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G.R. Nos. 168951& 169000, July 17, 2013 - DR. ROGER R. POSADAS AND DR. ROLANDO P. DAYCO, Petitioners, v. SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, Respondents.

G.R. Nos. 168951& 169000, July 17, 2013 - DR. ROGER R. POSADAS AND DR. ROLANDO P. DAYCO, Petitioners, v. SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, Respondents.

PHILIPPINE SUPREME COURT DECISIONS

FIRST DIVISION

G.R. Nos. 168951& 169000, July 17, 2013

DR. ROGER R. POSADAS AND DR. ROLANDO P. DAYCO, Petitioners, v. SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

 

Petitioners assail their conviction for Violation of Section 3(e) of Republic Act (R.A.) No. 3019 (The Anti-Graft and Corrupt Practices Act) and Section 7(b)of R.A. No. 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees) under Decision1 dated June 28, 2005 of the Sandiganbayan in Crim. Case Nos. 25465-66.

The Facts

Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in Relativity Physics graduate from the University of Pittsburgh, is a longtime professor and former Dean of the College of Science at the University of the Philippines-Diliman Campus (UP Diliman).  He was appointed by the Board of Regents (BOR) of the University of the Philippines System as UP Diliman Chancellor for a three-year term starting November 1, 1993 and ending October 31, 1996.

During his term as Chancellor, Dr. Posadas is one of the leading figures in the emerging inter-disciplinary field of technology management in the Philippines.Upon the recommendation of the UP Diliman Task Force on Science and Technology Assessment, Management and Planning composed of deans and professors from the various colleges in UP Diliman, the BOR on February 23, 1995 approved the establishment of the Technology Management Center (TMC)  under the direct supervision of the Office of the Chancellor, UP Diliman.When the TMC became operational in June 1995, the Task Force on Science and Technology Assessment, Management and Planning wrote then UP President Dr. Emil Q. Javier, nominating Dr. Posadas for the position of TMC Director. For undisclosed reason, Dr. Posadas declined the nomination and instead he (Dr. Posadas) designated Prof. Jose Tabbada of the College of Public Administration as Acting Director of TMC.

On July 26, 1995, Dr. Posadas submitted to the National Economic and Development Authority (NEDA) an Application for Funding of his proposed project entitled “Institutionalization of Technology Management at the University of the Philippines in Diliman” (TMC Project).   The TMC Project, to be funded by a grant from the Canadian International Development Agency (CIDA), aimed to design and develop ten new graduate courses in technology management for the diploma, master’s and doctoral programs to be offered by TMC.2

On September 18, 1995, a Memorandum of Agreement3 (MOA) was executed between Dr. Posadas, on behalf of UP-Diliman, and the Philippine Institute for Development Studies (PIDS) as the Local Executing Agency of the Policy, Training and Technical Assistance Facility (PTTAF) of CIDA.   Under the MOA, CIDA shall provide the funding for the total project cost (P5,442,400.00), with the NEDA as the designated PTTAF Project Implement or for the Government of the Philippines, while UPDiliman shall direct, manage and implement all activities under the approved project with counterpart funding in the amount of P4,228,524.00.

In a letter dated July 30, 1995, the President of Hua Qiao University in Fujian Province, China invited Dr. Posadas and a delegation from UP Diliman to visit on October 30 to November 6, 1995.  On October 5, 1995, then Senior Deputy Executive Secretary Leonardo A. Quisumbing (retired Member of this Court) issued the Authority to Travel for the UP Diliman delegation headed by Dr. Posadas.  Among those who joined the delegation were Dr. Amaryllis Torres and Dr. Rosario Yu, UPDiliman’s Vice-Chancellor for Academic Affairs and Vice-Chancellor for Student Affairs, respectively.4Under Administrative Order (AO) No. 95-170 dated October 24, 1995, Dr. Posadas designated petitioner Dr. Rolando P. Dayco (Dr. Dayco), Vice-Chancellor for Administrative Affairs, as Officer-In-Charge (OIC) of UP Diliman effective October 30, 1995 until November 6, 1995.  This was followed by AO No. 95-170-A dated October 27, 1995, which amended the previous order by extending the OIC designation of Dr. Dayco to November 7, 1995.5

On November 7, 1995, Dr. Dayco appointed Dr. Posadas as Project Director of UP TMC effective September 18, 1995 up to September 17, 1996.In another undated “Contract for Consultancy Services” signed by Dr. Dayco, Dr. Posadas was hired as Consultant for the TMC Project for the same period.6As evidenced by disbursement vouchers and admitted by Dr. Posadas, the latter received his “honoraria” (P30,000.00 per month) and consultancy fees (totaling P100,000.00) as Project Director and Consultant of the TMC Project until May 1996 when the Commission on Audit (COA) raised questions on the legality of the said fees.7

In August 1996, payment of the subject “honoraria” and fees was suspended by COA Resident Auditor Romeo J. Pulido who noted the following deficiencies:cralavvonlinelawlibrary

  1. Honoraria were in excess of the rates provided for under the National Compensation Circular No. 73, dated March 1, 1996, x x x.

  2. Legal basis for designating the incumbent Chancellor as Project Director by the Officer-In-Charge (OIC), considering that the latter can assume the post only in the absence of the former.  An OIC cannot validly designate since the authority to designate/appoint is among the functions of the Chancellor which cannot be delegated as provided in the University Charter.  Moreover, the authority to appoint can never be delegated since it involves discretion.

  3. On the assumption that the designation of the Chancellor as Project Director and Consultant is valid, collecting the remuneration for both positions amount to double compensation which is contrary to existing auditing rules and regulations.8

In a Memorandum9 dated September 16, 1996, UP’s Chief Legal Officer Marichu C. Lambino addressed the foregoing concerns of COA Auditor Pulido.Atty. Lambino stated that (a) the compensation received by Dr. Posadas are in the nature of consultancy fees and hence expressly exempted by Department of Budget and Management (DBM)National Compensation Circular (NCC) No. 75 dated March 11, 1995; (b)  the TMC Project, being a training program, is likewise exempted from the coverage of NEDA Guidelines on the Procurement of Consulting Services for Government Projects; and (c) under Civil Service Commission (CSC) Memorandum Circular (MC) No. 43, series of 1993 “Streamlining and Deregulating Human Resource Development Functions” UP is authorized, without prior approval from the CSC, to determine the rates of honorarium for government personnel participating as resource persons, coordinator, and facilitator, in training programs.  On the issue of double compensation, Atty. Lambino pointed out that Dr. Posadas was appointed Project Director because of managerial expertise, and his skills in supervising personnel who are involved in an academic undertaking, and as Consultant because of his expertise in technology management. Finding these explanations/justifications acceptable, Auditor Pulido lifted the notices of suspension in September 1997.

However, even before the issuance of the suspension notices, then UP President Dr. Emil Q. Javier, ordered an investigation on the basis of an administrative complaint filed by Mrs. Ofelia L. Del Mundo, a staff of the University Library who was detailed at the TMC as its Administrative Officer. On July 24, 1996, President Javier created a Fact-Finding Committee to gather, review and evaluate pertinent documents regarding certain transactions of the TMC.10  After the conduct of a preliminary investigation and finding a prima facie case against the petitioners, President Javier issued the formal charges11 for Grave Misconduct and Abuse of Authority.  Pursuant to the University’s “Rules and Regulations on the Discipline of Faculty Members and Employees approved at the 704th Meeting of the Board of Regents on January 11, 1963,”12 an Administrative Disciplinary Tribunal (ADT) was constituted, chaired by Atty. Arturo E. Balbastro, a faculty member of the UP College of Law.

On August 21, 1998, the ADT submitted its Report13 (ADT Case 96-001) to President Javier.  The ADT found petitioners guilty of serious or grave misconduct and recommended the penalty of dismissal in accordance with CSC Memorandum Circular No. 30, series of 1989, as well as Article 250 of the University Code.  The Report likewise stated that the acts of petitioners for which they were held administratively liable may warrant prosecution under Section 3(h) and (i) of R.A. No. 3019.  Under the Order14 dated August 25, 1998 signed by President Javier, petitioners were dismissed from the service.

On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity as General Counsel of UP formally endorsed the findings and recommendations of the ADT to the Ombudsman.15  The case was docketed as OMB-0-98-1843.

Meanwhile, the BOR at its 1126th meeting on November 26, 1998, resolved petitioners’ appeal in ADT Case 96-001, as follows:cralavvonlinelawlibrary

  1. The Board affirmed the ADT decision finding the respondents guilty of grave misconduct and imposed on them the penalty of forced resignation with the accessory penalties defined in the Omnibus Rules Implementing Book V of Executive Order 292 and other Pertinent Civil Service Laws – i.e., cancellation of eligibility, forfeiture of all leave credits and retirement benefits, and disqualification from government service for one year.

  2. If after one year they should reapply to the University, they must render an apology to the University and their reappointments will be subject to Board approval.

  3. The respondents are permanently disqualified from holding any administrative position in the University.

  4. The decision takes effect immediately.16

Satisfied with the BOR’s action, petitioners caused the withdrawal of their appeal before the CSC.17

On June 9, 1999, the Evaluation and Preliminary Investigation Bureau of the Office of Ombudsman recommended the dismissal of the charges against petitioners for insufficiency of evidence. However, said recommendation was disapproved by then Ombudsman Aniano A. Desierto who ordered that petitioners be indicted for violation of Section 3(e) of R.A. No. 3019 and Section 7(b) in relation to Section 11 of R.A. No. 6713.18

The corresponding Informations19were thus filed against the petitioners before the Sandiganbayan (Criminal Case Nos. 25465-66), as follow:cralavvonlinelawlibrary

Criminal Case No. 25465

That on or about 7 November 1995, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being then the Chancellor and a faculty member of the University of the Philippines-Diliman Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said university and Officer-In-Charge of the Office of the Chancellor, committing the crime herein charged in relation to, while in the performance and taking advantage of their official and administrative functions,and conspiring and confederating with and mutually helping each other, did then and there willfully, unlawfully and criminally give unwarranted benefits, privilege or advantage to accused POSADAS, when accused DAYCO appointed or designated accused POSADAS as a Project Director of the lone project, Institutionalization of the Management of Technology at U.P. Diliman, of the Technology Management Center (TMC) of the Office of the Chancellor, U.P. Diliman, which enabled or caused the disbursement and payment of monthly salary of P30,000.00 of accused POSADAS, duly received by the latter, for the period 18 September 1995 to 17 September 1996, with accused POSADAS also receiving his salaries as Chancellor and faculty member of U.P. Diliman during this period, and both accused knowing fully well that the appointment of accused POSADAS was beyond the power or authority of accused DAYCO as an OIC and likewise violative of the law, rules and regulations against multiple positions, double compensation and retroactivity of appointment, thereby causing undue injury to the Government in the amount of  PESOS: THREE HUNDRED SIXTY THOUSAND (P360,000.00), to the damage and prejudice of the Government.

CONTRARY TO LAW.

Criminal Case No. 25466

That on or about 7 November 1995, or sometime prior or subsequent thereto, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, both high-ranking public officers, ROGER DELA ROSA POSADAS, being then the Chancellor and a faculty member of the University of the Philippines-Diliman Campus, and ROLANDO PASCUAL DAYCO, being then the Vice-Chancellor of the said university and Officer-In-Charge of the Office of the Chancellor, committing the crime herein charged in relation to, while in the performance and taking advantage of their official and administrative functions, and conspiring and confederating with and mutually helping each other, did then and there willfully, unlawfully and criminally engage in the unauthorized private practice of accused POSADAS’s profession as a technology manager, when accused DAYCO appointed or designated accused POSADAS as a consultant to the project, Institutionalization of the Management of Technology at U.P. Diliman, of the Technology Management Center (TMC) of the Office of the Chancellor, U.P. Diliman, which enabled or caused the disbursement and payment of consultancy fees in the amount of P100,000.00 to accused POSADAS, duly received by the latter, with respondent POSADAS also receiving his salaries as Chancellor and faculty member of U.P. Diliman, and both accused knowing fully well that the appointment to and acceptance of the position of consultant by respondent POSADAS was without authority from the latter’s superior(s) or the U.P. Board of Regents, to the damage and prejudice of the Government service.

CONTRARY TO LAW.

Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 and May 28, 2001, respectively, both pleading not guilty to the charges against them.20

Ruling of the Sandiganbayan

After due proceedings, the Sandiganbayan rendered its Decision21 dated June 28, 2005, the decretal portion of which reads:cralavvonlinelawlibrary

ACCORDINGLY, this Court finds both accused Roger R. Posadas and Rolando P. Dayco GUILTY beyond reasonable doubt of violating Section 3(e) of RA 3019 and Section 7(b) of RA 6713 and are sentenced to suffer the following penalties:cralavvonlinelawlibrary

For violation of Section 3(e) of RA 3019: accused Posadas and Dayco are sentenced to suffer in prison the indeterminate penalty of nine (9) years and one day as minimum and twelve (12) years as maximum, with the accessory penalty of perpetual disqualification from public office.  Both accused are directed to jointly and severally indemnify the Government of the Republic of the Philippines the amount of THREE HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00).

For violation of Section 7(b) of RA 6713: accused Posadas and Dayco are sentenced to suffer in prison the maximum penalty of five (5) years and disqualification to hold public office.

SO ORDERED.22

The Sandiganbayan held that the evidence supports a finding of   evident bad faith on the part of petitioners who, knowing very well the limitations of Dr. Dayco’s power as OIC, effected the appointment of Dr. Posadas as TMC Project Director and Consultant.  These limitations are based on the nature of the power to appoint which is merely delegated to the Chancellor by the BOR, Section 204 of the Government Accounting and Auditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of appointments.

The Sandiganbayan concluded that petitioners’ acts caused undue injury to the Government with the receipt by Dr. Posadas of salaries and consultancy fees.  Petitioners’ contention that the Government did not suffer loss or damage since the funding for the TMC Project came from CIDA was rejected by the Sandiganbayan which stated that from the moment UP received the CIDA funds intended for the TMC Project, said funds became “impressed with public attributes or character,” as in fact it was subjected to the control of UP and audited by the COA.

The Sandiganbayan likewise found no merit in petitioners’ claim that they were just victims of “university politics”as they were staunch critics of President Javier. Petitioners adduced documentary and testimonial evidence to show that Ms. Del Mundo’s filing of a complaint against petitioners was triggered by the fact that it was Dr. Posadas who ordered an administrative investigation against her and recalled her to the University Library, which incident led to the resignation of Prof. Tabbada from TMC.  However, the Sandiganbayan stressed that regardless of the reason for the filing of the cases against petitioners at the university level, these cases would not have come into being if no law has been violated in the first place.

Petitioners filed a motion for reconsideration but it was denied due course for the reason that it has not been set for hearing as required by the rules, hence the motion ispro forma.

In this petition for certiorari, petitioners allege grave abuse of discretion and blatant violation of their constitutionally guaranteed right to due process.

The Issues

The Court is asked to resolve whether the Sandiganbayan committed grave abuse of discretion amounting to lack of or in excess of jurisdiction: (1) in denying petitioners’ motion for reconsideration on the ground that it was not set for hearing; and (2) in convicting petitioners of Violation of Section 3(e) of R.A. No. 3019 and Section 7(b) of R.A. No. 6713 on the basis of facts not supported by evidence and on inapplicable rules and principles.

Petitioners’ Arguments

Petitioners argue that the July 19, 2005 Resolution denying their motion for reconsideration is not only baseless, but capricious, arbitrary and most unjust because the Revised Internal Rules of the Sandiganbayan does not require that the motion for reconsideration be set for hearing.  They cite the case of Alvarez v. Sandiganbayan23 where this Court ruled that motions for reconsideration of decisions or final orders of the Sandiganbayan are not governed by Rule 15 of the Rules of Court, as these may be filed within 15 days from promulgation or notice of the judgment or final order “upon the grounds, in the form and subject to the requirements, for motions for new trial in criminal cases under Rule 121 of the Rules of Court.”

On the charges of graft, petitioners assert that they did not act with bad faith, manifest partiality or gross inexcusable negligence. They reiterate that Dr. Dayco’s designation as OIC Chancellor was adjusted for one day merely to accommodate the change in the official travel schedule of Dr. Posadas to China.  The appointment of Dr. Posadas as TMC Project Director and Consultant was a valid appointment and was made retroactive for no other reason than to synchronize the activities relative to the TMC Project with the project schedule as approved by the funding agency.  The power of appointment was within the power of the Chancellor to delegate to the OIC Chancellor, it not being expressly prohibited by the University rules.  Such practice, in fact, is not an unusual occurrence in UP.

Petitioners also contend that no injury was caused to the government because the TMC Project budget came from foreign funds, hence not an expense incurred by the Government and neither did UP incur any expense in relation to the said project, its counterpart funding was not in the form of money.Consequently, there can be no conviction under the law in the absence of real or actual damage suffered.

On the “honoraria” and fees received by Dr. Posadas as Project Director and Consultant, petitioners insist they cannot be held liable for double compensation because these were given for separate services rendered by Dr. Posadas.  As opined by the UP Chief Legal Officer, the compensation were in the nature of consultancy fees being received by UP personnel in their capacity as private persons for services to a project outside of their official time, hence it is not covered by the DBM NCC No. 75.  Moreover, petitioners stress that Dr. Posadas did not receive any unwarranted benefit, advantage or preference in his appointment as TMC Project Director and Consultant.  Dr. Posadas possesses the superior qualifications and expertise in the field of technology management necessary to ensure that the project was a success.  In fact, his colleagues were expecting him to head the TMC Project and did not oppose his appointment.

As to the charge of unauthorized outside employment, petitioners point out that the University rules do not require clearance from the UP President to engage in consultancy work and the same rules do not prohibit him from performing consultancy work for a project such as TMC.  Therefore, Dr. Posadas’ appointment as TMC Project Director and Consultant were not prohibited outside employment.

Petitioners reiterate their“university politics” defense, claiming that President Javier at the time chose to champion Del Mundo’s complaint motivated by vengeance and spite against two of his staunch critics.  Thus, despite knowledge of the opinion of the UP Chief Legal Officer clearing petitioners of any wrongdoing, President Javier underhandedly caused the filing of administrative charges in the ADT.

Petitioners further submit that the complainant before the Ombudsman, Atty. Carmelita Yadao, was incompetent as she had no personal knowledge of the contents thereof, which were merely narrated or reported to her in her capacity as General Counsel of UP at that time.  The letter-complaint should not have been given due course as it was based on pure hearsay and its main proponent suffered from conflicting interests because she had earlier endorsed the MOA which included the compensation package for TMC Project Director and Consultant.

Finally, petitioners deny having acted in conspiracy as there was no evidence to prove it. The only assumed fact considered by the Sandiganbayan is based on its erroneous hypothesis – the alleged act of “extending” the period of OIC Chancellor for one day to accommodate Dr. Posadas. Dr. Dayco did not even gain anything from his designation of Dr. Posadas.  Thus, in the absence of clear and convincing proof, petitioners cannot be held liable as conspirators.

Our Ruling


The petition has no merit.

Notice of Hearingin Motions for
Reconsideration Is Mandatory


Contrary to petitioners’ stance, the 2002 Revised Internal Rules of the Sandiganbayan requires a motion for reconsideration to be set for hearing, as it provides under Rule VII:cralavvonlinelawlibrary

SECTION 1. Motion Day. -  Except for motions which may be acted upon ex parte, all motions shall be scheduled for hearings on a Friday, or if that day is a non-working holiday, on the next working day.

Motions requiring immediate action may be acted upon on shorter notice.

In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997 Rules of Civil Procedure, as amended, on Motions shall apply.  (Emphasis supplied.)

Under the Rules of Sandiganbayan, effective January 10, 1979, a petition for reconsideration of a judgment or final order may be filed upon the grounds, in the form and subject to the requirements, for motions for new trial in criminal cases under Rule 121 of the Rules of Court.24  In the case of Alvarezv. Sandiganbayan25 decided in 1991, the Court upheld the Sandiganbayan in not considering “the failure of the movant to fix the place, date and time of the hearing of his motion a substantial defect, for instead of giving the motion a short shrift, it set the incident for hearing, and even granted the prosecution ten days from [notice] within which to oppose/comment.” The Court noted what was then the practice of the Sandigabayan itself, rather than the movant, to determine the date and time of hearings of motions.  The peculiar circumstances of said case heavilyweighed in favor of relaxation of the rules, with the Court’s finding that the evidence presented against the petitioner does not fulfill the test of moral certainty and may not be deemed sufficient to support a conviction.  Hence, the Court was not prepared “to declare that [petitioner’s] omission to set his motion for hearing is so grievous an error as to foreclose the award to him of the relief to which he is otherwise entitled.”

In any event, the mandatory setting for hearing a motion for reconsideration to reverse or modify a judgment or final order of the Sandiganbayan is already settled.  This Court categorically ruled in the recent case of Flores v. People26

Flores filed a motion for the reconsideration. As the motion did not contain any notice of hearing, the Prosecution filed its Motion to Expunge from the Records Accused’s Motion for Reconsideration.”

In its Resolution, dated November 29, 2007, the Sandiganbayan denied the motion for being a mere scrap of paper as it did not contain a notice of hearing and disposed as follows:cralavvonlinelawlibrary
WHEREFORE, in view of the foregoing, the Motion for Reconsideration of accused Flores is considered pro forma which did not toll the running of the period to appeal, and thus, the assailed judgment of this Court has become FINAL and EXECUTORY.

SO ORDERED.

x x x x
Flores claims that the outright denial of his motion for reconsideration by the Sandiganbayan on a mere technicality amounts to a violation of his right to due process. The dismissal rendered final and executory the assailed decision which was replete with baseless conjectures and conclusions that were contrary to the evidence on record. He points out that a relaxation of procedural rules is justified by the merits of this case as the facts, viewed from the proper and objective perspective, indubitably demonstrate self-defense on his part.

Flores argues that he fully complied with the requirements of Section2 of Rule 37 and Section 4 of Rule 121 of the Rules of Court when the motion itself was served upon the prosecution and the latter, in fact,admitted receiving a copy. For Flores, such judicial admission amounts to giving due notice of the motion which is the intent behind the said rules. He further argues that a hearing on a motion for reconsideration is not necessary as no further proceeding, such as a hearing, is required under Section 3 of Rule 121.

Flores’ argument fails to persuade this Court.

Section 5, Rule 15 of the Rules of Court reads:cralavvonlinelawlibrary
SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion.
Section 2, Rule 37 provides:cralavvonlinelawlibrary
SEC. 2. Contents of motion for new trial or reconsideration and notice thereof. – The motion shall be made in writing stating the ground or grounds therefore, a written notice of which shall be served by the movant on the adverse party.

x x x x
A pro forma motion for new trial or reconsideration shall not toll the reglementary period of appeal.

Section 4, Rule 121 states:cralavvonlinelawlibrary
SEC. 4. Form of motion and notice to the prosecutor. – The motion for a new trial or reconsideration shall be in writing and shall state the grounds on which it is based. x x x. Notice of the motion for new trial or reconsideration shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec.2 of Rule 37 and Sec. 4 of Rule 121 should be read in conjunction with Sec.5 of Rule 15 of the Rules of Court. Basic is the rule that every motion must be set for hearing by the movant except for those motions which the court may act upon without prejudice to the rights of the adverse party. The notice of hearing must be addressed to all parties and must specify the time and date of the hearing, with proof of service.

This Court has indeed held, time and again, that under Sections 4 and5 of Rule 15 of the Rules of Court, the requirement is mandatory. Failure to comply with the requirement renders the motion defective. “As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading.”

In this case, as Flores committed a procedural lapse in failing to include a notice of hearing, his motion was a worthless piece of paper with no legal effect whatsoever. Thus, his motion was properly dismissed by the Sandiganbayan.27 (Emphasis supplied.)

We thus find no grave abuse of discretion committed by the Sandiganbayan when it denied due course to petitioners’ motion for reconsideration on the ground that it “has not been set for hearing as required by the rules” and the same is “deemed pro forma.”

Violation of Section 3(e)of R.A. No. 3019

The essential elements of the crime defined in Section 3(e) of R.A. No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act, are:cralavvonlinelawlibrary

  1. The accused must be a public officer discharging administrative, judicial or official functions;chanroblesvirtualawlibrary

  2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and

  3. That his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of his functions.28

There is no question regarding the presence of the first requisite considering that at the time the subject appointments were made, both petitioners were faculty members and holding administrative positions in UP Diliman.  What petitioners dispute is the existence of the second and third requisites.

In Criminal Case No. 25465, the information charged that petitioners willfully, unlawfully and criminally gave unwarranted benefits to Dr. Posadas in appointing him as TMC Project Director, in violation of the prohibition against multiple positions and the rule on non-retroactivity of appointments, thereby causing undue injury to the Government.

In Cabrera v. Sandiganbayan,29 this Court explained that there are two (2) ways by which a public official violates Section 3(e) of R.A. No. 3019 in the performance of his functions, namely: (a) by causing undue injury to any party, including the Government; or (b) by giving any private party any unwarranted benefits, advantage or preference.  The accused may be charged under either mode or under both.  Moreover, in Quibal v. Sandiganbayan,30 the Court held that the use of the disjunctive term“or” connotes that either act qualifies as a violation of Section 3(e) of R.A. No. 3019.31  Here, petitioners were charged with committing the offense under both modes.

Upon the entire evidence on record, the Sandiganbayan was convinced that petitioners were guilty of causing undue injury to the Government.  In Llorente, Jr. v. Sandiganbayan,32 this Court said that to hold a person liable for causing undue injury under Section 3(e), the concurrence of the following elements must be established beyond reasonable doubt by the prosecution:cralavvonlinelawlibrary

(1) that the accused is a public officer or a private person charged in conspiracy with the former;chanroblesvirtualawlibrary

(2) that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions;chanroblesvirtualawlibrary

(3) that he or she causes undue injury to any party, whether the government or a private party; and

(4)  that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

We sustain the decision of the Sandiganbayan holding petitioners liable for causing undue injury to the Government in appointing Dr. Posadas as TMC Project Director with evident bad faith.

Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud.33It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes.34  Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.35

In Pecho v. Sandiganbayan,36 the Court en banc defined injury as “any wrong or damage done to another, either in his person, or in his rights, reputation or property; the invasion of any legally protected interests of another.” It must be more than necessary or are excessive, improper or illegal. It is required that the undue injury caused by the positive or passive acts of the accused be quantifiable and demonstrable and proven to the point of moral certainty.37  “Undue” means illegal, immoral, unlawful, void of equity and moderations.38

In this case, that petitioners acted in evident bad faith was duly established by the evidence.  We recall that the MOA was executed on September 18, 1995 and became effective upon the signature of the parties.39  Between that date and the China trip scheduled in the first week of November (the invitation was dated July 30, 1995), Dr. Posadas could have already appointed the Project Director and Consultant as indeed the retroactive appointment was even justified by them because supposedly  “project activities” have already started by September 18, 1995.   And yet, he waited until the China trip so that in his absence the designated OIC Chancellor, Dr. Dayco, would be the one to issue the appointment. Apparently, Dr. Posadas’ appointment by Dr. Dayco in an OIC capacity was pre-conceived. Prof. Jose Tabbada testified that when he was summoned by Dr. Posadas to his office, the latter asked him how he (Posadas) could be appointed TMC Project Director.  He then suggested that Dr. Dayco as OIC Chancellor can appoint him to the position and even drafted the memo for this purpose.  He admitted that he gave such advice with some reservations but it turned out to have been pursued by petitioners.40

However, the Sandiganbayan ruled that the delegated authority of the OIC Chancellor has limitations and did not include the power to appoint.

Section 204 of the Government Accounting and Auditing Manual (Volume I on Government Auditing Rules and Regulations) provides:cralavvonlinelawlibrary

Sec. 204. Appointment issued by an officer-in-charge. --  A person designated in an acting capacity  may be differentiated from one who is designated merely as an Officer-in-Charge (OIC).  In the latter case, the OIC enjoys limited powers which, are confined to functions of administration and ensuring that the office continues its usual activities.  The OIC may not be deemed to possess the power to appoint employees as the same involves the exercise of discretion which is beyond the power of an OIC (CSC Res. 1692, Oct. 20, 1978).

To prove the alleged practice in the University of an OIC appointing a Chancellor to a certain position, petitioners presented copies of temporary appointment papers issued by OIC Chancellor Paz G. Ramos to former Chancellor Ernesto G. Tabujara who was appointed Consultant-In-Charge of the Campus Planning, Development and Maintenance Office, UP Diliman with P2,000.00 monthly honorarium effective January 1, 1986 to December 31, 1986.   It must be noted, however, that the said appointment was made by the OIC “by authority of the Board of Regents” and these were actually approved and signed by then Secretary of the University, Prof. Martin V. Gregorio, while the renewal appointment was approved by Secretary of the University Prof. Emerlinda R. Roman. Both Gregorio and Roman signed the Notification of Approval of Temporary Appointment.41

Petitioners nonetheless argue that the appointments made by Dr. Dayco were valid on the basis of Section 9(a) of the Resolution of the BOR reorganizing UP into the UP System adopted at its 828th meeting on December 21, 1972, as amended at its 863rd meeting on July 31, 1975.  Under said resolution, the BOR authorized the Chancellor of an autonomous university of the UP System to delegate his functions and responsibilities which have been assigned or delegated to him by the BOR, unless instructed otherwise by the BOR.  It also enumerated those functions that may not be delegated, among which is:cralavvonlinelawlibrary

B. Functions That May Not Be Delegated

x x x x

f.    Authority to approve the following appointments –

(1) those covered in II, C, 1, and e of the President’s Memorandum Circular No. 30 dated August 28, 1975; and

(2) those covered in II, C, 4, a through c of the aforecited memorandum circular of the President;chanroblesvirtualawlibrary

x x x x42
MC No. 30 dated August 28, 1975 issued by former UP President Onofre D. Corpuz provided for “Operating Guidelines on Appointments and Related Personnel Transactions in the University System,” which specifically delineated the authority to appoint of university officials.

The pertinent provisions of said MC No. 30 read:cralavvonlinelawlibrary

C. Delegated Authority of the Chancellor to Appoint

1.   The Chancellor of an autonomous University approves appointments to the following positions:cralavvonlinelawlibrary
  1. directors or heads and assistant directors or assistant heads of units supervised by or attached to principal units, except those whose starting salaries are equal to or higher than that of associate professor;chanroblesvirtualawlibrary

  2. program or project directors;chanroblesvirtualawlibrary

    x x x x
5.   The Chancellor approves the appointment of personnel, regardless of rank or salary range, incidental to employment in research projects, study and training programs and other programs or projects undertaken in collaboration with, or with the support of, public or private institutions or persons.
TYPES OF APPOINTMENT/PERSONNEL ACTION   COVERED:cralavvonlinelawlibrary

Appointment as used in II, C, 5 above includes all types of appointment and personnel action pertaining to appointment, except transfer to permanency of faculty members. (Emphasis supplied.)

According to petitioners, since appointments falling under II, C, 5 was not specifically mentioned in the enumeration of those functions of the Chancellor that may not be delegated, it follows that such appointments may be validly delegated, as in this case, the appointments issued by OIC Chancellor Dayco to Dr. Posadas as TMC Project Director and Consultant.  Moreover, it is argued that in the BOR Resolution itself, the designated OIC Chancellor was granted full powers:cralavvonlinelawlibrary

E.  Extent of Authority of One Appointed in an Acting/Officer-in-Charge Capacity

One appointed/designated, in an acting or officer-in-charge capacity, to the office of chancellor shall discharge all the functions of the position unless instructed otherwise by the regular incumbent, and in any case, subject to the latter’s instructions, to the policies of the Board of Regents and to the provisions of D hereinabove and of F herein below; provided, that “all the functions of the position” as used in and for purposes of this resolution shall be construed as inclusive of all the functions assigned to the position by competent University authority and all such functions as usually pertain, or are “inherent,” to the position although not expressly assigned thereto by competent University authority.

Petitioners’ argument fails to persuade.

It must be emphasized that the subject appointments involve not an ordinary personnel or faculty member but the Chancellor himself who was also vested with administrative supervision over the institution implementing the TMC Project, TMC.  Note that while II, C, 5 in MC No. 30 speaks of “personnel, regardless of rank or salary range, incidental to employment,” the same could not possibly refer to the Chancellor himself.  This is evident from the exception provided in II, B, 1where it is the President himself who approves the appointment, viz:cralavvonlinelawlibrary

B.   Delegated Authority of the President to Appoint

1.   The President approves the appointment of officers and employees (including faculty members if there are any) who are not included in or covered by the enumerations in II, A above and of those who are covered in II, C, 5 below who are:

a.   in or directly under the Office of the President; or
b.   in University-wide units; or
c.   in other offices or units, academic or non-academic, that are not part of any autonomous University;chanroblesvirtualawlibrary

to the same extent and under the same conditions stipulated in II, C below for the delegated authority of the Chancellor of an autonomous University to appoint.

TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:cralavvonlinelawlibrary

Appointment as used in II, B, 1 above includes all types of appointment and personnel action pertaining to appointment, except transfer to permanency of faculty members.  (Emphasis supplied.)

Considering that it is the Chancellor himself who is being appointed to a project covered in II, C, 5, the BOR resolution on the authority of the Chancellor to delegate his functions may not be invoked because the situation is covered by II, B, 1, the Chancellor being directly under the administrative supervision of the UP President as the Chief Executive Officer of the University. The Chancellor, on the other hand, is the executive officer and the head of the faculty of the Constituent University, who likewise performs other functions that the BOR or the President may delegate to her/him.  This is clearly indicated in the organizational structure of the UP Diliman, sourced from the Faculty Manual of the University of the Philippines Diliman43:cralavvonlinelawlibrary

* (see flowchart Decision G.R. Nos. 168951& 169000 page 18.)

Thus, even granting that the subject appointments in UP Diliman, an autonomous educational institution, are not covered by Section 204 of the Government Accounting and Auditing Manual, they are still invalid and illegal, because the delegated authority to appoint in this case, involving as it does the Chancellor himself, pertains to the President of the University. Indeed, the Chancellor cannot exercise the delegated authority to appoint in the situations covered by II, C, 5 when he himself is the appointee.  The designated OIC likewise had no authority to make the appointment.

As to the prohibition on government officials and employees, whether elected or appointed, from holding any other office or position in the government, this is contained in Section 7, Article IX-B of the 1987 Constitution, which provides:cralavvonlinelawlibrary

x x x x

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.  (Emphasis supplied.)

The prohibition on dual employment and double compensation in the government service is further specified under Sections 1 and 2, Rule XVIII of the Omnibus Rules Implementing Book V of E.O. No. 292,44 as follows:cralavvonlinelawlibrary

Sec. 1. No appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations with original charters or their subsidiaries, unless otherwise allowed by law or by the primary functions of his position.

Sec. 2.  No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, xxx.

Under Section 2(d), Rule III of the Revised Omnibus Rules on Appointments and Other Personnel Actions,45 appointments of personnel under Foreign-assisted projects shall be issued and approved as coterminous with the project. The MOA itself provides that the “services of the contractual personnel of the University for the Project shall be discontinued upon its completion or termination.”  The appointment of Dr. Posadas as TMC Project Director falls within the prohibition against holding of multiple positions since there is no distinction in Section 7, Article IX-B as to the employment status, i.e., whether permanent, temporary or coterminous.  Petitioners failed to cite any law to justify Dr. Posadas’ holding of concurrent positions as Chancellor and TMC Project Director.

Another legal infirmity in the appointment of Dr. Posadas as TMC Project Director is the fact that it was made retroactive, in violation of CSC MC No. 38, Series of 1993, the Omnibus Guidelines on Appointments and Other Personnel Actions.  Section II, 5 B (7) thereof reads:cralavvonlinelawlibrary

7.   Effectivity of Appointment

a.   The effectivity of an appointment shall be the date of actual assumption by the appointee but not earlier than the date of issuance of the appointment, which is the date of signing by the appointing authority.

b.   No appointment shall be made effective earlier than the date of issuance, except in the case of change of status in view of qualifying in written examination, the effectivity of which is the date of release of the result of the examination. However, the issuance of such appointments shall be within the period of the temporary appointment or provided the temporary appointment has not yet expired.

x x x x

Petitioners assert that appointment as TMC Project Director is not covered by the above rule because it is in the nature of consultancy which is no longer required to be submitted to the CSC.

A perusal of the duties and responsibilities of the TMC Project Director reveals that the latter is tasked to perform the following:cralavvonlinelawlibrary

  • Provide overall direction to the Project;
  • Exercise supervision over Project personnel, including the visiting experts;
  • Approve the recruitment of personnel, disbursement of Project funds, and changes in the Project activities and schedule;
  • Coordinate with other persons, agencies and institutions involved in technology management;
  • Perform such other functions as may be necessary to ensure the efficient, orderly and effective management and timely completion of the Project.46

The foregoing duties and responsibilities are not susceptible of partial performance or division into parts as would justify its classification into lump sum work.  Neither are these advisory in nature as would make it fall under the scope of a consultancy service.47 The status of Dr. Posadas’ employment as TMC Project Director is a coterminous one.  Under civil service rules, appointments of personnel under foreign-assisted projects shall be issued and approved as coterminous with the project,48 that is, they are considered employees for the duration of the project, in which case, the name of the project and its completion date shall be indicated in the appointment.49  This status of employment is to be distinguished from contract of services which covers lump sum work or services such as janitorial, security or consultancy services, whose appointments need not be submitted to the CSC for approval.

We also find no merit in petitioners’ argument that the element of injury caused to the Government is lacking since the budget for TMC Project came from a foreign source and hence no public funds are involved.  Under the MOA, UP shall be “principally accountable for the project funds” which shall be released to and properly managed by it to ensure the attainment of the Project’s objectives.  Clearly, these funds are in the nature of “trust fund” which is defined by Presidential Decree No. 1445 as “fund that officially comes in the possession of an agency of the government or of a public officer as trustee, agent or administrator, or that is received for the fulfillment of some obligation.50   A trust fund may be utilized only for the “specific purpose for which the trust was created or the funds received.”51  The Sandiganbayan  thus correctly held that the funds received for the TMC Project were impressed with public attributes or character from the time it came into UP’s possession.

The disbursement and payment of the P30,000.00 monthly salary as TMC Project Director to Dr. Posadas was improper, in view of his invalid appointment.  Said amount represents the actual injury to the Government.The third requisite of Section 3(e) of R.A. No. 3019, therefore, was sufficiently established by the prosecution.

Violation of Section 7(b),R.A. No. 6713

In Criminal Case No. 25466, the charge involves the private practice of profession prohibited under Section 7(b) of R.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, by appointing Dr. Posadas as Consultant of the TMC Project.  Said provision reads:cralavvonlinelawlibrary

SEC. 7. Prohibited Acts and Transactions.  – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:cralavvonlinelawlibrary

x x x x

(b)  Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:cralavvonlinelawlibrary

x x x x

(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions; or

x x x x

Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a contract for consultancy services is not covered by Civil Service Law, rules and regulations because the said position is not found in the index of position titles approved by DBM.  Accordingly, it does not need the approval of the CSC.52CSC MC No. 38, series of 1993 expressly provides that consultancy services are not considered government service for retirement purposes.  A “consultant” is defined as one who provides professional advice on matters within the field of his special knowledge or training.  There is no employer-employee relationship in the engagement of a consultant but that of client-professional relationship.53

Consultancy is deemed private practice of profession.  Under CSC Resolution 02126454 dated September 27, 2002, accepting a consultancy job under a part-time status is subject to the following conditions:cralavvonlinelawlibrary

  1. It must not violate the rule against holding multiple positions;
  2. The employee/officer must obtain permission or authority from his/her head of agency as the same constitutes private practice of profession;
  3. The consultancy job must not conflict or tend to conflict with his/her official functions; and
  4. It must not affect the effective performance of his/her duty.

In convicting petitioners, the Sandiganbayan cited Article 250 of the University Code, which provides:cralavvonlinelawlibrary

Art. 250. No member of the academic staff, officer or employee of the University shall, without permission from the President or the Chancellor, as the case may be, practice any profession or manage personally any private enterprise which in any way may be affected by the functions of his office, nor shall he be directly financially interested in any contract with the University unless permitted by the Board.  Violation of this provision shall be punishable by reprimand, suspension, or dismissal from the service. (Emphasis supplied.)

Since Dr. Posadas and Dr. Dayco entered into the contract for consultancy services for the TMC Project without prior permission from the University President, the Sandiganbayan ruled that they violated Section 7(b) of R.A. No. 6713.

Petitioners contend that the section of the University Code cited by the Sandiganbayan had already been superseded by the guidelines on outside activities promulgated by the BOR at its 1031st Meeting on June 28, 1990.  Thus, in the Faculty Manual of the University of the Philippines Diliman while the consultancy at TMC Project falls under the coverage of “outside activities,” prior authorization by the University President is no longer required.  The pertinent provisions of the manual read:cralavvonlinelawlibrary

10.3 Guidelines on Outside Activities [1031st BOR meeting, June 28, 1990]

10.3.1  Coverage

Outside activities of University personnel shall include: limited practice of profession, management of private enterprises, outside consultancy, secondment, teaching in other educational or training institutions with which the University has a Memorandum of Agreement, as well as research and other activities or projects under the auspices of outside agencies which are not considered integral functions of the University.  Such activities shall not be considered part of the regular workload of the personnel concerned.

10.3.2  Prior Authorization

No member of the University personnel shall engage in outside activities without prior authorization from the Chancellor, upon endorsement by the Dean, Director, or head of office concerned, subject to the exigencies of the service.

x x x x

10.3.5   Penalties

Violation of any of the rules on outside activities shall be ground for disciplinary action.  The immediate superior of the faculty/staff member shall immediately submit a report on any violation of the rules to the Office of the Chancellor, through channels.

Disciplinary action on any faculty/staff member may be imposed, but only in accordance with the law, and after due process.

10.3.6 Types

x x x x

c.  Limited/private practice of profession

Permission to engage in private practice of the profession of faculty members may be granted only if such private practice may enhance their usefulness to the University or improve their efficiency. [Art. 252]

The privilege of private practice, when granted, shall be for a definite period of one (1) year, renewable at the discretion of the Chancellor for one-year periods, and under such conditions as may be prescribed by him/her regarding the nature of the work, the time of performance, and other circumstances.  [Art. 253; amended at BOR meetings: 839th, Nov. 29, 1973; 1031st, June 28, 1990]

The limited practice of one’s profession shall be governed by the following guidelines:cralavvonlinelawlibrary

1)   No member of the academic staff, officer or employee of the University shall, without prior permission from the Chancellor, practice any profession or manage personally any private enterprise which in any way may be affected by the functions of her/his office; nor shall s/he be directly financially interested in any contract with the University unless permitted by the Board.  Violation of this provision shall be punishable by reprimand, suspension, or dismissal from the service.  [Art. 250; amended at 1031st BOR meeting, June 28, 1990]

2)   Permission to engage in private practice of profession may granted provided that such practice:cralavvonlinelawlibrary
  • is NOT ADVERSE to the interests of the University;
  • shall NOT be conducted on official time;
  • will improve the person’s efficiency and usefulness to the University; and
  • shall be subject to such other requirements as may be imposed by law or University rules and regulations.  (Emphasis supplied.)

Notwithstanding the supposed amendment of the rule on limited practice of profession as contained in Article 250 of the University Code, we sustain the Sandiganbayan in holding that petitioners should have obtained prior permission from the University President for the contract for consultancy services in the TMC Project.  As with our conclusion on the issue of authority to appoint the TMC Project Director, considering that it is the Chancellor himself who was engaged as TMC Project Consultant, the contract for consultancy services of Dr. Posadas should have been authorized by the University President as the chief executive officer of the UP System.  To hold otherwise is to leave the matter of determining the criteria or conditions for allowing the private practice of profession provided in the University rules entirely to Dr. Posadas himself as then UP Diliman Chancellor. Consistent with the Civil Service rules that prior authorization by the head of the agency or institution must be sought by the government officer or employee who desires to accept a consultancy job, it is no less than the University President who should have given permission to Dr. Posadas, the latter being directly under his administrative supervision.

Upon the established facts and applicable law and jurisprudence, we hold that no grave abuse of discretion was committed by the Sandiganbayan in convicting petitioners for violation of Section 7(b) of R.A. No. 6713.

Conspiracy

A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it.55For the accused to be held as conspirators, it is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out.” Therefore, if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, then a conspiracy may be inferred though no actual meeting among them to concert means is proved.56

The Sandiganbayan’s finding of conspiracy rests on firm factual support.  Although Dr. Dayco tried to downplay his participation, stating that he did not benefit from the subject appointments and that there were many other appointment papers he had signed in the absence of Dr. Posadas, it is clear as daylight that he had a principal and indispensable role in effecting the said appointments. To stress the point, the Sandiganbayan quoted the relevant portions of the Report submitted by the ADT, as follows:cralavvonlinelawlibrary

It would be the height of naiveté to assume that before making the two (2) appointments of respondent Posadas as Director of the TMC Project and as Consultant to the TMC, respondent Dayco did not, in any manner, confer with respondent Posadas about the matter.  To believe the claim of respondent Posadas that he just saw his appointment papers at his desk when he came back from his trip is to tax human credulity too much.

Under the said circumstances, the natural course of events necessarily points to connivance between respondent Posadas and respondent Dayco in the making of the questioned appointments.

Despite the claim of respondent Posadas that he just saw the appointment papers on his desk when he returned from his trip, the admitted fact is that respondent Dayco made those appointments for respondent Posadas and the latter acted upon the same favourably as he (respondent Posadas) collected the compensation therein (Exhibits :E” and “E-1”). In fact, as Chancellor, respondent Posadas approved his own Disbursement Voucher for payment from the coffers of the University, covering his honoraria and consultancy fees as Project Director for the TMC Project and as consultant to the TMC, respectively (Exhibit “E-2”).57

Penalty

Any person guilty of violating Section 3(e) of R.A. No. 3019 is punishable with imprisonment for not less than six (6) years and one (1) month nor more than fifteen (15) years and perpetual disqualification from public office.58  Thus, the penalty imposed by the Sandiganbayan which is an indeterminate penalty of nine (9) years and one day as minimum and twelve (12) years as maximum, with the accessory penalty of perpetual disqualification from public office, is in accord with law. Petitioners shall also indemnify the Government of the Republic of the Philippines the amount of THREE HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00) representing the compensation/salaries paid to Dr. Posadas as TMC Project Director.

As to the offense defined in Section 7(b) of R.A. No. 6713, Section 11 of said law provides that violations of Section 7 shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand  pesos (P5,000), or both, and, in the discretion of the court, disqualification to hold public office. The Sandiganbayan imposed the maximum penalty of five (5) years imprisonment and disqualification to hold public office.

The Court is aware of the sentiments of the succeeding BOR who agonized while deliberating whether to readmit petitioners into the faculty of UP Diliman, with majority of the Regents lamenting the loss of two of its distinguished intellectuals and scientists who had served the University for so long despite the meager compensation UP has to offer compared to private educational institutions.59  The BOR eventually allowed them to teach part-time in the TMC even waiving the conditions the previous BOR had imposed -- a move perceived to be a first step in the healing process for the academic community that was “torn into pieces” by the issue.

However, this Court’s mandate is to uphold the Constitution and the laws.Our Constitution stresses that a public office is a public trust and public officers must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.60 These constitutionally-enshrined principles, oft-repeated in our case law, are not mere rhetorical flourishes or idealistic sentiments. They should be taken as working standards by all in the public service.61

WHEREFORE, the petition is DISMISSED.  The Decision dated June 28, 2005 of the Sandiganbayan in Criminal Cases Nos. 25465-66 is hereby AFFIRMED and UPHELD.

With costs against the petitioners.

SO ORDERED.

Bersamin, (Acting Chairperson), Mendoza,** and Reyes, JJ., concur.
Abad,* J., see dissenting opinion.


Endnotes:


* Designated additional member per Raffle dated July 1, 2013.cralawlibrary

** Designated additional member per Raffle dated May 27, 2013.cralawlibrary

1Rollo, pp. 48-71. Penned by Associate Justice Jose R. Hernandez with Associate Justices Gregory S. Ong and Rodolfo A. Ponferrada concurring.cralawlibrary

2 Exhibits “2” – “2-a,” folder of exhibits (Defense).cralawlibrary

3 Exhibit “24,” id.cralawlibrary

4 Exhibit “5,” id.cralawlibrary

5 Exhibits “7” and “8,” id.cralawlibrary

6 Exhibits “C-4” and “C-5,” folder of exhibits (Prosecution).cralawlibrary

7 Joint Stipulation of Facts, records, Vol. I, p. 284; Exhibits “D-2,” “E-2” to “E-4,” folder of exhibits (Prosecution).cralawlibrary

8 Exhibit “12,” folder of exhibits (Defense).cralawlibrary

9 Exhibit “13,” id.cralawlibrary

10 Exhibit “50,” id.cralawlibrary

11 Exhibits “A-4” and “A-5,” folder of exhibits (Prosecution).cralawlibrary

12 Exhibit “A-2,” id.cralawlibrary

13 Exhibit “A-6,” id.cralawlibrary

14 Exhibit “A-3,” id.cralawlibrary

15 Exhibit “A,” id.cralawlibrary

16 Exhibit “G,” id.cralawlibrary

17 Exhibit “H,” id.cralawlibrary

18 Records, Vol. I, pp. 3-11.cralawlibrary

19 Records, Vol. III, pp. 1-4.cralawlibrary

20 Records, Vol. I, pp. 89 and 219.cralawlibrary

21Rollo, pp. 48-71.cralawlibrary

22 Id. at 70.cralawlibrary

23 278 Phil. 566, 577 (1991).cralawlibrary

24 Rule XII.cralawlibrary

25 Supra note 23, at 576-578.cralawlibrary

26 G.R. No. 181354, February 27, 2013.cralawlibrary

27 Id. at 6-8.cralawlibrary

28Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).cralawlibrary

29 484 Phil. 350, 360(2004).cralawlibrary

30 314 Phil. 66 (1995).cralawlibrary

31 Velasco v. Sandiganbayan, 492 Phil. 669, 677(2005).cralawlibrary

32 350 Phil. 820, 837 (1998).cralawlibrary

33 Llorente, Jr. v. Sandiganbayan, id. at 843, citing Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007.cralawlibrary

34 Id., citing Air France v. Carrascoso, No. L-21438, September 28, 1966, 18 SCRA 155, 166-167.cralawlibrary

35 Id., citing Marcelo v. Sandiganbayan, G.R. No. 69983, May 14, 1990, 185 SCRA 346.cralawlibrary

36 G.R. No. 111399, November 14, 1994, 238 SCRA 116, 133.cralawlibrary

37Cabrera v. Sandiganbayan, supra note 29, at 364-365, citing Jacinto v. Sandiganbayan, supra note 28, at 27 and Llorente v. Sandiganbayan, supra note 32, at 838.cralawlibrary

38 Id. at 364.cralawlibrary

39 MOA, Sec. 19, Exhibit “24,” folder of exhibits (Defense).cralawlibrary

40 TSN, January 7, 2002, pp. 14-16, 18-19.cralawlibrary

41 Exhibits “19,”“19-A,”“19-B,”“20,”“20-A,”“20-B,”“21” and “21-A,”folder of exhibits (Defense).cralawlibrary

42 Exhibit “25,” id.cralawlibrary

43 Published in 2003.cralawlibrary

44 See Re: Gross Violation of Civil Service Law on the Prohibition Against Dual Employment and Double Compensation in the Government Service Committed by Mr. Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, Office of Administrative Services, A.M. No. 2011-04-SC, July 5, 2011, 653 SCRA 141, 149-150.cralawlibrary

45 CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1998.cralawlibrary

46 Exhibit “55-A,”folder of exhibits (Defense).cralawlibrary

47 See CSC Resolution No. 030102 dated January 22, 2003 (Edmundo R. Calo).cralawlibrary

48 Chua v. Civil Service Commission, G.R. No. 88979, February 7, 1992, 206 SCRA 65, 74.cralawlibrary

49 Rule III, Sec. 2,d (e), CSC Memorandum Circular No. 40, Series of 1998.cralawlibrary

50 Sec. 3(4), P.D. No. 1445.cralawlibrary

51 Sec. 4(3), id.cralawlibrary

52 See COA Circular No. 95-001 dated January 20, 1995 citing Office Memorandum No. 55, series of 1993 of the CSC relative to the new policies on appointment.cralawlibrary

53 CSC Resolution No. 95-6939 (Pagaduan v. Malonzo) dated November 2, 1995, cited in Justice Arturo D. Brion’s Dissenting Opinion in A.M. No. 10-9-15-SC, Re: Request of (Ret.) Chief Justice Artemio V. Panganiban for Recomputation of His Creditable Service for the Purpose of Re-computing His Retirement Benefits, February 12, 2013.cralawlibrary

54 Query re: Consultancy, Mayumi Juris A. Luna.cralawlibrary

55Lazarte, Jr. v. Sandiganbayan (First Division), G.R. No. 180122, March 13, 2009, 581 SCRA 431, 450.cralawlibrary

56 Guy v. People, G.R. Nos. 166794-96, 166880-82 & 167088-90, March 20, 2009, 582 SCRA 107, 125,    citing People v. Quinao, et al., 336 Phil. 475, 488-489 (1997) and People v. Layno, 332 Phil. 612, 629 (1996).cralawlibrary

57 ADT Report in re: ADT Case No. 96-001, p. 15, Exhibit “A-6,” folder of exhibits (Prosecution).cralawlibrary

58 Sec. 9, R.A. No. 3019; Sison v. People, G.R. Nos. 170339, 170398-403, March 9, 2010, 614 SCRA 670, 682.cralawlibrary

59 Transcription on the case of Dr. Roger Posadas, 1150th BOR meeting, May 24, 2001, Exhibit “53,” folder of exhibits (Defense).cralawlibrary

60Duque III v. Veloso, G.R. No. 196201, June 19, 2012, 673 SCRA 676, 687, citing Japson v. Civil Service Commission, G.R. No. 189479, April 12, 2011, 648 SCRA 532, 545.cralawlibrary

61 Id.






DISSENTING OPINION


ABAD, J.:



I am compelled to dissent from the majority opinion that upheld the Sandiganbayan’s conviction of petitioners for violation of Section 3(e) of Republic Act (R.A.) 3019, the Anti-Graft and Corrupt Practices Act, and Section 7(b) of R.A. 6713, the Code of Conduct and Ethical Standards for Public Officials and Employees.

The Facts and the Case

The facts as gathered from the Sandiganbayan decision are as follows:cralavvonlinelawlibrary

Dr. Roger R. Posadas served as Chancellor of the University of the Philippines (UP) Diliman from November 1, 1993 to October 31, 1996.  This made him chief operating officer or overall administrator of UP Diliman.

On September 19, 1994 Dr. Posadas, as Chancellor, formed a Task Force on Science and Technology Assessment, Management and Policy (Task Force) “to prepare curricular proposals for the institution of masteral and doctoral programs in ‘technology management, innovation studies, science and technology and related areas.’”  On June 6, 1995 the university established, upon the Task Force’s recommendation, the UP Technology Management Center (UP TMC).  The Task Force members nominated Dr. Posadas for the position of Center Director but he declined it, resulting in the designation of Professor Jose B. Tabbada as Acting UP TMC Director.

Shortly after, Dr. Posadas asked the Philippine Institute of Development Studies/Policy, Training and Technical Assistance Facility (PIDS/PTTAF) to fund the UP TMC’s 10 new graduate courses.  This resulted in the execution on September 18, 1995 of a Memorandum of Agreement (MOA) between UP PIDS/PTTAF and the National Economic Development Authority.  The MOA established a project they named Institutionalization of Management and Technology in the University of the Philippines in Diliman (the TMC Project).  The Canadian International Development Agency agreed to fund the same.

Two weeks later or on October 5, 1995 Malacañang granted Chancellor Posadas and 15 other UP Diliman officials authority to travel to Fujian, China, from October 30 to November 6, 1995 to attend a state university’s foundation day.  Anticipating his departure, on October 27, 1995 Chancellor Posadas issued Administrative Order 95-170-A, designating petitioner Dr. Rolando P. Dayco, then UP Diliman Vice-Chancellor for Administration, as Officer-in-Charge (OIC) in Dr. Posadas’ absence.

On November 7, 1995, his last day as OIC Chancellor, Dr. Dayco designated Dr. Posadas as “Project Director of the PIDS/PTTAF-UP Diliman on the TMC Project effective September 18, 1995 until September 17, 1996.”  In an undated letter, Dr. Dayco also appointed Dr. Posadas Consultant to the TMC Project.  The designation and appointment were to retroact to September 18, 1995 when the project began.

On August 22, 1996 the Commission on Audit (COA) Resident Auditor issued a Notice of Suspension covering payments made to the personnel of UP TMC, including the second payment to Dr. Posadas of P36,000 for his services as TMC Project’s Local Consultant.  On August 23 the Resident Auditor issued another Notice of Suspension covering the payment to Dr. Posadas of a P30,000 honorarium per month as Project Director from September 18 to October 17, 1995.

On September 16, 1996 the UP Diliman Legal Office issued a Memorandum to the COA Resident Auditor, explaining to him that the amounts due to the personnel of the TMC Project “were legal, being in the nature of consultancy fees.”  The legal office also “confirmed the authority of Dr. Dayco, while he was OIC Chancellor, to appoint Dr. Posadas as Project Director and Consultant of the TMC Project.”  Finding this explanation “acceptable,” the COA Resident Auditor lifted his previous notices of suspension.

Notwithstanding the lifting of the suspension, UP President Emil Javier constituted an Administrative Disciplinary Tribunal (ADT) to hear and decide the administrative complaint that he himself filed against Dr. Posadas and Dr. Dayco for grave misconduct and abuse of authority.  On August 18, 1998, after hearing, the ADT recommended the dismissal of the two from the service.

On appeal to the UP Board of Regents, however, it modified the penalties against them to “forced resignation with the accessory penalties defined in the Omnibus Rules Implementing Book V of Executive Order 292 and other Pertinent Civil Service Laws x x x.”  Further, the Board of Regents stated in its decision that Dr. Posadas and Dr. Dayco may reapply after one year provided they render a public apology.  Relying on this decision, the UP General-Counsel filed on behalf of UP a complaint that led to the filing of the present cases against the respondents before the Sandiganbayan.

On June 28, 2005, after trial, the Sandiganbayan found petitioners Dr. Posadas and Dr. Dayco guilty of violation of Section 3(e) of R.A. 3019 and imposed on them an indeterminate penalty of imprisonment for 9 years and 1 day as minimum and 12 years as maximum, with the accessory penalty of perpetual disqualification from public office.  The court also found them guilty of violation of Section 7(b) of R.A. 6713 and imposed on them the penalty of imprisonment for 5 years and disqualification to hold public office. They were further ordered to indemnify the government in the sum of P336,000.1

The Issues Presented

The issues in this case are:cralavvonlinelawlibrary

1.  Whether or not, acting in conspiracy with one another, Dr. Dayco, then OIC Chancellor, caused undue injury to the government or gave unwarranted advantage to a private party through manifest partiality, evident bad faith, or gross inexcusable negligence when he appointed Dr. Posadas as Project Director of the TMC Project and further designated him as its consultant in violation of Section 3(e) of R.A. 3019; and

2. Whether or not the same acts of Dr. Dayco and Dr. Posadas constitute a violation of Section 7(b) of R.A. 6713.

The Dissenting View

Since the evidence and the rationalization for the two issues are the same, they shall be jointly discussed.

Clearly, the prosecution evidence failed to prove the guilt of petitioners beyond reasonable doubt and the Sandiganbayan committed grave abuse of discretion in ruling otherwise.

First. The prosecution did not prove that Dr. Dayco, then OIC Chancellor, was prompted by “manifest partiality or evident bad faith” in appointing Dr. Posadas as Project Director and designating him as Project Consultant of the TMC Project.

No evidence was presented to show that there were others more qualified than Dr. Posadas to serve as its Project Director and Consultant.  The idea for the project was essentially his.  And it came within his area of expertise—technical management.  Further, it was he, applying that expertise, who worked to convince the PIDS/PTTAF to arrange funding for the project. In the world of the academe, that project was the equivalent of his thesis.  The choice of Dr. Posadas to head the project was not a case of “manifest partiality” but of simple “manifest fairness.”

The only weakness in petitioners’ case is that, apparently, they took advantage of Dr. Posadas’ official travel to China and his designation of Dr. Dayco as OIC Chancellor, so the latter could use his authority as such OIC to designate Dr. Posadas as Project Director and Consultant of the TMC Project. That looks bad from the point of view of the justices of the Sandiganbayan who just assumed that all public officials know that an OIC does not have such power.

The bottom issue, truly, is whether or not Dr. Dayco and Dr. Posadas acted in bad faith knowing fully well that an OIC Chancellor cannot make the questioned appointment and designation.  True, it appears that the two officials expressly or impliedly agreed that Dr. Dayco could officially take those actions, relying on his OIC powers.  They probably thought that by doing this, they could get around the fact that Dr. Posadas, as Chancellor of UP Diliman, could not designate himself to head the project even if he was really entitled to it.  Still, Dr. Dayco’s subsequent action and Dr. Posadas’ concurrence to it cannot amount to bad faith.

Actually, the test of bad faith in this case is whether or not Dr. Dayco and Dr. Posadas were in fact aware that the law did not empower Dr. Dayco as OIC Chancellor to make the questioned designation and appointment.  If they thought that it could be legally done, Dr. Posadas’ travel grant to China presented an opportunity for Dr. Dayco to make the designations in question.  After all, to his mind, there is no question that Dr. Posadas was highly qualified for the job.  No evidence has been adduced to show that UP academic officials were prohibited from receiving compensation for work they render outside the scope of their normal duties as administrators or faculty professors.

The prosecution, which carried the burden of proof, did not present evidence that Dr. Dayco or Dr. Posadas knew beforehand that the designations were void for lack of authority of Dr. Dayco to make such designations.  The Sandiganbayan merely assumed that they were familiar with the rules and regulations of the Civil Service Commission regarding the matter.  But such assumption is unwarranted.  The two UP officials were scientists, not lawyers.  Familiarity with those rules and regulations does not exist in their world. Indeed, even the UP Diliman Legal Office was unfamiliar with the limitation to the OIC’s power.  It rendered a legal opinion that “confirmed the authority of Dr. Dayco, while he was OIC Chancellor, to appoint Dr. Posadas as Project Director and Consultant of the TMC Project.”

Besides, the COA Resident Auditor, who at first thought that the payments were invalid, expressed satisfaction at the explanation that the head of the UP Diliman Legal Office gave.  In fact, the Resident Auditor officially withdrew the Notices of Suspension of payment that he issued.  Since the Office of the Ombudsman did not implicate these two officials in the charge of conspiracy that it filed against Dr. Dayco and Dr. Posadas, it may be assumed that the head of that legal office and the COA Resident Auditor acted in good faith in affirming Dr. Dayco’s authority.

Parenthetically, had the UP Diliman Legal Office and the COA Resident Auditor rendered opinions or rulings against Dr. Dayco and Dr. Posadas, the next step would have been for the latter to reimburse what he received as payments for his services in the project in view of the disallowance order or appeal such order.  But they did not give him that chance.

In other government offices, the case against Dr. Dayco and Dr. Posadas would have been treated as purely partaking of an administrative character. COA’s orders of suspension or disallowance are abundant and commonplace and are hardly regarded as cause for filing criminal charges of corruption.  But, undoubtedly, other considerations entered the picture.

Dr. Posadas had earlier created a Fact-Finding Committee at UP Diliman that investigated UP Library Administrative Officer Ofelia del Mundo, resulting in her being charged with grave abuse of authority, neglect of duty, and other wrongdoings.  This prompted Professor Tabbada, the Acting UP TMC Director, to resign from his post in protest to the recall of Ms. Del Mundo.  In turn, the latter instigated the UP President to go after Dr. Posadas and Dr. Dayco in this case.  Apparently, the Office of the Ombudsman and the Sandiganbayan played into these intense mutual hatred and rivalry that enlarged what was a simple administrative misstep.

As the Court said in Marcelo v. Sandiganbayan (Third Division),2 bad faith partakes of the nature of fraud.

“Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud.  (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007).  It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes.  (Air France v. Carrascoso, 18 SCRA 155, 166-167).  Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage.”

Dr. Dayco and Dr. Posadas did not willfully defraud the government. Dr. Posadas was qualified for the job of Project Director and Consultant of the TMC Project more than any other.  There is no evidence that he did not adequately discharge the extra responsibilities and labor that were given him.  In the future, disallowances of benefits paid to government officials and employees will provide ground for treating the disallowed payment as equivalent to giving “unwarranted advantage to a private party through manifest partiality, evident bad faith, or gross inexcusable negligence,” a mode of corruption.

Second.  The fault of these professors-scientists, who have spent the best parts of their lives in the service of UP, does not warrant their going to jail for 9 years, minimum, to 12 years, maximum, for what they did.  They did not act with manifest partiality or evident bad faith.  Indeed, the UP Board of Regents, the highest governing body of that institution and the most sensitive to any attack upon its revered portals, did not believe that Dr. Dayco and Dr. Posadas committed outright corruption.  Indeed, it did not dismiss them from the service; it merely ordered their forced resignation and the accessory penalties that went with it.

The Board did not also believe that the two deserved to be permanently expelled from UP.  It meted out to them what in effect amounted to mere suspension for one year since the Board practically invited them to come back and teach again after one year provided they render a public apology for their actions.  The Board of Regents did not regard their offense so morally detestable as to take away from them the privilege of again teaching the young.

ACCORDINGLY, I vote to grant the petition, reverse and set aside the judgment of conviction of the Sandiganbayan in Criminal Cases 25465-66 dated June 28, 2005, and acquit Dr. Roger R. Posadas and Dr. Rolando P. Dayco for failure of the State to prove their guilt of the two offenses beyond reasonable doubt.


Endnotes:


1  Rollo, pp. 48-70.cralawlibrary

2  263 Phil. 1060, 1065 (1990), cited in Sidro v. People, G.R. No. 149685, April 28, 2004, 428 SCRA 182, 194.
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