JAVIER v. SANDIGANBAYAN (2009) J. Del Castillo FACTS: RA 8047 (Book Publishing Industry De t. A!t" # to $ro%ote the !

ontinuing de elo$%ent o& the book $ublishing industry' through the a!ti e $arti!i$ation o& the $ri ate se!tor' to ensure an ade(uate su$$ly o& a&&ordable' (uality#$rodu!ed books &or the do%esti! and e)$ort %arket Petitioner *as a$$ointed as a $ri ate se!tor re$resentati e (Board +e%ber II *ith salary grade ,8" to the -ational Book De elo$%ent Board. Part o& her &un!tions is to attend book &airs to establish linkages *ith international book $ublishing bodies. .he *as gi en P/01'/11.00 &or tra eling e)$enses' so she !ould attend a book &air in +adrid. Des$ite the !an!ellation o& the tri$' she &ailed to li(uidate or return to the -BDB her !ash ad an!e' in a!!ordan!e *ith go ern%ent a!!ounting and auditing rules and regulations. .he *as !harged *ith Malversat !" !# $%&l ' F%"(s under Art. ,/7 o& the RPC' &or not li(uidating the !ash ad an!e granted to her in !onne!tion *ith her su$$osed tri$ to .$ain. During the !ondu!t o& the $reli%inary in estigation' $etitioner *as re(uired to sub%it her !ounter#a&&ida it but she &ailed to do so. 2he )*&%(s*a" &ound $robable !ause to indi!t $etitioner &or the !ri%e !harged and re!o%%ended the &iling o& the !orres$onding in&or%ation against her. 2hus' an In&or%ation dated 3ebruary ,1' ,000 *as &iled .andiganbayan. During her arraign%ent in Cri%inal Case -o. ,4857' $etitioner guilty. 2herea&ter' $etitioner deli ered to the 3irst Di ision sub6e!t o& the !ri%inal !ases' *hi!h a%ount *as de$osited trust a!!ount during the $enden!y o& the !ri%inal !ases. be&ore the $leaded not the %oney in a s$e!ial

$ri ate se!tor re$resentati e under R.A. -o. 8047' hen!e' she %ay not be !harged under R.A. -o. 00/1 be&ore the .andiganbayan or under any statute *hi!h !o ers $ubli! o&&i!ials. +oreo er' she !lai%ed that she does not $er&or% $ubli! &un!tions and is *ithout any ad%inistrati e or $oliti!al $o*er to s$eak o& = that she is ser ing the $ri ate book $ublishing industry by ad an!ing their interest as $arti!i$ant in the go ern%ent<s book de elo$%ent $oli!y. MT+ (e" e(. 2he &a!t that the a!!used does not re!ei e any !o%$ensation in ter%s o& salaries and allo*an!es' i& that indeed be the !ase' is not the sole (uali&i!ation &or being in the go ern%ent ser i!e or a $ubli! o&&i!ial. 2he -BDB is a statutory go ern%ent agen!y and the $ersons *ho $arti!i$ated therein e en i& they are &ro% the $ri ate se!tor' are $ubli! o&&i!ers to the e)tent that they are $er&or%ing their duty therein as su!h. >hile indeed under ordinary !ir!u%stan!es a %e%ber o& the board re%ains a $ri ate indi idual' still *hen that indi idual is $er&or%ing her &un!tions as a %e%ber o& the board or *hen that $erson re!ei es bene&its or *hen the $erson is su$$osed to tra el abroad and is gi en go ern%ent %oney to e&&e!t that tra el' to that e)tent the $ri ate se!tor re$resentati e is a $ubli! o&&i!ial $er&or%ing $ubli! &un!tions? i& only &or that reason' and not e en !onsidering situation o& her being in $ossession o& $ubli! &unds e en as a $ri ate indi idual &or *hi!h she *ould also !o ered by $ro isions o& the Re ised Penal Code' she is $ro$erly !harged be&ore this Court. 8n -o e%ber /4' ,000' the 3irst Di ision a!!e$ted the !onsolidation o& the !ri%inal !ases against $etitioner and s!heduled her arraign%ent on -o e%ber /7' ,000' &or Cri%inal Case -o. ,4818. 8n said date' $etitioner %ani&ested that she is not $re$ared to a!!e$t the $ro$riety o& the a!!usation sin!e it re&ers to the sa%e sub6e!t %atter as that !o ered in Cri%inal Case -o. ,4857 &or *hi!h the .andiganbayan ga e her ti%e to &ile a %otion to (uash. 8n -o e%ber ,,' ,000' $etitioner &iled a +otion to :uash the In&or%ation,5 in Cri%inal Case -o. ,4818' by in oking her right against double 6eo$ardy. Denied. .he &iled +R. denied. @ike*ise' the +otion to :uash the In&or%ation in Cri%inal Case -o. ,4818 on the ground o& litis $enden!ia is denied sin!e in this instan!e' these t*o In&or%ations s$eak o& o&&enses under di&&erent statutes' i.e.' R.A. -o. 00/1 and the Re ised Penal Code' neither o& *hi!h $re!ludes $rose!ution o& the other.

.he *as !onsidered a high ranking o&&i!er' being a %e%ber o& the 7o erning Board o& the -ational Book De elo$%ent Board e(uated to Board +e%ber II *ith a salary grade ,8 and as su!h' is a!!ountable &or the $ubli! &unds she re!ei ed in ad an!e' in !onne!tion *ith her tri$ to .$ain &ro% 8!tober 8#/,' /117 in the a%ount o& P/01'/11.00' *hi!h tri$ did not %ateriali9e. $et t !"er &iled a +2: In&or%ation' a erring that the .andiganbayan has no 6urisdi!tion to hear Cri%inal Case -o. ,4857 as the in&or%ation did not allege that she is a $ubli! o&&i!ial *ho is !lassi&ied as 7rade ;,7; or higher. -either did the in&or%ation !harge her as a !o#$rin!i$al' a!!o%$li!e or a!!essory to a $ubli! o&&i!er !o%%itting an o&&ense under the .andiganbayan<s 6urisdi!tion. .he also a erred that she is not a $ubli! o&&i!er or e%$loyee and that she belongs to the 7o erning Board only as a

$et t !"er ar,%es: .andiganbayan la!ks 6urisdi!tion # first' she is not a $ubli! o&&i!er' and second' she *as being !harged under t*o (," in&or%ations' *hi!h is in iolation o& her right against double 6eo$ardy.

Petitioner %aintained that she is not a $ubli! o&&i!er and only a $ri ate se!tor re$resentati e. Aer only &un!tion a%ong the ele en (//" basi! $ur$oses and ob6e!ti es $ro ided &or in .e!tion 4' R.A. -o. 8047' is to !&ta " -r !r t. stat%s #!r t/e &!!0 -%&l s/ ", "(%str. . At the ti%e o& her a$$oint%ent to the -DBD Board' she *as the President o& the B.AP' a book $ublishers asso!iation. As su!h' she !ould not be held liable &or the !ri%es i%$uted against her' and in turn' she is outside the 6urisdi!tion o& the .andiganbayan. ISS1ES23E4D: 5) 6)N -et t !"er s a -%&l ' !## 'er 7 YES -ot*ithstanding that $etitioner !a%e &ro% the $ri ate se!tor to sit as a %e%ber o& the -BDB' the la* in ested her *ith so%e $ortion o& the so ereign &un!tions o& the go ern%ent' so that the $ur$ose o& the go ern%ent is a!hie ed. In this !ase' the go ern%ent ai%ed to enhan!e the book $ublishing industry as it has a signi&i!ant role in the national de elo$%ent. Aen!e' the &a!t that she *as a$$ointed &ro% the $ubli! se!tor and not &ro% the other bran!hes or agen!ies o& the go ern%ent does not take her $osition outside the %eaning o& a $ubli! o&&i!e. .he *as a$$ointed to the 7o erning Board in order to see to it that the $ur$oses &or *hi!h the la* *as ena!ted are a!hie ed. 2he 7o erning Board a!ts !olle!ti ely and !arries out its %andate as one body. 2he $ur$ose o& the la* &or a$$ointing %e%bers &ro% the $ri ate se!tor is to ensure that they are also $ro$erly re$resented in the i%$le%entation o& go ern%ent ob6e!ti es to !ulti ate the book $ublishing industry. +oreo er' the Court is not un%ind&ul o& the de&inition o& a $ubli! o&&i!er $ursuant to the Anti#7ra&t @a*' *hi!h $ro ides that a $ubli! o&&i!er in!ludes ele't ve a"( a--! "t ve o&&i!ials and e%$loyees' $er%anent or te%$orary' *hether in the !lassi&ied or un!lassi&ied or e)e%$t ser i!e re!ei ing !o%$ensation' e en no%inal' &ro% the go ern%ent. 2hus' $ursuant to the A"t 7Gra#t 4a8' one is a $ubli! o&&i!er i& one has been ele!ted or a$$ointed to a $ubli! o&&i!e. Petitioner *as a$$ointed by the President to the 7o erning Board o& the -DBD. 2hough her ter* s !"l. #!r a .ear that does not %ake her $ri ate

$erson e)er!ising a $ubli! &un!tion. 2he &a!t that she is "!t re'e v ", a *!"t/l. salar. is also o& no %o%ent. .e!tion 7' R.A. -o. 8047 $ro ides that %e%bers o& the 7o erning Board shall re!ei e $er die% and su!h allo*an!es as %ay be authori9ed &or e ery %eeting a!tually attended and sub6e!t to $ertinent la*s' rules and regulations. Also' under the Anti#7ra&t @a*' the nature o& one<s a$$oint%ent' and *hether the !o%$ensation one re!ei es &ro% the go ern%ent is only no%inal' is i%%aterial be!ause the $erson so ele!ted or a$$ointed is still !onsidered a $ubli! o&&i!er. 8n the other hand' the Rev se( $e"al C!(e de&ines a $ubli! o&&i!er as any $erson *ho' by dire!t $ro ision o& the la*' $o$ular ele!tion' $o$ular ele!tion or a$$oint%ent by !o%$etent authority' shall take $art in the $er&or%an!e o& $ubli! &un!tions in the 7o ern%ent o& the Phili$$ine Islands' or shall $er&or% in said 7o ern%ent or in any o& its bran!hes $ubli! duties as an e%$loyee' agent' or subordinate o&&i!ial' o& any rank or !lasses' shall be dee%ed to be a $ubli! o&&i!er. >here' as in this !ase' $etitioner $er&or%s $ubli! &un!tions in $ursuan!e o& the ob6e!ti es o& R.A. -o. 8047' erily' she is a $ubli! o&&i!er *ho takes $art in the $er&or%an!e o& $ubli! &un!tions in the go ern%ent *hether as an e%$loyee' agent' subordinate o&&i!ial' o& any rank or !lasses. In &a!t' during her tenure' $etitioner took $art in the dra&ting and $ro%ulgation o& se eral rules and regulations i%$le%enting R.A. -o. 8047. .he *as su$$osed to re$resent the !ountry in the !an!eled book &air in .$ain. In &ine' 6e /!l( t/at -et t !"er s a -%&l ' !## 'er. 2) 6)N as a -%&l ' !## 'er9 s/e s 8 t/ " t/e :%r s( 't !" !# t/e Sa"( ,a"&a.a" 7 YES Based on the A%ended In&or%ation in Cri%inal Case -o. ,4818' $etitioner belongs to the e%$loyees !lassi&ied as .7#,8' in!luded in the $hrase ;all other national and lo!al o&&i!ials !lassi&ied as B7rade ,7< and higher under the Co%$ensation and Position Classi&i!ation A!t o& /181.;

Anent the issue o& double 6eo$ardy' >e !an not like*ise gi e in to the !ontentions ad an!ed by $etitioner. .he argued that her right against double 6eo$ardy *as iolated *hen the .andiganbayan denied her %otion to (uash the t*o in&or%ations &iled against her.1avvphi1 >e belie e other*ise. Re!ords sho* that the In&or%ations in

Cri%inal Case -os. ,4857 and ,4818 re&er to o&&enses $enali9ed by di&&erent statues' R.A. -o. 00/1 and RPC' res$e!ti ely. It is ele%entary that &or double 6eo$ardy to atta!h' the !ase against the a!!used %ust ha e been dis%issed or other*ise ter%inated *ithout his e)$ress !onsent by a !ourt o& !o%$etent 6urisdi!tion' u$on alid in&or%ation su&&i!ient in &or% and substan!e and the a!!used $leaded to the !harge. 07 In the instant !ase' $etitioner $leaded not guilty to the In&or%ation &or iolation o& the Anti#7ra&t @a*. .he *as not yet arraigned in the !ri%inal !ase &or %al ersation o& $ubli! &unds be!ause she had &iled a %otion to (uash the latter in&or%ation. Double 6eo$ardy !ould not' there&ore' atta!h !onsidering that the t*o !ases re%ain $ending be&ore the .andiganbayan and that herein $etitioner had $leaded to only one in the !ri%inal !ases against her. It is *ell settled that &or a !lai% o& double 6eo$ardy to $ros$er' the &ollo*ing re(uisites %ust !on!urC (/" there is a !o%$laint or in&or%ation or other &or%al !harge su&&i!ient in &or% and substan!e to sustain a !on i!tion? (," the sa%e is &iled be&ore a !ourt o& !o%$etent 6urisdi!tion? (0" there is a alid arraign%ent or $lea to the !harges? and (4" the a!!used is !on i!ted or a!(uitted or the !ase is other*ise dis%issed or ter%inated *ithout his e)$ress !onsent.08 2he third and &ourth re(uisites are not $resent in the !ase at bar. In ie* o& the &oregoing' >e hold that the $resent $etition does not &all under the e)!e$tions *herein the re%edy o& !ertiorari %ay be resorted to a&ter the denial o& one<s %otion to (uash the in&or%ation. And e en assu%ing that $etitioner %ay a ail o& su!h re%edy' >e still hold that the .andiganbayan did not !o%%it gra e abuse o& dis!retion a%ounting to la!k o& or in e)!ess o& 6urisdi!tion. >ADRD38RD' the Petition is DISMISSED. 2he (uestioned Resolutions and 8rder o& the .andiganbayan are AFFIRMED. Costs against $etitioner. .8 8RDDRDD.