Home of ChanRobles Virtual Law Library

 

Home of Chan Robles Virtual Law Library

www.chanrobles.com

G.R. No. 172602 - HENRY T. GO v. THE 5TH DIV., SANDIGANBAYAN ET AL.

G.R. No. 172602 - HENRY T. GO v. THE 5TH DIV., SANDIGANBAYAN ET AL.

PHILIPPINE SUPREME COURT DECISIONS

THIRD DIVISION

[G.R. NO. 172602 : April 13, 2007]

HENRY T. GO, Petitioner, v. THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR, OFFICE OF THE OMBUDSMAN, Respondents.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is the petition for certiorari under Rules 65 of the Rules of Court filed by Henry T. Go seeking to nullify the Resolution dated December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092, entitled People of the Philippines v. Vicente C. Rivera, Jr. and Henry T. Go, which denied his motion to quash. Likewise sought to be nullified is the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go's motion for reconsideration.

The factual and procedural antecedents of the case are as follows:

On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine International Air Terminals Co., Inc. (PIATCO),1 declaring as null and void the 1997 Concession Agreement, the Amended and Restated Concession Agreement (ARCA), and the Supplemental Contracts entered into between the Government, through the Department of Transportation and Communications (DOTC) and the Manila International Airport Authority (MIAA), and PIATCO.

By the aforementioned contracts (collectively known as the PIATCO contracts), the Government awarded in favor of PIATCO the project for the development of the Ninoy Aquino International Airport Passenger Terminal III (NAIA IPT III) under a build-operate-and-transfer (BOT) scheme pursuant to Republic Act (RA) No. 6957 as amended by RA 7718 (BOT Law).2

The Court ruled that Paircargo Consortium, PIATCO's predecessor-in-interest, was not a qualified bidder as it failed to meet the financial capability requirement under the BOT Law. Moreover, the PIATCO contracts were declared null and void for being contrary to public policy. The penultimate paragraph of the Court's Decision states thus:

CONCLUSION

In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains material and substantial amendments, which amendments had the effect of converting the 1997 Concession Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is similarly null and void for being contrary to public policy. The provisions under Section 4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA, which constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are likewise null and void.3

Subsequently, an affidavit-complaint, later amended, was filed with the Office of the Ombudsman by Ma. Cecilia L. Pesayco, Corporate Secretary of Asia's Emerging Dragon Corporation (AEDC), charging several persons in connection with the NAIA IPT III project. The AEDC was the original proponent thereof which, however, lost to PIATCO when it failed to match the latter's bid price.

After conducting a preliminary investigation thereon, the Office of the Ombudsman filed with the Sandiganbayan the Information dated January 13, 2005 charging Vicente C. Rivera, as then DOTC Secretary, and petitioner Go, as Chairman and President of PIATCO, with violation of Section 3(g)4 of RA 3019, also known as the Anti-Graft and Corrupt Practices Act. The case was docketed as Criminal Case No. 28092, entitled People of the Philippines v. Vicente C. Rivera, Jr. and Henry T. Go. The Information reads:

I N F O R M A T I O N

The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR. and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed as follows:

On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the accused VICENTE C. RIVERA, JR., Secretary of the Department of Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused HENRY T. GO, Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully and feloniously enter into an Amended and Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957 as amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the event of the latter's default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the ARCA which term is more beneficial to PIATCO and in violation of the BOT law, and manifestly and grossly disadvantageous to the government of the Republic of the Philippines.

CONTRARY TO LAW.5

On February 11, 2005, petitioner Go posted a cash bond for his provisional liberty.

On February 15, 2005, the Sandiganbayan issued a Hold Departure Order against Rivera and petitioner Go.

On March 28, 2005, petitioner Go was arraigned and entered a plea of "not guilty."

On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-Determination) of Probable Cause and Motion to Dismiss. The Sandiganbayan gave petitioner Go a period of ten (10) days within which to file a comment thereon.

On June 20, 2005, petitioner Go filed his Comment with Motion to Quash. Adopting the view advanced by Rivera, petitioner Go harped on the alleged "missing documents," including Pesayco's amended affidavit-complaint and those others that were mentioned in the resolution of the Office of the Deputy Ombudsman finding probable cause against Rivera and petitioner Go, but which were not allegedly in the records. Petitioner Go maintained that apart from the bare allegations contained in Pesayco's affidavit-complaint, there was no supporting evidence for the finding of the existence of probable cause against him and Rivera. Petitioner Go further alleged that he could not be charged under Section 3(g) of RA 3019 because he is not a public officer and neither is he capacitated to enter into a contract or transaction on behalf of the government. At least one of the important elements of the crime under Section 3(g) of RA 3019 is not allegedly present in his case.

On June 21, 2005, petitioner Go filed a Manifestation with Motion to Substitute the Comment with Motion to Quash, which the prosecution, through the Office of the Ombudsman, opposed.

On December 6, 2005, the Sandiganbayan issued the assailed Resolution denying Rivera's Motion for Judicial Determination (Re-Determination) of Probable Cause and Motion to Dismiss and petitioner Go's Motion to Quash.

The Sandiganbayan ruled that, contrary to the prosecution's submission, it could still entertain petitioner Go's Motion to Quash even after his arraignment considering that it was based on the ground that the facts charged do not constitute an offense. Nonetheless, the Sandiganbayan denied petitioner Go's Motion to Quash holding that, contrary to his claim, the allegations in the Information actually make out the offense charged. More particularly, the allegations that accused Rivera, as DOTC Secretary, in conspiracy with petitioner Go, entered into the ARCA with petitioner Go/PIATCO, which agreement was manifestly and grossly disadvantageous to the government, are constitutive of the elements of the offense charged as defined under Section 3(g) of RA 3019.

The Sandiganbayan explained that petitioner Go's contentions that he is not a public officer, he did not conspire with Rivera in the execution of the ARCA and, in any case, the said agreement cannot be said to be manifestly and grossly disadvantageous to the government, could not be properly considered for the purpose of quashing the Information on the ground relied upon by him. According to the Sandiganbayan, these matters raised by petitioner Go have to be proved during trial.

The decretal portion of the assailed Sandiganbayan Resolution reads:

WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-Determination) of Probable Cause and Motion to Dismiss" and the "Motion to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go, respectively, are hereby DENIED.

SO ORDERED.6

Petitioner Go filed a motion for reconsideration thereof but it was denied by the Sandiganbayan in the Resolution dated March 24, 2006.

Petitioner Go now seeks recourse to the Court and, in support of his petitioner, alleges that:

A.

The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in not ruling that Section 3(g) does not embrace a private person within its proviso.

B.

The Honorable Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction in not ruling that there is no probable cause to hold petitioner for trial.7

Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be extended or even enlarged by implication or intendment to bring within its limited scope private persons. The said provision of law allegedly punishes only public officers as it penalizes the act of "entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby." As a private person, he could not allegedly enter into a contract "on behalf of the government," there being no showing of any agency relations or special authority for him to act for and on behalf of the government.

Citing several cases,8 petitioner Go enumerates the following elements of Section 3(g) of RA 3019:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; andcralawlibrary

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.

He also cites Marcos v. Sandiganbayan9 where the Court acquitted then First Lady Imelda R. Marcos of the charge of violation of Section 3(g) of RA 3019 as it found that she did not sign the subject Lease Agreement, entered into between the Light Railway Transit Authority (LRTA) and Philippine General Hospital Foundation, Inc. (PGHFI), as a public officer, but in her capacity as Chairman of the PGHFI, a private entity. As such, the Court held that the first element of the offense charged, i.e., that the accused is a public officer, was wanting.

Petitioner Go claims that, in the same manner, the first element of the offense charged against him is absent because he is not a public officer who is authorized by law to bind the government through the act of "entering into a contract." He also points out that, similar to his case, in Marcos, the Information also alleged that the former First Lady conspired with a public officer, then Minister Jose P. Dans of the Ministry of Transportation and Communications, in entering into a contract. Nonetheless, the Court therein dismissed the allegation of conspiracy.

Petitioner Go maintains that by any of its definition,10 he cannot be considered a "public officer." Further, only a public officer can enter into a

contract in representation of the government. He stresses that the first element of the offense, i.e., that the accused is a public officer, is an essential ingredient of the crime under Section 3(g) of RA 3019. He likens it to the crime of parricide where the essential element is the relationship of the offender to the victim and, citing a criminal law book author, a stranger who cooperates in the execution of the offense is not allegedly guilty of this crime. The stranger is allegedly either liable for homicide or murder but never by "conspiracy to commit parricide."11

By parity of reasoning, according to petitioner Go, the first essential element of the crime penalized under Section 3(g) of RA 3019 is that the offender must be a public officer. Since he is not a public officer, one of the essential elements of the offense is lacking; hence, there is no other recourse but to quash the Information.

Section 9 of RA 3019 was also cited which reads:

SEC. 9. Penalties for violation.'

(a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be punished with imprisonment for not less than six years and one month or fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

x x x

Petitioner Go posits that had it been the intention of the lawmakers to penalize private persons who supposedly "conspired" with public officers in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used the conjunctive "and," not "or," between the terms "public officer" and "private person" in Section 9 thereof.

Petitioner Go takes exception to the Sandiganbayan's pronouncement that even as a private individual he is not excluded from the coverage of Section 3(g) of RA 3019 because he is not being accused singly but as someone who conspired with a public officer in violating the said law. According to petitioner Go, this proposition applies only to Section 3(e)12 of RA 3019, the elements of which include that "the accused are public officers or private persons charged in conspiracy with them."13 He stresses that, unlike Section 3(e) of RA 3019, Section 3(g) thereof penalizes only public officers as the operative phrase in the latter provision is "on behalf of the government."

Petitioner Go vigorously asserts that there is no basis for the finding of probable cause against him for violation of Section 3(g) of RA 3019. In particular, he insists that the allegation of conspiracy between Rivera and himself is not supported by any evidence. He makes an issue out of those documents that were mentioned in the resolution of the Deputy Ombudsman finding probable cause against him but were not in the records of the Sandiganbayan. His mere signing of the ARCA does not allegedly establish culpability for violation of RA 3019. Further, he faults the Sandiganbayan for invoking the doctrine of non-interference by the courts in the determination by the Ombudsman of the existence of probable cause. It is petitioner Go's view that the Sandiganbayan should have ordered the quashal of the Information for palpable want of probable cause coupled with the absence of material documents.

The petition is bereft of merit.

For clarity, Section 3(g) of RA 3019 is quoted below anew:

SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

As earlier mentioned, the elements of this offense are as follows:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; andcralawlibrary

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.14

Contrary to the contention of petitioner Go, however, the fact that he is not a public officer does not necessarily take him out of the ambit of Section 3(g) of RA 3019. Petitioner Go's simplistic syllogism, i.e., he is not a public officer ergo he cannot be charged with violation of Section 3(g) of RA 3019, goes against the letter and spirit of the avowed policy of RA 3019 as embodied in Section 1 thereof:

SEC. 1. Statement of policy. - It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.

As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v. Estrella,15 the Court had ascertained the scope of Section 3(g) of RA 3019 as applying to both public officers and private persons:

x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019] partakes the nature of malum prohibitum; it is the commission of that act as defined by law, not the character or effect thereof, that determines whether or not the provision has been violated. And this construction would be in consonance with the announced purpose for which Republic Act 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices act or which may lead thereto.16

Like in the present case, the Information in the said case charged both public officers and private persons with violation of Section 3(g) of RA 3019.

Section 9 of RA 3019 buttresses the conclusion that the anti-graft law's application extends to both public officers and private persons. The said provision, quoted earlier, provides in part that:

SEC. 9. (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income.

x x x

The fact that one of the elements of Section 3(g) of RA 3019 is "that the accused is a public officer" does not necessarily preclude its application to private persons who, like petitioner Go, are being charged with conspiring with public officers in the commission of the offense thereunder.

The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case, Gregorio Singian, Jr., a private person who was then Executive Vice-President of Integrated Shoe, Inc. (ISI), together with some officers of the Philippine National Bank (PNB), was charged with violation of Section 3(e) and (g) of RA 3019 in connection with the loan accommodations that the said bank extended to ISI which were characterized as behest loans.

A total of eighteen Informations were filed against Singian and his co-accused by the Office of the Ombudsman before the Sandiganbayan corresponding to the nine loan accommodations granted to ISI. Each loan was subject of two Informations alleging violations of both Section 3(e) and (g), respectively. In other words, nine Informations charged Singian and his co-accused with violation of Section 3(e) of RA 3019 and the other nine charged them with violation of paragraph (g) of the same provision.

Singian filed with the Sandiganbayan a motion for re-determination of existence of probable cause but the same was dismissed. He then filed with the Court a petition for certiorari but it was likewise dismissed as the Court held that the Ombudsman and the Sandiganbayan had not committed grave abuse of discretion when they respectively found probable cause against Singian for violations of both paragraphs (e) and (g) of Section 3 of RA 3019.

Singian thus illustrates that private persons, like petitioner Go, when conspiring with public officers, may be indicted and, if found guilty, held liable for violation of Section 3(g) of RA 3019. Another case, Domingo v. Sandiganbayan,18 may likewise be applied to this case by analogy.

In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction Supply, together with Jaime Domingo, then municipal mayor of San Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared that he was used by Domingo as a dummy to cover up his business transaction with the municipality. Section 3(h) of the anti-graft law reads:

SEC.3. Corrupt practices of public officers. - x x x

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having an interest.

The elements of this offense are: (1) that the accused is a public officer; (2) he has a direct or indirect financial or pecuniary interest in any business, contract, or transaction; (3) he either: (a) intervenes or takes part in his official capacity in connection with such interest, or (b) is prohibited from having such interest by the Constitution or by law.19

Despite the first element mentioned above, the Court affirmed the conviction of Garcia, a private individual, as well as that of Domingo, who was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so holding, the Court established that Domingo and Garcia acted in conspiracy with one another in the commission of the offense. Domingo thus also serves to debunk petitioner Go's theory that where an offense has as one of its elements that the accused is a public officer, it necessarily excludes private persons from the scope of such offense.

The precept that could be drawn from Luciano, Singian and Domingo, and which is applicable to the present case, is that private persons, when acting in conspiracy with public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section 3 of RA 3019, including (g) and (h) thereof. This is in consonance with the avowed policy of the anti-graft law to repress certain acts of public officers and private persons alike constituting graft or corrupt practices act or which may lead thereto.

Reliance by petitioner Go on Marcos v. Sandiganbayan20 is not quite appropriate. To recall, upon her motion for reconsideration, the Court therein acquitted former First Lady Imelda Marcos of the charge of violation of Section 3(g) of RA 3019 in its Resolution dated October 6, 1998. Her acquittal was based on the finding that she signed the subject lease agreement as a private person, not as a public officer. As such, the first element, i.e., that the accused is a public officer was wanting.

Petitioner Go, however, failed to put the Court's ruling in Marcos in its proper factual backdrop. The acquittal of the former First Lady should be taken in the context of the Court's Decision dated January 29, 1998, in Dans, Jr. v. People,21 which the former First Lady sought to reconsider and, finding merit in her motion, gave rise to the Court's Resolution in Marcos. In Dans, the Information filed against the former First Lady and Jose P. Dans, Jr., then Minister of Transportation and Communications, for violation of Section 3(g) of RA 3019, alleged that they were both public officers and, conspiring with each other, entered into the subject lease agreement covering the LRTA property with the PGHFI, a private entity, under terms and conditions manifestly and grossly disadvantageous to the government.

The Court in its original decision affirmed the former First Lady's conviction for violation of Section 3(g) of RA 3019 but acquitted her co-accused, Dans, Jr., of the said offense. As stated earlier, upon the former First Lady's motion for reconsideration, the Court reversed her conviction in its Resolution in Marcos.

It can be gleaned from the entire context of Marcos and Dans that the reversal of the former First Lady's conviction was based on the fact that it was later held that she signed the subject lease agreement as a private person, not a public officer. However, this acquittal should also be taken in conjunction with the fact that the public officer with whom she had supposedly conspired, her co-accused Dans, had earlier been acquitted. In other words, the element that the accused is a public officer, was totally wanting in the former First Lady's case because Dans, the public officer with whom she had allegedly conspired in committing Section 3(g) of RA 3019, had already been acquitted. Obviously, the former First Lady could not be convicted, on her own as a private person, of the said offense.

In contrast, petitioner Go cannot rightfully assert the total absence of the first element in his case because he is not being charged alone but in conspiracy with Rivera, undoubtedly a public officer by virtue of his then being the DOTC Secretary. The case against both of them is still pending before the Sandiganbayan. The facts attendant in petitioner Go's case are, therefore, not exactly on all fours as those of the former First Lady's case as to warrant the application of the Marcos ruling in his case.

Anent the allegation of conspiracy, it is posited by the dissenting opinion that the Information is infirm as far as petitioner Go is concerned because it failed to mention with specificity his participation in the planning and preparation of the alleged conspiracy. It opines that "aside from the sweeping allegation of conspiracy, the Information failed to mention any act as to how petitioner had taken part in the planning and preparation of the alleged conspiracy. Mere allegation of conspiracy in the Information does not necessarily mean that the criminal acts recited therein also pertain to petitioner." While it concedes that the Sandiganbayan may exercise jurisdiction over private individuals, it submits that it may do so only "upon Information alleging with specificity the precise violations of the private individual." By way of conclusion, the dissenting opinion cites Sistoza v. Desierto22 where the Court stated that a signature appearing on a document is not enough to sustain a finding of conspiracy among officials and employees charged with defrauding the government.

These asseverations, however, are unpersuasive. It is well established that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits.23 In the same manner, the absence (or presence) of any conspiracy among the accused is evidentiary in nature and is a matter of defense, the truth of which can be best passed upon after a full-blown trial on the merits.24

Following these truisms, the specific acts of petitioner Go in the alleged conspiracy with Rivera in violating Section 3(g) of RA 3019 as well as the details on how petitioner Go had taken part in the planning and preparation of the alleged conspiracy need not be set forth in the Information as these are evidentiary matters and, as such, are to be shown and proved during the trial on the merits. Indeed, it bears stressing that "[t]o establish conspiracy, direct proof of an agreement concerning the commission of a felony and the decision to commit it is not necessary. It may be inferred from the acts of the accused before, during or after the commission of the crime which, when taken together, would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently made by evidence of a chain of circumstances. Once established, all the conspirators are criminally liable as co-principals regardless of the degree of participation of each of them, for in contemplation of the law the act of one is the act of all."25

In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8, Rule 110 of the Rules of Court are complied with:

SEC. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule 117 on the grounds that the facts charged do not constitute an offense. In such a case, the fundamental test in determining the sufficiency of the material averments of an Information is whether or not the facts alleged therein, which are hypothetically admitted, would establish the essential elements of the crime defined by law. Evidence aliunde or matters extrinsic of the Information are not to be considered.26

As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if admitted hypothetically, establish all the elements of Section 3(g) of RA 3019 vis - à-vis petitioner Go:

ELEMENTS ALLEGATIONS

1. The offender is a public officer

[T]he accused VICENTE C. RIVERA, JR., Secretary of Department of Transportation and Communications (DOTC), committing the offense in relation to his office and taking advantage of the same, in conspiracy with accused HENRY T. GO, Chairman and President of Philippine International Air Terminals, Co., xxx"

2. He entered into a contract or transaction in behalf of the government

"[T]he accused VICENTE C. RIVERA, JR., xxx in conspiracy with accused HENRY T. GO xxx did then and there, willfully & unlawfully and feloniously entered into an Amended and Restated Concession Agreement (ARCA), after the project for the construction of the Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO x x x

3. The contract or transaction is grossly and manifestly disadvantageous to the government
ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

"xxx which ARCA substantially amended the draft Concession Agreement covering the construction of the NAIA IPT III under Republic Act 6957, as amended by Republic Act 7718 (BOT Law) providing that the government shall assume the liabilities of PIATCO in the event of the latter's default specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06 of the ARCA which terms are more beneficial to PIATCO and in violation of the BOT Law and manifestly grossly disadvantageous to the government of the Republic of the Philippines."27

Finally, in the assailed Resolution dated March 24, 2006, the Sandiganbayan ratiocinated thus:

The rule is that the determination of probable cause during the preliminary investigation is a function that belongs to the public prosecutor, the Office of the Ombudsman in this case. Such official is vested with authority to determine whether or not a criminal case must be filed in court and the concomitant function of determining as well the persons to be prosecuted. Also, it must not be lost sight of that the correctness of the exercise of such function is a matter that the trial court itself does not and may not be compelled to pass upon, consistent with the policy of non-interference by the courts in the determination by the Ombudsman of the existence of probable cause.

Accordingly, upon the foregoing premises, we believe and so hold that any and all questions relating to the finding of probable cause by the Office of the Ombudsman should be addressed to the said office itself, then to the Court of Appeals and, ultimately, to the Supreme Court.

On the matter of the judicial determination of probable cause, we stand by our finding that the same exists in this case, the said finding we arrived at upon a personal determination thereof which we did for the purpose of and before the issuance of the warrant of arrest.ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

While it may indeed be true that the documents mentioned by accused-movant as being absent in the records are missing, we nevertheless had for our perusal other documents assiduously listed down by accused Rivera in his motion, including the information, which we found to constitute sufficient basis for our determination of the existence of probable cause. It must be emphasized that such determination is separate and distinct from that made by the Office of the Ombudsman and which we did independently therefrom.28

The determination of probable cause during a preliminary investigation is a function of the government prosecutor, which in this case is the Ombudsman. As a rule, courts do not interfere in the Ombudsman's exercise of discretion in determining probable cause, unless there are compelling reasons.29 Mindful of this salutary rule, the Sandiganbayan nonetheless made its own determination on the basis of the records that were before it. It concluded that there was sufficient evidence in the records for the finding of the existence of probable cause against petitioner Go.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack or excess of jurisdiction. The exercise of power must have been done in an arbitrary or a despotic manner by reason of passion or personal hostility. It must have been so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.30 Clearly, in the light of the foregoing disquisition, grave abuse of discretion cannot be imputed on the Sandiganbayan when it held that there exists probable cause against petitioner Go.

ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed Resolutions dated December 6, 2005 and March 24, 2006 of the Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto.

SO ORDERED.

Endnotes:


1 450 Phil. 744 (2003).

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

3 Supra, note 1, pp. 840-841.

4 The provision reads:

SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

5 Rollo, pp. 103-104.

6 Rollo, p. 63.

7 Id. at 17.

8 Luciano v. Estrella, 145 Phil. 448 (1970); Ingco v. Sandiganbayan, 338 Phil. 1061 (1997); Dans, Jr. v. People, 349 Phil. 434 (1998).

9 357 Phil. 762 (1998).

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

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

(b) "Public Officer" includes elective and appointive officials an employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the subparagraph."

Article 203 of the Revised Penal Code was also cited:

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

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

12 The provision reads:

SEC. 3. x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

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

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

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

(3) That they caused undue injury to any party, whether the government or a private party;

(4) That such injury was caused by giving unwarranted benefits, preference or advantage to such parties; andcralawlibrary

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

14 Supra note 8.

15 Supra note 8.

16 Id. at 464-465.

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

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

19 Id. at 215.

20 Supra note 9.

21 Supra note 8.

22 437 Phil. 117 (2002).

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

24 Singian v. Sandiganbayan, supra note 17.

25 Domingo v. Sandiganbayan, supra note 18.

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

27 Comment, p. 22; rollo, p. 369.

28 Rollo, pp. 67-68.

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

30 Id. at 551.



DISSENTING OPINION

YNARES-SANTIAGO, J.:

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

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

SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x    x    x

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

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

1) that the accused is a public officer;

2) that he entered into a contract or transaction on behalf of the government; andcralawlibrary

3) that such contract or transaction is grossly and manifestly disadvantageous to the government.1

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

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

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

x    x    x

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the Government.

SEC. 4. Prohibition on private individuals. '' (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal relationship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer.

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

The information in the instant case does not specify with particularity the violation or prohibited acts which may have been committed by the petitioner under the abovementioned provisions. Petitioner, who is a private individual, is only charged with having conspired with Rivera in entering into a contract which is manifestly and grossly disadvantageous to the government. Aside from this sweeping allegation of conspiracy, the information failed to mention any act as to how petitioner had taken part in the planning and preparation of the alleged conspiracy. Mere allegation of conspiracy in the information does not necessarily mean that the criminal acts recited therein also pertain to petitioner.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting.

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

Section 4. x x x

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

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

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

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

CONSUELO YNARES-SANTIAGO

Endnotes:


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

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

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

4 G.R. No. L-31622, August 31, 1970, 34 SCRA 769.

5 Id. at 771-772.

6 Supra note 3 136.

7 357 Phil. 762 (1998).

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

9 Id.

Top of Page