subject to sequestration, the Supreme Court may not void the resolutions of the Sandiganbayan in question. Moreover, the appellate jurisdiction of the Supreme Court over decisions or final orders of the Sandiganbayan is limited to questions of law. The Supreme Court is not a trier of facts. It is not the Court's function to examine and weigh all over again the evidence presented in the proceedings below.

APPELLATE JURISDICTION OF THE SUPREME COURT OVER DECISIONS OF THE SANDIGANBAYAN, LIMITED TO QUESTIONS OF LAW. It is well settled that the appellate jurisdiction of the Supreme Court over decisions or final orders of the Sandiganbayan is limited to questions of law. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.

QUESTION OF FACT, DEFINED. A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation.

SANDIGANBAYAN HAS FULL AUTHORITY TO DECIDE ON ALL INCIDENTS IN THE ILL-GOTTEN CASE INCLUDING THE PROPRIETY OF THE WRITS OF SEQUESTRATION IN CASE AT BAR. We agree with respondents that the Sandiganbayan has full authority to decide on all incidents in the ill-gotten case, including the propriety of the writs of sequestration that the PCGG initially issued. Based on the evidence the PCGG submitted so far to the Sandiganbayan, the late Hans M. Menzi owned the Bulletin Publishing Corporation almost one hundred (100%) per cent since 1957, except those Bulletin shares sold to U.S. Automotive corporation in 1985, those converted to treasury shares in 1986, and those sold to the general public at public offerings. In the

absence of competent evidence showing thus far that President Ferdinand E. Marcos or his cronies ever acquired Bulletin shares of the late Hans M. Menzi or HMHMI that might be subject to sequestration, we may not void the resolutions of the Sandiganbayan in question.

REPUBLIC VS SANDIGANBAYAN (2003)These consolidated cases stemmed from the

resolutions of the Sandiganbayan (1) ordering the calling and holding of the Eastern Telecommunications, Philippines, Inc.(ETPI) annual stockholders meeting for 1992 under its supervision and (2) authorizing the Presidential Commission on Good Government (PCGG) to cause the holding of a special stockholders' meeting to increase ETPI's authorized capital stock and to vote therein the sequestered Class "A" shares of stock. The Supreme Court ruled that the Members of the Sandiganbayan cannot participate in the stockholders meeting for the election of the ETPI Board of Directors. Neither shall the Clerk of Court be appointed to call such meeting and issue notices thereof. The Sandiganbayan shall appoint, or the parties may agree to constitute, a committee of competent and impartial persons to call, send notices and preside at the meeting for the election of the ETPI Board of Directors. The Court likewise ruled that the PCGG cannot vote sequestered shares to elect the ETPI Board of Directors or to amend the Articles of Incorporation for the purpose of increasing the authorized capital stock unless there is a prima facie evidence showing that said shares are ill-gotten and there is an imminent danger of dissipation. Consequently, the Court referred the petitions at bar to the Sandiganbayan for reception of evidence to determine whether there is a prima facie evidence showing that the sequestered shares in question are ill-gotten and there is an imminent danger of dissipation to entitle the PCGG to vote them in a stockholders' meeting.

SEQUESTERED SHARES; EXCEPTION. The PCGG cannot thus vote sequestered shares, except when there are "demonstrably weighty and defensible grounds" or "when essential to prevent disappearance or wastage of corporate property."

TWO-TIERED TEST IN DETERMINING WHETHER SEQUESTERED SHARES MAY BE VOTED UPON. The principle laid down in Baseco was further enhanced in the subsequent cases of Cojuangco v. Calpo and Presidential Commission on Good Government v. Cojuangco, Jr. , where this Court developed a "two-tiered" test in determining whether the PCGG may vote sequestered shares: The issue of whether PCGG may vote the sequestered shares in SMC necessitates a determination of at least two factual matters: 1. whether there is prima facie evidence showing that the said shares are ill-gotten and thus belong to the state; and 2. whether there is an immediate danger of dissipation thus necessitating their continued sequestration and voting by the PCGG while the main issue pends with the Sandiganbayan.

INAPPLICABLE IN CASES INVOLVING FUNDS OF PUBLICCHARACTER. The two-tiered test, however, does not apply in cases involving funds of "public character." In such cases, the government is granted the authority to vote said shares, namely: (1) Where government shares are taken over by private persons or entities who/which registered them in their own names, and (2) Where the capitalization or shares that were acquired with public funds somehow landed in private hands.

STOCK AND TRANSFER BOOK, SHALL BE THE BASIS OF DETERMINING THE TRUE OWNERS OF THE SHARES OF STOCK, REGARDLESS OF THE PRESENCE OF ALTERATIONS BY SUBSTITUTION THEREIN; CASE AT BAR. This Court sees no grave abuse of discretion on the part of the Sandiganbayan in ruling that: "The charge that there were "alterations by substitution" in the Stock and Transfer Book is not a matter which should preclude the Stock and Transfer Book from being the basis or guide to determine who the true owners of the shares of stock in ETPI are. If there be any substitution or alterations, the anomaly, if at all, may be explained by the corporate secretary who made the entries therein. At any rate, the accuracy of the Stock and Transfer Book may be checked by comparing the entries therein with the issued stock certificates. The fact is that any transfer of stock or issuance thereof would necessitate an alteration of the record by substitution. Any anomaly in any entry which may deprive a person or entity of its right to vote may generate a controversy personal to the corporation and the stockholder and

should not affect the issue as to whether it is the PCGG or the shareholder who has the right to vote. In other words, should there be a stockholder who feels aggrieved by any alteration by substitution in the Stock and Transfer Book, said stockholder may object thereto at the proper time and before the stockholders meeting." Whether the ETPI Stock and Transfer Book was falsified and whether such falsification deprives the true owners of the shares of their right to vote are thus issues best settled in a different proceeding instituted by the real parties-in-interest.

REGISTRATION IS A PREREQUISITE FORVOTING OF SHARES; RATIONALE. Explaining why registration is a prerequisite for the voting of shares, this Court, in Batangas Laguna Tayabas Bus Company, Inc., v. Bitanga, discoursed: "Indeed, until registration is accomplished, the transfer, though valid between the parties, cannot be effective as against the corporation. Thus, the unrecorded transferee cannot vote nor be voted for. The purpose of registration, therefore, is two-fold: to enable the transferee to exercise all the rights of a stockholder, including the right to vote and to be voted for, and to inform the corporation of any change in share ownership so that it can ascertain the persons entitled to the rights and subject to the liabilities of a stockholder. Until challenged in a proper proceeding, a stockholder of record has a right to participate in any meeting; his vote can be properly counted to determine whether a stockholders' resolution was approved, despite the claim of the alleged transferee. On the other hand, a person who has purchased stock, and who desires to be recognized as a stockholder for the purpose of voting, must secure such a standing by having the transfer recorded on the corporate books. Until the transfer is registered, the transferee is not a stockholder but an outsider."

STOCK CERTIFICATES; CONSIDERED AS NON-NEGOTIABLE INSTRUMENTS; CASE AT BAR. With respect to the PCGG's submission that under Section 34 of the Negotiable Instruments Law, it may take title to the shares represented by the blank stock certificates found in Malacañang and vote the same, the same is untenable. The PCGG assumes that stock certificates are negotiable. They are not. ". . . [A]lthough a stock certificate is sometimes regarded as quasi - negotiable, in the sense that it may be transferred by delivery, it is well settled that the instrument is non-negotiable, because the holder thereof takes it without prejudice to such rights or defenses as the registered owner or creditor may have under the law, except insofar as such rights or defenses are subject to the limitations imposed by the principles governing estoppel." That the PCGG found the stock certificates endorsed in blank does not necessarily make it the owner of the shares represented therein. Their true ownership has to be ascertained in a proper proceeding.

NO OTHER COURT THAN THE ONE CONTEMNED WILL PUNISH A GIVEN CONTEMPT; EXCEPTION. "In whatever context it may arise, contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed. As a matter of practical judicial administration, jurisdiction has been felt properly to rest in only one tribunal at a time with respect to a given controversy. Partly because of administrative considerations, and partly to visit the full personal effect of the punishment on a contemnor, the rule has been that no other court than the one contemned will punish a given contempt. The rationale that is usually advanced for the general rule that the power to punish for contempt rests with the court contemned is that contempt proceedings are sui generic and are triable only by the court against whose authority the contempts are charged; the power to punish for contempt exists for the purpose of enabling a court to compel due decorum and respect in its presence and due obedience to its judgments, orders and processes; and in order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof, for to submit the question of disobedience to another tribunal would operate to deprive the proceeding of half its efficiency." The above rule is not of course absolute as it admits exception "when the entire case has already been appealed [in which case] jurisdiction to punish for contempt rests with the appellate court where the appeal completely transfers to proceedings thereto or where there is a tendency to affect the status quo or otherwise interfere with the jurisdiction of the appellate court."

GARCIA VS SANDIGANBAYAN

ONG VS SANDIGANBAYANLAW ON FORFEITURE OF ILL-GOTTEN WEALTH;

REPUBLIC ACT 1379; FORFEITURE OF PROPERTY PARTAKES THE NATURE OF A PENALTY. In Republic v. Sandiganbayan, we ruled that forfeiture proceedings under RA 1379 are civil in nature and not penal or criminal in character, as they do not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the State. Moreover, the procedure outlined in the law is that provided for in a civil action, viz.: . . . . Hence, unlike in a criminal proceeding, there is to be no reading of the information, arraignment, trial and reading of the judgment in the presence of the accused. In the earlier case of Cabal v. Kapunan, however, we declared that forfeiture to the State of property of a public official or employee partakes of the nature of a penalty and proceedings for forfeiture of property, although technically civil in form, are deemed criminal or penal. We clarified therein that the doctrine laid down in Almeda v. Perez that forfeiture proceedings are civil in nature applies purely to the procedural aspect of such proceedings and has no bearing on the substantial rights of the respondents therein. This ruling was reiterated in Katigbak v. Solicitor General, where we held that the forfeiture of property provided for in RA 1379 is in the nature of a penalty. It is in recognition of the fact that forfeiture partakes the nature of a penalty that RA 1379 affords the respondent therein the right to a previous inquiry similar to a preliminary investigation in criminal cases. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well- founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Although the right to a preliminary investigation is not a fundamental right guaranteed by the Constitution but a mere statutory privilege, it is nonetheless considered a component part of due process in criminal justice.

AFFORDS A CO-RESPONDENT WHO IS NOT A PUBLIC OFFICER OR EMPLOYEE THE RIGHT TO A PRELIMINARY INVESTIGATION. RA 1379, entitled "An Act Declaring Forfeiture in Favor of the State of Any Property Found to Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for theProcedure Therefor," expressly affords a respondent public officer or employee the right to a previous inquiry similar to preliminary investigation in criminal cases, but is silent as to whether the same right is enjoyed by a co-respondent who is not a public officer or employee. Is this silence to be construed to mean that the right to a preliminary investigation is withheld by RA 1379 from a co-respondent, such as Nelly Ong, who is not herself a public officer or employee? The answer is no. It is a significant fact in this case that the questioned assets are invariably registered under the names of both Jose and Nelly Ong owing to their conjugal partnership. Thus, even as RA 1379 appears to be directed only against the public officer or employee who has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income and the income from legitimately acquired property, the reality that the application of the law is such that the conjugal share of Nelly Ong stands to be subjected to the penalty of forfeiture grants her the right, in line with the due process clause of the Constitution, to a preliminary investigation.

FAILURE TO NOTIFY THE PETITIONERS OF THE PROCEEDINGS AND TO BE PRESENT THEREAT IS A DENIAL OF FUNDAMENTAL FAIRNESS WHICH TAINTS THE PRELIMINARY INVESTIGATION. However, Ong calls the Court's attention to the fact that he was not notified of the subpoenas duces tecum ad testificandum apparently issued to SGV, Allied Bank and the BIR and the proceedings taken thereon. This objection was raised in his Motion dated February 17, 1993, which was, unfortunately, perfunctorily denied. The Rules of Procedure of the Office of the Ombudsman provides that the "preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions: . . . (f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where

the appearance of the parties or witness is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath." Ong, therefore, should have been notified of the subpoenas duces tecum ad testificandum issued to SGV, Allied Bank and the BIR. Although there is no indication on record that clarificatory hearings were conducted pursuant to the subpoenas, Ong is entitled to be notified of the proceedings and to be present thereat. The fact that he was not so notified is a denial of fundamental fairness which taints the preliminary investigation.

DOES NOT OFFEND THE BASIC CONCEPT OF FAIRNESS AND THE DUE PROCESS CLAUSE OF THE CONSTITUTION. Finally, the attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of innocence and the right against self incrimination, and breaches the authority and prerogative of the Supreme Court to promulgate rules concerning the protection and enforcement of constitutional rights, are unmeritorious. The law is not vague as it defines with sufficient particularity unlawfully acquired property of a public officer or employee as that "which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property." It also provides a definition of what is legitimately acquired property. Based on these parameters, the public is given fair notice of what acts are proscribed. The law, therefore, does not offend the basic concept of fairness and the due process clause of the Constitution.

DOES NOT VIOLATE THE PRESUMPTION OF INNOCENCE CLAUSE; PRINCIPLE OF PRESUMPTION OF INNOCENCE, EXPLAINED. Neither is the presumption of innocence clause violated by Sec. 2 of RA 1379 which states that property acquired by a public officer or employee during his incumbency in an amount which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property shall be presumed prima facie to have been unlawfully acquired. As elaborated by Fr. Joaquin Bernas, under the principle of presumption of innocence, it is merely required of the State to establish a prima facie case, after which the burden of proof shifts to the accused. In People v. Alicante, the Court held: No rule has been better established in criminal law than that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. In a criminal prosecution, therefore, the burden is upon the State to prove every fact and circumstance constituting the crime charged, for the purpose of showing the guilt of the accused. While that is the rule, many of the States have established a different rule and have provided that certain facts only shall constitute prima facie evidence, and that then the burden is put upon the defendant to show or to explain that such facts or acts are not criminal. It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by a statute providing that proofby the State of some material fact or facts shall constitute prima facie evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that such act or acts are innocent and are committed without unlawful intention. . . . The State having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.

DOES NOT INFRINGE THE RIGHT AGAINST SELF-INCRIMINATION. The constitutional assurance of the right against self-incrimination likewise cannot be invoked by petitioners. The right is a prohibition against the use of physical or moral compulsion to extort communications from the accused. It is simply a prohibition against legal process to extract from the accused's own lips, against his will, admission of his guilt. In this case, petitioners are not compelled to present themselves as witnesses in rebutting the presumption established by law. They may present documents evidencing the purported bank loans, money market placements and other fund sources in their defense.

OMBUDSMAN; MUST BE CIRCUMSPECT IN ITS CONDUCT OF PRELIMINARY INVESTIGATION. The next question is whether we should direct the Ombudsman to rectify the errors committed during the preliminary investigation, i.e., the failure to give Ong notice of the subpoenas issued to SGV, Allied Bank and the BIR and notice of the Resolution directing the filing of the petition for forfeiture. To so order the Ombudsman at this point would no longer serve any useful purpose and would only further delay the proceedings in this case. Verily, petitioners have been allowed to fully plead their arguments before this Court. After all has been said, this case should now be allowed to proceed in its course. Nonetheless, we find this an opportune time to admonish the Ombudsman to be more circumspect in its conduct of preliminary investigation to the end that participants therein are accorded the full measure of their rights under theConstitution and our laws.

POWERS. Petitioners are the first to agree that the Ombudsman is vested with jurisdiction to investigate and prosecute any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. They recognize that the Ombudsman has primary jurisdiction over cases, such as the present one, cognizable by the Sandiganbayan. The problem with petitioners' contention is their assumption that the Ombudsman, a constitutionally-created body, will not perform its functions faithfully. The duality of roles which the Ombudsman exercises does not necessarily warrant a conclusion that it will be given to making a finding of probable cause in every case. At any rate, "[I]n the debates on this matter in the Constitutional Commission, it was stressed by the sponsors of the Office of the Ombudsman that, whereas the original Tanodbayan was supposed to be limited to the function of prosecution of cases against public functionaries, generally for graft and corruption, the former would be considered 'the champion of the citizen,' to entertain complaints addressed to him and to take all necessary action thereon." This should leave no doubt as regards the constitutionality and propriety of the functions exercised by the Ombudsman in this case. Verily, the Court in Republic v. Sandiganbayan, reviewed the powers of theOmbudsman and held: At present, the powers of the Ombudsman, as defined by Republic Act No. 6770 corollary to Section 13, Article XI of the 1987 Constitution, include, inter alia, the authority to: (1) investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; and (2) investigate and initiate the proper action for the recovery of ill-gotten wealth and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved there. In the same case, we declared that the Ombudsman has the correlative powers to investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth which were amassed after February 25, 1986. There is therefore no merit in petitioners' contention that the absence of participation of the OSG taints the petition for forfeiture with nullity.

SEGOVIA VS SANDIGANBAYANPetitioners who hold regular executive positions in the

National Power Corporation were designated by the NPC Board to compose the Contract Committee for NPC projects. During the pre-qualification and bidding for a project, it declared a failure of bidding and directed a re-bidding. The recommendation was unanimously approved by the NPC Board, but for no apparent reasons, the project was eventually cancelled. Feeling aggrieved by the turn of events, Urban, the lowest bidder in the failed bidding filed a complaint before the Ombudsman. After investigation, an information was accordingly filed with the Sandiganbayan charging petitioners with violation of R.A. 3019. They were suspended pendente lite. The suspension is the subject of this special civil action for certiorari and prohibition before the Supreme Court. Petitioners contend that their suspension was not mandatory considering that the positions they occupy were quite sensitive and had no relations to prequalification of contractors, biddings or awards — which was an additional function temporarily assigned to them.

The Supreme Court held that under R.A. 3019, the suspension of a public officer is mandatory after a determination

has been made of the validity of the information in a pre-suspension hearing conducted for that purpose. It is also had the occasion to reiterate the rule as was stressed in Libanan v. Sandiganbayan that . . . When the statue is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory, and there are no 'ifs' and 'buts' about it.

PREVENTIVE SUSPENSION; SUSPENSION OF PUBLICOFFICIALS AND EMPLOYEES; NOT PENAL IN CHARACTER BUT MERELY PREVENTIVE MEASURE BEFORE FINAL JUDGMENT. The validity of Section 13, R.A. 3019, as amended — treating of the suspension pendentelite of an accused public officer — may no longer be put at issue, having been repeatedly upheld by this Court. As early as 1984, in Bayot v. Sandiganbayan, the Court held that such suspension was not penal in character but merely a preventive measure before final judgment; hence, the suspension of a public officer charged with one of the crimes listed in the amending law, committed before said amendment, does not violate the constitutional provision against an ex post facto law. The purpose of suspension is to prevent the accused public officer from frustrating or hampering his prosecution by intimidating or influencing witnesses or tampering with documentary evidence, or from committing further acts of malfeasance while in office. Substantially to the same effect was the Court's holding, in 1991, in Gonzaga v. Sandiganbayan, that preventive suspension is not violative of the Constitution as it is not a penalty; and a person under preventive suspension remains entitled to the constitutional presumption of innocence since his culpability must still be established.

POWER TO SUSPEND LIES IN THE COURT IN WHICH CRIMINAL CHARGE IS FILED. The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension lies in the court in which the criminal charge is filed; once a case is filed in court, all other acts connected with the discharge of court functions — including preventive suspension — should be acknowledged as within the competence of the court that has taken cognizance thereof, no violation of the doctrine of separation of powers being perceivable in that acknowledgment.

APPLICABILITY OF SUSPENSION PENDENTE LITE. The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service. It applies to a Public High School Principal; a Municipal Mayor; a Governor; a Congressman; a Department of Science and Technology (DOST) non-career Project Manager, a Commissioner of the Presidential Commission on Good Government (PCGG). The term "office" in Section 13 of the law applies to any office which might currently be holding and not necessarily the particular office in relation to which he is charged.

MANDATORY. It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition therefor is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the RevisedPenal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out on Rule 117 of the Rules of Court. But once a proper determination of the validity of the

information has been made, it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. The court has no discretion, for instance, to hold in abeyance the suspension of the accused official on the pretext that the order denying the latter's motion to quash is pending review before the appellate courts.

PREVENTIVE SUSPENSION; MAY NOT EXCEED NINETY (90) DAYS. However, the preventive suspension may not be of indefinite duration or for an unreasonable length of time; it would be constitutionally proscribed otherwise as it raises, at the very least, questions of denial of due process and equal protection of the laws. The Court has thus laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days in consonance with Presidential Decree No. 807 (the Civil Service Decree), now Section 52 of the Administrative Code of 1987.

PURPOSES OF PREVENTIVE SUSPENSION. The Court's pronouncement in Bolastig v. Sandiganbayan , supra, are germane: "Our holding that, upon the filing of a valid information charging violation of Republic Act No. 3019, Book II, Title 7 of the Revised Penal Code, or fraud upon government or public property, it is the duty of the court to place the accused under preventive suspension disposes of petitioner's other contention that since the trial in theSandiganbayan is now over with respect to the presentation of evidence for the prosecution there is no longer any danger that petitioners would intimidate prosecution's witnesses. The fact is that the possibility that the accused would intimidate witnesses or otherwise hamper his prosecution is just one of the grounds for preventive suspension. The other one is, to prevent the accused from committing further acts of malfeasance while in office."

SOCRATES VS SANDIGANBAYANTHE CHARACTER OF THE CRIME IS NOT DETERMINED

BY THE TITLE OF THE INFORMATION BUT BY THE FACTS ALLEGED IN THE BODY THEREOF. Axiomatic is the rule that what controls is not the designation of the offense but its description in the complaint or information. The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. It is not the technical name given by the fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the information. This Court has repeatedly held that when the facts, acts and circumstances are set forth in the body of an information with sufficient certainty to constitute an offense and to apprise the defendant of the nature of the charge against him, a misnomer or innocuous designation of a crime in the caption or other parts of the information will not vitiate it. In such a case, the facts set forth in the charge controls the erroneous designation of the offense and the accused stands indicted for the offense charged in the statement of facts. The erroneous designation may be disregarded as surplusage.

WHERE THE OFFENSE MAY BE COMMITTED IN SEVERAL MODES, THE RULE IS IT IS SUFFICIENT TO PROVE THE OFFENSE AS COMMITTED IN ANY ONE OF THEM IN ORDER TO SUSTAIN CONVICTION. It is an old and well-settled rule in the appreciation of indictments that where an offense may be committed in any of several different modes, and the offense, in any particular instance, is alleged to have been committed in two or more of the modes specified, it is sufficient to prove the offense committed through any one of them, provided that it be such as to constitute the substantive offense. Thereafter, a judgment of conviction must be sustained if it appears from the evidence in the record that the accused was guilty as charged of any one of these modes of the offense.

PRELIMINARY INVESTIGATION; ABSENCE THEREOF IS NOT A GROUND FOR THE QUASHAL OF A COMPLAINT OR INFORMATION. It has been consistently held that the absence of a preliminary investigation does not impair the validity of the criminal information or render it defective. Dismissal of the case is not the remedy. It is not a ground for the quashal of a complaint or information. The proper course of action that should be taken is for the Sandiganbayan to hold in abeyance the proceedings upon such information and to remand the case to the office of the Ombudsman for him or the Special Prosecutor to conduct a

preliminary investigation, if the accused actually makes out a case justifying such relief.

AN ORDER DENYING A MOTION TO QUASH IS INTERLOCUTORY ANDNOT APPEALABLE. We have but to reiterate the fundamental rule that an order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. In other words, it cannot be the subject of appeal until the judgment or a final order is rendered. The ordinary procedure to be followed in that event is to enter a plea, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The special civil action for certiorari may be availed of in case there is a grave abuse of discretion or lack of jurisdiction.

REPUBLIC ACT NO. 3019 (ANTI-GRAFT LAW); SUSPENSION OF PUBLIC OFFICER IS MANDATORY AFTER THE VALIDITY OF THE INFORMATION HAS BEEN UPHELD IN A PRE-SUSPENSION HEARING. This Court has ruled that under Section 13 of the anti-graft law, the suspension of a public officer is mandatory after the validity of the information has been upheld in a pre-suspension hearing is conducted to determine basically the validity of the information, from which the court can have a basis to either suspend the accused and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. That hearing may be treated in the same manner as a challenged to the validity of the information by way of a motion to quash. It is evident that upon a proper determination of the validity of the information, it becomes mandatory for the court to immediately issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for interpretation. It is not within the court's discretion to hold in abeyance the suspension of the accused officer on the pretext that the order denying the motion to quash is pending review before the appellate courts. Its discretion lies only during the pre-suspension hearing where it is required to ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the filing of the informations against him, (2) the acts for which he was charged constitute a violation of the provisions of Republic Act No. 3019 or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) informations against him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of Court. Once the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter of court. There are no ifs and buts about it. This is because a preventive suspension is not a penalty. It is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. To further emphasize the ministerial duty of the court under Section 13 of Republic Act No.3019, it is said that the court trying a case has neither discretion nor duty to accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. The presumption is that unless the accused is suspended, he may frustrate his prosecution or commit further acts of malfeasance or do both, in the same way that upon a finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof, the law requires the judge to issue a warrant for the arrest of the accused. The law does not require the court to determine whether the accused is likely to escape or evade the jurisdiction of the court.

IT IS THE DUTY OF THE PROSECUTING OFFICER TO FILE CHARGES AGAINST WHOMSOEVER THE EVIDENCE MAY SHOW TO BE RESPONSIBLE FOR AN OFFENSE. The rule under Section 1, Rule 110 of the Rules of Court, as reformulated in Section 2, Rule 110 of the 1985 Rules on Criminal Procedure, is that all criminal actions must be commenced either by complaint or information in the name of the People of the Philippines "against all persons who appear to be responsible for the offense involved." The law makes it a legal duty for prosecuting officers to file the charges against whomsoever the evidence may show to be responsible for an offense. This does not mean, however, that they have no discretion at all; their discretion lies in determining whether the evidence submitted justify a reasonable belief that a person has

committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which conversely implies that those against whom no sufficient evidence of guilt exists are not required to be included.

MOTION TO QUASH; GROUNDS; FAILURE TO ASSERT, MAY BE DEEMED A WAIVER THEREOF. A failure to include other persons who appear to be responsible for the crime charged is not one of the grounds provided under Section 3, Rule 117 for which a motion to quash the information against the accused may be filed, most especially in the case at bar where there is prima facie proof that petitioner is probably guilty of the offense charged, aside from the fact that there is no allegation of conspiracy in the informations. Besides, such an infirmity would neither have the effect of extinguishing or mitigating petitioner's liability if he is subsequently found guilty of the offense charged. Section 8, Rule 117 of the 1985 Rules on Criminal Procedure provides that "the failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy." The failure to include a co-accused is not covered by the exception; hence, the same is deemed waived.

REMEDIES OF THE OFFENDED PARTY IN CASE THE GOVERNMENT PROSECUTOR REFUSES TO FILE INFORMATION. Where the government prosecutor unreasonably refuses to file an information or to include a person as an accused therein despite the fact that the evidence clearly warrants such action, the offended party has the following remedies: (1) in case of grave abuse of discretion, he may file an action for mandamus to compel the prosecutor to file such information; (2) he may lodge a new complaint against the offenders before the Ombudsman and have a new examination conducted as required by law; (3) he may institute administrative charges against the erring prosecutor, or a criminal complaint under Article 208 of the Revised Penal Code, or a civil action for damages under Article 27 of the Civil Code; (4) he may secure the appointment of another prosecutor; or (5) he may institute another criminal action if no double jeopardy is involved.

CASTILLO-CO VS BARBERSCongressman Junie Cua, in the course of the

congressional investigation, discovered irregularities in the purchase of heavy equipment by petitioner and the Provincial Engineer constituting overpricing, purchase of reconditioned and not brand new equipments, absence of public bidding and inspection, and advance payment prior to delivery. He filed a complaint against the two before the Office of the Ombudsman for violation of Sections 3(e) and 3 (g) of the Anti-Graft and Corrupt Practices Act, as amended. Petitioner was placed under preventive suspension for 6 months a week after the filing of the complaint. The order was approved by the Deputy Ombudsman for Luzon. Their motions for reconsideration having been denied, petitioner filed the present recourse contesting the authority of the Deputy Ombudsman to sign the order of preventive suspension, the period of suspension was excessive, and denial of due process.

The Supreme Court held that R.A. 7975 (An Act to Strengthen the Functional and Standard Organization of the Sandiganbayan, as amended) does not suggest that only the Ombudsman and not his deputy may order the preventive suspension of officials occupying positions classified as grade 27 or above; that the Ombudsman and his deputy may order preventive suspension pursuant to the provisions of Section 24 of R.A. 6770 and Section 9, Rule 111 of the Rules of Procedure of the Office of the Ombudsman; that preventive suspension, being merely a preliminary step in an administrative investigation, may be decreed even before the charges are heard; and that the six-month suspension of petitioner is within the limits prescribed by Section 24 of R.A. 6770.

PUBLIC OFFICERS; PREVENTIVE SUSPENSION; A PUBLIC OFFICER WITH A SALARY GRADE OF 27 OR ABOVE MAY BE SUSPENDED BY THE OMBUDSMAN OR HIS DEPUTY. Under the provisions of Section 24 of Rep. Act No. 6770 and Section 9, Rule III of the Rules of Procedure of the office of the Ombudsman, there cannot be any doubt that the Ombudsman or his Deputy may preventively suspend an officer or employee, where

appropriate, as indicated by the word "or" between the "Ombudsman" and "his Deputy." The word "or" is a disjunctive term signifying disassociation and independence of one thing from each of the other things enumerated. The law does not require that only theOmbudsman himself may sign the order of suspension.

NOT IN THE NATURE OF PENALTY, HENCE, CAN BE DECREED EVEN BEFORE THE CHARGES ARE HEARD. A preventive suspension, however, can be decreed on an official under investigation after charges are brought and even before the charges are heard since the same is not in the nature of a penalty, but merely a preliminary step in an administrative investigation.

IMMEDIATE ISSUANCE THEREOF DOES NOT CONSTITUTE GRAVE ABUSE OF DISCRETION. The fact that the said order was issued seven days after the complaint was filed did not constitute grave abuse of discretion. The immediate issuance of such order is required in order to prevent the subject of the suspension from committing further irregularities. Such prompt action, moreover, is in consonance with Section 15 of R.A. 6770.

PUBLIC OFFICIALS ENJOY THE PRESUMPTION OF REGULARITY OF PERFORMANCE OF DUTIES. We do not give much credence to petitioner's suggestions of a malicious conspiracy between the Deputy Ombudsman Guerrero and Congressman Cua, reputedly petitioner's political adversary, to harass her. The Deputy Ombudsman and the Congressman, being public officials, enjoy the presumption of regularity of performance of duties. Such presumption can be overcome only by strong and convincing evidence. No such evidence exists in this case.

PUBLIC OFFICERS; PREVENTIVE SUSPENSION; CONDITIONS; MET IN CASE AT BAR. Contrary to petitioner's contention, the conditions required to sustain her preventive suspension have been met in this case. These conditions are: (1) That the evidence of guilt is strong; and (2) That any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

DETERMINATION WHETHER THE EVIDENCE OF GUILT ISSTRONG RESTS UPON THE DETERMINATION OF THE OMBUDSMAN. The first requisite rests upon the determination of the disciplining authority, the Office of the Ombudsman in this case: As held in Buenaseda v. Flavier, however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the 'judgment' of the Ombudsman on the basis of the administrative complaint . . . We find no reason to disturb such determination in this case.

EVIDENCE NEED NOT BE ADDUCED TO PROVE THAT PETITIONER MAY INFLUENCE POSSIBLE WITNESSES OR MAY TAMPER WITH PUBLIC RECORDS. Petitioner's high position likewise gives her access to public records and the clout to influence possible witnesses. Her continued stay in office may thus prejudice the prosecution of the case filed against her. It is immaterial that, as petitioner contends, no evidence has been adduced to prove that petitioner may influence possible witnesses or may tamper with the public records. It is sufficient that there exists such a possibility.

SUSPENSION FOR SIX (6) MONTHS, WITHIN THE PRESCRIBED LIMITS. Finally, the duration of petitioner's suspension is not excessive. Petitioner's suspension for six (6) months is within the limits prescribed by Section24 of R.A. 6770. The length of the period of suspension within such limits, like the evaluation of the strength of the evidence, lies in the discretion of the Ombudsman.

JARAVATA VS SANDIGANBAYAN

ANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 3 (b) THEREOF; OFFICIAL INTERVENTION BY PUBLIC OFFICER MUST BE REQUIRED BY LAW; CASE AT BAR. Section 3(b) of Republic Act No. 3019, refers to a public officer whose official intervention is required by law in a contract or transaction. There is no law which invests the petitioner with the power to intervene in the payment of the salary differentials of the complainants or anyone for that matter. Far from exercising any power, the petitioner played the humble role of a supplicant whose mission was to expedite payment of the salary differentials. In his official capacity as assistant principal, he is not required by law to intervene in the payment of the salary differentials. Accordingly, he cannot be said to have violated the law afore-cited although he exerted efforts to facilitate the payment of the salary differentials.

QUIBAL VS SANDIGANBAYANANTI-GRAFT AND CORRUPT PRACTICES; ELEMENTS

FORCONVICTION. Violation of Section 3(e) of R.A. 3019 requires proof of the following facts, viz: 1.The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.

ELEMENT OF MANIFEST PARTIALITY AND EVIDENT BAD FAITH, ESTABLISHED IN CASE AT BAR. Petitioners insist that their guilt has not been proved beyond reasonable doubt for they did not act with manifest partiality, evident bad faith or gross, inexcusable negligence nor did they cause any injury or damage to the municipal government for the construction of the municipal market was eventually completed. We reject these contentions. The construction of the municipal market should have been finished on March 7, 1988. At the time of the audit on August 31, 1988, however, only 36.24% of the construction of the market has been completed. Yet, out of the contract price of P652,562.60, petitioners already paid the contractor a total of P650,000.00. In so doing, petitioners disregarded the provision in the contract that payment should be based on the percentage of work accomplishment. Moreover, the contract provided that in case of delay in the completion of the project, the contractor shall be liable for liquidated damages at the rate of 1/10 of 1% of the contract price per day of delay. Petitioners did not impose this provision against the contractor. By their acts, petitioners clearly acted with manifest partiality and evident bad faith relative to the construction of the municipal market.

ELEMENT OF GROSS NEGLIGENCE; CONSTRUED IN CASE AT BAR. Petitioners' acts and omissions are, to say the least, grossly negligent. Gross negligence is the pursuit of a course of conduct which would naturally and reasonably result in injury. It is an utter disregard of or conscious indifference to consequences. In cases involving public officials, there is gross negligence when a breach of duty is flagrant and palpable. In the case at bench, petitioners' acts and omissions demonstrated an utter lack of care in enforcing the contract for the construction of the public market and a reckless disregard of the COA rules and regulations regarding disbursement of municipal funds. Petitioners contend that they released P650,000.00 of the contract price to enable the contractor to take advantage of the low cost of construction materials prevailing at that time. Plainly petitioners' act violates the provision of the contract requiring that payment shall be made on the basis of the percentage of completion of the project . Moreover, as correctly pointed out by the Sandiganbayan: . . . "The escalation of prices of construction materials which allegedly prompted Quibal to pay the contractor prematurely is not a justification that would absolve the accused public officers from criminal liability. The parties could have included an escalation clause in the contract . . . Moreover, there is a law which authorizes the adjustment of contract price (R.A. 5979, as amended by PD No. 454) . . ."

UNDUE INJURY OR DAMAGE CAUSED TO THE GOVERNMENT; ESTABLISHED IN CASE AT BAR. Petitioners also insist that no undue injury or damage was caused to the municipal government considering the later completion of the public market. We cannot share this myopic view. The construction of

the municipal market was completed only at the end of December 1989 when it should have been finished by March 7, 1988. This unnecessary delay of almost two (2) years caused considerable monetary loss to the municipal government in the form of monthly rentals. The least that petitioners should have done was to enforce the penalty clause of the contract (providing for payment of liquidated damages in case of breach) when the contractor failed to meet his deadline on March 7, 1988. Instead of doing so, petitioners even made two (2) additional payments to the contractor (on March 14 and April 22, 1988) in the total sum of P250,000.00. Thus, it cannot be successfully argued that the acts and omissions of petitioners did not cause damage or injury to the municipal government.

WHEN PROVED, REQUEST FOR RE-AUDITING NO LONGER FEASIBLE. To bolster their claim of denial of due process, petitioners cite the case of Tinga v. People of the Philippines (No. L-57650, April 15, 1988, 160 SCRA 483). Petitioners' reliance on the Tinga case is misplaced. In said case, we ruled that Tinga was denied due process when the Commission on Audit refused to conduct a reevaluation of the accountabilities of Tinga. The ruling was based on the Court's finding that COA's evaluation of Tinga's accountabilities was replete with errors. Petitioners also claim that considering the value of the unused stockpile of construction materials and supplies, a re-audit would prove that the payment they made was justified and that the actual cost of the project at the time of the initial inspection is indeed P650,000.00. We hold that the suggested re-audit would not exonerate the petitioners. The re-audit cannot blur the fact that undue damage has already been caused to the municipal government in view of the delay in the construction of the municipal market and the failure of the petitioners to enforce the penalty clause in the construction contract.

RIOS VS SANDIGANBAYANPetitioner, then incumbent Mayor of San Fernando,

Romblon, was charged with violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) for alleged unauthorized disposition of confiscated, assorted and sawn tangible lumber without proper authority from DENR and the Sangguniang Bayan. He moved to quash the information on the ground of lack of probable cause and alleged that the disposition of lumber did not result in any "undue injury" because the proceeds of the disposition went to the coffers of the municipal government. On motion by the Office of the Special Prosecutor, petitioner was suspended pendente lite by the Sandiganbayan for a period ninety days. Reconsideration sought by petitioner was denied, hence, the present recourse.

The Supreme Court held that the act of disposing confiscated lumber without proper authority from the DENR and the Sangguniang Bayan constituted a violation of Section 3(e) of R.A. 3019. It also held that it was mandatory for the Sandiganbayan to suspend any incumbent public officer charged with violation of R.A. 3019 or any crime committed by public officers or for any offense involving fraud upon government or public funds or property; and that any single preventive suspension of local elective officials should not extend beyond sixty (60) days.

DISPOSAL OF CONFISCATED LUMBER WITHOUT PRIOR AUTHORITY FROM DENR AND THE SANGGUNIANG BAYAN, A VIOLATION OF SECTION 3(e) OF R.A. 3019. The act of disposing of confiscated lumber without prior authority: from DENR and the Sangguniang Bayan constituted a violation of Sec. 3(e) of R.A. 3019. Therefore, there is probable cause to hold petitioner liable for such act, for which the information was validly filed.

PUBLIC OFFICE; PUBLIC OFFICE IS A PUBLIC TRUST. ThisCourt would like to stress adherence to the doctrine that public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. Public servants must bear in mind this constitutional mandate at all times to guide them in their actions during their entire tenure in the government service. "The good of the service and the degree of morality with every official and employee in the public service must observe, if respect and confidence are to be maintained by the Government in the enforcement of the law, demand that no untoward conduct on his pan, affecting morality, integrity and efficiency while

holding office should be left without proper and commensurate sanction, all attendant circumstances taken into account."

R.A. 3019; SUSPENSION OF PUBLIC OFFICER VALIDLYCHARGED WITH VIOLATION THEREOF, MANDATORY. The suspension pendent lite meted out by the Sandiganbayan is, without doubt, a proper and commensurate sanction against petitioner. Having ruled that the information filed against petitioner is valid, there can be no impediment to the application of Section 13 of R.A. No. 3019, which states, inter alia: "Sec. 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office."

LOCAL GOVERNMENT CODE, PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS; PERIOD SHALL NOT EXCEED SIXTY(60) DAYS. It is settled jurisprudence that the aforequoted provision (Sec. 13, R.A. No. 3019) makes it mandatory for the Sandiganbayan to suspend any public officer who has been validly charged with a violation of R.A. No. 3019, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon government or public funds or property. "The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office." This is based on the presumption that unless the public officer is suspended, he may frustrate his prosecution or commit further acts of malfeasance or both. On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred in imposing a 90-day suspension upon petitioner for the single case filed against him. Under Section 63 (b) of the Local Government Code, "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days."

ARIAS VS SANDIGANBAYANThis case presents a conspiracy of silence and inaction

where chiefs of office who should have been vigilant to protect the interest of the Government in the purchase of Agleham's two-hectare riceland, accepted as gospel truth the certifications of their subordinates, and approved without question the million-peso purchase which, by the standards prevailing in 1976-78, should have pricked their curiosity and prompted them to make inquiries and to verify the authenticity of the documents presented to them for approval. The petitioners kept silent when they should have asked questions; they looked the other way when they should have probed deep into the transaction. Since it was too much of a coincidence that both petitioners were negligent at the same time over the same transaction, the Sandiganbayan was justified in concluding that they connived and conspired to act in that manner to approve the illegal transaction which would favor the seller of the land and defraud the Government.

STATE AUDIT CODE OF THE PHILIPPINES; ASPECTS OF THE AUDITIONAL FUNCTION OF AN AUDITOR. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. The auditorial function of an auditor, as a representative of the Commission on Audit, comprises three aspects: (1) examination; (2) audit: and (3) settlement of the accounts, funds, financial transactions and resources of the agencies under their respective audit jurisdiction (Sec. 43, Government Auditing Code of the Phil.). Examination, as applied to auditing, means "to probe records, or inspect securities or other documents; review procedures, and question persons, all for the purpose of arriving at an opinion of accuracy, propriety, sufficiency, and the like." (State Audit Code of the Philippines, Annotated by Tantuico, 1 982 Ed., p. 57.)

EMINENT DOMAIN; TAX DECLARATION; A GUIDE OR INDICATOR OF THE REASONABLE VALUE OF THE PROPERTY. The acquisition of Agleham's riceland was not done by expropriation but through a negotiated sale. In the course of the negotiations, there was absolutely no allegation nor proof that the price of P80 per square meter was its fair market value in 1978, i.e., eleven (11) years ago. What the accused did was to prove the value of the land through fake tax declarations (Exhs. B, F, K), false

certifications (Exhs. J, D and E) and a forged sworn statement on the current and fair market value of the real property (Exh. Z) submitted by the accused in support of the deed of sale. Because fraudulent documents were used, it may not be said that the State agreed to pay the price on the basis of its fairness, for the Government was in fact deceived concerning the reasonable value of the land. When Ocol testified in 1983 that P80 was a reasonable valuation for the Agleham's land, he did not clarify that was also its reasonable value in 1975, before real estate values in Pasig soared as a result of the implementation of the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895 that the fair valuation of the riceland then was only P5 per square meter. A Tax Declaration is a guide or indicator of the reasonable value of the property (EPZA vs. Dulay, 149 SCRA 305).

PARTIALITY; MAYBE PROVEN BY ATTENDANT CIRCUMSTANCES IN THE ABSENCE OF DIRECT EVIDENCE. Partiality for Agleham/Gutierrez may be inferred from their having deliberately closed their eyes to the defects and irregularities of the transaction in his favor and their seeming neglect, if not deliberate omission, to check, the authenticity of the documents presented to them for approval. Since partiality is a mental state or predilection, in the absence of direct evidence, it may be proved by the attendant circumstances.