Javier v Sandiganbayan

G.R. Nos. 14702627. September 11, 2009.*

CAROLINA R. JAVIER, petitioner, vs. THE FIRSTDIVISION OF THE SANDIGANBAYAN and the PEOPLEOF THE PHILIPPINES, respondents.

Criminal Procedure; Motions to Quash; Wellestablished is therule that when a motion to quash in a criminal case is denied, theremedy is not a petition for certiorari, but for petitioners to go totrial, without prejudice to reiterating the special defenses invokedin their motion to quash—remedial measures as regardsinterlocutory orders, such as a motion to quash, are frowned uponand often dismissed.—A motion to quash an Information is themode by which an accused assails the validity of a criminalcomplaint or Information filed against him for insufficiency on itsface in point of law, or for defects which are apparent in the faceof the Information. Wellestablished is the rule that when amotion to quash in a criminal case is denied, the remedy is not apetition for certiorari, but for petitioners to go to trial, withoutprejudice to reiterating the special defenses invoked in theirmotion to quash. Remedial measures as regards interlocutoryorders, such as a motion to quash, are frowned upon and oftendismissed. The evident reason for this rule is to avoid multiplicityof appeals in a single action. The above general rule, howeveradmits of several exceptions, one of which is when the court, indenying the motion to dismiss or motion to quash, acts without orin excess of jurisdiction or with grave abuse of discretion, thencertiorari or prohibition lies. The reason is that it would be unfairto require the defendant or accused to undergo the ordeal andexpense of a trial if the court has no jurisdiction over the subjectmatter or offense, or is not the court of proper venue, or if thedenial of the motion to dismiss or motion to quash is made withgrave abuse of discretion or a whimsical and capricious exercise ofjudgment. In such cases, the ordinary remedy of appeal cannot beplain and adequate.

Public Officers; National Book Development Board (NBDB);Book Publishing Industry Development Act (Republic Act No.

http://central.com.ph/sfsreader/session/0000014f11b57d5c3361d5d3000a0094004f00ee/p/AMM079/?username=Jeric#ftn1

8047); Words and Phrases; A public office is the right, authorityand duty, created and conferred by law, by which, for a givenperiod, either

_______________

* THIRD DIVISION.

325

VOL. 599, SEPTEMBER 11, 2009 325

Javier vs. Sandiganbayan, First Division

fixed by law or enduring at the pleasure of the creating power, anindividual is invested with some portion of the sovereign functionsof the government, to be exercised by him for the benefit of thepublic.—The NBDB is the government agency mandated todevelop and support the Philippine book publishing industry. It isa statutory government agency created by R.A. No. 8047, whichwas enacted into law to ensure the full development of the bookpublishing industry as well as for the creation of organizationstructures to implement the said policy. To achieve this end, theGoverning Board of the NBDB was created to supervise theimplementation. The Governing Board was vested with powersand functions, to wit: x x x A perusal of the above powers andfunctions leads us to conclude that they partake of the nature ofpublic functions. A public office is the right, authority and duty,created and conferred by law, by which, for a given period, eitherfixed by law or enduring at the pleasure of the creating power, anindividual is invested with some portion of the sovereignfunctions of the government, to be exercised by him for thebenefit of the public. The individual so invested is a publicofficer.

Same; Same; Same; The fact that the accused was appointedas member of the National Book Development Board (NBDB) fromthe public sector and not from the other branches or agencies of thegovernment does not take her position outside the meaning of apublic office; The purpose of the law for appointing members fromthe private sector is to ensure that they are also properlyrepresented in the implementation of government objectives tocultivate the book publishing industry.—Notwithstanding thatpetitioner came from the private sector to sit as a member of theNBDB, the law invested her with some portion of the sovereign

http://central.com.ph/sfsreader/session/0000014f11b57d5c3361d5d3000a0094004f00ee/p/AMM079/?username=Jeric#body_ftn1

functions of the government, so that the purpose of thegovernment is achieved. In this case, the government aimed toenhance the book publishing industry as it has a significant rolein the national development. Hence, the fact that she wasappointed from the public sector and not from the other branchesor agencies of the government does not take her position outsidethe meaning of a public office. She was appointed to theGoverning Board in order to see to it that the purposes for whichthe law was enacted are achieved. The Governing Board actscollectively and carries out its mandate as one body. The purposeof the law for appointing members from the private sector is toensure that they

326

326 SUPREME COURT REPORTS ANNOTATED


are also properly represented in the implementation ofgovernment objectives to cultivate the book publishing industry.

Same; Same; Same; AntiGraft and Corrupt Practices Act(Republic Act No. 3019); Words and Phrases; The Court is notunmindful of the definition of a public officer pursuant to the AntiGraft Law, which provides that a public officer includes electiveand appointive officials and employees, permanent or temporary,whether in the classified or unclassified or exempt service receivingcompensation, even nominal, from the government; Under theAntiGraft Law, the nature of one’s appointment, and whether thecompensation one receives from the government is only nominal, isimmaterial because the person so elected or appointed is stillconsidered a public officer.—The Court is not unmindful of thedefinition of a public officer pursuant to the AntiGraft Law,which provides that a public officer includes elective andappointive officials and employees, permanent or temporary,whether in the classified or unclassified or exempt servicereceiving compensation, even nominal, from the government.Thus, pursuant to the AntiGraft Law, one is a public officer if onehas been elected or appointed to a public office. Petitioner wasappointed by the President to the Governing Board of the NDBD.Though her term is only for a year that does not make her privateperson exercising a public function. The fact that she is notreceiving a monthly salary is also of no moment. Section 7, R.A.No. 8047 provides that members of the Governing Board shallreceive per diem and such allowances as may be authorized for

every meeting actually attended and subject to pertinent laws,rules and regulations. Also, under the AntiGraft Law, the natureof one’s appointment, and whether the compensation one receivesfrom the government is only nominal, is immaterial because theperson so elected or appointed is still considered a public officer.

Same; Same; Same; Same; Same; The Revised Penal Codedefines a public officer as any person who, by direct provision ofthe law, popular election, popular election or appointment bycompetent authority, shall take part in the performance of publicfunctions in the Government of the Philippine Islands, or shallperform in said Government or in any of its branches public dutiesas an employee, agent, or subordinate official, of any rank orclasses, shall be deemed to be a public officer.—The Revised PenalCode defines a public officer as any person who, by directprovision of the law, popular

327

VOL. 599, SEPTEMBER 11, 2009 327


election, popular election or appointment by competent authority,shall take part in the performance of public functions in theGovernment of the Philippine Islands, or shall perform in saidGovernment or in any of its branches public duties as anemployee, agent, or subordinate official, of any rank or classes,shall be deemed to be a public officer. Where, as in this case,petitioner performs public functions in pursuance of the objectivesof R.A. No. 8047, verily, she is a public officer who takes part inthe performance of public functions in the government whether asan employee, agent, subordinate official, of any rank or classes. Infact, during her tenure, petitioner took part in the drafting andpromulgation of several rules and regulations implementing R.A.No. 8047. She was supposed to represent the country in thecanceled book fair in Spain.

Criminal Law; Double Jeopardy; Requisites; It is elementarythat for double jeopardy to attach, the case against the accusedmust have been dismissed or otherwise terminated without hisexpress consent by a court of competent jurisdiction, upon validinformation sufficient in form and substance and the accusedpleaded to the charge.—Records show that the Informations inCriminal Case Nos. 25867 and 25898 refer to offenses penalizedby different statues, R.A. No. 3019 and RPC, respectively. It is

elementary that for double jeopardy to attach, the case againstthe accused must have been dismissed or otherwise terminatedwithout his express consent by a court of competent jurisdiction,upon valid information sufficient in form and substance and theaccused pleaded to the charge. In the instant case, petitionerpleaded not guilty to the Information for violation of the AntiGraft Law. She was not yet arraigned in the criminal case formalversation of public funds because she had filed a motion toquash the latter information. Double jeopardy could not,therefore, attach considering that the two cases remain pendingbefore the Sandiganbayan and that herein petitioner had pleadedto only one in the criminal cases against her. It is wellsettled thatfor a claim of double jeopardy to prosper, the following requisitesmust concur: (1) there is a complaint or information or otherformal charge sufficient in form and substance to sustain aconviction; (2) the same is filed before a court of competentjurisdiction; (3) there is a valid arraignment or plea to thecharges; and (4) the accused is convicted or acquitted or the caseis otherwise dismissed or terminated without his express consent.The third and fourth requisites are not present in the case at bar.

238



SPECIAL CIVIL ACTION in the Supreme Court.Certiorari.

The facts are stated in the opinion of the Court. Salomon, Gonong, Dela Cruz Law Offices for petitioner. The Solicitor General for respondent.

PERALTA, J.:Before the Court is a petition for certiorari1 under Rule

65 of the Rules of Court filed by petitioner Carolina R.Javier in Criminal Case Nos. 25867 and 25898, entitled“People of the Philippines, Plaintiff versus Carolina R.Javier, Accused,” seeking to nullify respondentSandiganbayan’s: (1) Order2 dated November 14, 2000 inCriminal Case No. 25867, which denied her Motion toQuash Information; (2) Resolution3 dated January 17, 2001in Criminal Case No. 25898, which denied her Motion forReconsideration and Motion to Quash Information; and (3)Order4 dated February 12, 2001, declaring that a motionfor reconsideration in Criminal Case No. 25898 would be

superfluous as the issues are fairly simple andstraightforward.

The factual antecedents follow.On June 7, 1995, Republic Act (R.A.) No. 8047,5 or

otherwise known as the “Book Publishing IndustryDevelopment Act,” was enacted into law. Foremost in itspolicy is the State’s goal in promoting the continuingdevelopment of the book publishing industry, through theactive participation of

_______________

1 Rollo, pp. 324.

2 Id., at p. 26.

3 Id., at pp. 2728.

4 Id., at pp. 2930.

5 “AN ACT PROVIDING FOR THE DEVELOPMENT OF THE BOOK PUBLISHING

INDUSTRY THROUGH THE FORMULATION AND IMPLEMENTATION OF A NATIONAL BOOK

POLICY AND A NATIONAL BOOK DEVELOPMENT PLAN”; Records, Vol. I (Crim.

Case No. 25867), pp. 101107.

329

VOL. 599, SEPTEMBER 11, 2009 329


the private sector, to ensure an adequate supply ofaffordable, qualityproduced books for the domestic andexport market.

To achieve this purpose, the law provided for thecreation of the National Book Development Board (NBDBor the Governing Board, for brevity), which shall be underthe administration and supervision of the Office of thePresident. The Governing Board shall be composed ofeleven (11) members who shall be appointed by thePresident of the Philippines, five (5) of whom shall comefrom the government, while the remaining six (6) shall bechosen from the nominees of organizations of private bookpublishers, printers, writers, book industry relatedactivities, students and the private education sector.

On February 26, 1996, petitioner was appointed to theGoverning Board as a private sector representative for aterm of one (1) year.6 During that time, she was also thePresident of the Book Suppliers Association of thePhilippines (BSAP). She was on a holdover capacity in the






following year. On September 14, 1998, she was againappointed to the same position and for the same period ofone (1) year.7 Part of her functions as a member of theGoverning Board is to attend book fairs to establishlinkages with international book publishing bodies. OnSeptember 29, 1997, she was issued by the Office of thePresident a travel authority to attend the MadridInternational Book Fair in Spain on October 812, 1997.8

Based on her itinerary of travel,9 she was paidP139,199.0010 as her travelling expenses.

Unfortunately, petitioner was not able to attend thescheduled international book fair.

_______________

6 Records, Vol. I (Crim. Case No. 25867), p. 90.

7 Records, Vol. I (Crim. Case No. 25867), pp. 9192.

8 Id., at p. 122.

9 Id., at p. 123.

10 Per Check No. 10188AY; Id., at p 125.

330



On February 16, 1998, Resident Auditor Rosario T.Martin advised petitioner to immediately return/refund hercash advance considering that her trip was canceled.11

Petitioner, however, failed to do so. On July 6, 1998, shewas issued a Summary of Disallowances12 from which thebalance for settlement amounted to P220,349.00. Despitesaid notice, no action was forthcoming from the petitioner.

On September 23, 1999, Dr. Nellie R. Apolonio, then theExecutive Director of the NBDB, filed with theOmbudsman a complaint against petitioner formalversation of public funds and properties. She averredthat despite the cancellation of the foreign trip, petitionerfailed to liquidate or return to the NBDB her cash advancewithin sixty (60) days from date of arrival, or in this casefrom the date of cancellation of the trip, in accordance withgovernment accounting and auditing rules and regulations.Dr. Apolonio further charged petitioner with violation ofRepublic Act (R.A.) No. 671313 for failure to file herStatement of Assets and Liabilities.






The Ombudsman found probable cause to indictpetitioner for violation of Section 3(e) of R.A. No. 3019,14 asamended, and recommended the filing of the correspondinginformation.15 It, however, dismissed for insufficiency ofevidence, the charge for violation of R.A. No. 6713.

In an Information dated February 18, 2000, petitionerwas charged with violation of Section 3(e) of R.A. No. 3019before the Sandiganbayan, to wit:

_______________

11 Id., at p. 126.

12 Id., at p. 127.

13 Otherwise known as the “Code of Conduct and Ethical Standards for

Public Officials and Employees.”

14 Otherwise known as the “AntiGraft and Corrupt Practices Act.”

15 Resolution dated February 18, 2000; Records, Vol. I (Crim. Case No.

25867), pp. 510.

331

VOL. 599, SEPTEMBER 11, 2009 331


“That on or about October 8, 1997, or for sometime prior orsubsequent thereto, in the City of Quezon, Philippines and withinthe jurisdiction of this Honorable Court, the aforenamed accused,a public officer, being then a member of the governing Board ofthe National Book Development Board (NBDB), while in theperformance of her official and administrative functions, andacting with evident bad faith or gross inexcusable negligence, didthen and there willfully, unlawfully and criminally, without anyjustifiable cause, and despite due demand by the Resident Auditorand the Executive Director of NBDB, fail and refuse to returnand/or liquidate her cash advances intended for official travelabroad which did not materialize, in the total amount ofP139,199.00 as of September 23, 1999, as required under EO No.248 and Sec. 5 of COA Circular No. 97002 thereby causingdamage and undue injury to the Government.

CONTRARY TO LAW.”16

The case was docketed as Criminal Case No. 25867 andraffled to the First Division.

Meanwhile, the Commission on Audit charged petitionerwith Malversation of Public Funds, as defined and






penalized under Article 217 of the Revised Penal Code, fornot liquidating the cash advance granted to her inconnection with her supposed trip to Spain. During theconduct of the preliminary investigation, petitioner wasrequired to submit her counteraffidavit but she failed to doso. The Ombudsman found probable cause to indictpetitioner for the crime charged and recommended thefiling of the corresponding information against her.17

Thus, an Information dated February 29, 2000 was filedbefore the Sandiganbayan, which was docketed as CriminalCase No. 25898, and raffled to the Third Division, theaccusatory portion of which reads:

_______________

16 Records, Vol. II (Crim. Case No. 25867), pp. 12.

17 Resolution dated February 29, 2000; Records, Vol. I, (Crim Case No.

25898), pp. 48.

332



“That on or about and during the period from October 8, 1997to February 16, 1999, or for sometime prior or subsequent thereto,in Quezon City, Philippines, and within the jurisdiction of thisHonorable Court, the abovenamed accused, a high rankingofficer, being a member of the Governing Board of the NationalBook Development Board and as such, is accountable for thepublic funds she received as cash advance in connection with hertrip to Spain from October 812, 1997, per LBP Check No. 10188in the amount of P139,199.00, which trip did not materialize, didthen and there willfully, unlawfully and feloniously take,malverse, misappropriate, embezzle and convert to her ownpersonal use and benefit the aforementioned amount ofP139,199.00, Philippine currency, to the damage and prejudice ofthe government in the aforesaid amount.


During her arraignment in Criminal Case No. 25867,petitioner pleaded not guilty. Thereafter, petitionerdelivered to the First Division the money subject of thecriminal cases, which amount was deposited in a specialtrust account during the pendency of the criminal cases.



Meanwhile, the Third Division set a clarificatoryhearing in Criminal Case No. 25898 on May 16, 2000 inorder to determine jurisdictional issues. On June 3, 2000,petitioner filed with the same Division a Motion forConsolidation19 of Criminal Case No. 25898 with CriminalCase No. 25867, pending before the First Division. On July6, 2000, the People filed an Urgent ExParte Motion toAdmit Amended Information20 in Criminal Case No. 25898,which was granted. Accordingly, the Amended Informationdated June 28, 2000 reads as follows:

“That on or about and during the period from October 8, 1997to February 16, 1999, or for sometime prior or subsequent thereto,in Quezon City, Philippines, and within the jurisdiction of thisHonor

_______________

18 Records, Vol. I (Crim Case No. 25898), pp. 12.

19 Id., at pp. 3132.

20 Id., at p. 45.

333

VOL. 599, SEPTEMBER 11, 2009 333


able Court, the abovenamed accused, a high ranking officer,being a member of the Governing Board of the National BookDevelopment Board equated to Board Member II with a salarygrade 28 and as such, is accountable for the public funds shereceived as case advance in connection with her trip to Spain fromOctober 812, 1997, per LBP Check No. 10188 in the amount ofP139,199.00, which trip did not materialize, did then and therewillfully, unlawfully and feloniously take, malverse,misappropriate, embezzle and convert to her own personal useand benefit the aforementioned amount of P139,199.00,Philippine currency, to the damage and prejudice of thegovernment in the aforesaid amount.


In its Resolution dated October 5, 2000, the ThirdDivision ordered the consolidation of Criminal Case No.25898 with Criminal Case No. 25867. 22

On October 10, 2000, petitioner filed a Motion to QuashInformation,23 averring that the Sandiganbayan has no




jurisdiction to hear Criminal Case No. 25867 as theinformation did not allege that she is a public official whois classified as Grade “27” or higher. Neither did theinformation charge her as a coprincipal, accomplice oraccessory to a public officer committing an offense underthe Sandiganbayan’s jurisdiction. She also averred that sheis not a public officer or employee and that she belongs tothe Governing Board only as a private sectorrepresentative under R.A. No. 8047, hence, she may not becharged under R.A. No. 3019 before the Sandiganbayan orunder any statute which covers public officials. Moreover,she claimed that she does not perform public functions andis without any administrative or political power to speak of—that she is serving the private book publishing industryby advancing their interest as participant in thegovernment’s book development policy.

_______________

21 Id., at p. 46.

22 Id., at p. 52.

23 Rollo, pp. 4050.

334



In an Order24 dated November 14, 2000, the FirstDivision25 denied the motion to quash with the followingdisquisition:

“The fact that the accused does not receive any compensationin terms of salaries and allowances, if that indeed be the case, isnot the sole qualification for being in the government service or apublic official. The National Book Development Board is astatutory government agency and the persons who participatedtherein even if they are from the private sector, are public officersto the extent that they are performing their duty therein as such.

Insofar as the accusation is concerned herein, it would appearthat monies were advanced to the accused in her capacity asDirector of the National Book Development Board for purposes ofofficial travel. While indeed under ordinary circumstances amember of the board remains a private individual, still when thatindividual is performing her functions as a member of the board




or when that person receives benefits or when the person issupposed to travel abroad and is given government money toeffect that travel, to that extent the private sector representativeis a public official performing public functions; if only for thatreason, and not even considering situation of her being inpossession of public funds even as a private individual for whichshe would also covered by provisions of the Revised Penal Code,she is properly charged before this Court.”

On November 15, 2000, the First Division accepted theconsolidation of the criminal cases against petitioner andscheduled her arraignment on November 17, 2000, forCriminal Case No. 25898. On said date, petitionermanifested that she is not prepared to accept the proprietyof the accusation since it refers to the same subject matteras that covered in Criminal Case No. 25867 for which theSandiganbayan gave her time to file a motion to quash. OnNovember 22, 2000, petitioner filed a Motion to Quash theInformation26 in Criminal Case No. 25898, by invoking herright against double jeop

_______________

24 Rollo, p. 26.

25 Composed of then Presiding Justice Francis E. Garchitorena,

Associate Justices Catalino R. Castañeda, Jr. and Gregory S. Ong.

26 Id., at p. 5558.

335

VOL. 599, SEPTEMBER 11, 2009 335


ardy. However, her motion was denied in open court. Shethen filed a motion for reconsideration.

On January 17, 2001, the Sandiganbayan issued aResolution27 denying petitioner’s motion with the followingdisquisition:

“The accused is under the jurisdiction of this Court becauseSec. 4 (g) of P.D. 1606 as amended so provides, thus:

Sec. 4. Jurisdiction.—The Sandiganbayan shallexercise exclusive original jurisdiction in all cases involving:

x x x x(g) Presidents, directors or trustees, or managers of




governmentowned or controlled corporations, stateuniversities or educational institutions or foundations;

x x x xThe offense is officerelated because the money for her travel

abroad was given to her because of her Directorship in theNational Book Development Board.

Furthermore, there are also allegations to hold the accusedliable under Article 222 of the Revised Penal Code which reads:

Art. 222. Officers included in the preceding provisions.—The provisions of this chapter shall apply to privateindividuals who, in any capacity whatever, have charge ofany insular, provincial or municipal funds, revenues, orproperty and to any administrator or depository of funds orproperty attached , seized or deposited by public authority,even if such property belongs to a private individual.

Likewise, the Motion to Quash the Information in CriminalCase No. 25898 on the ground of litis pendencia is denied since inthis instance, these two Informations speak of offenses underdifferent statutes, i.e., R.A. No. 3019 and the Revised Penal Code,neither of which precludes prosecution of the other.”

Petitioner hinges the present petition on the ground thatthe Sandiganbayan has committed grave abuse ofdiscretion

_______________

27 Rollo, pp. 2728.

336



amounting to lack of jurisdiction for not quashing the twoinformations charging her with violation of the AntiGraftLaw and the Revised Penal Code on malversation of publicfunds. She advanced the following arguments in support ofher petition, to wit: first, she is not a public officer, andsecond, she was being charged under two (2) informations,which is in violation of her right against double jeopardy.

A motion to quash an Information is the mode by whichan accused assails the validity of a criminal complaint orInformation filed against him for insufficiency on its face inpoint of law, or for defects which are apparent in the face of


the Information.28

Wellestablished is the rule that when a motion to quashin a criminal case is denied, the remedy is not a petition forcertiorari, but for petitioners to go to trial, withoutprejudice to reiterating the special defenses invoked intheir motion to quash. Remedial measures as regardsinterlocutory orders, such as a motion to quash, arefrowned upon and often dismissed. The evident reason forthis rule is to avoid multiplicity of appeals in a singleaction.29

The above general rule, however admits of severalexceptions, one of which is when the court, in denying themotion to dismiss or motion to quash, acts without or inexcess of jurisdiction or with grave abuse of discretion, thencertiorari or prohibition lies. The reason is that it would beunfair to require the defendant or accused to undergo theordeal and expense of a trial if the court has no jurisdictionover the subject matter or offense, or is not the court ofproper venue, or if the denial of the motion to dismiss ormotion to quash is made with grave abuse of discretion or awhimsical and capri

_______________

28 Ariel Los Baños, et al. v. Joel Pedro, G.R. No. 173588, April 22, 2009,

586 SCRA 303.

29 Serana v. Sandiganbayan, G.R. No. 162059, January 22, 2008, 542

SCRA 224.

337

VOL. 599, SEPTEMBER 11, 2009 337


cious exercise of judgment. In such cases, the ordinaryremedy of appeal cannot be plain and adequate.30

To substantiate her claim, petitioner maintained thatshe is not a public officer and only a private sectorrepresentative, stressing that her only function among theeleven (11) basic purposes and objectives provided for inSection 4, R.A. No. 8047, is to obtain priority status forthe book publishing industry. At the time of herappointment to the NDBD Board, she was the President ofthe BSAP, a book publishers association. As such, she couldnot be held liable for the crimes imputed against her, and



in turn, she is outside the jurisdiction of theSandiganbayan.

The NBDB is the government agency mandated todevelop and support the Philippine book publishingindustry. It is a statutory government agency created byR.A. No. 8047, which was enacted into law to ensure thefull development of the book publishing industry as well asfor the creation of organization structures to implement thesaid policy. To achieve this end, the Governing Board of theNBDB was created to supervise the implementation. TheGoverning Board was vested with powers and functions, towit:

“a) assume responsibility for carrying out and implementingthe policies, purposes and objectives provided for in this Act;

b) formulate plans and programs as well as operationalpolicies and guidelines for undertaking activities relative topromoting book development, production and distribution as wellas an incentive scheme for individual authors and writers;

c) formulate policies, guidelines and mechanisms to ensurethat editors, compilers and especially authors are paid justly andpromptly royalties due them for reproduction of their works inany form and number and for whatever purpose;

_______________

30 Newsweek, Inc. v. Intermediate Appellate Court, No. L63559, May 30, 1986,

142 SCRA 171.

338



d) conduct or contract research on the book publishingindustry including monitoring, compiling and providing data andinformation of book production;

e) provide a forum for interaction among private publishers,and, for the purpose, establish and maintain liaison will all thesegments of the book publishing industry;

f) ask the appropriate government authority to ensureeffective implementation of the National Book Development Plan;

g) promulgate rules and regulations for the implementationof this Act in consultation with other agencies concerned, exceptfor Section 9 hereof on incentives for book development, whichshall be the concern of appropriate agencies involved;


h) approve, with the concurrence of the Department ofBudget and Management (DBM), the annual and supplementalbudgets submitted to it by the Executive director;

i) own, lease, mortgage, encumber or otherwise real andpersonal property for the attainment of its purposes andobjectives;

j) enter into any obligation or contract essential to the properadministration of its affairs, the conduct of its operations or theaccomplishment of its purposes and objectives;

k) receive donations, grants, legacies, devices and similaracquisitions which shall form a trust fund of the Board toaccomplish its development plans on book publishing;

l) import books or raw materials used in book publishingwhich are exempt from all taxes, customs duties and othercharges in behalf of persons and enterprises engaged in bookpublishing and its related activities duly registered with theboard;

m) promulgate rules and regulations governing the matter inwhich the general affairs of the Board are to be exercised andamend, repeal, and modify such rules and regulations whenevernecessary;

n) recommend to the President of the Philippines nomineesfor the positions of the Executive Officer and Deputy ExecutiveOfficer of the Board;

o) adopt rules and procedures and fix the time and place forholding meetings: Provided, That at least one (1) regular meetingshall be held monthly;

339

VOL. 599, SEPTEMBER 11, 2009 339


p) conduct studies, seminars, workshops, lectures,conferences, exhibits, and other related activities on bookdevelopment such as indigenous authorship, intellectual propertyrights, use of alternative materials for printing, distribution andothers; and

q) exercise such other powers and perform such other dutiesas may be required by the law.”31

A perusal of the above powers and functions leads us toconclude that they partake of the nature of publicfunctions. 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 someportion of the sovereign functions of thegovernment, to be exercised by him for the benefit ofthe public. The individual so invested is a public officer.32

Notwithstanding that petitioner came from the privatesector to sit as a member of the NBDB, the law investedher with some portion of the sovereign functions of thegovernment, so that the purpose of the government isachieved. In this case, the government aimed to enhancethe book publishing industry as it has a significant role inthe national development. Hence, the fact that she wasappointed from the public sector and not from the otherbranches or agencies of the government does not take herposition outside the meaning of a public office. She wasappointed to the Governing Board in order to see to it thatthe purposes for which the law was enacted are achieved.The Governing Board acts collectively and carries out itsmandate as one body. The purpose of the law for appointingmembers from the private sector is to ensure that they arealso properly represented in the implemen

_______________

31 R.A. 8047, Sec. 8; records, Vol. I (Crim. Case No. 25867), pp. 103

104.

32 F.R. Mechem, A Treatise on the Law of Public Offices and Officers,

Sec. 1.

340



tation of government objectives to cultivate the bookpublishing industry.

Moreover, the Court is not unmindful of the definition ofa public officer pursuant to the AntiGraft Law, whichprovides that a public officer includes elective andappointive officials and employees, permanent ortemporary, whether in the classified or unclassified orexempt service receiving compensation, even nominal, fromthe government.33

Thus, pursuant to the AntiGraft Law, one is a publicofficer if one has been elected or appointed to a publicoffice. Petitioner was appointed by the President to the



Governing Board of the NDBD. Though her term is only fora year that does not make her private person exercising apublic function. The fact that she is not receiving a monthlysalary is also of no moment. Section 7, R.A. No. 8047provides that members of the Governing Board shallreceive per diem and such allowances as may be authorizedfor every meeting actually attended and subject topertinent laws, rules and regulations. Also, under the AntiGraft Law, the nature of one’s appointment, and whetherthe compensation one receives from the government is onlynominal, is immaterial because the person so elected orappointed is still considered a public officer.

On the other hand, the Revised Penal Code defines apublic officer as any person who, by direct provision of thelaw, popular election, popular election or appointment bycompetent authority, shall take part in the performance ofpublic functions in the Government of the PhilippineIslands, or shall perform in said Government or in any ofits branches public duties as an employee, agent, orsubordinate official, of any rank or classes, shall be deemedto be a public officer.34

Where, as in this case, petitioner performs publicfunctions in pursuance of the objectives of R.A. No. 8047,verily, she is a public officer who takes part in theperformance of public

_______________

33 R.A. No. 3019, Sec. 2 (b).

34 REVISED PENAL CODE, Art. 203.

341

VOL. 599, SEPTEMBER 11, 2009 341


functions in the government whether as an employee,agent, subordinate official, of any rank or classes. In fact,during her tenure, petitioner took part in the drafting andpromulgation of several rules and regulationsimplementing R.A. No. 8047. She was supposed torepresent the country in the canceled book fair in Spain.

In fine, We hold that petitioner is a public officer. Thenext question for the Court to resolve is whether, as apublic officer, petitioner is within the jurisdiction of the



Sandiganbayan.Presently,35 the Sandiganbayan has jurisdiction over the

following:

“Sec. 4. Jurisdiction.—The Sandiganbayan shall exerciseexclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended,other known as the AntiGraft and Corrupt Practices Act,Republic Act No. 1379, and Chapter II, Section 2, Title VII,Book II of the Revised Penal Code, where one or more of theaccused are officials occupying the following positions in thegovernment, whether in a permanent, acting or interimcapacity, at the time of the commission of the offense:

_______________

35 On June 11, 1978, then President Ferdinand E. Marcos promulgated

Presidential Decree (P.D.) No. 1486 which created the Sandiganbayan. The

Whereas Clause of the decree aimed to attain the highest norms of official conduct

required of public officers and employees, based on the concept that public officers

and employees shall serve with the highest degree of responsibility, integrity,

loyalty and efficiency and shall remain at all times accountable to the People. On

December 10, 1978, P.D. No. 1486 was amended by P.D. No. 1606 which expanded

the jurisdiction of the Sandiganbayan. Thereafter, P.D. No. 1861 amended P.D.

No. 1606 on March 23, 1983, which decree further altered the Sandiganbayan

jurisdiction. On March 30, 1995, Republic Act (R.A.) No. 7975 was approved,

making succeeding amendments to P.D. No. 1606, which was again amended on

February 5, 1997 by R.A. No. 8249. Section 4 of which further modified the

jurisdiction of the Sandiganbayan.

342



(1) Officials of the executive branch occupying thepositions of regional director and higher, otherwiseclassified as Grade “27” and higher, of the Compensationand Position Classification Act of 989 (Republic Act No.6758), specifically including:

x x x x(2) Members of Congress and officials thereof classified

as Grade “Grade 27” and up under the Compensation andPosition Classification Act of 1989;

(3) Members of the judiciary without prejudice to theprovisions of the Constitution;


(4) Chairmen and members of ConstitutionalCommission, without prejudice to the provisions of theConstitution; and

(5) All other national and local officials classified asGrade “Grade “27” and higher under the Compensation andPosition Classification Act of 1989.

x x x x”

Notably, the Director of Organization, PositionClassification and Compensation Bureau, of theDepartment of Budget and management provided thefollowing information regarding the compensation andposition classification and/or rank equivalence of themember of the Governing Board of the NBDB, thus:

“Per FY 1999 Personal Services Itemization, the Governing Boardof NDBD is composed of one (1) Chairman (ex officio), one (1) ViceChairman (ex officio), and nine (9) Members, four (4) of whom areex officio and the remaining five (5) members represent theprivate sector. The said five members of the Board do not receiveany salary and as such their position are not classified and arenot assigned any salary grade.For purposes however of determining the rank equivalence of saidpositions, notwithstanding that they do not have any salary gradeassignment, the same may be equated to Board Member II, SG28.”36

_______________

36 Records, Vol. I (Crim Case No. 25898), p. 36.

343

VOL. 599, SEPTEMBER 11, 2009 343


Thus, based on the Amended Information in CriminalCase No. 25898, petitioner belongs to the employeesclassified as SG28, included in the phrase “all othernational and local officials classified as ‘Grade 27’ andhigher under the Compensation and Position ClassificationAct of 1989.”

Anent the issue of double jeopardy, We can not likewisegive in to the contentions advanced by petitioner. Sheargued that her right against double jeopardy was violated


when the Sandiganbayan denied her motion to quash thetwo informations filed against her.

We believe otherwise. Records show that theInformations in Criminal Case Nos. 25867 and 25898 referto offenses penalized by different statues, R.A. No. 3019and RPC, respectively. It is elementary that for doublejeopardy to attach, the case against the accused must havebeen dismissed or otherwise terminated without hisexpress consent by a court of competent jurisdiction, uponvalid information sufficient in form and substance and theaccused pleaded to the charge.37 In the instant case,petitioner pleaded not guilty to the Information forviolation of the AntiGraft Law. She was not yet arraignedin the criminal case for malversation of public fundsbecause she had filed a motion to quash the latterinformation. Double jeopardy could not, therefore, attachconsidering that the two cases remain pending before theSandiganbayan and that herein petitioner had pleaded toonly one in the criminal cases against her.

It is well settled that for a claim of double jeopardy toprosper, the following requisites must concur: (1) there is acomplaint or information or other formal charge sufficientin form and substance to sustain a conviction; (2) the sameis filed before a court of competent jurisdiction; (3) there isa valid arraignment or plea to the charges; and (4) theaccused is convicted or acquitted or the case is otherwisedismissed or

_______________

37 Cabo v. Sandiganbayan, G.R. No. 169509, June 16, 2006, 491 SCRA

264.

344



terminated without his express consent.38 The third andfourth requisites are not present in the case at bar.

In view of the foregoing, We hold that the presentpetition does not fall under the exceptions wherein theremedy of certiorari may be resorted to after the denial ofone’s motion to quash the information. And even assumingthat petitioner may avail of such remedy, We still hold that


the Sandiganbayan did not commit grave abuse ofdiscretion amounting to lack of or in excess of jurisdiction.

WHEREFORE, the Petition is DISMISSED. Thequestioned Resolutions and Order of the Sandiganbayanare AFFIRMED. Costs against petitioner.

SO ORDERED.

YnaresSantiago (Chairperson), chiconazario, Velasco,Jr., and nachura, JJ., concur.

Petition dismissed, resolutions affirmed.

Notes.—Where the accused fails, before hisarraignment, to move for the quashal of the Informationagainst him which appears to charge more than oneoffense, he thereby waives any objection and may thus befound guilty of as many offenses as those charged in theInformation and proven during the trial. (People vs. Taño,331 SCRA 449 [2000])

A judgment rendered by the trial court which was basedon a void plea bargaining is also void ab initio and can notbe considered to have attained finality for the simplereason that a void judgment has no legality from itsinception, and double jeopardy will not lie. (People vs.Magat, 332 SCRA 517 [2000])

——o0o——

_______________

38 Id.

© Copyright 2015 Central Book Supply, Inc. All rights reserved.

Date post:	02-Dec-2015
Category:	Documents
Upload:	baby-chad-osorio
View:	64 times
Download:	7 times

Javier v Sandiganbayan

Documents