law on public officers cases I.docx

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G.R. No. 111091 August 21, 1995

ENGINEER CLARO J. PRECLARO, petitioner,vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:

On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation ofSec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and CorruptPractices Act. The information against him read as follows:

That on or about June 8, 1990, or sometime prior thereto, in Quezon City,Philippines, and within the jurisdiction of this Honorable Court, the above-named

accused, a public officer, being then the Project Manager/ Consultant of theChemical Mineral Division, Industrial Technology Development Institute,Department of Science and Technology, a component of the IndustrialDevelopment Institute (ITDI for brevity) which is an agency of the Department ofScience and Technology (DOST for brevity), wherein the Jaime Sta. MariaConstruction undertook the construction of the building in Bicutan, Taguig, MetroManila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY FIVETHOUSAND PESOS (P17,695,000.00) jointly funded by the Philippine andJapanese Governments, and while the said construction has not yet been finallycompleted, accused either directly requested and/or demanded for himself or foranother, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00),

claimed as part of the expected profit of FOUR HUNDRED SIXTY THOUSANDPESOS (P460,000.00) in connection with the construction of that governmentbuilding wherein the accused had to intervene under the law in his capacity asProject Manager/Consultant of said construction said offense having beencommitted in relation to the performance of his official duties.

CONTRARY TO LAW.1

On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the chargesagainst him.

On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayanrendered judgment finding petitioner guilty beyond reasonable doubt. The dispositiveportion reads as follows:

WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro yJambalos GUILTY beyond reasonable doubt of the violation of Section 3,paragraph (b) of Republic Act No. 3019, as amended, otherwise known as the

Anti-Graft and Corrupt Practices Act, and he is hereby sentenced to suffer an


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indeterminate penalty ranging from SIX (6) YEARS and ONE (1) MONTH, as theminimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetualdisqualification from public office and to pay the costs of this action.

SO ORDERED.2

The antecedent facts are largely undisputed.

On 1 October 1989, the Chemical Mineral Division of the Industrial TechnologyDevelopment Institute (ITDI), a component of the Department of Science andTechnology (DOST) employed Petitioner under a written contract of services as ProjectManager to supervise the construction of the ITDI-CMD (JICA) Building at the DOSTCompound in Bicutan, Taguig, Metro Manila.3

The contract was to remain in effect from October 1, 1989 up to the end of theconstruction period unless sooner terminated.4Petitioner was to be paid a monthly

salary drawn from counter-part funds duly financed by foreign-assisted projects andgovernment funds duly released by the Department of Budget and Management. 5

In November 1989, to build the aforementioned CMD Structure, DOST contracted theservices of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso,as the company's project engineer. 6

How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act isnarrated in the Comment of the Solicitor General and amply supported by the records.The material portions are hereunder reproduced:

xxx xxx xxx3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta.Maria Construction Company, was in the process of evaluating a Change Orderfor some electricals in the building construction when petitioner approached himat the project site (p. 11, 25, Ibid.).

4. Unexpectedly, petitioner made some overtures that expenses in the ChangeOrder will be deductive (meaning, charged to the contractor by deducting fromthe contract price), instead of additive (meaning, charged to the owner).Petitioner intimated that he can forget about the deductive provided he gets

P200,000.00, a chunk of the contractor's profit which he roughly estimated to bearound P460,000.00 (pp. 12-13, 22, Ibid.).

5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta.Maria Construction Company, Resoso thereafter asked petitioner if he wanted arendezvous for him to receive the money. Petitioner chose Wendy's Restaurant,corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around8:00 o'clock in the evening (p. 14, Ibid.).


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6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8thof June,perceiving financial constraints (Ibid.).

7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry."(p. 15, Ibid.) Petitioner was thereafter asked to bring along the result of the punch

list (meaning, the list of defective or correctible works to be done by thecontractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).

8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the NationalBureau of Investigation (NBI) to report the incident (p. 15, 35, Ibid.).

9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified hisconformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. wasrequested to produce the amount of P50,000.00 in P500.00 denomination torepresent the grease money (p. 37, TSN, 6 Sept. 1990).

10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI.Thereafter, the money was dusted with flourescent powder and placed inside anattache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructednot to open it. Similarly, he was advised to proceed at the Wendy's Restaurantearlier than the designated time where a group of NBI men awaited him and hiscompanion, Sta. Maria, Jr. (pp. 17-18, Ibid.).

11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant inTimog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.).

12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's

Restaurant. They were led by the NBI men to a table previously reserved bythem which was similarly adjacent to a table occupied by them (pp. 18-19, Ibid.).

13. Twenty minutes later, petitioner arrived. Supposedly, the followingconversation took place, to wit:

JUSTICE BALAJADIA:

q. When Dave Preclaro arrived, what did he do?

a. We asked him his order and we talked about the

punch list.q. What was his comment about the punch list?

a. He told us that it is harder to produce small itemsthan big ones.


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q. How long did you converse with Engr. ClaroPreclaro?

a. I think thirty minutes or so.

q. Was Preclaro alone when he came?

a. Yes, Your Honor.

xxx xxx xxx

PROS. CAOILI:

q. When you talk[ed] about his punch list, did you talkabout anything else?

a. Engineer Sta. Maria, Jr., they were conversing withDave Preclaro and he told [him], "O, paano na."

JUSTICE ESCAREAL:

q. Who said "Paano na?"

a. Engineer Sta. Maria, [Jr.]. And then Preclaro told[him], "Paano, How will the money be arranged andcan I bring it?" he said.

And then Jimmy Sta. Maria, Jr. told him it wasarranged on two bundles on two envelopes.

And then Dave Preclaro told, "Puede" and he askedJimmy Sta. Maria, Jr. if there is express teller andcould he deposit during night time but Engineer Sta.Maria, Jr. told him, "I do not have any knowledge or Ido not have any express teller you can deposit. I onlyknow credit card."

PROS. CAOILI:

q. When Engr. Sta. Maria intervened and interviewedhim that way, was there anything that happened?

a. Jimmy Sta. Maria, Jr. handed two envelopes toPreclaro.


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q. Did Claro Preclaro receive these two envelopesfrom Engineer Sta. Maria?

a. Yes, sir. (pp. 19-21, Ibid., See alsopp. 13-14, TSN,29 Oct. 1990.)

14. From the moment petitioner received the two envelopes with his right hand,thereafter placing them under his left armpit, he was accosted by the NBI men (p.22, TSN, 12 Oct. 1990).

15. A camera flashed to record the event. Petitioner instinctively docked to avoidthe taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.).

16. The NBI men directed petitioner to pick up the two envelopes. Petitionerrefused. Hence, one of the NBI men picked up the envelopes and placed theminside a big brown envelope (p. 27, Ibid.)

17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).

18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand wastested positive of flourescent powder. The same flourescent powder, however,cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990). 7

xxx xxx xxx

Thus, as brought out at the outset, an information was filed against petitioner which,after due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with

the decision, petitioner instituted the present petition for review, ascribing to theSandiganbayan the following errors:

1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE,INSTEAD OF DISMISSING IT FOR LACK OF JURISDICTION, THE[PETITIONER] NOT BEING A PUBLIC OFFICER; and

2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THEELEMENTS OF THE OFFENSE CHARGED HAVE BEEN ESTABLISHEDBEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE[PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE

DOUBT.We find the petition unmeritorious.

On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b)of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he wasneither elected nor appointed to a public office. Rather, petitioner maintains that he ismerely a private individual hired by the ITDI on contractual basis for a particular project


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and for a specified period8as evidenced by the contract of services 9he entered intowith the ITDI. Petitioner, to further support his "theory," alleged that he was not issuedany appointment paper separate from the abovementioned contract. He was notrequired to use the bundy clock to record his hours of work and neither did he take anoath of office. 10

We are not convinced by petitioner's arguments.

Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, accordingto Sec. 2(b) thereof "includes elective and appointive officials and employees,permanent or temporary, whether in the classified or unclassified or exemption servicereceiving compensation, even nominal, from the government. . . ."

The word "includes" used in defining a public officer in Sec. 2(b) indicates that thedefinition 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

11

by PD 807 providing for the organization ofthe Civil Service Commission 12and by the Administrative Code of 1987. 13

Non-career service in particular is characterized by

(1) entrance on bases other than those of the usual test of merit and fitnessutilized for the career service;and (2) tenure which is limited to a period specifiedby law, or which is coterminous with that of the appointing authority or subject tohis 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 thepleasure of the President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixed terms of officeand 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, requiringspecial or technical skills not available in the employing agency, to beaccomplished within a specific period, which in no case shall exceed one year,and performs or accomplishes the specific work or job, under his ownresponsibility with a minimum of direction and supervision from the hiringagency;and

(5) Emergency and seasonal personnel. (Emphasis ours.) 14


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From the foregoing classification, it is quite evident that petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of theCivil 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 bundyclock or did not take an oath of office became unessential considerations in view of theabove-mentioned provision of law clearly including petitioner within the definition of apublic officer.

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 theperformance of a contract of services entered into by him as a private individualcontractor," 15is erroneous. As discussed above, petitioner falls within the definition of apublic officer and as such, his duties delineated in Annex "B" of the contract ofservices 16are subsumed under the phrase "wherein the public officer in his official

capacity has to intervene under the law."

17

Petitioner's allegation, to borrow a cliche, isnothing but a mere splitting of hairs.

Among petitioner's duties as project manager is to evaluate the contractor'saccomplishment reports/billings 18hence, as correctly ruled by the Sandiganbayan hehas the "privilege and authority to make a favorable recommendation and act favorablyin behalf of the government," signing acceptance papers and approving deductives andadditives are some examples. 19All 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 reasonabledoubt 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 anunprejudiced mind." 20We have extensively reviewed the records of this case and we

find no reason to overturn the findings of the Sandiganbayan.Petitioner enumerates the alleged improbabilities and inconsistencies in the testimoniesof the prosecution witnesses. We shall examine the testimonies referred to withmeticulousness.

Petitioner asserts that it was improbable for him to have demanded P200,000.00 fromEngr. Resoso, when he could have just talked directly to the contractor himself. It is


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quite irrelevant from whom petitioner demanded his percentage share of P200,000.00whether from the contractor's project engineer, Engr. Alexander Resoso or directly fromthe contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demandis all that is required by Sec. 3(b) of R.A. No. 3019 and this element has beensufficiently established by the testimony of Engr. Resoso, thus:

xxx xxx xxx

Q You said when you were computing your Change Order Mr.Preclaro or Dave Preclaro whom you identified approached you,what did you talk about?

A He mentioned to me that we are deductive in our Change Orderthree and four so after our conversation I told this conversation tomy boss that we are deductible in the Change Order three and fourand then my boss told me to ask why it is deductive.

Q Did you ask the accused here, Dave Preclaro why it isconsidered deductive?

A Yes, sir.

Q What was his answer if any?

A I asked him that my boss is asking me to ask you how come itbecame deductive when my computation is additive and he told methat I have done so much for your company already and then he

picked up cement bag paper bag and computed our alleged profitamounting to One Hundred Sixty Thousand Pesos and then he toldme that he used to use some percentage in projects maximum andminimum and in our case he would use a minimum percentage andmultiply to 60 and . . .

JUSTICE ESCAREAL:

Q What is 460?

A P460,000.00 and he said take of the butal and get two Hundred

Thousand Pesos.JUSTICE BALAJADIA:

What is the translation now?

WITNESS:


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AAnd he said disregard the excess and I will just get theP200,000.00. (Emphasis ours.)

PROS. CAOILI:

Q What does he mean by that if you know?

A I do not know sir.

He just said, I will get the P200,000.00 and tell it to your boss.(Emphasis ours.)

JUSTICE BALAJADIA:

Q What is P200,000.00?

A It is Two Hundred Thousand Pesos.

PROS. CAOILI:

Q What did you answer him when he told you that?

A He told me to forget the deductive and electrical and after that Itold my boss what he told me.

Q Who is your boss?

A Santa Maria Sr.

Q What was the reaction of your boss when you relayed themessage to Mr. Preclaro?

A The next day he told me to ask Dave where and when to pick upthe money so the next day I asked Dave "Where do you intend toget the money, the Boss wanted to know."

Q What was the answer of Dave?

A And he told me, Wendy's Restaurant at 3:00 o'clock.

Q When?

A June 6 Wednesday.

Q When he told you that did you comply with June 6 appointment?


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A I told my boss what he told me again that the meeting will takeplace at Wendy's Restaurant corner Edsa and Camias Street ataround 8:00 o'clock p.m. June 6, Wednesday.

Q What did your boss tell you?

A The next day he told me to ask Dave.

Q What did your boss tell you?

A My boss told me to ask Dave to postpone the meeting on June 6to be postponed on June 8 at the same place and same timebecause my boss is having financial problem.

Q Did you relay the postponement to Dave Preclaro?

A Yes sir. I told what my boss told me.

Q What was his reaction?

A Dave told me "O.K. lang with me" because we are not in a hurry.Any way we are the ones to sign the acceptance papers and myboss instructed me that on Friday to ask Dave to bring along theresult of the punch list and if possible also to bring along theacceptance papers to be signed by Dave, Lydia Mejia and Dr. Liragthe director.

Q What happened next after meeting with Preclaro to relay thepostponement if any?

A Nothing happened. The next day, Thursday the boss instructedme to go with him to the NBI to give a statement.

Q Did you go to the NBI and report to the incident to the NBI?

A Yes sir.

Q Did you give a statement before any of the agents of the of the

NBI?A Yes sir. 21

xxx xxx xxx

Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the lattertried to arrange meetings with him regarding his demand 22does not weaken the cause


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against petitioner. It does not at all prove that petitioner did not ask for money.Conceivably petitioner did not muster enough courage to ask money directly from thecontractor himself. Getting the amount through the project engineer would be saferbecause if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always denyhaving made the demand.

Petitioner contends that the percentage demanded in the amount of P200,000.00 is toohigh considering that the estimated profit of the contractor from the CMD project is onlyP460,000.00. In petitioner's words, this would "scare the goose that lays the goldenegg." 23We reject this argument. The aforementioned contractor's profit is petitioner'sown computation as testified to by Engr. Resoso:

xxx xxx xxx

A I asked him that my boss is asking me to ask you how come itbecame deductive when my computation is additive and he told me

that I have done so much for your company already and then hepicked up cement bag paper bag and computed our alleged profitamounting to One Hundred Sixty Thousand Pesos and then he toldme that he used to use some percentage in projects maximum andminimum and in our case he would use a minimum percentage andmultiply to 460 and . . .(Emphasis ours.)

JUSTICE ESCAREAL:

Q What is 460?

A P460,000.00 and it ended to P215 thousand or P20,000.00 andhe said take of the butal and get the Two Hundred ThousandPesos. (Emphasis ours.)

JUSTICE BALAJADIA:

What is the translation now?

WITNESS:

A And he said disregard the excess and I will just get the

P200,000.00.PROS. CAOILI:

Q What does he mean by that if you know?

A I do not know sir.


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He just said, I will get the P200,000.00 and tell it to your boss. 24

xxx xxx xxx

The records, however, do not show the true and actual amount that the Sta. Maria

Construction will earn as profit. There is, therefore, no basis for petitioner's contentionas the actual profit may be lower or higher than his estimation.

Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentageproper compensation since he has allegedly done so much for the Sta. Mariaconstruction company. 25

Petitioner also argues that:

According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).

If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00,why would the petitioner still demand P200,000.00 which would increase thecontractor's loss to P480,000.00!

It might have been different if the changes were additive where STA. MARIACONSTRUCTION would have earned more, thereby providing motive for thepetitioner to ask for a percentage! 26

But this is precisely what petitioner was bargaining for P200,000.00 in exchange forforgetting about the deductive 27and thus prevent the Sta. Maria Construction from

incurring losses.Petitioner's contention that it was impossible for him to make any demands because thefinal decision regarding accomplishments and billing lies with the DOST technicalcommittee is unacceptable. Petitioner is part of the abovementioned technicalcommittee as the ITDI representative consultant. This is part of his duties under thecontract of services in connection with which he was employed by the ITDI. Even,assuming arguendothat petitioner does not make the final decision, assupervisor/consultant, his recommendations will necessarily carry much weight. Engr.Resoso testified thus:

PROS. CAOILI:Q As a Project Engineer to whom do you present your billingpapers accomplishment report or purchase order?

A The billing paper was being taken cared of by the, of our office. Ipersonally do my job as supervision in the construction.


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Q Do you have any counterpart to supervise the project from thegovernment side?

AYes, we have.

Yes, the DOST have a technical Committee Infra-StructureCommittee and also the ITDI as its own representative.

Q Who composed the Technical Committee of the DOST?

AA certain Engineer Velasco, Engineer Sande Banez andEngineer Mejia.

Q How about the ITDI?

A The ITDI representative composed of Dave Preclaro.

Q Who is this Dave Preclaro?

A He is the consultant of ITDI. (Emphasis ours.)

xxx xxx xxx

ATTY. CAOILI:

Q As Project Engineer do you consult to any body regarding yourjob?

A First if there is any problem in the site I consult my boss.

PROS. CAOILI:

Q How about with the other consultants representing the ITDI andDOST?

A In the construction site we have meeting every Monday todiscuss any problem.

Q With whom do you discuss this problem?

A The Infra-structure Committee of DOST and the Infra-structureCommittee of ITDI, the architect and the contractor. We had weeklymeetings.

Q What matters if any do you consult with Mr. Claro Preclaro?


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ATTY. JIMENEZ:

No basis.

JUSTICE ESCAREAL:

They met on problems on Mondays.

ATTY. JIMENEZ:

But there is no mention of Preclaro specifically.

JUSTICE ESCAREAL:

With the representative of DOST and Preclaro

ATTY. JIMENEZ:

Does that also mean that Preclaro is also among therepresentatives he is going to consult with?

Well any way. . .

JUSTICE ESCAREAL:

Witness may answer the question.

Read back the question.

COURT STENOGRAPHER:

Reading back the question as ordered by the Court.

WITNESS:

A Every Monday meeting we tackle with accomplishment report thebilling papers. 28(Emphasis ours.)

xxx xxx xxx

Petitioner also claims that the testimonies of the prosecution witnesses regarding theentrapment itself are conflicting, doubtful or improbable:

(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted withflourescent powder and used in the alleged entrapment.


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ContradictingRESOSO, STA. MARIA, SR. said that he gave fifty thousand(P50,000.00) pesos in P500 denomination to the NBI. 29

There is no such inconsistency. Said witnesses were testifying on two different subjects.Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the

entrapment while Engr. Resoso's declaration referred only to the number of bills dustedwith flourescent powder.

Petitioner, likewise, misappreciated the following testimony of Resoso:

PROS. CAOILI:

Q What did he do with the two envelopes upon receiving the same?

A Then he asked Jaime Sta. Maria, Jr. if there is bank tellerexpress, if he could deposit the money but Mr. Sta. Maria said, "I do

not have, I only have credit cards."

30

Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria,Jr. He was merely inquiring from the latter if there was an express teller nearby wherehe could make the deposit. Mr. Sta. Maria Jr. himself testified as follows:

A He asked me if there was express teller. I told him I do not knowthen he asked me whether it is possible to deposit at the ExpressTeller at that time. I told him I don't know because I have noexpress teller card and he asked me how am I going to arrange,how was it arranged if I will bring it, can I bring it. Then I told him

that it was placed in two envelopes consisting of 500 Peso bills andthen he said "Okay na yan." 31

The failure of the NBI to take photographs of the actual turn-over of the money topetitioner is not fatal to the People's cause. The transaction was witnessed by severalpeople, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whosetestimonies on the circumstances before, during and after the turn-over are consistent,logical and credible.

According to NBI Agent Francisco Balanban Sr., they purposely took no photographs ofthe actual turn-over so as not to alert and scare off the petitioner. During cross-

examination Agent Balanban Jr. stated:xxx xxx xxx

Q Now, of course, this entrapment operation, you made certainpreparation to make sure that you would be able to gather evidencein support of the entrapment?


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A Yes sir.

Q As a matter of fact you even brought photographer for thepurpose?

A That is right sir.

Q And that photographer was precisely brought along to record theentrapment?

A Yes sir.

Q From the beginning to the end, that was the purpose?

A At the time of the arrest sir.

ATTY. JIMENEZ:

From the time of the handing over of the envelopes until theentrapment would have been terminated?

A No sir we plan to take the photograph only during the arrestbecause if we take photographs he would be alerted during thehandingof the envelopes. (Emphasis ours.)

Q So you did not intend to take photographs of the act of handingof the envelopes to the suspect?

A We intended but during that time we cannot take photographs atthe time of the handling because the flash will alert the suspect.(Emphasis ours.)

JUSTICE ESCAREAL:

Why did you not position the photographer to a far distance placewith camera with telescopic lens?

A We did not Your Honor.

ATTY. JIMENEZ:

So was it your intention to take photographs only at the time that heis already being arrested?

A Yes sir. 32


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xxx xxx xxx

Petitioner insists that when his hands were placed under ultra-violet light, both werefound negative for flourescent powder. This is petitioner's own conclusion which is notsupported by evidence. Such self-serving statement will not prevail over the clear and

competent testimony and the report

33

submitted by the forensic expert of the NBI Ms.Demelen R. dela Cruz, who was the one who conducted the test and found petitioner'sright palmar hand positive for flourescent powder, the same hand he used, according towitnesses Resoso and Sta. Maria Jr., to get the money from the latter.

xxx xxx xxx

Q Mrs. dela Cruz since when have you been a Forensic Chemist atNBI?

A Since 1981 sir.

Q JUSTICE ESCAREAL:

Q By the way, is the defense willing to admit that the witness is acompetent as . . . .

ATTY. JIMENEZ:

Admitted Your Honor.

PROS. CAOILI:

Madam Witness did you conduct a forensic examination in theperson of one Dave Preclaro y Jambalos?

A Yes sir.

Q If that person whom you examined is here in court would you beable to recognize him?

ATTY. JIMENEZ:

We admit that the accused is the one examined by the witness.

ATTY. CAOILI:

Did you prepare the result of the examination in writing?

A Yes sir.


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PROS. CAOILI:

Showing to you Physic Examination No. 90-961 which for purposesof identification has already been marked as Exh. H what relationhas this have with the report that you mentioned a while ago?

A This is the same report that I prepared sir.

Q How did you conduct such flourescent examination?

A The left and right hands of the accused were placed under theultra violet lamp sir.

Q What was the result?

A It gave a . . . under the ultra violent lamp the palmer hands of the

suspect gave positive result for the presence of flourescent powder.

Q What palmar hands?

A Right hand sir.

Q What other examination did you conduct?

A And also the clothing, consisting of the t-shirts and the pantswere examined. Under the ultra violet lamp the presence of theflourescent powder of the t-shirts and pants cannot be seen or

distinguished because the fibers or the material of the cloth underthe ultra violet lamp was flouresce.

Q Please tell the Court why the t-shirts and pants under the ultraviolent lamp was flouresce?

A The materials or the fibers of the clothings it could have beendyed with flourescent dyes sir. 34

xxx xxx xxx

What we find improbable and contrary to human experience is petitioner's claim that hewas set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revengeon account, for petitioner's failure to recommend the Sta. Maria Construction to performthe extra electrical works. 35

The Sandiganbayan has aptly ruled on this matter, thus:


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For another, the claim of accused that there was ill-will on the part of theconstruction company is hardly plausible. It is highly improbable for the companyto embark on a malicious prosecution of an innocent person for the simplereason that such person had recommended the services of another constructionfirm. And it is extremely impossible for such company to enlist the cooperation

and employ the services of the government's chief investigative agency for suchan anomalous undertaking. It is more in accord with reason and logic topresuppose that there was some sort of a mischievous demand made by theaccused in exchange for certain favorable considerations, such as, favorablerecommendation on the completeness of the project, hassle-free release offunds, erasure of deductives, etc. Indeed, the rationale for the occurrence of themeeting and the demand for money is infinite and boundless. 36

As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was thenengaged in the construction of another DOST building, would not risk his business orlivelihood just to exact revenge which is neither profitable nor logical. As we aptly stated

in Maleg v. Sandiganbayan:

37

It is hard to believe that the complainant who is a contractor would jeopardizeand prejudice his business interests and risk being blacklisted in governmentinfrastructure projects, knowing that with the institution of the case, he may find itno longer advisable nor profitable to continue in his construction ventures. It ishardly probable that the complainant would weave out of the blue a seriousaccusation just to retaliate and take revenge on the accused.

From the foregoing, the conclusion is inescapable that on the basis of the testimonialand documentary evidence presented during the trial, the guilt of petitioner has been

established beyond reasonable doubt.WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

G.R. No. 116418 March 7, 1995

SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,vs.HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA,Commissioner, Civil Service Commission, respondents.


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FELICIANO, J.:

In this Petition for Certiorari, Prohibition and Mandamuswith Prayer for a TemporaryRestraining Order, petitioners Salvador C. Fernandez and Anicia M. de Lima assail thevalidity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and

the authority of the Commission to issue the same.

Petitioner Fernandez was serving as Director of the Office of Personnel Inspection andAudit ("OPIA") while petitioner de Lima was serving as Director of the Office of thePersonnel Relations ("OPR"), both at the Central Office of the Civil Service Commissionin Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No.94-3710 signed by public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr.,Chairman and Commissioner, respectively, of the Commission, was issued on 7 June1994.1Resolution No. 94-3710 needs to be quoted in full:

RESOLUTION NO. 94-3710

WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". .. as an independent constitutional body, the Commission may effectchanges in the organization as the need arises;"

WHEREAS, the Commission finds it imperative to effect changes in theorganization to streamline its operations and improve delivery of publicservice;

WHEREAS, the Commission finds it necessary to immediately effectchanges in the organization of the Central Offices in view of the need to

implement new programs in lieu of those functions which were transferredto the Regional Offices;

WHEREFORE, foregoing premises considered, the Commission herebyRESOLVES to effect the following changes in its organization, specificallyin the Central Offices:

1. The OCSS [Office of Career Systems and Standards], OPIA [Office ofPersonnel Inspection and Audit] and OPR [Office of Personnel Relations]are merged to form the Research and Development Office (RDO).

2. The Office for Human Resource Development (OHRD) is renamedHuman Resource Development Office (HRDO).

3. The following functions and the personnel assigned to the unitperforming said functions are hereby transferred to HRDO:

a. Administration of the Honor and Awards program underOCSS;


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b. Registration and Accreditation of Unions under OPR; and

c. Accreditation of Agencies to take final action onappointments under OPIA.

4. The Office for Central Personnel Records (OCPR) is renamedManagement Information Office (MIO).

5. The Information technology functions of OPM and the personnelassigned to the unit are transferred to MIO.

6. The following functions of OPM and the personnel assigned to the unitperforming said functions are hereby transferred to the Office of theExecutive Director:

a. Financial Audit and Evaluation;

b. Internal Management and Improvement;

c. Research and Statistics; and

d. Planning and Programming.

7. The library service and its personnel under OCPR are transferred to theCentral Administrative Office.

8. The budget allocated for the various functions shall be transferred to the

Offices where the functions are transferred. Records, fixtures andequipment that go with the functions shall be moved to where thefunctions are transferred.

Annex A contains the manning list for all the offices, except the OCES.

The changes in the organization and in operations shall take place beforeend of July 1994.

Done in Quezon City, July 07, 1994.

(Signed)Patricia A. Sto. TomasChairman

(Signed) Did not participateRamon P. Ereneta, Jr., Thelma P. GamindeCommissioner Commissioner


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Attested by:(Signed)

Carmencita Giselle B. DaysonBoard Secretary V2

During the general assembly of officers and employees of the Commission held in themorning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections ofpetitioners, expressed the determination of the Commission to implement ResolutionNo. 94-3710 unless restrained by higher authority.

Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Courtrequired public respondents to file a Comment on the Petition. On 21 September 1994,petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order,alleging that petitioners had received Office Orders from the Commission assigningpetitioner Fernandez to Region V at Legaspi City and petitioner de Lima to Region III inSan Fernando, Pampanga and praying that public respondents be restrained from

enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994,granted this Motion and issued the Temporary Restraining Order prayed for bypetitioners.

The Commission filed its own Comment, dated 12 September 1994, on the Petition andthen moved to lift the Temporary Restraining Order. The Office of the Solicitor Generalfiled a separate Comment dated 28 November 1994, defending the validity ofResolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separateReplies to these Comments. The Commission in turn filed a Rejoinder (denominated"Comment [on] the Reply").

The principal issues raised in this Petition are the following:(1) Whether or not the Civil Service Commission had legal authority toissue Resolution No. 94-3710 to the extent it merged the OCSS [Office ofCareer Systems and Standards], the OPIA [Office of Personnel Inspectionand Audit] and the OPR [Office of Personnel Relations], to form the RDO[Research and Development Office]; and

(2) Whether or not Resolution No. 94-3710 violated petitioners'constitutional right to security of tenure.

I.The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure andorganization of the Commission in the following terms:

Sec. 16. Offices in the CommissionThe Commission shall have thefollowing offices:


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(1) The Office of the Executive Director. . .

(2) The Merit System Protection Board. . .

(3) The Office of Legal Affairs. . .

(4) The Office of Planning and Management. . .

(5) The Central Administrative Office. . .

(6) The Office of Central Personnel Records . . .

(7) The Office of Position Classification andCompensation. . .

(8) The Office of Recruitment, Examination and

Placement. . .

(9) The Office of Career Systems and Standardsshall provide leadershipand assistance in the formulation and evaluation of personnel systemsand standards relative to performance appraisal, merit promotion andemployee incentive benefits and awards.

(10) The Office of Human Resource Development. . .

(11) The Office of Personnel Inspection and Auditshall develop policies,standards, rules and regulations for the effective conduct of inspection and

audit of personnel and personnel management programs and the exerciseof delegated authority; provide technical and advisory services to CivilService Regional Offices and government agencies in the implementationof their personnel programs and evaluation systems.

(12) The Office of Personnel Relationsshall provide leadership andassistance in the development and implementation of policies, standards,rules and regulations governing corporate officials and employees in theareas of recruitment, examination, placement, career development, meritand awards systems, position classification and compensation,performance appraisal, employee welfare and benefits, discipline and

other aspects of personnel management on the basis of comparableindustry practices.

(13) The Office of the Corporate Affairs. . .

(14) The Office of Retirement Administration. . .

(15) The Regional and Field Offices. . . . (Emphases in the original)


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Immediately after the foregoing listing of offices of the Commission and their respectivefunctions, the 1987 Revised Administrative Code goes on to provide as follows:

Sec. 17. Organizational Structure. Each office of the Commission shallbe headed by a Director with at least one (1) Assistant Director, and may

have such divisions as are necessary to carry out their respectivefunctions.As an independent constitutional body, the Commission mayeffect chances in the organization as the need arises.

xxx xxx xxx 3

(Emphasis supplied)

Examination of the foregoing statutory provisions reveals that the OCSS, OPIA andOPR, and as well each of the other Offices listed in Section 16 above, consist ofaggregations of Divisions, each of which Divisions is in turn a grouping of Sections.

Each Section, Division and Office comprises a group of positions within the agencycalled the Civil Service Commission, each group being entrusted with a more or lessdefinable function or functions. These functions are related to one another, each ofthem being embraced by a common or general subject matter. Clearly, each Office is aninternal department or organizational unit within the Commission and that accordingly,the OCSS, OPIA and OPR, as well as all the other Offices within the Commissionconstitute administrative subdivisions of the CSC. Put a little differently, these officesrelate to the internal structure of the Commission.

What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No.94-3710 shows that thereby the Commission re-arranged some of the administrative

units (i.e., Offices) within the Commission and, among other things, merged three (3) ofthem (OCSS, OPIA and OPR) to form a new grouping called the "Research andDevelopment Office (RDO)." The same Resolution renamed some of the Offices of theCommission, e.g., the Office for Human Resource Development (OHRD) was renamedHuman Resource Development Office (HRDO); the Office for Central PersonnelRecords (OCPR) was renamed Management Information Office (MIO). TheCommission also re-allocatedcertain functions moving some functions from one Officeto another; e.g., the information technology function of OPM (Office of Planning andManagement) was transferred to the newly named Management Information Office(MIO). This re-allocation or re-assignment of some functions carried with it the transferof the budget earmarked for such function to the Office where the function wastransferred. Moreover, the personnel, records, fixtures and equipment that weredevoted to the carrying out of such functions were moved to the Offices to where thefunctions were transferred.

The objectives sought by the Commission in enacting Resolution No. 94-3710 weredescribed in that Resolution in broad terms as "effect[ing] changes in the organization tostreamline [the Commission's] operations and improve delivery of service." Thesechanges in internal organization were rendered necessary by, on the one hand, the


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decentralization and devolution of the Commission's functions effected by the creationof fourteen (14) Regional Offices and ninety-five (95) Field Offices of the Commissionthroughout the country, to the end that the Commission and its staff may be broughtcloser physically to the government employees that they are mandated to serve. In thepast, its functions had been centralized in the Head Office of the Commission in

Metropolitan Manila and Civil Service employees all over the country were compelled tocome to Manila for the carrying out of personnel transactions. Upon the other hand, thedispersal of the functions of the Commission to the Regional Offices and the FieldOffices attached to various governmental agencies throughout the country makespossible the implementation of new programs of the Commission at its Central Office inMetropolitan Manila.

The Commission's Office Order assigning petitioner de Lima to the CSC Regional OfficeNo. 3 was precipitated by the incumbent Regional Director filing an application forretirement, thus generating a need to find a replacement for him. Petitioner de Lima wasbeing assigned to that Regional Office while the incumbent Regional Director was still

there to facilitate her take over of the duties and functions of the incumbent Director.Petitioner de Lima's prior experience as a labor lawyer was also a factor in herassignment to Regional Office No. 3 where public sector unions have been very active.Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon theother hand, been necessitated by the fact that the then incumbent Director in Region Vwas under investigation and needed to be transferred immediately to the Central Office.Petitioner Fernandez was deemed the most likely designee for Director of RegionalOffice No. 5 considering that the functions previously assigned to him had beensubstantially devolved to the Regional Offices such that his reassignment to a RegionalOffice would result in the least disruption of the operations of the Central Office. 4

It thus appears to the Court that the Commission was moved by quite legitimateconsiderations of administrative efficiency and convenience in promulgating andimplementing its Resolution No. 94-3710 and in assigning petitioner Salvador C.Fernandez to the Regional Office of the Commission in Region V in Legaspi City andpetitioner Anicia M. de Lima to the Commission's Regional Office in Region III in SanFernando, Pampanga. It is also clear tothe Court that the changes introduced and formalized through Resolution No. 94-3710re-naming of existing Offices; re-arrangement of the groupings of Divisions andSections composing particular Offices; re-allocation of existing functions (and relatedpersonnel; budget, etc.) among the re-arranged Offices are precisely the kind ofinternal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter3) of the 1987 Revised Administrative Code), quoted above, as "chances in theorganization" of the Commission.

Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices,something which may be done only by the same legislative authority which had createdthose public offices in the first place.


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The Court is unable, in the circumstances of this case, to accept this argument. Theterm "public office" is frequently used to refer to the right, authority and duty, createdand conferred by law, by which, for a given period either fixed by law or enduring at thepleasure of the creating power, an individual is invested with some portion of thesovereign functions of government, to be exercised by that individual for the benefit of

the public.

5

We consider that Resolution No. 94-3710 has notabolished any publicoffice as that term is used in the law of public officers. 6It is essential to note that noneof the "changes in organization" introduced by Resolution No. 94-3710 carried with it ornecessarily involved thetermination of the relationship of public employment betweenthe Commission and any of its officers and employees. We find it very difficult tosuppose that the 1987 Revised Administrative Code having mentioned fourteen (14)different "Offices" of the Civil Service Commission, meant to freeze those Offices and tocast in concrete, as it were, the internal organization of the commission until it mightplease Congress to change such internal organization regardless of the ever changingneeds of the Civil Service as a whole. To the contrary, the legislative authorityhad expresslyauthorized the Commission to carry out "changes in the organization," as

the need [for such changes] arises."

7

Assuming, for purposes of argument merely, thatlegislative authority was necessary to carry out the kinds off changes contemplated inResolution No. 94-3710 (and the Court is notsaying that such authority is necessary),such legislative authority was validly delegated to the Commission by Section 17 earlierquoted. The legislative standards to be observed and respected in the exercise of suchdelegated authority are set out not only in Section 17 itself (i.e., "as the need arises"),but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 ofthe 1987 Revised Administrative Code which required the Civil Service Commission

as the central personnel agency of the Government [to] establish acareer service, adopt measures to promote efficiency [and] responsiveness. . . in the civil service . . . and that personnelfunctions shall be decentralized, delegating the corresponding authority tothedepartments, offices and agencies where such functions can beeffectively performed. (Emphasis supplied)

II.

We turn to the second claim of petitioners that their right to security of tenure wasbreached by the respondents in promulgating Resolution No. 94-3710 and orderingpetitioners' assignment to the Commission's Regional Offices in Regions III and V.Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer oremployee of the Civil Service shall be removed or suspended except for cause providedby law." Petitioners in effect contend that they were unlawfully removed from theirpositions in the OPIA and OPR by the implementation of Resolution No. 94-3710 andthat they cannot, without their consent, be moved out to the Regional Offices of theCommission.

We note, firstly, that appointments to the staff of the Commission are not appointmentsto a specified public office but rather appointments to particular positions or ranks. Thus,


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a person may be appointed to the position of Director III or Director IV; or to the positionof Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II;and so forth. In the instant case, petitioners were each appointed to the positionof Director IV, without specification of any particular office or station. The same is truewith respect to the other persons holding the same position or rank of Director IV of the

Commission.

Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Coderecognizes reassignment as a management prerogative vested in the Commission and,for that matter, in any department or agency of government embraced in the civilservice:

Sec. 26. Personnel Actions. . . .

xxx xxx xxx

As used in this Title, any action denoting the movement or progress ofpersonnel in the civil service shall be known as personnel action. Suchaction shall include appointment through certification, promotion, transfer,re-instatement, re-employment, detail, reassignment, demotion, andseparation.All personnel actions shall be in accordance with such rules,standards, and regulations as may be promulgated by the Commission .

xxx xxx xxx

(7) Reassignment. An employee may be re-assigned from oneorganizational unit to another in the same agency, Provided, That such re-

assignment shall not involve a reduction in rank status and salary.(Emphasis supplied)

It follows that the reassignment of petitioners Fernandez and de Lima from theirprevious positions in OPIA and OPR, respectively, to the Research and DevelopmentOffice (RDO) in the Central Office of the Commission in Metropolitan Manila and theirsubsequent assignment from the RDO to the Commission's Regional Offices in RegionsV and III had been effected with express statutory authority and did not constituteremovals without lawful cause. It also follows that such re-assignment did notinvolveany violation of the constitutional right of petitioners to security of tenure consideringthat they retained their positions of Director IV and would continue to enjoy the same

rank, status and salary at their new assigned stations which they had enjoyed at theHead Office of the Commission in Metropolitan Manila. Petitioners had not, in otherwords, acquired a vested right to serve at the Commission's Head Office.

Secondly, the above conclusion is compelled not only by the statutory provisionsrelevant in the instant case, but also by a long line of cases decided by this Court inrespect of different agencies or offices of government.


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In one of the more recent of these cases, Department of Education Culture and Sports,etc., et al.v.Court of Appeals, et al.,8this Court held that a person who had beenappointed as "Secondary School Principal II" in the Division of City Schools, District II,Quezon City, National Capital Region, and who had been stationed as High SchoolPrincipal in the Carlos Albert High School in Quezon for a number of years, could

lawfully be reassigned or transferred to the Manuel Roxas High School, also in QuezonCity, without demotion in rank or diminution of salry. This Court held:

The aforequoted provision of Republic Act No. 4670 particularly Section 6thereof which provides that except for cause and in the exigencies of theservice no teacher shall be transferred without his consent from onestation to another, finds no application in the case at bar as thisispredicated upon the theory that the teacher concerned is appointednot merely assigned to a particular station. Thus:

The rule pursued by plaintiff only goes so far as

the appointed indicates a specification.Otherwise,theconstitutionally ordained security of tenure cannot shield her.In appointments of this nature, this Court has consistentlyrejected the officer's demand to remain even as publicservice dictates that a transfer be made in a particularstation. Judicial attitude toward transfers of this nature isexpressed in the following statement in Ibaez, etal. vs.Commission on Elections, et al. (G.R. No.L-26558, April 27, 1967; 19 SCRA 1002 [1967]);

That security of tenure is an essential and

constitutionally guaranteed feature of our CivilService System, is not open to debate. Themantle of its protection extends not onlyagainst removals without cause but alsoagainst unconsented transfer which, asrepeatedly enunciatEd, are tantamount toremovals which are within the ambit of thefundamental guarantee. However, theavailability of that security of tenure necessarilydepends, in the first instance, upon the natureof the appointment (Hojilla vs. Marino, 121 Phil.280 [1965].) Such that the rule which

proscribes transfers without consent asanathema to the security of tenure is

predicated upon the theory that the officerinvolved is appointed notmerely assigned to a particularstation(Miclat v. Ganaden, et al., 108 Phil. 439[1960]; Jaro v. Hon. Valencia, et al., 118 Phil.


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728 [1963]). [Brillantes v. Guevarra, 27 SCRA138 (1969)]

The appointment of Navarro as principal does not refer to any particularstation or school.As such, she could be assigned to any station and she is

not entitled to stay permanently at any specific school. (Bongbong v.Parado, 57 SCRA 623) When she was assigned to the Carlos Albert HighSchool, it could not have been with the intention to let her stay in saidschool permanently. Otherwise, her appointment would have so stated.Consequently, she may be assigned to any station or school in QuezonCity as the exigencies of public service require even without consent. Asthis Court ruled inBrillantes v. Guevarra, 27 SCRA 138,143

Plaintiff's confident stride falters. She took too loose a viewof the applicable jurisprudence. Her refuge behind the

mantle of security of tenure guaranteed by the Constitution isnot impenetrable. She proceeds upon the assumption thatshe occupies her station in Sinalang Elementary School byappointment. But her first appointment as Principal merelyreads thus: "You are hereby appointed a Principal(Elementary School) in the Bureau of Public Schools,Department of Education", without mentioning her station.She cannot therefore claim security of tenure as Principal ofSinalang Elementary School or any particular station. Shemay be assigned to any station as exigency of public servicerequires, even without her consent.She thus has no right ofchoice.9

(Emphasis supplied; citation omitted)

In the very recent case of Fernando, et al.v.Hon.Sto.Tomas, etc., eta1., 10the Court addressed appointments of petitioners as "Mediators-Arbiters in theNational Capital Region" in dismissing a challenge on certiorari to resolutions of theCSC and orders of the Secretary of Labor. The Court said:

Petitioners were appointed as Mediator Arbiters in the National CapitalRegion. They were not, however, appointed to a specific station or

particular unit of the Department of Labor in the National Capital Region(DOLE-NCR). Consequently, they can always be reassigned from oneorganizational unit to another of the same agency where, in the opinion ofrespondent Secretary, their services may be used more effectively. Assuch they can neither claim a vested right to the station to which they wereassigned nor to security of tenure thereat. As correctly observed by theSolicitor General, petitioners' reassignment is not a transfer for they werenot removed from their position as med-arbiters. They were not given newappointments to new positions. It indubitably follows, therefore, that


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Memorandum Order No. 4 ordering their reassignment in the interest ofthe service is legally in order.11(Emphases supplied)

In Quisumbing v.Gumban, 12the Court, dealing with an appointment in theBureau of Public Schools of the Department of Education, Culture and Sports,

ruled as follows:

After a careful scrutiny of the records, it is to be underscored that theappointment of private respondent Yap is simply that of a DistrictSupervisor of the Bureau of Public Schools which does not indicate aspecific station (Rollo, p. 13). A such, she could be assigned to anystation and she is no entitled to stay permanently at any specificstation (Bongbong v. Parado, 57 SCRA 623 [1974]; Department ofEducation, Culture and Sports v. Court of Appeals [G.R. 81032, March 22,1990] citingBrillantes v. Guevarra [27 SCRA 138 [1969]). 13

Again, in Ibaez v.Commission on Elections,

14

the Court had before it petitioners'appointments as "Election Registrars in the Commission of Elections," without anyintimation to what city, municipality or municipal district they had been appointed assuch. 15The Court held that since petitioners "were not appointed to, and consequentlynot entitled to any security of tenure or permanence in, any specific station," "on generalprinciples, they [could] be transferred as the exigencies of the service required," andthat they had no right to complain against any change in assignment. The Court furtherheld that assignment to a particular station after issuance of the appointment was notnecessary to complete such appointment:

. . . . We cannot subscribe to the theory that an assignment to a particular

station, in the light of the terms of the appointments in question, wasnecessary to complete the said appointments.The approval thereof by theCommissioner of Civil Service gave those appointments the stamp offinality.With the view that the respondent Commission then took of itspower in the premises and the demand of the mission it set out toaccomplish with the appointments it extended, said appointments weredefinitely meant to be complete as then issued. The subsequentassignment of the appointees thereunder that the said respondentCommission held in reserve to be exercised as the needs of each locality

justified did not in any way detract from the perfection attained by theappointments beforehand. And the respective appointees were entitledonly to such security of tenure as the appointment papers concernedactually conferred not in that of any place to which they may have beensubsequently assigned. . . . As things stand, in default of any particularstation stated in their respective appointments, no security of tenure canbe asserted by the petitioners on the basis of the mere assignments whichwere given to them. A contrary rule will erase altogether the demarcationline we have repeatedly drawn between appointment and assignment astwo distinct concepts in the law of public officers. 16(Emphases supplied)


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The petitioner, in Miclat v.Ganaden, 17had been appointed as a "Welfare OfficeIncharge, Division of Urban, Rural and Community Administration, Social Welfare

Administration." She was assigned as Social Welfare Incharge of the MountainProvince, by an office order of the Administrator, Social Welfare Administration. After alittle more than a year; petitioner was assigned elsewhere and respondent Ganaden

transferred to petitioner's first station in Baguio City. The Court ruled that petitioner wasnot entitled to remain in her first station, In Jaro v.Hon.Valencia, et al., 18petitioner Dr.Jaro had been appointed "Physician in the Municipal Maternity and Charity Clinics,Bureau of Hospitals." He was first assigned to the Municipal Maternity and CharityClinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and thento Catil, Davao. He was later assigned to the Municipality of Padada, also of DavaoProvince. He resisted his last assignment and brought mandamusagainst the Secretaryof Health to compel the latter to return him to his station in Catil, Davao as MunicipalHealth Officer thereof. The Court, applying Miclat v.Ganaden dismissed this Petitionholding that his appointment not being to any specific station but as a physician in theMunicipal Maternity and Charity Clinics, Bureau of Hospitals, he could be transferred or

assigned to any station where, in the opinion of the Secretary of Health, his servicesmay be utilized more effectively. 19

Also noteworthy is Sta.Maria v.Lopez 20which involved the appointment of petitionerSta. Maria as "Dean, College of Education, University of the Philippines." Dean Sta.Maria was transferred by the President of the University of the Philippines to the Officeof the President, U.P., without demotion in rank or salary, thereby acceding to thedemands of student activists who were boycotting their classes in the U.P. College ofEducation. Dean Sta. Maria assailed his transfer as an illegal and unconstitutionalremoval from office. In upholding Dean Sta. Maria's claim, the Court, speaking throughMr. Justice Sanchez, laid down the applicable doctrine in the following terms:

4. Concededly, transfers there are which do not amount to removal.Somesuch transfer can be effected without the need for charges being

preferred, without trial or hering, and even without the consent of theemployee.

The clue to such transfers may be found in the "nature of theappointment."Where the appointment does not indicate a specific station,an employee may be transferred or reassigned provided the transferaffects no substantial change in title, rank and salary. Thus one who isappointed "principal in the Bureau of Public Schools" and is designated tohead a pilot school may be transferred to the post of principal of anotherschool.

And the rule that outlaws unconsented transfersas anathema to securityof tenure applies only to an officer who is appointed not merelyassigned to a particular station. Such a rule does not prescribe atransfer carried out under a specific statute that empowers the head of anagency to periodically reassign the employees and officers in order to


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improve the service of the agency. The use of approved techniques ormethods in personnel management to harness the abilities of employeesto promote optimum public service cannot-be objected to. . . .

5. The next point of inquiry is whether or not Administrative Order 77

would stand the test of validity vis-a-vis the principles just enunciated.

xxx xxx xxx

To be stressed at this point, however, is that the appointment of Sta. Mariais that of "Dean, College of Education, University of the Philippines."He isnot merely a dean "in the university."His appointment is to a specific

position;and, more importantly, to a specific station. 21(Citations omitted;emphases supplied)

For all the foregoing we conclude that the reassignment of petitioners Fernandez and

de Lima from their stations in the OPIA and OPR, respectively, to the ResearchDevelopment Office (RDO) and from the RDO to the Commissions Regional Offices inRegions V and III, respectively, without their consent, did not constitute a violation oftheir constitutional right to security of tenure.

WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer forWrit of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED.The Temporary Restraining Order issued by this Court on 27 September 1994 is herebyLIFTED. Costs against petitioners.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo Quiason,Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

G.R. No. 116033 February 26, 1997

ALFREDO L. AZARCON, petitioner,vs.SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C.BATAUSA, respondents.

PANGANIBAN, J .:

Does the Sandiganbayan have jurisdiction over a private individual who is charged withmalversation of public funds as a principal after the said individual had been designatedby the Bureau of Internal Revenue as a custodian of distrained property? Did such


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accused become a public officer and therefore subject to the graft court's jurisdiction asa consequence of such designation by the BIR?

These are the main questions in the instant petition for review of RespondentSandiganbayan's Decision1in Criminal Case No. 14260 promulgated on March 8, 1994,

convicting petitioner of malversation of public funds and property, andResolution2dated June 20, 1994, denying his motion for new trial or reconsiderationthereof.

The Facts

Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirtand ore."3His services were contracted by the Paper Industries Corporation of thePhilippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, heengaged the services of sub-contractors like Jaime Ancla whose trucks were left at theformer's premises.4From this set of circumstances arose the present controversy.

. . . It appears that on May 25, 1983, a Warrant of Distraint of PersonalProperty was issued by the Main Office of the Bureau of Internal Revenue(BIR) addressed to the Regional Director (Jose Batausa) or his authorizedrepresentative of Revenue Region 10, Butuan City commanding the latterto distraint the goods, chattels or effects and other personal property ofJaime Ancla, a sub-contractor of accused Azarcon and, a delinquenttaxpayer. The Warrant of Garnishment was issued to accused Alfredo

Azarcon ordering him to transfer, surrender, transmit and/or remit to BIRthe property in his possession owned by taxpayer Ancla. The Warrant ofGarnishment was received by accused Azarcon on June 17, 1985.5

Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized UnderAuthority of the National Internal Revenue," assumed the undertakings specified in thereceipt the contents of which are reproduced as follows:

(I), the undersigned, hereby acknowledge to have received from AmadeoV. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue ofthe Philippines, the following described goods, articles, and things:

Kind of property Isuzu dump truckMotor number E120-229598

Chassis No. SPZU50-1772440Number of CXL 6Color BlueOwned By Mr. Jaime Ancla

the same having been this day seized and left in (my) possession pendinginvestigation by the Commissioner of Internal Revenue or his dulyauthorized representative. (I) further promise that (I) will faithfully keep,


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preserve, and, to the best of (my) ability, protect said goods, articles, andthings seized from defacement, demarcation, leakage, loss, or destructionin any manner; that (I) will neither alter nor remove, nor permit others toalter or remove or dispose of the same in any manner without the expressauthority of the Commissioner of Internal Revenue; and that (I) will

produce and deliver all of said goods, articles, and things upon the orderof any court of the Philippines, or upon demand of the Commissioner ofInternal Revenue or any authorized officer or agent of the Bureau ofInternal Revenue.6

Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR'sRegional Director for Revenue Region 10 B, Butuan City stating that

. . . while I have made representations to retain possession of the propertyand signed a receipt of the same, it appears now that Mr. Jaime Anclaintends to cease his operations with us. This is evidenced by the fact that

sometime in August, 1985 he surreptitiously withdrew his equipment frommy custody. . . . In this connection, may I therefore formally inform youthat it is my desire to immediately relinquish whatever responsibilities Ihave over the above-mentioned property by virtue of the receipt I havesigned. This cancellation shall take effect immediately. . . .7

Incidentally, the petitioner reported the taking of the truck to the security managerof PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from beingtaken out of the PICOP concession. By the time the order to bar the truck's exitwas given, however, it was too late.8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:An analysis of the documents executed by you reveals that while you are(sic) in possession of the dump truck owned by JAIME ANCLA, youvoluntarily assumed the liabilities of safekeeping and preserving the unit inbehalf of the Bureau of Internal Revenue. This is clearly indicated in theprovisions of the Warrant of Garnishment which you have signed, obligedand committed to surrender and transfer to this office. Your failuretherefore, to observe said provisions does not relieve you of yourresponsibility.9

Thereafter, the Sandiganbayan found that

On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor ofRevenue Region 10 B, Butuan City, sent a progress report to the Chief ofthe Collection Branch of the surreptitious taking of the dump truck and that

Ancla was renting out the truck to a certain contractor by the name ofOscar Cueva at PICOP (Paper Industries Corporation of the Philippines,the same company which engaged petitioner's earth moving services),


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Mangagoy, Surigao del Sur. She also suggested that if the report weretrue, a warrant of garnishment be reissued against Mr. Cueva for whateveramount of rental is due from Ancla until such time as the latter's taxliabilities shall be deemed satisfied. . . However, instead of doing so,Director Batausa filed a letter-complaint against the (herein Petitioner) and

Ancla on 22 January 1988, or after more than one year had elapsed fromthe time of Mrs. Calo's report. 10

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . tothe Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayanprosecutor and granted authority to conduct preliminary investigation on August 22,1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman(Tanodbayan) Conrado Vasquez. 11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before theSandiganbayan with the crime of malversation of public funds or property under Article

217 in relation to Article 222 of the Revised Penal Code (RPC) in the followingInformation 12filed on January 12, 1990, by Special Prosecution Officer Victor Pascual:

That on or about June 17, 1985, in the Municipality of Bislig, Province ofSurigao del Sur, Philippines, and within the jurisdiction of this HonorableCourt, accused Alfredo L. Azarcon, a private individual but who, in hiscapacity as depository/administrator of property seized or deposited by theBureau of Internal Revenue, having voluntarily offered himself to act ascustodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958,Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized tobe such under the authority of the Bureau of Internal Revenue, has

become a responsible and accountable officer and said motor vehiclehaving been seized from Jaime C. Ancla in satisfaction of his tax liability inthe total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONEPESOS and 59/100 (P80,831.59) became a public property and the valuethereof as public fund, with grave abuse of confidence and conspiring andconfederating with said Jaime C. Ancla, likewise, a private individual, didthen and there wilfully, (sic) unlawfully and feloniously misappropriate,misapply and convert to his personal use and benefit the aforementionedmotor vehicle or the value thereof in the aforestated amount, by then andthere allowing accused Jaime C. Ancla to remove, retrieve, withdraw andtow away the said Isuzu Dumptruck (sic) with the authority, consent andknowledge of the Bureau of Internal Revenue, Butuan City, to the damageand prejudice of the government in the amount of P80,831.59 in a form ofunsatisfied tax liability.

CONTRARY TO LAW.

The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14,1991, alleging that: (1) the petitioner never appeared in the preliminary investigation;


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and (2) the petitioner was not a public officer, hence a doubt exists as to why he wasbeing charged with malversation under Article 217 of the Revised Penal Code. 13TheSandiganbayan granted the motion for reinvestigation on May 22, 1991. 14After thereinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the"withdrawal of the information" 15but was "overruled by the Ombudsman." 16

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that theSandiganbayan did not have jurisdiction over the person of the petitioner since he wasnot a public officer. 17On May 18, 1992; the Sandiganbayan denied the motion. 18

When the prosecution finished presenting its evidence, the petitioner then filed a motionfor leave to file demurrer to evidence which was denied on November 16, 1992, "forbeing without merit." 19The petitioner then commenced and finished presenting hisevidence on February 15, 1993.

The Respondent Court's Decision

On March 8, 1994, Respondent Sandiganbayan 20rendered a Decision, 21thedispositive portion of which reads:

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTYbeyond reasonable doubt as principal of Malversation of Public Fundsdefined and penalized under Article 217 in relation to Article 222 of theRevised Penal Code and, applying the Indeterminate Sentence Law, andin view of the mitigating circumstance of voluntary surrender, the Courthereby sentences the accused to suffer the penalty of imprisonmentranging from TEN (10) YEARS and ONE (1) DAY ofprision mayorin its

maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS andONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of InternalRevenue the amount of P80,831.59; to pay a fine in the same amountwithout subsidiary imprisonment in case of insolvency; to suffer specialperpetual disqualification; and, to pay the costs.

Considering that accused Jaime Ancla has not yet been brought within thejurisdiction of this Court up to this date, let this case be archived asagainst him without prejudice to its revival in the event of his arrest orvoluntary submission to the jurisdiction of this Court.

SO ORDERED.Petitioner, through new counsel, 22filed a motion for new trial or reconsideration onMarch 23, 1994, which was denied by the Sandiganbayan in its Resolution 23datedDecember 2, 1994.

Hence, this petition.


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The Issues

The petitioner submits the following reasons for the reversal of the Sandiganbayan'sassailed Decision and Resolution:

I. The Sandiganbayan does not have jurisdiction over crimescommitted solely by private individuals.

II. In any event, even assuming arguendo that theappointment of a private individual as a custodian or adepositary of distrained property is sufficient to convert suchindividual into a public officer, the petitioner cannot still beconsidered a public officer because:

[A]

There is no provision in the National Internal Revenue Codewhich authorizes the Bureau of Internal Revenue toconstitute private individuals as depositaries of distrainedproperties.

[B]

His appointment as a depositary was not by virtue of a directprovision of law, or by election or by appointment by acompetent authority.

III. No proof was presented during trial to prove that thedistrained vehicle was actually owned by the accused JaimeAncla; consequently, the government's right to the subjectproperty has not been established.

IV. The procedure provided for in the National InternalRevenue Code concerning the disposition of distrainedproperty was not followed by the B.I.R., hence the distraint ofpersonal property belonging to Jaime C. Ancla and foundallegedly to be in the possession of the petitioner is thereforeinvalid.

V. The B.I.R. has only itself to blame for not promptly sellingthe distrained property of accused Jaime C. Ancla in order torealize the amount of back taxes owed by Jaime C. Ancla tothe Bureau. 24

In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over thesubject matter of the controversy. Corollary to this is the question of whether petitioner


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can be considered a public officer by reason of his being designated by the Bureau ofInternal Revenue as a depositary of distrained property.

The Court's Ruling

The petition is meritorious.

Jurisdiction of the Sandiganbayan

It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction ornot, the provisions of the law should be inquired into." 25Furthermore, "the jurisdiction ofthe court must appear clearly from the statute law or it will not be held to exist. It cannotbe presumed or implied." 26And for this purpose in criminal cases, "the jurisdiction of acourt is determined by the law at the time of commencement of the action." 27

In this case, the action was instituted with the filing of this information on January 12,

1990; hence, the applicable statutory provisions are those of P.D. No. 1606, asamended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A.No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that:

Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended,otherwise known as the Anti-Graft and Corrupt Practices Act,Republic Act No. 1379, and Chapter II, Section 2, Title VII of

the Revised Penal Code;(2) Other offenses or felonies committed by public officersand employees in relation to their office, including thoseemployed in government-owned or controlled corporations,whether simple or complexed with other crimes, where thepenalty prescribed by law is higher thanprisioncorreccionalor imprisonment for six (6) years, or a fine ofP6,000.00: PROVIDED, HOWEVER, that offenses orfelonies mentioned in this paragraph where the penaltyprescribed by law does not exceedprision correccionalor

imprisonment for six (6) years or a fine of P6,000.00 shall betried by the proper Regional Trial Court, Metropolitan TrialCourt, Municipal Trial Court and Municipal Circuit Trial Court.

xxx xxx xxx

In case private individuals are charged as co-principals, accomplices oraccessories with the public officers or employees, including those


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employed in government-owned or controlled corporations, they shall betried jointly with said public officers and employees.

xxx xxx xxx

The foregoing provisions unequivocally specify the only instances when theSandiganbayan will have jurisdiction over a private individual, i.e. when the complaintcharges the private individual either as a co-principal, accomplice or accessory of apublic officer or employee who has been charged with a crime within its jurisdiction.

Azarcon:A Public Officer or A Private Individual?

The Information does not charge petitioner Azarcon of being a co-principal, accompliceor accessory to a public officer committing an offense under the Sandiganbayan's

jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan willhave no jurisdiction over the crime charged. Article 203 of the RPC determines who are

public officers:Who are public officers. For the purpose of applying the provisions ofthis and the preceding titles of the book, any person who, by directprovision of the law, popular election, popular election or appointment bycompetent authority, shall take part in the performance of public functionsin the Government of the Philippine Islands, or shall perform in saidGovernment or in any of its branches public duties as an employee, agent,or subordinate official, of any rank or classes, shall be deemed to be apublic officer.

Thus,(to) be apublic officer, one must be

(1) Taking partin the performance ofpublic functionsin the government,or

Performing in said Government or any of its branchespublic dutiesasan employee, agent, or subordinate official, of any rank or class; and

(2) That his authority to take part in the performance of public functions or

to perform public duties must be a. by direct provision of the law, or

b. by popular election, or

c. by appointment by competent authority. 28


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Granting arguendothat the petitioner, in signing the receipt for the truck constructivelydistrained by the BIR, commenced to take part in an activity constituting publicfunctions, he obviously may not be deemed authorized by popular election. The nextlogical query is whether petitioner's designation by the BIR as a custodian of distrainedproperty qualifies as appointment by direct provision of law, or by competent

authority.

29

We answer in the negative.

The Solicitor General contends that the BIR, in effecting constructive distraint over thetruck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon whowas in possession thereof to sign apro formareceipt for it, effectively "designated"petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30a public officer. 31This isbased on the theory that

(t)he power to designate a private person who has actual possession of adistrained property as a depository of distrained property is necessarilyimplied in the BIR's power to place the property of a delinquent tax payer

(sic) in distraint as provided for under Sections 206, 207 and 208 (formerlySections 303, 304 and 305) of the National Internal Revenue Code,(NIRC) . . . . 32

We disagree. The case of U.S. vs. Rastrollois not applicable to the case before ussimply because the facts therein are not identical, similar or analogous to thoseobtaining here. While the cited case involved ajudicial deposit of the proceeds of thesale of attached property in the hands of the debtor, the case at bench dealt with theBIR's administrative act of effecting constructive distraint over alleged property oftaxpayer Ancla in relation to his back taxes, property which was received by Petitioner

Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and

judicial power to constitute the judicial deposit and give "the depositary a characterequivalent to that of a public official." 33However, in the instant case, while the BIR hadauthority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRCdid not grant it power to appoint Azarcon a public officer.

It is axiomatic in our constitutional framework, which mandates a limited government,that its branches and administrative agencies exercise only that power delegated tothem as "defined either in the Constitution or in legislation or in both." 34Thus, althoughthe "appointing power is the exclusive prerogative of the President, . . ." 35the quantumof powers possessed by an administrative agency forming part of the executive branchwill still be limited to that "conferred expressly or by necessary or fair implication" in itsenabling act. Hence, "(a)n administrative officer, it has been held, has only such powersas are expressly granted to him and those necessarily implied in the exercisethereof." 36Corol

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