THIRD DIVISION

G.R. No. 172602 --Henry T. Go, Petitioner, versus The Fifth Division, Sandiganbayan, et al., Respondents.

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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: xxxx (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; and 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 xxxx 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 [5] transaction. (Underscoring supplied)

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 coprincipals. 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. Desierto[6] 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 governments 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 petitioners reliance on Marcos v. Sandiganbayan[7] 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)

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)

An accuseds 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 officers [8] 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 contract[9] 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 Associate Justice

[1] [2]

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